Equality Act 2010 (Specific Duties) Regulations 2011

Debate between Lord Waddington and Lord Lester of Herne Hill

Tuesday 6th September 2011 Lords Chamber

[Lord Lester of Herne Hill]

The general duty is in Section 149 and I have already said what it covers. I obviously did not do it very well, but that is where the general duty is. I was trying to explain that these extra obligations, on every public authority, really are an example, in my view, of overregulation. The noble Lord, Lord Waddington—who does not like the legislation, and has always made that absolutely clear, with the reasons given again and again in previous debates—rightly says that he is against overregulation. He referred to the Red Tape Challenge. The Minister will correct me if I am wrong but my understanding is that the Red Tape Challenge, which asked the public what they thought about the regulation under the Equality Act, disclosed that about 95 per cent of respondents expressed overwhelming support for the scheme that he dislikes so much, and the remaining 5 per cent included some who wanted it to go further. If one takes any regard of public consultation, that is a vote of confidence in the scheme, however much the noble Lord, Lord Waddington, and those around him may dislike it. One is entitled to take account of that since the Government did so. I am totally opposed to overregulation, and I want just to give one example of what worries me when a body such as the Equality and Human Rights Commission has responsibility for monitoring.

In my professional capacity I was consulted by the Commission for Racial Equality about a scheme involving Crossrail. The question was whether digging a large hole in the ground in a particular part of London would be directly or indirectly racially discriminatory against people of Bangladeshi origin, and therefore whether the whole scheme might have to be stopped as a result. It seemed to me, if I may say so, a strange thing to ask me to advise on, but that is what happens in life. I then called for the race equality impact assessments that would have been made and were relevant to this under the previous legislation. I discovered that there were 100 pages from the Department of Transport, separate submissions by each of the three London boroughs affected, a separate submission by the Mayor of London and a separate one from Transport for London. One had this bulky mountain of paper, none of which had ever been read by the monitoring agency, in a cupboard that no one had ever opened. That seemed to me to be an example of creating paper mountains through overregulation of a completely pointless kind.

When I was constructing my own Private Member’s Bill it was impressed on me by people from Northern Ireland who had great experience in monitoring that one must go for targeted monitoring by a body that is capable of doing the job. I do not think that the Equality and Human Rights Commission at the moment is capable of doing the job. It requires a great deal of professional expertise which is lacking and is very difficult to do. I therefore welcome the fact that the Government have sensibly produced specific duties that are capable of being carried out and have said that we will treat it as an experiment for two years, at the end of which we will suck it and see whether we need more or less regulation. That seems entirely desirable. Therefore, I could not possibly support the noble Lord, Lord Low, if he were to divide the House, which I hope he will not.

As for the amendment proposed by the noble Lord, Lord Waddington, when the Equality Bill was going through Parliament, as the Explanatory Notes make clear, the right to freedom of religion was specifically taken into account, as was freedom of conscience. My view is that there is nothing whatever in that Act, or in the way it has been interpreted by the courts or, in my judgment, in Strasbourg, that infringes on freedom of religion or freedom of conscience. I do not refer to the way in which it has been interpreted by the Daily Mail or in stupid reactions by ignorant people, or others. There are cases pending in Strasbourg.

[Lord Waddington]

Is the noble Lord concerned for one moment with the way in which it has been interpreted by public authorities? That is the point.

[Lord Lester of Herne Hill]

I am deeply concerned about that. As the noble Lord, Lord Low, said, I am deeply concerned about ridiculous political correctness, with the rubbish about how you must not mention Christmas or Christmas lights, and so on. The same is true of the Human Rights Act; day after day, you read ridiculous examples that do not represent the law of the land. All that I am talking about is the law of the land, not misinterpretations of the law of the land; there is nothing wrong with the law of the land as it stands, but there is everything wrong with mischievous misinterpretations outside or sheer ignorance. But we are not here to pass judgment on the basis of ignorance or anything of that kind; we are here to approve some sensible regulations, narrowly and clearly targeted to carry out the general duty, which was passed by the previous Government with the support of all parties. Therefore, I hope that we can do so soon.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Debate between Lord Waddington and Lord Lester of Herne Hill

Wednesday 15th June 2011 Lords Chamber

[Lord Waddington]

There is just one little matter that puzzles me and I would be very grateful for my noble and learned friend’s help on it. If Amendment 32B is read along with Amendment 33, it seems to suggest that Amendment 33 covers all the ground in Clause 18 but merely puts it better. In fact, Amendment 33 does not address one of the matters which Clause 18 seeks to address; that is, the suggestion that EU law may be binding on us quite irrespective of any Act of Parliament. I wonder what my noble and learned friend’s answer is to that, because I do not think that his Amendment 33 covers one of the matters which Clause 18 seeks to address. The argument advanced by counsel in the metric martyrs case suggested that EU law was binding on this country quite apart from any Act of this Parliament.

[Lord Lester of Herne Hill]

I have added my name to the amendment. When I was young and at the Bar I remember that there was a High Court judge all of whose judgments were two words: “I agree”. I shall do my best to follow that admirable example as I agree with the analysis of the noble and learned Lord, Lord Mackay of Clashfern. I want to add a couple of things. First, paragraph 114 of the Explanatory Notes refers to a case that I was in more than 30 years ago, Macarthys Ltd v Smith, in which Lord Denning set out the exact position recited in that paragraph. The Explanatory Notes recite:

“As Lord Denning noted in the case of Macarthys Ltd v. Smith … ‘Community law is part of our law by our own statute, the European Communities Act 1972. Community law is now part of our law: and whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it.’”

That is exactly what this amendment puts into statutory language. The 1972 Act, the brilliant Act, if I may say so in his presence, introduced by my noble and learned friend Lord Howe of Aberavon, is the organic Act. That Act is the parent. It is that Act which made sure that the binding force of European Community law would not be directly as a result of judgments of the Luxembourg Court but would be directly as a result of the Geoffrey Howe Act. That is what is said here. To recite further Acts which have come in afterwards by way of a list, as the noble and learned Lord, Lord Mackay, has indicated, is inappropriate.

[Lord Williamson of Horton]

It seems a long time since we discussed Clause 18 at Second Reading and in Committee. I would recall that it is only tenuously linked to the referendum lock clauses. It has been described as the parliamentary sovereignty clause, but it is perhaps best described, as in the words of the Bill, as a clause on the “status of EU law”. It is a declaratory provision which confirms—it does not establish—that directly applicable or directly effective EU law takes effect in the UK only as a result of an Act of Parliament. Some people do not like declaratory provisions in legislation, but the Government may certainly propose such a clause if they think it has importance in maintaining public confidence by confirming, for the first time in statute, our existing treatment of EU law within the UK’s domestic legal order. It is consistent with the decisions of our courts, notably by Lord Denning in Macarthys Ltd v Smith in 1979.

Amendment 32B has not been moved, so Clause 18 is in the Bill and we have a choice between the Government’s text and the revised text proposed in Amendment 33, which refers specifically to the European Communities Act 1972 rather than to an Act of Parliament. The Explanatory Notes to the Bill state that the words,

“by virtue of an Act of Parliament”,

cover UK subordinate legislation made under Acts and also Acts and measures of the devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation.

That is the description, but will the Minister say—this is the same point that has been broadly covered by the noble and learned Lord, Lord Mackay— whether that is the specific reason why these words were chosen in the Government’s text? As everything seems to come back to the European Communities Act 1972, would the reference to that Act in the text of the amendments not also cover subordinate legislation and Acts of the devolved legislatures? That is what has been stated and I should like the Government to confirm whether that is the case.