Marriage (Same Sex Couples) Bill
Lord Deben Excerpts(11 years, 7 months ago)
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Baroness Berridge
If you attend a Catholic church, the authorised person is the registrar. No one comes from the local authority’s office. That person performs that public function and the registry office is not involved. It is the obligation of the priest to fill out the register and to return it quarterly to the local authority’s office. No local authority official is present at all. Interestingly, the Catholic Church expressed concern to the Joint Committee on Human Rights—I have heard this concern from other religious organisations—that unless we get clarity in the Bill religious organisations may consider not conducting these marriages at all because they believe the only way to protect themselves is to not be the registrar. That, of course, would have resource implications for the Government.
I am asking the Government to throw away the public function key—the key to actions under the Equality Act, the Human Rights Act and judicial review—and avoid this threat of litigation which would discriminate against some of the nation’s smallest charities. The Joint Committee on Human Rights has urged the Government to consider formulating a new clause to provide additional reassurance to any religious ministers or office holders who perform the dual function of officiating at a marriage in a spiritual capacity as well as performing the public function of the registrar under the Marriage Act 1949.
We have ended up in a situation, by responding quite rightly to the concerns of the established Church, whereby other Christian denominations and other faith groups believe that they do not now have the same level of protection as the Church of England and the Church of Wales. It is important that other religious organisations and individual ministers of other faith groups have the same level of protection as the Government have now afforded in this Bill to the Church of England and the Church of Wales.
Lord Deben
I want to try to bring two sides together on this issue. I hope people will recognise that I am entirely in favour of this legislation and I am a practising Catholic, so I understand exactly what has been said. I have great sympathy with what my noble friend Lord Lester has said about how this might be approached by the Government. Let me say two things to the Minister. First, there is a history here of promises made and broken, as my noble friend made clear. So even if this is absolutely okay, there is a feeling that it might not be okay and we have to recognise that fear.
Secondly, there is also a history of campaigning people who seek all the time to push their point further than is reasonable. For example, campaigners have recently argued that we should withdraw aid from youth clubs run by organisations that take a strong view about homosexual practice. That is a campaign that people have suggested—that if you take that view you should not get any help from the state for your youth club. I say to my noble friend that I understand the fears that people have on this issue.
The position of the Catholic Church is particularly difficult because we have a very odd and rather noble system in Britain that has come out of our history: to ensure that it was no longer true that only Anglicans could marry, we extended it to other people via the mechanism of enabling approved persons to act as registrars. There may be an issue here and it may be that the fears that people have are correct. However, I also recognise what my noble friend Lord Lester has said: sometimes, when we try to correct this, those of us who are not lawyers—and I am proud not to be a lawyer—add things that make it worse. That is the danger here. If we are not careful we will have a sort of argument of the deaf, with one side saying, “We want to do what you want, but if we do it that way we will actually make it more difficult for you”, and the other side saying, “You may say that but we’re still worried about it”.
I ask my noble friend to recognise that even those of us who are not just marginally but very much in favour of this legislation are concerned that we should be very careful about the nature of toleration. Unfortunately, “toleration” has become a very curious word. People talk about toleration as if it means tolerating views that you happen to agree with. One of the things that we have to do is produce legislation that enables a tolerant society to accept that some people have very different views. That is not helped, if I may say so, by some of the language used by people opposed to the Bill. Some disgraceful statements have been made by people who have really not come to terms with the fact that we live in a society that should be inclusive and accepting. The churches have sometimes spoken intolerably and intolerantly. However, the truth is that there is intolerableness and intolerance on the other side as well. I will give way to my noble friend .
Lord Cormack
I agree very much with my noble friend, whom I thank for giving way, but I hope that he was not suggesting that there has been intolerance in the debates in this House. That is something that he would find very hard to prove.
Lord Deben
I listened to the whole debate almost without exception, and there were one or two sentences that I think ought to have been withdrawn by the people who made them because there was clearly a misunderstanding about the nature of what we are talking about. However, I do not in any way suggest that my noble friend spoke in that way. I am merely saying that there is a great need at this moment to make people relearn what toleration is. Toleration is accepting the views of people with whom you disagree fundamentally and totally. We need to do that in our society.
Let me be clear: I think the amendments are unnecessary, I do not see the legal basis for them and I am not worried about this issue. However, some people are worried about it. There is another word that I would like to bring into this: “courtesy”. There is a great need in our society for courteousness to other people, and there are people here who are legitimately worried. We need to ensure that there is no reason for them to be worried. I wonder if my noble friend might do the following, which is largely to follow what my noble friend Lord Lester said: not to argue this case because, frankly, a legal case of this sort across the Floor would be unhelpful for all of us, but to go back and produce a document that answers specifically the points that the noble Baroness, Lady O’Loan, has made, so that we know exactly where we are.
If there is a concern, the bit that seems to me to have had some truth about it is the nature of the official person—the point that the noble Lord, Lord Alli, was pursuing. I think he would agree that if the official person gets denominated in a particular way, what we all want in terms of a tolerant society could easily be overcast. I wonder if my noble friend might take it away in that way, instead of continuing the legal debate, and then come back with a document, which we might all peruse, and see whether we could not, at least on this, come to a common view across the House.
Lord Deben
My Lords, this is entirely misconceived. This Bill is not about blessings. The church has a right to bless or not as it likes. In my case I am referring to the Catholic church, and not the Church of England, and you can bless without any difficulty. The idea that somehow by refusing a blessing you would be subject to the law because of this Bill seems totally fallacious. You might be subject to the law according to other Acts, but we have not found that, and if you want to change those Acts, no doubt that would be sensible. But really, this is otiose. That is what worries me. It seems perfectly proper that people who disagree with the vast majority of both Houses on this subject will seek proper protection in areas where one might be uncertain. However there is also a degree of courtesy—I am sorry to have raised that word because it will now dog me for the rest of my life—about not loading this Bill with all kinds of statements about how you do not want to be pressed in this or that way.
It is quite clear what a blessing is. It is something which the churches give as a generous offering to people who ask for it. There is no compulsion; they do not have to do it. If they refuse it, as they can in many cases, there is no question of there being any recourse to law. My father was an Anglican clergyman; he would give blessings in certain circumstances and not in others. That was because in some circumstances he thought they were suitable, in others he thought they were not. Nobody could, would, or should ever have taken him to court. Imagine the court case: “Well, old father, what did you do this for?” and the response, “These two people have been living with other people as well at the same time and so I decided not to give them a blessing”. On what possible basis does the court then say, “You should have given them a blessing”?
I say to the noble and right reverend Lord, Lord Carey, that we have to be very careful. There is a great deal of unhappiness among decent people about the attitude of some churchmen to this Bill. Therefore, for goodness’ sake, do not let us load this Bill with all sorts of bits and pieces which are not necessary. Let us protect people where the Bill affects them. Do not let us try to protect people where the Bill does not affect them, otherwise we will be doing something which is the bane of American legislation: because there is no concept of the Long Title, you can add anything you like to any Act. You say, “If you want me to vote for this, I want you to include my bit about a bridge in my constituency”. I fear that this is precisely that kind of addition. It seeks to squeeze something into the Bill which has nothing to do with it at all.
Lastly, I will say why this is very serious. If we are to take seriously the contention of some churchmen that same-sex marriages are uniquely unacceptable, those same churchmen have to be very careful that they do not spread that unacceptability to other things. A blessing is manifestly something which the churches have used to overcome the reality of pastoral care as against the reality of doctrinal belief. It ought to stay there. The last place where it ought to be reflected is in the legislation of this House and of this Parliament. Blessing is a mechanism whereby the Church of England, for example, has overcome the fact that doctrinally it believes that marriage is indissoluble, but on the other hand it has to deal with marriage as it is. That is what blessing is. Do not, for goodness’ sake, try to muck this up by adding to this Bill something which is entirely extraneous.
Lord Pannick
My Lords, this amendment is concerned with Section 29 which is related to the exercise of public functions. Whether you give a blessing or not is plainly not a public function, it is a religious function. It is subject to a higher authority, no doubt, but that higher authority is not the Queen’s Bench Division, the administrative court and the Court of Appeal. It would be very damaging indeed to religious bodies for this legislation to suggest that Section 29 could apply to the exercise of what are plainly and simply religious functions.
Enterprise and Regulatory Reform Bill
Lord Deben Excerpts(11 years, 9 months ago)
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Lord Deben
My Lords, first, I am sure that the whole House has very much been touched by the words of the noble Lord, Lord Singh, which have clearly put this issue into a proper context.
I say to the noble Lord, Lord Parekh, something which I hope he will not find difficult. I am old enough to have been through all the discussions about discrimination against homosexuals and against people on the grounds of class, race and gender. I fear that the four reasons that the noble Lord presents are always presented in these cases. That does not take away from his own belief in it, but that is what people always say. They say that there are not very many. They say that it is very difficult to draw the distinctions. They say that the matter is being healed anyway because there is a great movement to ensure that it does not happen. They say that people will become more discriminatory if the law intervenes. That is what they always say. It may be more true about caste than about other things. I merely say that those are the same arguments, and I find it difficult to take those arguments in this case when I did not take them in all the other cases.
Secondly, the Government have rightly said, and I am proud that they have done so, that discrimination on the grounds of caste is unacceptable in any circumstance. We do now at least start this discussion from the same basis. That is not how it has been in the past, because there have been arguments that caste is somehow different, and that you should not say this because there are cultural and religious reasons why you may not make that statement. I think that we are now as one on that. I thank my noble friend Lady Stowell for speaking so clearly about that.
The Government have, however, put forward two arguments in the discussions that seem mutually contradictory. On the one hand, they have said that their legal advice is that the present law clearly covers caste. They have then gone on to say that they do not want to include caste because it would be expensive to employers. You cannot have it both ways. If the present law covers caste, that is a cost to employers anyway. If putting “caste” in merely clarifies matters, you do not increase the cost at all. You can increase the cost only if by adding “caste” you have a different category that was otherwise not covered.
I hope we will accept that the cost argument cannot be true or the Government’s whole case falls down. I really hope we will hear no more about the cost argument. If we do, we should not be saying that people cannot be discriminated against unfairly, wrongly and wickedly but that because it is expensive to deal with it we are not going to deal with it. I am sorry, but that is not the politics I entered into and I am not prepared to take that. Let us just get rid of the idea that, somehow or other, we can argue this case on the basis of finance. That is a totally different issue and nothing to do with the moral issue with which we are concerned this evening.
I turn now to the point raised by my noble and learned friend Lord Mackay. He will no doubt make the point himself, but it fits into my argument at this point so I hope he will not mind me referring to it. He said he believed that the legal advice that caste was already included in the law was right but that because the previous Government—and this is no criticism of them—had put into the law a triggerable mechanism that could say that caste specifically was referred to, the courts might find it suggested that caste was not covered by the present legislation. The Government therefore have a real responsibility to ensure that their opposition to caste is not befuddled or mixed up because of an odd circumstance that was meant to be helpful but that has this downside in the legal judgment.
That leads to this House accepting that we are now on all fours. We now all say that caste is unacceptable and that people who are discriminated against on grounds of their caste should have a legal remedy. We are also, I hope, saying that the reason for a legal remedy is not just to help the individuals concerned but to lay down a quality of our society that says that this is not acceptable. It is after all a quality of Indian society that it is not acceptable. It is a quality of Nepalese society that it is not acceptable, and the Bangladeshis are presently seeking to have exactly the same quality. The idea that passing this law would in some way be insulting to Hindus seems to me to be absolutely outwith sense, and we have to make that absolutely clear. All we are saying is that we would do in this country what other countries have already done. It has not been seen as an insult to religion there, so that is not a reasonable argument.
We have to distinguish, in what the Government have placed before us this evening, between our common view that this has to be done and the precise view as to how. The issue before us is therefore not whether it is reasonable to take action but the best way to do it. The noble and right reverend Lord, Lord Harries, made a powerful argument to say that we should take this decision now, that we have been arguing about it for too long and that if we take this decision now we can subsequently sort out the problems that may arise around it.
The Government say, “We accept that caste is totally unacceptable, but we have a problem because we think it is reasonable that some people who manifestly have something to say about this do not feel that they have had a proper time for consultation”. They also say that they are not sure that they are clear on a number of points. I disagree with the Government on both these issues, because first of all there has been as much consultation as was necessary. It is also quite clear how you deal with caste. That happens to be my view. However, this House has to take seriously the Government’s role in this. This is a very difficult thing for me to say because I have been thinking and fighting about it for some time. I try to think back to the time when I was a Minister.
The Government have to think about something that the noble Baroness has not mentioned: that you do not start a new policy—because making this a legal matter is a new policy, even though we have been talking about it for so long—in the best possible way if a significant number of people, with some justification, feel that they have not been properly consulted. I say to my noble friend that I am pretty suspicious of some of the people who asked for consultation, because they do not seem to me to be overwhelmingly representative. They seem to be pretty clearly directed by those whose own interests are not those of the Dalits, so one has to be very careful about this.
On the other hand, I believe that in a democracy we ought to make sure that everybody feels that their voice has been properly heard. Therefore the noble and right reverend Lord, Lord Harries, says, “That’s all very well; we can sort that out afterwards. We ought to pass the law now”. I would have agreed with him if I had not understood what I now understand: that you need only secondary legislation of an affirmative nature. It is not very difficult to pass such legislation.
I now have to say something pretty tough to the Government. My noble friend Lady Stowell has been absolutely exemplary in these discussions. I know of no one who has gone to such trouble to try to sort this through, and I do not say that in the usual House of Lords manner to be polite to everybody. I am not like that. I want to be polite to her because I believe it and I want to say that. However, I have to say something very tough to her, which is this. She is asking us to believe that the Government will go through consultation, that the noble Baroness, Lady O’Neill, and her team will investigate this, and that if they have a clear recommendation we have to believe and have faith in the Government that they will then legislate in this way. She cannot tell me that they will certainly do that, because that would be to put governmental power into commission, and I rather agree with her that you cannot do that in advance. I wish I could not agree, but having been a Minister I have to admit that.
If we accept the Government’s statement here—and we come to a time just after the end of this year and the Government have been presented, before the end of the year, with a clear indication from the equalities commission that legislation is necessary—I hope the Government will understand that we will never trust them again if they do not then legislate. I do not think the Minister is giving us weasel words, but let us just realise that this is not the moment to pass something through to get it out of the system and then come back and say “Well, we didn’t really mean that”.
Enterprise and Regulatory Reform Bill
Lord Deben Excerpts(11 years, 11 months ago)
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Lord Deben
My Lords, I put my name to this amendment because it seems a very fundamental and simple question. Is it right that a person who is a subject of Her Majesty in this country shall not be able to claim against discrimination when they would be able to in India or Nepal, or indeed in Bangladesh? Is it right that when we have clear evidence that caste has become a feature in this country, they have no defence against it?
I have had very informative and helpful discussions with the Minister responsible in another place and the usual extremely well thought-out discussions with the noble Baroness. It is with considerable sadness that I have to say to her that I am not convinced by the Government’s argument. First of all, it has only just become the Government’s argument. In opposition, the Conservative Party said that this was necessary because it was the only way in which more than 400,000 of Her Majesty’s subjects could properly be protected. If it were possible for the Government to explain to the House that in taking office there were circumstances of which they were unaware that changed their mind, then I would be happier.
However, that is not the argument that has been put forward. What has been suggested is that we need to have yet another investigation. As the noble and right reverend Lord, Lord Harries, rightly says, the investigation by the previous Government was not by some small, unimportant body without respect, but by exactly the people to whom one might turn to find that answer, and their answer was unequivocal. It seems difficult to suggest there should be yet another investigation unless there is a clear statement of what has changed since that one, what was missed out by that one or what the Government felt should further be looked at which had not been looked at. Yet that is not anywhere in the Government’s response.
I believe we have to look at this extremely carefully for a reason which will be perhaps more understood on these Benches than anywhere else. If there is one thing that really annoys people about immigration, it is when people bring to this country attitudes that are wholly contrary to the traditions of Britain. That is why people have reacted so firmly against the attempt, for example, to introduce Sharia law into this nation. Most people in Britain feel that we have a society that should be welcoming, but it should be welcoming on the terms of the tolerance that has been so much part of our history.
There are, after all, fewer Jews in this country than there are Dalits. They are wholly protected under the laws. There are fewer Sikhs in this country than there are Dalits, but they are wholly protected under the laws. Most people would say that there is no place for discrimination by caste in Britain. If there is no place for that discrimination, how can it be that all the other discriminations for which we think there are no place are covered by the law but this one alone is not?
I have to say to my noble friend that I find the arguments used deeply distressing because they go like this: first of all, that we do not know quite enough about it so let us have a further investigation. Frankly, having had the investigations up to now, if it turns out that there are no cases, what harm will have been done? We will have protected people and they will feel protected. If it turns out the investigation that took place under the previous Government was unnecessary and its findings were not true, then we have done no harm. However, if we leave it for another year—and I am told, with some authority, that we will have to wait only a year for a further investigation—we will have another year in which people have no recourse, and at the end of that we may still have no recourse, because there will not necessarily be a legislative opportunity for us to bring this home to the Government.
