Enterprise and Regulatory Reform Bill

Lord Wigley Excerpts

Wednesday 9th January 2013 Grand Committee

[Baroness Whitaker]

My Lords, I rise to support what the noble Baroness has just said. One of the first things that I did when I joined the House of Lords was to speak in favour of admittedly a similar aspiration provision, but in my view appropriately. It might have been on an amendment from the noble Lord, Lord Lester, in legislation in 2000. The concept eventually found its way into the 2006 Act.

When Parliament agreed this provision it was on the basis of discussion with a wide range of organisations. It was widely welcomed. Why? We do not have a fair and unprejudiced society. It may be that everyone in this room is fair-minded, but fairness and good relations between groups do not exist when, for example, Gypsy, Traveller and Roma people are harassed about where they can live. The noble Baroness mentioned that young people now describe themselves as Muslim in larger numbers. Gypsy and Traveller children dare not describe themselves as Gypsies and Travellers, because of the things that have happened to them.

We have a society in which children with disabilities are bullied in school. Members of minority groups that make up our society are denied jobs because of stereotyped expectations. Old people are despised and neglected. The ordinary self-respect that people need, particularly children, is undermined. This is at the expense of social cohesion and an ordinarily decent society. I support this group. I think that it is necessary to give the EHRC a proper strategic approach to help bring about a fair society.

[Lord Wigley]

My Lords, I am very glad of the opportunity to intervene briefly in this debate and should declare an interest in regard to my involvement with Mencap Wales, Autism Cymru and a number of other disability organisations. I congratulate warmly the noble Baroness, Lady Campbell, on introducing this important amendment. I agree with what she said, as I did with the noble Lord, Lord Low.

I recall the battles in the 1990s to establish disability rights. Those battles were led by Lord Ashley, Lord Morris, John Hannam and others, across party boundaries, because of the importance of enshrining in law the principles of rights. My fear is that we are in danger of a movement backwards today.

The general duty is necessary to avoid regulatory gaps or the effect of overlaps. