Marriage (Same Sex Couples) Bill
Lord Lloyd of Berwick Excerpts(11 years, 5 months ago)
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Lord Cormack
My Lords, I have my name on this amendment and am delighted to support it by speaking briefly. The noble Baroness, Lady Deech, has spoken, as she did last time, very eloquently. All I wish to add and to say to your Lordships is that a review is to happen. If that commitment had not been made, it could have been argued that this amendment was an intrusion and that it was not appropriate or fitting to debate it during the course of this Bill. However, the Government gave this undertaking in another place and, if the Government are to have this review of civil partnerships and attendant matters, then it is surely right, as the noble Baroness has argued so forcefully, that these other relationships should be taken into account. In the name of equity and in the name of decency it is right that your Lordships’ House should say, “Please include these relationships in the review”. That is all that we are asking. We have no guarantee what those who conduct the review will finally determine, but to exclude this from their terms of reference would be entirely wrong and I beg your Lordships to support the very sensible and extremely modest suggestion that the noble Baroness has made.
Lord Lloyd of Berwick
My Lords, my name is also attached to this amendment. In my speech in Committee, I gave two examples within my own experience of couples whose cases ought to be considered in the forthcoming review. One was the former Bishop of Lewes, who shared a house with his sister for many years until his death; and the other was a man, living in our village, who was paralysed many years ago in a riding accident and has been looked after ever since by a young friend of his. My noble friend Lady Deech, in moving the amendment, made it clear that she was not asking for a change in the law now and not even asking for a new review. There is already going to be a review, as the noble Lord, Lord Cormack, has pointed out.
Under the Bill as drafted, Clause 14 states that the review can consider,
“other matters relating to civil partnership”.
It seems to me, therefore, that, on the ordinary meaning of those words, it is for those who oppose this amendment to say why those other matters should not include the two cases that I have mentioned, the case of the sibling and the case of the long-term carer, both of whom are covered by this amendment. The point that there is to be a review anyway was made by the right reverend Prelate the Bishop of Ripon and Leeds in Committee, and it was echoed by the noble Lord, Lord Pannick. Since other matters will be considered in that review relating to civil partnership, this seems to be the ideal occasion to consider the points which everybody agrees are worthy of consideration.
What are the objections to the amendment? I start with the objection raised by the noble Lord, Lord Marks, who I am sorry to see is not in his place. He said that accepting this amendment would,
“undermine the whole notion of civil partnerships, which are about loving relationships between people living together as couples”.—[Official Report, 24/6/13; col. 535.]
So far, no one could possibly disagree with that. However, he went on to say that such relationships must, to be within the meaning of civil partnership, be sexual relationships. Where does he get that from? As far as I know, nothing in the 2004 Act confines civil relationships to sexual relationships. Why should civil partnerships not include the sort of platonic relationship that the noble and learned Lord, Lord Mackay, referred to in the debate on Monday?
The noble Lord, Lord Elystan-Morgan, argued that non-sexual partnerships might not come within the Long Title of the Bill; but why not? It refers only to “civil partnerships”, not partnerships of a particular kind.
The noble Lord, Lord Alli, argued that to include carers would inhibit the further development of civil partnerships to a point where they might be blessed by the church. This, he said, would not be possible if civil partnerships included carers. Surely it would not be beyond the wit of the church to devise a method by which it would bless some civil partnerships but not others, so why should the whole notion of civil partnerships be devalued just because this amendment is accepted?
As the Minister said, the argument advanced by the noble Lord, Lord Alli, was just the sort of argument that should be considered when the review takes place, and I agree. I can understand why the noble Lord, Lord Alli, desires that civil partnership should continue to develop in the way in which he wants, but why should he stand in the way of civil partnership being developed in the way in which we want, which would include siblings and carers?
Finally, in objecting to the amendments, the noble and learned Lord, Lord Wallace, agreed with the argument of the noble Lord, Lord Marks, and I say no more about that. He said that it would undermine the current understanding of a civil partnership—but why? I hope he will explain that further. Secondly, he said it would be difficult to cover the case of the siblings because of the rule about consanguinity. It would lead to the legitimisation of relationships that are currently prohibited. I would give the same answer to the noble and learned Lord as he gave to the noble Lord, Lord Alli: that is just the sort of matter that should be considered when this review takes place.
As we know, the review is going to take place. I hope that the Minister will accept this amendment and allow these matters to be considered in that review.
Lord Lloyd of Berwick
Before the noble Lord moves on to that point, does he advance the same argument that Lord Marks advanced, that there must be a sexual element in every civil marriage? That, I feel, is the difficulty with the argument the other way.
Lord Alli
I have the same answer for same-sex marriage and opposite-sex marriage. We do not ask that question; we just do not. We say that if you say you are married, you define the nature of your own marriage. The state intervenes only in the breakdown of that marriage, when you cite the grounds for your divorce and can choose adultery or unreasonable behaviour. It is the same for civil partnerships. However I understand that, like marriage, the majority of civil partnerships start with a sexual component. That must be broadly understood.
I have two principal objections to the proposition of the noble Baroness. The first is about the nature of the relationship in a civil partnership. The noble Baroness seeks to use the civil partnership to review the Government’s tax and inheritance law. That does not deal with the nature of civil partnerships as I understand it. They were devised and brought into being to recognise a loving and—I accept this point—in most cases, a sexual relationship, between two individuals of the same sex. It was devised to give those sexual relationships a status in law, but not exclusively sexual. In many cases, it gave them the same benefits as married couples. It specifically excluded relationships that were exempted from marriage, such as mothers, daughters, fathers and sons, brothers and sisters.
Because of my personal view of civil partnerships—which is probably the view of the majority of people in this country—the very notion of giving access to civil partnerships between family members is the same as giving access to marriage to a brother and a sister, a father and a son, and a mother and a daughter.
Lord Lloyd of Berwick
I am sorry to interrupt the noble Lord. He said that the noble Baroness moving the amendment is to some extent motivated by the need to provide the financial benefits. That is not my reason at all. Of course, there will be financial benefits, but my reason lies far deeper than that. Civil partnerships should be available to the people covered by this amendment.
Lord Alli
I understand that. However, the noble and learned Lord is trying to break the notion of civil partnership as we understand it. I say to him that the issue of the churches being able to bless civil partnerships should be taken on board when considering the labour laws.
Marriage (Same Sex Couples) Bill
Lord Lloyd of Berwick Excerpts(11 years, 6 months ago)
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Lord Lloyd of Berwick
In the absence of the noble Baroness, Lady O’Cathain, I will speak very briefly in support of this humane amendment.
I imagine that we all can think of couples who fall into one or other of these two paragraphs. As regards family members, I remember a much loved bishop, a Bishop of Lewes. It was many years ago. I believed him to be a happily married man. It was only after he died that I discovered that the woman who I had believed to be his wife was his sister. I can conceive of no reason, as the noble Baroness, Lady Deech, has said, why those two should not have enjoyed the benefits of a civil partnership. The same applies to the unpaid carer. In our village there is a man who suffered a severe riding accident many years ago, as a result of which he is paralysed. He has been looked after with the utmost loyalty by the young man who previously looked after his horse. Once again, I can think of no reason why those two should not enjoy the benefits of being parties to a civil partnership.
It is clear to me that the amendment passed by this House nine years ago should have been accepted by the Government and by the Commons. We cannot do much about it in this Bill but we can at least open the door. I hope that we shall.
Baroness Butler-Sloss
My Lords, perhaps I may make two extremely short points. First, as the previous two speakers have said, the door is now open. It is very interesting that on previous Bills the suggestion was made that this was not the right place. However, of all places, a review of civil partnership actually opens the door for what this House very properly voted in favour of before I joined it. Secondly, the effect on the Government of the day—I appreciate that there have been two Governments of opposite views, who have gone the same way on this—would be to defer the inheritance tax and not necessarily to lose it. It would not necessarily cost the Government very much money in the end. I hope that this will be looked at with more sympathy than it has been in the past.
Marriage (Same Sex Couples) Bill
Lord Lloyd of Berwick Excerpts(11 years, 6 months ago)
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Lord Lloyd of Berwick
My Lords, I did not speak at Second Reading, but I found myself in agreement with almost all those who spoke against the Bill. In particular I agreed with the speech of the most reverend Primate the Archbishop of Canterbury. My noble friend Lord Quirk also made a short and very effective speech. Like other noble Lords, I have received well over 100 letters from those who feel very strongly about the Bill; indeed, some have written to me more than once. They differ from the sorts of letters one gets on these occasions in that they are all clearly written from the heart. Equally, there are those who feel strongly the other way. I have received only a few letters from them. I do not know why there should be so few compared with the great mass of letters on the other side, but I have great sympathy with their views.
What has been missing in all this has been any attempt to find some sort of compromise between the two positions; in other words, a way of giving the gay community what it so obviously desires, without destroying the meaning of the word “marriage”. It seems like many weeks since I received a booklet which does exactly that. It is issued by ResPublica and written by Professor Roger Scruton. It is extremely well argued and, in my view, provides exactly the sort of compromise that is needed. I do not think it was mentioned on a single occasion at Second Reading, but it should have been.
It was with great joy, when I arrived in the House half an hour ago, that I found an amendment tabled in the name of my noble friend Lord Hylton and the noble Lord, Lord Cormack, expressing exactly the view which I would have expressed if I had spoken at Second Reading. I have not had time to develop the argument in support of the amendment but, with your Lordships’ permission, I will read just one short paragraph from the ResPublica British Civic Life document, which is entitled Marriage: Union for the Future or Contract for the Present:
“To the Churches, we recommend that they recognise that the demand for same sex marriage comes from a serious desire for permanent loving homosexual relationships to be recognised and embraced by society, by Christianity and by other faith groups. The demand for secular marriage equality is in part an appeal for religious acceptance, which the Government’s proposals cannot offer. We believe the Churches should consider offering not civil partnerships but civil unions”—
exactly what this amendment proposes—
“to same sex couples a celebration and a status that recognises a transition from partnership into permanence. And the churches and other faith groups should therefore grant civil partnerships a religious celebration and recognition making them a civil union. Churches should recognise not just that homosexual persons are as they are, but they also are owed recognition of the permanent relationships they choose”.
It is for those reasons that I will support this amendment as strongly as I can and hope that it will at least be considered by the Government.
Lord Phillips of Sudbury
My Lords, at Second Reading I suggested that the term for a same-sex marriage might be “espousal”, but I accept the point made by the noble Lord, Lord Hylton, that it is an archaic or anachronistic word. I also said at Second Reading that I intended to sound out the House on whether there would be much support for that nomenclature, and now I have to say that there was not sufficient support for me to feel that bringing it forward at this stage would be the right thing to do.
The reason that I want to persist in the suggestion that there should be a different word for same-sex unions is largely to do with reconciliation. This measure has excited more public interest and reaction than any other measure that I can recollect in recent times, and there is undoubtedly a widespread feeling among a large mass of our fellow citizens—decent people who are not remotely driven by prejudice—that, as the noble Lord, Lord Cormack, and I said at Second Reading, there is a fundamental physical difference between the two unions. It is not a difference either of status or esteem; nor a difference of stability or love, but none the less, it is a fundamental difference. What is quite interesting is that a number of the letters I have received have taken me up on the point that not all heterosexual unions have procreative potential. If a couple are coming together aged 96, there is not likely to be procreative potential. The same goes if one of the couple is unfortunately sterile. However, that escapes the point that same-sex unions can never have procreative potential.
Those who support using exactly the same language will ask, “What’s the point; what’s the difference; what are you trying to do?”. All I am trying to do is to reconcile the bulk of this country to this important, evolutionary change in our law. I sincerely believe that refusing to compromise in the matter of nomenclature would be a big mistake. After this measure has become law, we do not want a rumbling continuance of objection which could conceivably crystallise and increase. I am, therefore, still in favour of a different word. I would be willing to accept “union” which the noble Lord, Lord Hylton, suggested, though I would prefer the word “matrimony”, proposed in Amendment 46—which is part of this group—in the name of the noble Lord, Lord Armstrong of Ilminster. So I hope that we can find a compromise that will give honour to both sides—if I can call them that—although there are infinite shades of grey between the two extremes.
Enterprise and Regulatory Reform Bill
Lord Lloyd of Berwick Excerpts(11 years, 8 months ago)
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Baroness Thornton
My Lords, I will make some very short remarks because the noble Baroness, Lady Campbell, and the noble Lord, Lord Low, have more than adequately explained why we find ourselves in this rather unfortunate position—I agree with the noble Baroness, Lady Campbell—of asking the Government to look again and asking another place to take this back.
It is important also to say that one thing has changed since we discussed this in Committee and on Report. That is that the EHRC has given this matter some further reflection. I congratulate the noble Baroness, Lady O’Neill, because it is a sign of the maturity of the organisation that it has changed its view on this matter at least a small amount. I will read out a statement that was issued, and that is about the only thing I will say. The statement about the repeal of Section 3 on its website says:
“However, the debate in the Lords and commentary by parties have underlined the importance which is attached to the general duty. Many people clearly believe that, both in terms of the perceived mission and role of the Commission, and the coherence of the legislation, it is valuable to retain the general duty. Unless the government can provide additional robust reasons for removing the general duty in the current situation, our analysis suggests the case for removing the Lords’ amendment in the Commons has not been made. The Commission therefore continues to support retention of the general duty and maintaining the position established by the Lords”.
We know from the previous debates and from listening very carefully to what the Ministers in this place and in the other place have said that there is actually no robust case for the repeal of the general duty. Your Lordships’ House took that view by a majority of over 50 when this was discussed on Report. I put it to your Lordships’ House that the one thing that has changed is in favour of the retention of the general duty, and I hope that the Minister will now weigh this issue in the balance and agree to leave Section 3 in place. Indeed, if the Government wish to review Section 3 or any other part of the equalities legislation then that should be done with prior consultation and the involvement of the Joint Committee on Human Rights. We on these Benches do not believe that that is desirable or necessary, but if it were to be done it should be done in a proper way, not as part of a Bill that addresses regulatory burdens on business and enterprise.
Lord Lloyd of Berwick
My Lords, the Minister has not advanced this evening any of the arguments that she advanced at the beginning of January for repealing Section 3 of the 2006 Act. I will therefore leave those arguments on one side.
Instead I will turn to the arguments advanced by the Minister in the other place. He asserted boldly that Section 3 of the 2006 Act should be repealed because it was not a core purpose of that Act. With great respect, that is exactly what it was. Section 3 was in a sense the core purpose of the 2006 Act, that purpose being to bring together for the first time in legislation equality rights with other fundamental human rights. The specific duties under Sections 8 and 9 were to be the means of bringing about that core purpose. That was the very point made by Professor Sir Bob Hepple in his report. He said that Section 3 is important because it states for the first time what he called the “unifying principle”. It is most unfortunate that the Minister in the other place, when he came to his reply, did not reply to that argument or to any of the arguments advanced in the other place; sound arguments and convincing arguments, they were all, unfortunately, left aside because there was no time to deal with them.
There is a hint, elsewhere in what the Minister said, that Section 3 is undesirable because it would, as it were, take the commission’s eye off the ball to the exclusion of the important duties under Sections 8 and 9. There was never much danger of that. In any event, the commission has now made it clear, if I am right, that it would now welcome the retention of Section 3. If that be so, surely we should leave it at that.
It is not often on these occasions that we should resist the view of the House of Commons at this stage of ping-pong. However, the Government have not given one single solid reason why we should repeal a provision that both Houses were in agreement on as recently as 2006. As I have said, the Minister did not deal with any of these arguments in his reply. We should give him another opportunity of doing so, and another opportunity to the other place to see if they agree with those arguments or not. For that reason, I will vote for the amendment in the name of the noble Baroness, Lady Campbell.
Baroness Hussein-Ece
My Lords, I pay tribute to the work and the steely determination of the noble Baroness, Lady Campbell. She has been inspirational in her continuing support for what she believes to be an important principle and issue. Many of us share her passion and determination.
It is very poignant that today we are again debating the general duty of the Equality and Human Rights Commission and its principle on the 20th anniversary of the terrible racist murder of 18 year-old Stephen Lawrence, and on the day of the memorial service that was held this afternoon in his memory, which I understand was attended by the Prime Minister and others.
Last month at an event to launch a book about the Macpherson inquiry, Doreen Lawrence said that, as a mother, for 20 years she had not been able to grieve and find closure because she had been forced to fight for justice, year after year. There are still individuals out there today who were involved in this murder and who have not been brought to justice. She wrote to the Prime Minister last November asking that he does not row back or seek to water down hard fought equalities legislation that all political parties came together to put on the statute book so recently to protect those who need protecting.
Huge progress has been made over many decades, particularly since, for example, my own family came to the United Kingdom, when racism and discrimination was rife. However, there is still much to do to ensure that our society becomes more equal, and that we maintain and build on such positive work, particularly since the Macpherson inquiry and its findings. It is irrefutable that more than a decade later, the Macpherson inquiry can rightly claim to have led to an overhaul of Britain's race relations legislation which created much stronger anti-discrimination powers that can be found anywhere in western Europe. Attitudes towards racism and policing have now changed as a result. However, there are still very many people and communities who need to be protected and encouraged to achieve their potential and not be limited by prejudice or discrimination. We need the commission to have the tools, the ability and the duty to monitor the progress in our society.
Enterprise and Regulatory Reform Bill
Lord Lloyd of Berwick Excerpts(11 years, 9 months ago)
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Lord Morris of Handsworth
My Lords, I, too, support the amendment. Section 3 represents more than a statement. It represents a commitment to the principles of equality—equality of opportunity, equality of dignity and the responsibility of the state to its citizens.
The EHRC needs a benchmark, a flag, by which it can promote the principles on which it was founded. It needs to be measured, not against the principles of race, disability or gender, but in a much wider context, because it makes a statement about the sort of society we are, the aspirations that we hold for ourselves, and the signals that we send far and wide.
In that context, if the amendment before this House is not embraced, we will be sending a negative statement. We will be saying that after all that we have achieved over many years in terms of race, gender, disability and children, we have turned around and are heading in a totally different direction. It is not my belief that that is the Government’s intention: I believe that the Government’s intention is to continue to improve the standards and opportunities of all their citizens. However, in any journey, we all sometimes take a wrong turn; I genuinely believe that on this occasion, the Government—with all their good intentions—have got it wrong. It is for those reasons that I ask the Minister to look again and to say to the Government that so much depends on their credibility with a vast swathe of this nation and its citizens that to take this wrong turn would be an inevitable downgrading of the concept of equality of opportunity for all. We all believe in that principle and it is in that spirit that I support the amendment, but more importantly, I ask the Government to think again.
Lord Lloyd of Berwick
My Lords, I cannot begin to emulate the eloquence of the speech that we have just heard. I too regret that I was not present when this matter was discussed in Committee on 9 January but, after reading Hansard, it is clear to me that the debate was of an exceptionally high standard, particularly the contributions of my noble friends Lady Campbell of Surbiton and Lord Low of Dalston. Unfortunately, my noble friend Lord Low cannot be here today; I cannot begin to take his place, but I agree with everything he said in that debate.
There is another person who cannot be here today for a different reason. He was mentioned by the noble Lord, Lord Wigley, as one of those who led the way in this area of the law in the 1990s and long before that. I refer, of course, to the late Lord Morris of Manchester. It is not difficult for me—or I suspect, anybody else in the House today—to imagine what Lord Morris’s reaction to the proposed repeal of Section 3 would have been. I do not doubt for one moment that he would have regarded it as a serious backwards step, and he would have said so in his usual trenchant terms.
I want to deal first with the argument of the noble Lord, Lord Lester, as a lawyer—I am sure that his heart was not really in it—that if we leave out Section 3 we are losing nothing. Secondly, I want to comment on the reasons given by the noble Baroness, Lady Stowell, at the end of her reply for the Government’s decision to repeal Section 3. The noble Lord, Lord Lester, gave two reasons for his view. The first was that Section 3 was purely aspirational, so it would make no difference if it were repealed. It contained nothing, he said, that could be enforced in a court of law.
However, if that argument were correct, it surely proves too much. If Section 3 is purely aspirational, so, surely, are Sections 8 and 9. How would the noble Lord enforce in a court of law the duty under Section 8 to promote understanding of the importance of equality and diversity? How would he enforce in a court of law the commission’s duty under Section 9 to promote understanding of the importance of human rights? If the legal argument of the noble Lord, Lord Lester, were correct, it would surely mean that we should repeal not only Section 3 but Sections 8 and 9, which would leave us with absolutely nothing. Of course, the truth is that the argument is misconceived. Recent legislation is littered with examples of duties which cannot be enforced in a court of law but serve, nevertheless, a very useful purpose. For example, Section 1 of the Constitutional Reform Act 2005 provides that:
“This Act does not … affect … the existing constitutional principle of the rule of law”.
How is that to be enforced in a court of law? However, it serves an extremely useful purpose.
Another example that occurred to me is Section 1 of the Climate Change Act, which provides that:
“It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline”.
How—perhaps I should say, when—is that duty, clearly stated by Parliament, to become enforceable: in 2048, 2049, or when? Therefore, with respect, that argument carries very little weight. For all those reasons, I suggest, with the utmost delicacy, that the legal argument of the noble Lord, Lord Lester, should not deter us in any way from supporting this amendment.
However, the noble Lord had a second argument. He said that there is nothing in Section 3 which is not also contained in Sections 8 and 9, so Section 3 is in effect otiose. I suggest that he is wrong, but suppose for a moment that he is right: if Section 3 adds nothing to Sections 8 and 9, how is that consistent with the Government’s argument all along that Section 3 is too broad? As the noble Lord, Lord Low, pointed out, the Government simply cannot have it both ways. I suggest that he was right. In truth, Section 3 does indeed add something which is not in Sections 8 or 9, and something of the very greatest importance. It provides for the first time in legislation the unifying link between equality and other fundamental human rights. This was the point made by Sir Bob Hepple in his memorandum, which I hope the noble Baroness has read, and which has already been referred to by the noble Baroness, Lady Lister. That deserves an answer and I hope that it will get one. Indeed, the assertion of a unifying principle in Section 3 was surely one of the main objectives of the 2006 Act, as the noble Lord, Lord Lester, himself pointed out when he was promoting the Bill. Therefore, I again suggest, as delicately as I can, that the noble Lord might in this instance have done better to follow his heart than his head.
Lord Lester of Herne Hill
My Lords, I was not intending to speak and it is a misfortune for the House that I now do so, with extraordinary brevity. When I joined this House almost 20 years ago, Lord Alexander of Weedon said to me, “Remember, Anthony, that the House of Lords is not a court of appeal, it is a jury. Try, if you can, to speak to a jury”. I totally disagree with almost everything that the noble and learned Lord, Lord Lloyd of Berwick, has said today, and would do so in a court of appeal. However, when we are dealing with a jury whose sentiment has already been powerfully expressed, I do not think that it would do the slightest good if I were to explain exactly why I continue to hold the view that I did previously.
By the way, I did not promote the 2006 Act, but I certainly took part in debates on it and I did not oppose Section 3. However, being a practical person—I am no philosopher—I shall concentrate in these debates on three practical things: one is caste discrimination, the second is the abolition of the questionnaire procedure, and the third is the relationship between the Joint Committee on Human Rights and the commission. I hope that I shall not speak on anything else.
Lord Lloyd of Berwick
My Lords, I was dealing only with the arguments which the noble Lord advanced in Committee. I thought he might be advancing them again. He has not, but at any rate I have given my answers to those arguments and the House will in due course decide.
I turn now to the reasons—and I am sorry to take so long—given by the noble Baroness, Lady Stowell, for repealing Section 3 as it stands. She gave two reasons and it is as well that the House should actually have them in mind. The first reason is as follows:
“But the problem with Section 3 is that it implies that the commission, uniquely, is responsible for encouraging and supporting the development of such a society. This is patently wrong and arguably insults the efforts that we all make in support of these goals, whether through the work of Parliament, government, the wider public sector, business or the community. We are collectively responsible. We might need the commission’s help, but it cannot achieve an equal society on its own”.
Section 3 provides that the object of the commission is to encourage and support the goals of which we are all aware. But there is nothing that I can find in the words of Section 3 which suggests or implies that the commission is to be solely or uniquely responsible for encouraging and supporting those goals. I fear that, in adding those words, the noble Baroness was reading words into Section 3 which are simply not there and for which there is not the slightest reason.
I fail to see how it can be argued, as the noble Baroness does, that Section 3 is an insult to the work done by Parliament or government or to the public in general. Of course, the commission cannot achieve an equal society on its own. Whoever suggested that it could? So I am puzzled by the first reason given. There is no insult involved. But I am equally puzzled by her second reason, which is as follows:
“We are seeking to repeal the general duty on the commission because it creates unrealistic expectations, positive and negative, about what it on its own can achieve”.—[Official Report, 9/1/13: cols. GC 60-61.]
I repeat, the commission’s job is to encourage and support. How does that create any expectations, positive or negative, that the commission can do the job on its own? What is the evidence that there is any such unlikely expectation and, if there is, that it is due to Section 3?
We are being asked today to repeal a very recent piece of legislation which was regarded as of some importance at the time and was well considered. We should not do so unless good reasons are given. The reasons so far given on behalf of the Government are, to my mind, wholly unconvincing. I therefore support the amendment.
Baroness O'Loan
My Lords, in putting my name to the amendment, I would like to endorse the comments made by the noble Baroness, Lady Lister, in relation to the magnificent contribution made by my noble friend Lady Campbell in the context of human rights.
The general duty created by Parliament in Section 3 of the Equality Act 2006 is a profoundly important obligation. It is not vague. Its terms are absolutely clear and quite brief. As Liberty has said, the fact that the commission has not yet fulfilled its potential —and despite its early failings to deliver on its mandate—should not mean that its crucial powers and functions are compromised or circumscribed.
We have heard a description of what Section 3 actually does. It asks the commission to exercise its functions to encourage and support the development of an inclusive society that encourages people to achieve their potential, values diversity, respects the dignity and worth of every citizen, and respects, promotes and protects human rights. It does not, as the noble and learned Lord, Lord Lloyd, said, require the Equality and Human Rights Commission to establish a fair and equal society. That would be vague and impossible of performance. Rather it provides the vision that is necessary to guide the operation of equality and human rights law in this country. It is not uncommon for such a purposive section to be included in legislation. It provides a very necessary statutory underpinning to the operation of equality and human rights law.
When one seeks to work legislation of this type in a day-to-day context, provisions such as this are profoundly important. The legislation that applied to me as Police Ombudsman for Northern Ireland required me to carry out my functions in the way that I thought was best calculated to secure the confidence of the people and the police in the police complaints system. If you were so minded, you could argue that that was similarly vague, but it was not vague at all; it was very precise.
Section 3 provides the principles that are absent from the Equality Act 2010 and which are necessary for the interpretation of that Act. Without it, there would be gaps and deficiencies and, ultimately, Parliament would be required to legislate further on this issue. There is widespread unease and concern, articulated not only in this House this afternoon, at the proposal to remove Section 3—the lobbying has come from wide sectors of society.
I refer to the response of Justice to the Home Office consultation in 2011 on this issue. Justice pointed out that the objectives set out in the general duty were,
“agreed by all political parties in Parliament following amendments proposed by Conservative MPs”.
Justice also stated:
“The General Duty provides a clear mandate which the EHRC must have regard to when deciding how to act. By repealing the General Duty, the mission and very purpose of the EHRC would be altered, and the UK’s commitment to the Paris Principles would be fatally undermined”.
The commission achieved its fundamentally important United Nations “A” status only three years ago. It had to demonstrate compliance with the Paris principles in order to do that. The achievement of “A” status gave it full participatory rights at the UN Human Rights Council and access to other UN bodies. The Northern Ireland Human Rights Commission had had such a status three years previously. That status, with the opportunity for influence and engagement, is important in the context of the international credibility of this country.
Reference has been made by the noble Baroness, Lady Lister, to Professor Sir Bob Hepple’s statements. He has stated that repeal will remove the unifying principle to which both the Lord Chancellor and the noble Lord, Lord Lester, referred when promoting the Equality Act 2006—the link between equality and other fundamental human rights. At the core of the commission’s general duty, and implicitly underlying the specific rights against discrimination, harassment, victimisation and the positive duty to advance equality, is respect for and protection of each person’s human rights.
This is not merely a political statement. It is the difference between the commission pursuing a society in which everyone is treated well and one in which law can be complied with simply because everyone is treated equally badly. When the Commission for Racial Equality investigated ill treatment of black prisoners prior to the creation of this commission, the defence given by the prisons was that white prisoners were treated equally badly. That was a legally sound defence. However, the operation of Section 3 ensured that a use-of-force policy against young men in detention had to be abandoned when the commission intervened. Had Section 3 not existed, the Home Secretary could have simply reconsidered the matter and reissued the policy.
I have seen no evidence that Section 3 has been in any way a hindrance to the operation of the commission, equality law or business. It is a necessary framework within which our equality and human rights law operates. The commission is facing the harsh reality of trying to maintain its UN “A” status while suffering from 76% budgetary cuts and 62% staffing cuts. It will struggle. If Section 3 is lost, the commission will be reduced in status and clarity of mission and purpose. That would be detrimental to the governance of our society.