The second reason that I find so difficult to hear is that we will not deal with it that way anyway, but will deal with it through education, with or without the investigation. Here I do not want to follow the noble and right reverend Lord, Lord Harries, except to say: what do people say in this education? A Dalit in a class says “Okay, I shouldn’t be discriminated against, but what happens if I am?”. The fact that there is now education on this means that the answer will be, “Tough luck, because there is nothing you can do about it, as we have specifically refused to ensure that there is an opportunity for you to take your case”. That is a recipe for lack of integration, poorer community relations, and a worse situation than would have arisen had we had no education or had not raised the matter in the first place.
The third reason that comes up is one that I find more distressing than any other. Every Minister who speaks about it—and we have two Ministers of particular quality here—assures me that they are totally committed to the eradication of discrimination, which includes the eradication of discrimination on the grounds of caste, but that theirs is a better way to do it. I believe that a decision has been made somewhere else that is not on this ground at all, and is not worthy. It is no good listening to those who, in their own circumstances, have a view of caste that is different from that of the majority of us in this House.
In Britain no one should suffer discrimination on the grounds of anything that they cannot help. They cannot help their sexual orientation and their colour; they very often cannot help their religion, or they have chosen that religion; and they cannot help their gender. What on earth is different when they cannot help their caste? You can change the name from “untouchable” to Dalit, but you cannot change the fact that some people are treated in an appalling way, simply because of the person they were born.
I have absolutely no doubt that it would be utterly wrong for us to say to the world that we had the opportunity to protect people from this disgraceful discrimination but decided not to do it because we had to have another investigation. I invite all noble Lords to look back on the history of the fight against discrimination. What happened at every point? Those who did not want to change suggested that we looked again and examined it once more. They said, “Let education deal with it; it’ll all come right in the end”. It was only when we changed the law, however, and made it wrong not only morally but legally as well, that we actually had a change in attitudes and gave the protection which was needed.
I want to finish by saying something very tough: if anybody in this House has any history of discrimination—whether it is the small amount that Catholics have today, which is still real, or the great amount that people have because they are of colour or Jewish or in any other minority group—let them make sure that they do not fail the Dalits, because they have a greater responsibility than those who are lucky enough not to have suffered discrimination as a subject of Her Majesty.
Lord Avebury
My Lords, I have seldom listened to a more powerful speech in this House. I agree with every single word that was said by the noble Lord, Lord Deben, except for one very minor point which has to be mentioned. The Government are not proposing to undertake any further investigation, but simply to review the investigations that have already taken place. Therefore, what they are proposing to do is of even less consequence than he credited them with.
We already know, from the study undertaken by the National Institute for Economic and Social Research—which was mentioned by the noble and right reverend Lord, Lord Harries, in introducing this amendment—that caste discrimination actually occurs in the United Kingdom. That study confirmed that discrimination and harassment of the type that would be dealt with under the Act exists in the UK, as was reiterated only the other day in a letter from one of its authors, Hilary Metcalf, to my noble friend Lord McNally.
The Government now recognise the existence of caste discrimination. As the Minister for Equalities said, in words very similar to those used by my noble friend Lord Deben just now,
“We obviously do not think that anyone should suffer prejudice or discrimination, whether it is because of caste or any other characteristic. Such behaviour is wrong and should not be condoned, whether or not it is prohibited by legislation”.
However, no Minister has explained properly, in the extended correspondence that we had with the Government over the past three years, why caste should be treated differently from age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex or sexual orientation—the protected characteristics that are already covered by the Equality Act.
The Minister Helen Grant MP wrote to us on 5 February, saying:
“We need to be satisfied that it is the most appropriate and targeted way of tackling a specific problem before legislating”.
I respectfully suggest that Parliament wisely decided that legislation was indeed the right way to tackle discrimination across the board after many years of trying to apply remedies to particular kinds of discrimination such as for race—with the Race Relations Board—or gender, by compliance with the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women. Nobody ever said that before including race and gender in the Equality Act, we needed to be satisfied that it was the most appropriate and targeted way of dealing with the problems that still remained. Legislation was seen as the top storey of the edifice of ways of tackling discrimination of all kinds. The onus is on the Government to prove that, in the unique instance of caste, we should return to non-legal remedies which proved insufficient in respect of the nine existing protected characteristics and are no substitute for the right to take complaints of discrimination to court.
The original reason given by the Government for failing to enact Section 9(5)(a) was that there was no consensus on the need for legislation even among the communities that were potentially most affected by it. We naturally interpreted that as meaning the Dalit communities whose members are the victims of this discrimination. However, it emerged in a letter from the noble Baroness, Lady Verma, to the noble Baroness, Lady Prashar, of May 2012, that the reference was to the wider Hindu and Sikh communities. In that sense, there is never a consensus for legal measures against particular kinds of discrimination. The policy of ending apartheid in South Africa was vociferously opposed by certain groups within the white population. At one time, plenty of men’s organisations were opposed to women’s equality, including, I may say, Parliament itself, and there are still institutions opposed to LGBT rights. Fortunately, the absence of consensus was not used as an argument for blocking legislation for the rights of racial minorities, women or gay people.
However, I realised quite recently that some Hindus and Sikhs believe that what we are seeking to do labels their communities as a whole as persecuting Dalits. I assure them that nobody has any such idea, any more than the Equality Act labels native British as being intrinsically racist, or men as being intrinsically misogynist. There are already cases where litigants such as the Begraj have done their best to use the existing law to make a claim on caste discrimination grounds in the courts. However, there has been no suggestion that a handful of cases point to a general pattern of conduct among people belonging to certain religions.
Lord Deben
I understand that, but none of those things is fixed in the way in which caste is fixed. Those are things which can be changed—sometimes they are just changed by speaking differently. You cannot change your caste, and that is why it is an exact parallel with race and may indeed be included within race. Surely it is not acceptable to say that there is anything else like caste.
Baroness Stowell of Beeston
As I continue laying out the Government’s response, I will answer more directly the points that my noble friend has made. I want to make it plain that there are other forms of prejudice from which people in this country suffer to a great extent for which no clear, direct legislation exists to prevent it happening.
The noble and right reverend Lord, Lord Harries of Pentregarth, provided some rather shocking evidence and stories of discrimination outside the UK, as did other noble Lords. The Government have to legislate to tackle what happens in this country; that is what we—what all Governments—must ensure that we do. The noble Lord, Lord Alton, and the noble Baroness, Lady Flather, talked about the huge number of crimes committed against Dalits in India. We have existing criminal law here in Great Britain for dealing with those kinds of assaults and other crimes if they take place in this country.
At this point, let me make it clear that we remain willing to consider whether there may be a case for legislating specifically in regard to caste discrimination, and hence our willingness to meet representatives of the key groups. I will return in a moment to the circumstances that would lead us to such a decision, and why we remain unconvinced that legislation is the best answer. It is clear from the NIESR report, which is the most robust study available so far, that the majority of incidents of caste-related prejudice or abuse would not be covered by equality legislation. Our assessment is that the great majority of cases in the report are either in areas outside the legislation—such as in relation to volunteering, which is not covered by discrimination law—or would already be subject to redress through a range of measures from claims for constructive dismissal to criminal prosecution. That said, we are clear that no one should suffer prejudice because of caste. Such prejudice should not be condoned and it should never be ignored, and that is why I am pleased that the Government have announced that they are taking clear action to tackle caste prejudice and discrimination through an education initiative. I thank my noble friend Lord Sheikh for his support for this initiative, and I must say that I was rather surprised that the noble and right reverend Lord, Lord Harries, dismissed it as being patronising and interfering. Even if a new law on caste discrimination was to be introduced, without education it would not address the underlying causes.
Lord Deben
I hope that the Minister will not accept this amendment because it seems to me that this is a good example of substituting reality with a bureaucratic answer. Surely what we are trying to do in this legislation is so to embed it in people’s attitudes and concepts that there is no need to have complicated bureaucratic form-filling and ticking-off. Most of us who run businesses would not dream of having a provision like this. However, most of us who run businesses would also be very insistent that decisions were made with a proper understanding of their impact on women as well as men and on minorities as well as majorities.
I hope the Minister will accept that many in today’s society consider that these issues should perfectly properly be dealt with in law—a law which I am happy to say looks as if it will be more inclusive than it has been up to now—but that people should themselves find the best way of handling them. The Government should not present people with a detailed arrangement such as appears in this amendment, which I am afraid very often becomes a substitute for action. People may say, “I have done my assessment and therefore I don’t have to think”. What we really need is for people to think creatively about how best to do these things. It is very much better not to lay down a recipe of the kind proposed in the amendment, which slightly reminds me of the nannying schemes which have made these provisions less popular than they ought to be. I am afraid that many people do not think of equality as a progressive and positive thing but rather as merely another drudgery which is laid on them. We do not want that; we want a society where equality is included as a natural way of looking at how you run a business, a local authority or a public authority. We do not want someone to feel that he or she has done their bit of homework, has ticked the boxes the right way and can now forget about it. I am afraid that the “I can now forget about it” syndrome cannot be legislated against but is very often the result of an amendment such as the one before us.
Lord Harris of Haringey
My Lords, having listened to all the debates today in your Lordships’ House, I am very conscious that there is a clear consensus among your Lordships on the importance of all organisations, particularly public sector organisations, working towards achieving equality. That has emerged in all the discussion that we have had. Core to that is the equality duty on public bodies.
I understand that the Government are reviewing all this but I hope that this evening’s debate will be influential in ensuring not only that they recognise the value of that general equality duty for the whole of the public sector, but also see the value of strengthening it in the way that this amendment seeks to do. My experience is that, if you are to achieve equality in the workplace—equality in terms of the way in which you provide services—it requires several things to be in place.
First, it requires visible leadership from those responsible for the organisation or in charge of it that shows that they believe that this is important. Secondly, it requires that policies are made in an evidence-based way; that information is used to assess how the policies are working, how the services are being delivered, who benefits and who perhaps is missing out. That requires the collection and collation of information, so that those in charge of the organisation can make the appropriate decisions. It also requires a degree of enforcement. But to say that you can achieve all of these things only by enforcement or only by one element of those different requirements is to set the arrangement up to fail.
I have listened with great interest to the speech of the noble Lord, Lord Deben, who has highlighted that you do not want to create a tick-box mentality. That is absolutely right and is true in all sorts of areas. That is not what you want to achieve. However, if people are trying to apply the general duty on equality—or indeed what would be implied by this amendment in terms of the way in which equality impact assessments are concerned—in a tick-box mentality, then you will lose out entirely. This amendment sets a framework by which all public authorities can say, “We are doing our job properly and effectively”. How can you argue that there is something overprescriptive by saying that the duty of the public authority should be to assess and consult on the likely impact of its proposed policies? Surely that is sensible good practice. How can you say that that is overprescriptive? It is simply requiring public authorities to do what is right.
Similarly, requiring public authorities to monitor their policies for any adverse impact is again requiring that they do what is right. It is not being overprescriptive; it is simply saying to them, “This is what you should do to deliver your general duty on equality”. This is not an overprescriptive amendment; it is something that is there to provide a framework which public authorities can use.
I am also very clear that, in making decisions, public bodies have to look, check and see what the implications are. These assessments provide a framework which requires them to consider all the relevant factors in doing that. I know that when we make a decision on a public body we are required to consider all the relevant considerations and not consider those considerations which are irrelevant—I forget the precise form of words, but that is the standard rubric. This provides a framework to make sure that all the relevant considerations are being addressed. More importantly, it provides an audit trail, so that anyone looking at it can see how a decision has been taken and how the different issues have been factored in because there has been an equality impact assessment. That places quite a pressure on those making decisions that they have not only considered all the relevant factors but are able to justify what they have done. That is an extremely important and very good discipline for those who make public decisions.
The equalities duty has been an important step forward for public bodies in this country. Some of them still struggle with how to implement it and some still have a long way to go but, as a basic building block for ensuring that public services are delivered fairly and in line with the objectives that I think all of your Lordships have said they support during the course of various debates today, they have been extremely valuable.
I mentioned at the beginning that one of the requirements for delivering equality, whether at local level, public body or by government, is leadership. I hope that the Government will show clear leadership in agreeing that there is an importance to the public sector general duty on equality and accepting the importance of this amendment, which provides a sensible framework for equality impact assessments.
The Prime Minister is worried that this is going to become overbureaucratic. I suspect that by providing a framework in legislation for what is needed, some of those overbureaucratic elements will disappear simply because people are no longer trying to interpret what might be a necessary way of doing this and erring on the side of caution. This is a way of setting out a framework which will enhance the work that public authorities should be doing to promote equality.
Growth and Infrastructure Bill
Lord Deben Excerpts(12 years ago)
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Lord Tope
My Lords, I have added my name to this amendment in the name of the noble Lord, Lord Best, and will do my best to comply with the request. However, I thought it was very helpful, as it was intended to be, for the noble Lord, Lord Best, to set out fully and comprehensively the context in which we approach this. The Minister is of course right about where this amendment applies but one has to see it in the wider context and the noble Lord, Lord Best, did that very well.
The noble Lord has explained this amendment very fully. We are all too familiar with sites all over the country where planning consent has been given, somebody has come along a few months later and perhaps dug a couple of holes, and that is a “material operation” which satisfies the condition that the development shall have started. However, particularly in the current climate, nothing then happens for years and years. I have such sites in my boroughs. I look around the Chamber and see people nodding—we are all familiar with that position.
This amendment, or something very like it with the same purpose, would do great service in strengthening the intentions here—I nearly said the intentions of Clause 6, which is not quite right—to get development moving and to start getting the building. We are not really trying to start development here, we are trying to complete it. Starting by digging a few holes in the ground achieves nothing—what we want to see is the housing being built. Unless we have a clause or amendment similar to this one which requires developers and local planning authorities to decide in advance what is a “material operation” and what properly determines what starts a development, which would mean a lot more than just a tiny bit of infrastructure or my proverbial two holes in the ground—which is not just proverbial, I know places where it is quite literally that—then it is not going to be effective. The noble Lord, Lord Best, mentioned that planning consents already exist for 400,000 homes that have not been started. No doubt on many of those sites there are those two holes in the ground, but there is no sign of any homes materialising. If we had this obligation as part of the requirements that will follow in Clause 6, that would serve, to a significant extent, to ensure not just the starts but the much needed completions.
Lord Deben
My Lords, I hope the Minister listens to the specific concern to make this “in between” clause actually work. However, I hope she will not discuss this issue without facing up to one entirely unspoken problem, which both sides of the House have always had a very clear plot to avoid ever discussing. I find it unacceptable that we should run our supported housing on the basis that we tax people who need a house to pay for other people who need a house. This is entirely a fiscal arrangement that the Treasury has entered into because it does not want us, as a community, to pay the costs of people who need housing and cannot afford it.
So what we do is say that those who are least able to pay more than they have to for their accommodation shall be taxed to pay for others. This is a total scandal. I find this bit and the clause that will follow extremely difficult to support—not because I object to the clause, but because, once again, it hides the plot between Labour, Conservatives and Liberal Democrats never to admit the reality of Section 106. I very often agree with the noble Lord, Lord Best, and I respect him enormously, but to talk about Section 106 agreements being freely entered into is, frankly, nonsense. They are not freely entered into; they are a necessary requirement of getting any kind of development at all.
Lord Burnett
My noble friend Lord Deben makes a powerful case. Does he agree that it is sometimes forgotten by people looking at it from the local authority side that if developers or builders make a profit they pay corporation tax, income tax, capital gains tax or whatever the tax is? In addition, they have Section 106 burdens, and likely to be coming down the track—some have adopted it—is the community infrastructure levy. It will paralyse the industry again if we carry on loading it with these burdens.
Lord Deben
I repeat what I said in the earlier part of this debate. I declare an interest in the sense that I try to help people do sustainable development. That is what has led me to this deep concern. We talk as though the money that developers pay has no effect on the cost of the housing of the people who pay for it. Successive Governments of both parties have consistently spoken about this total myth. The truth is that prices of homes in this country are greater for first-time buyers than they would be if we did not tax them. It is undoubtedly for a good reason, but they are taxed and other people are not.
We have an intergenerational problem. Because of the way that all this works, people who do have houses have a value which is significant. Of course, many of us in that position mitigate it, because the bank of mum and dad has to make it possible for the next generation to have a home. Many people are not in that position. I want this Government to face up to the fiction, which we have all accepted—I admit to it as a former Minister—that somehow the mechanism we have is reasonable and fair. It is unreasonable and unfair. At this moment, when the pressures on young people are so considerable, we must come away from the idea that it is reasonable to accept the basic concept of the noble Lord, Lord Best, that somehow new houses sold on the market should carry that tax and then increase it because—as my noble friend has pointed out—of the other infrastructure taxes that will take place. Nobody else seems prepared to do it, so it is time for this House to say to the Government and Opposition, “This will not go on”. It is not reasonable that we should not, as a society, bear the cost of affordable housing, but shovel it off—because then it is not on the national accounts—to those who are least able to afford it, thus widening the gap between the haves and the have-nots.
Lord Lea of Crondall
I am grateful to the noble Lord for giving way. I used to dabble in this myself some years ago and I know how unenthusiastic the Treasury generally is about hypothecation. In so far as the proposition in this case is that that Treasury likes hypothecation, I suppose that the question could be posed—and it would be very interesting to know the answer: who are these other people in the rest of society who should be paying this if they are not in category A or category B under this supposed hypothecation?
Lord Deben
I am not sure that I entirely follow the noble Lord’s point, but it is true that the Treasury is keen on hypothecation when it suits it and against it when it does not, and this is one of those occasions. The trouble is that hypothecation ought to be between the payment of the bill and the advantages from the bill, but in this case it is not that, and many of those who have to pay the cost of Section 106 agreements are only just above the level of benefiting from them. It is because this is a fundamental flaw in the whole system that I come to be extremely disappointed in the Growth and Infrastructure Bill. As I have said previously, it is a pretentious title for a series of very small alterations, some of which are not terribly helpful.
However, there is a big alteration that we ought to make if we really want people to have housing, which is to say seriously that the cost should not be a tax on a small number and those who are most vulnerable; the cost should be a tax that we all bear for a proper social end. In case the Opposition say that I am moving in their direction, I say that they are as guilty as anyone else. They have imposed taxes in this area that are just as large and always excuse it as a tax on the developer. The developer does not pay taxes; he charges the cost to the people who buy his houses. That is the nature of the market; there is no way of avoiding it. I am very happy to support the drive of the amendment, which suggests that, if we are going to do this, we may as well make sure that we get bang for our buck by tightening it and toughening it. But, my goodness, what a disappointment it is that yet another Bill comes before this House masquerading behind this fraudulent concept that supported housing should not be supported by the nation as a whole but should be a price borne largely on the shoulders of first-time buyers. It is not right, it should not be and we ought to find a different way of dealing with it.
Lord Davies of Stamford
My Lords, the noble Lord, Lord Deben, has taken a broad interpretation of the scope of the amendment. I am glad that he has and the Committee should welcome an opportunity briefly to debate Section 106, because it is an enormously important factor in housing development in this country and the House is unlikely to have another, foreseeable opportunity, either during the passage of this Bill or otherwise, to discuss it.
The noble Lord, Lord Deben, argues, and I think that I can follow his argument fairly clearly, that since there is clearly a cost for developers in entering a Section 106 agreement, whether it is to build affordable housing or to meet some other condition that may be imposed by that agreement, that cost must be reflected in the price of the houses that they sell and therefore be borne by those who buy those houses, who happen to be a limited part of the population. I am sure that that is the noble Lord’s argument—I am sure that he will interrupt me if I have got it wrong. He leaves out an important factor in the equation, which is that if there were no Section 106 agreements fewer houses would be built. Affordable houses are built and receive planning consent only because of Section 106 agreements. If more houses are built, there is a greater supply in relation to a given demand, and that will be factor in the equation bringing down the average price of housing, although not necessarily by the same amount as the other factor in the equation brings it up. The noble Lord should take that point into account if he is to try to design a model for how the housing market works.
The noble Lord, Lord Best, set out his amendment with great lucidity and very persuasively—he of course knows a great deal about this subject. I thoroughly agreed both with his analysis of the situation and with his rather ingenious compromise solution, which we may well want to adopt at this particular moment, having got as far as we have. I deeply regret for two reasons that the Government have decided retrospectively to waive Section 106 agreements. First, it will deprive a lot of people of affordable housing. That is a very bad day’s work. It is just the opposite of what we need in the present situation and an extraordinary reflection of the Government’s priorities. The noble Lord, Lord Deben, was concerned also about people who can afford to buy a house which is not designated an affordable house. He might dispense a little bit of his sympathy for those who could not dream of buying a house which was not deliberately built to be an affordable house and was in other words at the bottom end of the market and a good deal cheaper than average houses in this country.
The second reason why I regret what the Government have done is that it seems to falsify to whole system of planning in this country. As I have just explained, many Section 106 agreements result in land being designated for development which otherwise would be not be so designated. The local planning authority, normally the local council, has quite rightly to make a choice, an arbitrage, between considerations, on the one side, as to whether giving planning consent for, let us say, development on green belt areas or areas outside the existing curtilage of towns and villages represents the loss of an environmental amenity, but, against that negative public interest, as to whether there is a positive interest which outweighs that, which in present circumstances is the need for affordable housing. Therefore, the planning authority in the discharge of its responsibilities has quite reasonably weighed those different aspects of local communities’ interest and come out in that particular direction. Now, of course, if the Section 106 obligations are retrospectively withdrawn yet the development goes ahead, it becomes no longer a balance but entirely a one-sided gift to the developer and the community loses both ways. On the one side, it loses through the loss of the land, the loss of the environmental benefit, the loss of the amenity benefit and the visual impact of the development, whatever that may be; on the other, it loses the benefits of affordable housing or the other benefits of the Section 106 agreement which has been entered into. That is a doubly bad deal for the local community.
I dealt with a lot of Section 106 agreements when I was in the other House and on one occasion took the initiative in brokering a major Section 106 agreement between a landlord, a developer, a district council—South Kesteven District Council—and Lincolnshire County Council as the highways authority in order to finance the southern bypass of Grantham. There was no way in the world that the southern bypass was going to get into the then Government’s road programme—it would not have the met COBA thresholds—but it could and was financed in that way. It took a long time and a lot of negotiation, but it was well worth doing. However, it would have been most extraordinary if, retrospectively, we had said to the developer and the landowner, “Well, that’s alright. You can have the planning consent, but you do not need to build a bypass any more”. That is effectively the sort of deal which this Government are now offering developers.
I have to say that not many people are doing very well out of this Government in this country. People on benefit are obviously suffering; the public sector has suffered greatly; the private sector has suffered enormously; and our Armed Forces are suffering. Everybody is suffering except, as far as I can see, two categories of people: those who are lucky enough to be earning more than £150,000 a year, whose tax rate has been reduced from 50% to 45%, and now real-estate developers and speculative builders. I have nothing against real-estate developers and speculative builders—far from it—but it is an extraordinary set of priorities which are reflected in what the Government are doing.
As the Committee knows, I was for a number of years in the Tory party myself—far too many years, I have say; I am very sorry and repent of that particular sin—but, nevertheless, I know a little about how it works. I must say that if you went to Conservative associations up and down the country and did an analysis by sector of the business activities in which donors to local Tory associations are involved, you may well find that that particular section of the market comes out very high. I do not wish to establish a causal link between the two things; I have no evidence to enable me to do that. However, I simply state these two separate facts as an interesting coincidence.
I have considerable distaste for what the Government currently propose, but we need a way out of this situation that makes some sense and makes sure that these developments take place and affordable housing is built. In that spirit, I very much endorse the amendment of the noble Lord, Lord Best.
Lord McKenzie of Luton
My Lords, let me say at the start that I support the amendment of the noble Lord, Lord Best. I was tempted to follow the Minister’s suggestion that we do not range more widely over this issue but I was sorely tempted by my noble friend Lord Davies, among others, to get into benefits policy, which I am very happy to talk about for a long time. I share my noble friend’s concerns.
Before I get into the detail of the amendment, I say to the noble Lord, Lord Deben, that the component that seems to be missing from the analysis is the value that accrues to landowners on development from the community granting planning permission and agreeing that they want their community to be in a certain way, as a mixed community. An alternative might be to have special taxes that you get from looking at the uplift in value from planning permission—I will come back on that point—and you might then have your national scheme. For as long as that does not exist, you surely need to recognise that by agreeing to grant planning permission the local community is giving value to the landowner and developer, and to those who are going to occupy the houses that are built on that land.
Lord Deben
There are two very quick things that the noble Lord has to take into account. One is: who pays that? I am merely saying that in our present circumstances, when people find it very hard to buy, first-time buyers and the rest of them are paying for that cost. Secondly, we have a little difficulty here because to have the view that planning permission is a privilege seems to be wholly against any concept of the right to property, which says you can do exactly what you like on it, if the community then decides that you are going to have that restricted. The noble Lord is entering a very much deeper philosophical discussion there. However, the crucial issue is: who pays it? If the person who pays is the one at the bottom end of the scale, as it very often is, we ought to ask whether it should be paid rather more generally. That is all.
Lord McKenzie of Luton
It seems to me that the value comes from the granting of planning permission in respect of the land. If you are going to argue that that has to be shared by the community as a whole, not just the local community, surely you need mechanisms to get that value raised and to redistribute it. You could not do it on the basis of the current tax system.
This takes me back to a point that I was going to make on the amendment. I recall that when I first went on Luton Council, in the mid-1970s, we had something called the Community Land Act, as I recall it, and the development land tax. It was then very much the name of the game for developers to go and dig a trench to demonstrate that they had started their development before those provisions kicked in. Normally, there was a photograph taken with somebody holding up a copy of the Times, or whatever, to validate that this was when they had actually dug the trench.
Enterprise and Regulatory Reform Bill
Lord Deben Excerpts(12 years, 1 month ago)
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Lord Deben
My Lords, I support the tenor of these amendments and wish to say how strongly I support this part of the Bill. I have no direct interest in it because the companies with which I am associated do not tend to go across the county border in quite the way in which it might affect them. However, if I do have an interest I will declare it.
The issue I want to raise is that this has been a very successful extension of a system that was in operation even before the previous Government. Other examples included how the supermarkets were able to have a lead council that would help them to get the basis upon which they would apply elsewhere, so this has been a growing piece of work. I was pleased to hear the noble Lord put forward his support for this system because it really makes a difference and is not a way of avoiding anything. It is merely a way of ensuring that there is a continuity and consistency in the implementation of law. It also enables companies that want to do the right thing to do it and then not find that they are asked to do something different somewhere else in the country. I think all of us, right across the board, have found embarrassing situations in which in one place you are asked to do the opposite of what you have been asked to do next door in a particular kitchen or over a particular kind of presentation.
This is an extremely important change, which was amplified by the previous Government and is being amplified here. I, too, would like to hear from the Minister whether this is the beginning of a continuous process and whether it will be much deeper than it is in the Bill. Can we hope that more and more areas will be covered, not in a way that reduces the efficacy of regulation but one which increases its efficiency? It is not that I want people to get away with anything; I just want people to know where they are, wherever they are. This amendment points to that and I hope that the Minister will be able to help us see this as a continuing and growing trend in government regulation.
Lord Curry of Kirkharle
My Lords, I declare an interest in that I chair the Better Regulation Executive, which was very much part of recommending these changes. I am delighted that the noble Lord, Lord McKenzie, recognises the value of the scheme and I pay tribute to the previous Government for having introduced it because it is a valuable tool and has reduced significantly the burden on businesses that have participated in it. My concern about the proposed amendment is the definition of “to a material extent”. It will create a lot of debate and potential confusion around how one defines “material extent”. The trade associations that have been consulted and would be keen to participate in this scheme have members who all have a common interest. I see this as providing a real opportunity to take a significant regulatory burden away from businesses that are members of a trade association and would wish to participate in such a scheme, so I have a problem with Amendment 28ZDA.
Lord McKenzie of Luton
My Lords, we are happy to support these amendments. They seek to remove a very extensive power which could draw a wide range of circumstances into the ambit of duties which cease to be actionable. As the Delegated Powers Committee put it, there is no discernible policy objective to the inclusion of the proposed new Section 47(2B). The scope could be incredibly wide: any provisions of any enactment which link to any matter relevant to any of the general purposes of the 1974 Act—that is the Health and Safety at Work etc. Act. The Delegated Powers Committee has pointed to just one example: the control and keeping of dangerous substances. It is therefore absolutely right that the Government have backed off on this; they are very wise to do so. It is illustrative of a dangerous desire to accumulate draconian powers, but I am pleased that the Government have stepped back from that on this occasion.
Lord Deben
I welcome this, and ask the Minister to carry back the message that it is extremely valuable for people to listen to the advice given by committees. He may be involved in the forthcoming Bill which is entirely incorrectly called the Growth and Infrastructure Bill, in which there are some very uncooked suggestions. It would be of great help to the Committee were he to give an assurance that he will do his best to make sure that the Government listen with the same care to some of the suggestions that come from other committees as they appear to have done on this occasion in listening to the specialist committee that has advised this particular action.
Viscount Younger of Leckie
First, I thank the noble Lord, Lord McKenzie, for his support in this respect. I also take note of the comments that have been made by my noble friend Lord Deben.
Enterprise and Regulatory Reform Bill
Lord Deben Excerpts(12 years, 1 month ago)
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Lord Deben
Can I not ask the noble Baroness to go a bit further than that? For that comment by the Secretary of State for Business to be relevant, surely he should have explained why removing this section is helpful. In other words, he seems to have it the wrong way round. It does not help to say, “This section, in its existence, is not being helpful to business”. That is one thing, but it is there. Removing it is a real action. In that case, surely he should have explained why it would be helpful to business to remove this section. I do not see that he has proved that. My problem with this issue is that I do not see why we should not just leave it there, unless there is a good reason to change it. I am old-fashioned enough to believe, “If it ain’t broke, don’t try to change it”.
Baroness Thornton
The noble Lord makes an absolutely perfect point; I wish I had made it myself. I have two final points on the amendments that the Government are proposing in this part of the Bill. One is on the provision of conciliation duties and the repeal of Section 3. Under the Equality Act 2006, the EHRC provides conciliation services and the Government propose to repeal that provision. One particular issue really concerns me, which is that of transferring the complaints service for disabled travellers to the Civil Aviation Authority. I have to say that this astonished me. Apart from concerns arising on the ability of the CAA, which has close ties to the aviation industry, one has to ask: will it act independently and impartially? It seems a remarkable thing to be doing.
Moreover, through forcing private and public sector organisations down the more costly compliance route, rather than that of conciliation, and driving the commission towards a court-led approach as opposed to pre-court conciliation, the repeal of Section 3 directly contradicts the overarching aim of the Bill. I would be grateful if the noble Baroness could explain to the Committee how this can be justified.
Lord Lester of Herne Hill
I was talking about an idea that I thought was being suggested—not that there be some kind of consultation but that Parliament itself, or a parliamentary committee, should agree and set the budget, rather than that being done by the Treasury and the responsible government department. Of course, it is possible to have consultation by a parliamentary committee on the size of a budget and how it is to be spent, but under our system of parliamentary government, it seems to me that the ultimate responsibility for deciding on the budget and ensuring proper accountability is through the accounting officer—normally a Permanent Secretary in charge of the department, who is then accountable to Her Majesty’s Treasury and to Parliament. We tried all of that when we looked at the Judicial Appointments Commission; we tried to ring-fence the budget of the Judicial Appointments Commission and of the judiciary as a whole, but failed to do so for similar reasons.
I am sympathetic to the idea of parliamentary involvement and accountability. All that I am suggesting is that the way forward is to encourage the Joint Committee on Human Rights, if it is willing to do so, with the consent of the Government, if they are willing to do so, to develop new protocols that will allow this kind of accountability to occur. I am sympathetic with the object, but I do not think that the amendment is the best way forward. Similarly with regard to annual reports, there is no reason why there should not be a report that is then scrutinised and discussed with the commission by the Joint Committee on Human Rights. It seems to me to be better to have an existing piece of expert machinery than to create a new Joint Committee of both Houses without purpose.
I say all this with no authority; I do not speak for the Joint Committee on Human Rights. It has not considered that; nor do I have any idea of whether the Government is be sympathetic. I am a member of the committee suggesting that as one way forward.
Lord Deben
My Lords, as somebody who is also very sympathetic to the purpose of the amendments, I follow my noble friend’s thoughts. I declare an interest as chairman of the Climate Change Committee. We have a very independent situation—more independent than any of those mentioned earlier by my noble friend. The whole question of budgeting is very delicate and difficult.
If you insist that the budget should be discussed in detail in a nitty-gritty way, it makes it almost impossible to be independent, because independence is about how you use the resources that you have. It is bad enough being at the behest of Government as to how much money you may have—there are always arguments about that. You say, “If I am going to do this job, I need this amount”, and the Government will always want you to do it for less. Those arguments go on, inevitably, because the paymaster is always, in the end, the public purse. I think that my noble friend Lord Lester is right to say that the amendment would add to that yet another inappropriate level. However high-minded a committee may be, it is difficult to understand the balances that have to be made. It is like any business, it is difficult.
I hope that the Government will take on board the concerns which the amendments evince. I hope that they will understand that the proposals added by my noble friend Lord Lester: not only that the role of the Joint Committee will be seen by the Government as useful but that the Joint Committee will turn out to have the same view of its purpose. That seems a sensible way forward. I hope that the amendments, which are a good probing way into the issues, will not be pressed. I have to say how hard it is to be independent and run the system in the best way in the public good and still have to answer to five different sets of people who feel that they have, at least, advice to give. I hope that we will not go too far down this route.
Baroness Stowell of Beeston
My Lords, I am grateful for the opportunity to have this debate about the accountability of the commission. Picking up on what my noble friend Lord Deben said, there is real value in Committee in having probing amendments that allow issues to be discussed and explored. That is the whole point of this stage of scrutiny of legislation. I welcome that and will, with officials, carefully reflect on our debates on all the amendments today.
Going back to the original question put to me by the noble Baroness, Lady Thornton, about the “A” status of the commission, I know that she asked me this question in the previous debate and she may well have repeated it in her speech on this debate. I can say categorically that it is important for the commission to retain that status. I recognise that accountability is important to the perception of the independence of the commission, which is important to the status conferred on the commission by the ICC, but it is worth reminding ourselves that the commission has a status under the present arrangements.
All that being said, I think that it is possible to strengthen the accountability of the commission to Parliament. In the Government’s opinion, the solution to strengthening accountability does not lie in shifting roles, it is about responsibilities. It is about being clear and transparent about who is responsible for what and by when, and to invite closer scrutiny of the effectiveness of those arrangements. To say it another way, we want to make it clear who is responsible for what, so that people can see as clearly as possible how we are carrying out our different roles and functions. That is why officials in the Government Equalities Office and the commission spent more than six months agreeing the framework document, which is publicly available on both their websites.
I know that there have been some teething issues in the implementation of the framework document which officials in both organisations are reviewing at the moment, but there is no dispute on the principles that the commission must be free to exercise its functions free from ministerial interference or undue influence and that the commission must comply with the same expenditure rules as every other public body. There is no doubt that progress has been made, as I mentioned in the last debate. Indeed, the commission has laid its first two clean sets of accounts before Parliament; there has been a 75% reduction in the commission’s reliance on expensive interim staff, a point to which my noble friend Lady Hussein-Ece referred; and the commission’s strategic plan was published promptly last April.
As I say, we are working to increase the transparency of the Government’s decisions on the commission to Parliament. For example, the appointment of the new chair—the noble Baroness, Lady O’Neill—to the commission was for the first time subject to pre-appointment scrutiny, and we have committed to send the report of the comprehensive budget review to Parliament, setting out the evidence base for the Government’s funding decisions—and by that I mean the funding decisions for the commission, which includes the funding for the GEO.
We are working with the commission to increase the transparency of its work to Parliament. The commission’s strategic plan, annual reports and accounts and progress reports are already laid before Parliament, and, indeed, Parliament has shown interest in its work, with the chair and the chief executive having been called to give evidence before a number of our committees.
As noble Lords speaking today have acknowledged, the commission reports to Parliament through the Minister for Women and Equalities. Although we support the commission having a closer working relationship with Parliament, we do not think that this requires a wholesale change in the reporting arrangements, which are in line with standard UK practice for non-departmental public bodies. I can refer to some examples where that is the case, including ACAS and the Independent Police Complaints Commission. My noble friend Lady Hussein-Ece referred to HM Inspectorate of Constabulary. I think it is true that that organisation is strengthening its accountability to Parliament. However, I think I am also right in saying that it remains, none the less, an organisation sponsored by the Home Office. The arrangement by which it is accountable to Parliament through the relevant Minister therefore exists there too.
As for how Parliament might strengthen its relationship with the commission, clearly it is for Parliament to decide how much interest it wishes to take in the commission’s work and indeed in the GEO’s sponsorship of the commission. However, we have made it clear that we would support the Joint Committee on Human Rights taking on a greater scrutiny role, for example in examining the commission’s business plan, which was indeed suggested by the noble Baroness, Lady O’Neill, in her pre-appointment hearing.
It is also worth noting the points that my noble friend Lord Lester made. I know that he caveated his remarks by saying that he does not speak for the committee in this context today. However, we certainly support the willingness on both sides for there to be a stronger relationship. We support that in principle and it is something that we would only encourage.
On the specific issue of the commission’s independence, it is worth saying that this is ensured by the Equality Act 2006, which provided that there is transparency around the commission’s role, relationship and responsibilities to government, which my noble friend Lord Lester has referred to. It is because it is enshrined in law that I believe we can be confident that the commission’s independence is properly protected. As I said, we support the strengthening of accountability to Parliament. We have already seen some improvement with the appointment of the chairman and we would certainly support an active dialogue between the chairman of the commission and the chairman of the Joint Committee on Human Rights.
Lord Low of Dalston
My Lords, I have already expressed my concern about the signs of the Government rowing back from the equalities agenda. I do not intend to go over that ground again, though I share the suspicions of the noble Baroness, Lady Thornton, which she has just expressed in moving her amendment.
In support of the amendment, I shall make two brief points. Doing away with the equality impact assessments would be a retrograde step—or “calling time” on them in the Prime Minister’s words. There are two reasons for this. First, they force people to think about marginalised groups who are often overlooked. Far from being a burden, these assessments have often been welcomed by people with responsibility for running organisations and providing services as helping them at the end of the day to provide a better service. Secondly, it is essential for the proper evaluation of the implementation of policy and for accountability that we should continue to have these assessments.
If we think about the role of EIAs in government, it may be convenient for governments to be able to avoid scrutiny, but it is not a very intelligent way to go about the rational development of public policy. It is rather an obscurantist Government who seek to avoid systematic evaluation of the impact of their policies. It would be helpful and a good development if the requirement to conduct equality impact assessments were to be written into statute. I support the amendment.
Lord Deben
My Lords, I have a different view about this. I will try to express it in the way that one does as one tries to run a business and is concerned with public activities as well. There is a danger that these discussions become polarised. There are those who feel that unless you write all this down in a precise way you can easily mix and miss the necessary duty to ensure that what we do in the public and private sectors is properly balanced so that services and provision are accessible to all. I am one of those who think that one has to be particularly careful about disadvantaged groups and those who are most likely to be vulnerable. I lean very much in that direction.
However, there is also the other side of the argument; namely, that sometimes we have got ourselves into so prescriptive a situation that it is very hard for people to get on with the job. I want to give an example which is sufficiently far in the past for it not to be seen as party political. When I lived in Ealing, if you wanted an extension into your roof, which a lot of rather big houses in the area wanted, you could not get the decision from the planning authority until it had been discussed by the sexual orientation committee and the racial committee. Something which obviously had nothing to do with either of those committees had to go through the format to deliver. What worried me was that it was the cause of considerable aggravation for people who just wanted an extra couple of rooms for their family. It did no good for people’s views about either sexual orientation or racial equality.
I have taken that example because it is extreme but it actually happened. It caused real problems and was promoted by the then governing party in Ealing as a wonderful example of how good it was on precisely these issues. I thought that it was a terrible example of how to distort and upset the very careful balance that you have to have between practicality and the important ethical issues with which we are concerned.
Therefore, my concern about the proposed new clause is that it can so easily lead to a simple system of adding to bureaucracy without achieving any end. The important thing is that all of us in our public lives and in our private business lives—leave alone our private lives—should seek to carry through our duties, whatever they may be—familial, business or public—in a way which constantly encourages us to ask, “Is this proposal one which disadvantages sections of the community?”. You have to be pretty careful about how you define those sections because sometimes people get left out. If you are not careful, you get a whole lot of other people added in because someone says, “Oh, you have that list, but there is this lot and another group and another set who we might have missed out”. I am much more interested in framing the legislation in such a way as to encourage people to see their duties in whatever they do in this context.
It is equally difficult to argue that we should have a note in here saying that everyone should carry out their public duties remembering that they have to tell the truth, or should carry out their public duties in such a way that they do not waste money, because, if you say that, you are assuming that people do not think of those two things if they are appointed to public office. I think that most people doing these jobs already consider them in this way. I would much prefer to look for a solution that encourages people’s training and makes sure that they have sensible ways in which to remind themselves of these importances without having these detailed requirements, which very often will be used as a necessary factor in things which really have got nothing to do with the issues that we are talking about.
There is an in-between, a balance, between these two positions. We have to be careful of producing an answer which says, “If you don’t agree with this kind of detailed listing, somehow or other you are less enthusiastic about equality than those who do”. I am very enthusiastic about equality—I have a record of fighting for it all across the board—but I have to say that I also hate bureaucracy: it makes people who are on our side in the first place less on our side because of what they have to do when what they have to do is unnecessary.
Lord Deben
This is not a repeat of the same cast on this subject—I did not mean that and I beg noble Lords’ pardon. I say to the Government that the noble and right reverend Lord, Lord Harries, was too kind about the previous Government spending time thinking about whether there was enough trouble here to necessitate legislation. I find it utterly impossible to explain to somebody how it is that in this country we do not apply an absolutely clear rule that people are not discriminated against because of what they are—from people who are homosexual at one end to people who are of a particular colour at the other, or people who happen to have particular views. All of them become vulnerable unless we hold to that view, because we are all a bit odd in one way or another. We expect to be treated perfectly properly whatever our position, background, colour, sexual orientation or anything else.
It is impossible—this is a very difficult thing for a politician to say—to build a case for suggesting that caste is different from any of these other things. Having been a Minister for longer than most, I am always suspicious of Ministers who write letters in which certain sentences are almost incomprehensible. It means that they do not want to write the sentence that they ought to write because they suspect that if it is comprehensible people might think that it is not adequate. I make no such claim in these circumstances. However, those of us who listened to the noble and right reverend Lord, Lord Harries, read out a sentence, had some difficulty in understanding what it meant—whether or not we believed that it might mean something with which we might agree.
All that I say to Ministers is that there are no formulations. Whatever may have been written down, there are no formulations which can get out of the simple statement that it is wrong to discriminate against people on the basis of their caste. I want to say something even tougher. The standards of our nation are not up for grabs. If people want to live in this country according to any system they have to accept the fundamental standards that we have. If you really want to cause difficulties, you do so by saying that “this is a very old view of theirs”, and they have it and it may be pretty nasty: I am afraid that that is not on. In this country we treat everybody equally and properly. That is the basis of our democracy. We cannot accept anything less than that. I do not care what organisation thinks differently.
You could go even further with this argument. You could argue that the positions of all sorts of totalitarian regimes are acceptable, because you can still find some people who support them. But you cannot possibly argue that, and we should not. I hope that the least that the Minister will be able to say is that although this may not be precisely what she wants, she will go away to make sure. I think that there is an overwhelming majority in this House and in the other House who say that caste cannot be treated in any way that is different from race or sexual orientation.
Baroness Stowell of Beeston
My Lords, we have had another powerful debate and the speeches have clearly been impassioned and important. As this issue is so important, the Government have given careful consideration to whether the power in the Equality Act 2010 that would make caste an aspect of race should be exercised.
Let me be clear. We do not think that anyone should suffer prejudice or discrimination, whether because of caste or of any personal characteristic. Such behaviour is wrong. It should not be condoned, whether or not it is prohibited by legislation. However, before bringing in legislation, a responsible Government will ensure that that is the most appropriate way of tackling a specific problem; that the solution does not go substantially wider than the problem that it is meant to address; and that it does not create needless red tape, additional and unnecessary cost burdens for business. That is the essence of what this Bill is about.
Turning to the NIESR research, I am aware that it suggests that some caste discrimination and harassment may exist in areas covered by discrimination legislation. The report also states that it is impossible categorically to determine whether caste discrimination within the meaning of the act has occurred:
“Proof either way was impossible, particularly because evidence was gathered from a single person only”.
That is not saying the same as that there is now a compelling case to legislate. Using the letter of my noble friend Lord McNally, the noble Baroness, Lady Thornton, made her point about whether NIESR had shown that discrimination had occurred. We do not believe that the debate turns on whether there is any discrimination on caste grounds. The debate is about whether legislation is a proportionate response, given the range and nature of the problem.
In response to the noble and right reverend Lord, Lord Harries, we are not resisting legislation in deference to high-caste views. We are wary of adopting a legislative approach, because we are concerned that that would not be a proportionate solution. The noble and right reverend Lord’s analogy, relating as it did to race, is not therefore appropriate. That said, we must consider whether legislation is necessary. There are examples in the NIESR report of incidents, such as vandalising property or threatening behaviour, that may constitute criminal activity and so would already be captured by domestic law.
Your Lordships should—and, I am sure, do—bear in mind that once legislation was enacted, ensuring the prevention of caste discrimination would become the legal responsibility not just of every public authority but of every private employer, service provider and school throughout England, Scotland and Wales, irrespective of their size or location and of whether they had ever encountered caste or even knew what it was. While I understand the arguments made by my noble friend Lord Deben—
Baroness Stowell of Beeston
The noble Baroness makes a helpful point in drawing a comparison with Gypsies and Travellers. It is domestic case law, not specific legislation, that has determined what we are discussing for Romany Gypsies, Irish Travellers and Scottish Gypsy Travellers. They are distinct racial groups who are covered by our equality legislation. It is case law that has done that, rather than legislation.
Lord Deben
As the Minister referred specifically to me, I will say that I have great difficulty with “proportionality” here because it seems to me that if one person is discriminated against, I have a duty to protect them. I do not understand proportionality in these terms. If the law does not reach a position in which someone is found to be discriminated against in the serious ways we are talking about, we had better put it like that. To say that it is disproportionate is like saying—let me be very blunt—that if not many people are murdered, we do not actually need to have a law on murder. I am sorry, we do; it is not acceptable. It is the one area where disproportion is not credible. This is what really worries me about this argument.
Enterprise and Regulatory Reform Bill
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Lord Deben
My Lords, I refer to my entry in the House of Lords register of interests. This gives me a good opportunity to ask one question of the Minister: has he noticed that this Part of the Bill refers to many things which were in the Financial Services Bill and that both are entirely different from everything else the Government are doing? In every other part of the Government’s actions we are reducing the amount of regulation. Much of the Bill is about that, but when we get on to the financial services arrangements, we are laying more and more emphasis upon more and more regulation and there is no indication, in my view, that it is going to be any better. It is really beginning to bug me that much of what has gone wrong was, of course, the fault of the financial services—I am not for one moment denying that—and certainly the fault of the banks, but I cannot honestly say that the regulator has come out of it with a great deal of praise. Indeed, a number of the things that went wrong can be laid directly at the door of the regulator. So the regulator then comes back and says, “Well, the only way to solve these problems is to have more regulation and more powers, so we can get it more wrong.”
My worry is simply that everywhere else in the Government’s programme, the Government have made the argument that if we have too heavy regulation, we do not have innovation, we do not have new things, we do not have new ideas and new mechanisms to meet the new circumstances of Britain, which after all is in competition with the rest of the world. That is the logic, that is the argument; an argument I buy into. The one area in which that is evidently not true is this one. So now we have had two Bills which interrelate and in this Part of the Bill, which is otherwise an admirable Bill, it has merely gone on doing what the Financial Services Bill had so wrongly done elsewhere. So we have an attitude to regulation which is entirely inconsistent.
We have just had two Bills going through the House of Lords and noble Lords may have noticed that the passage of the Civil Aviation Bill was entirely filled with speeches by Ministers about how wonderful it was that the public was now going to have a great deal more say and more appeal, and the regulators were not going to be able to ride roughshod over customers, businesses and the like. At exactly the same time, we introduced another Bill saying there are going to be no appeals, the public are not going to have a say, businesses are not going to have a say but instead we will have tougher and tougher regulations. I find this incomprehensible and as I have tried on several occasions to raise it in detail it would help me a great deal if the Minister would explain the rather curious mismatch.
Of course, the party opposite has not raised this very much because it wants more regulation in every circumstance: we know that. I raise it at this opportunity because I cannot do it on the amendments of the noble Baroness, Lady Hayter, but I think that in 10 years’ time—probably in five years’ time—people will look back at this period in Parliament and say, “What the blazes were they doing making the British financial industry less able to compete and less able to innovate, when they were doing so much good stuff in the whole of the rest of British industry?”.
Baroness Hayter of Kentish Town
I shall try to resist temptation. As to spectacles, of course it was the consumers who most wanted opticians not to be regulated. It has benefited us all because we have been able to buy much cheaper glasses than we used to.
I would like to ask the Minister, in the complete secrecy of this room, with only a few Hansard writers and television watchers present, that if his Government had not wanted a bonfire of the quangos, would this merger ever have gone ahead? Was it just another number in the bonfire of the quangos or did BIS always want this?
Equal Marriage Consultation
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Baroness Stowell of Beeston
I am very grateful to the noble Lord for setting out why he feels as strongly as he does about this. I am pleased to be able to confirm to him that if the Bill passes through Parliament and becomes an Act, not only will he be able to marry in the local town hall but he will be able to convert his civil partnership into a marriage and will legally be able to call his partner his husband.
Lord Deben
As a practising Catholic I wholly support the church’s teaching on marriage, but I am also pleased that the Government have decided to bring in this Bill. The right reverend Prelate is right to say that marriage is not owned by either the state or the church. It is owned by humanity. Surely our understanding of sexual relationships and sexuality should lead us to understand that there is an extension of natural law from that understanding. That extension should lead us to be prepared in the state to allow people of the same sex to marry. It is wrong to suggest that there is something unnatural for them to wish to take this step. Therefore, I congratulate the Minister on repeating the Statement. I think she will have considerable support from Christians of all denominations, not least from Catholics.
Baroness Stowell of Beeston
I am very grateful to my noble friend for his remarks and support. He has very eloquently described why this is an important step forward and why—with the right safeguards in place to protect religious freedoms—we will be able to bring forward a right that many people should feel is theirs and which they can enjoy.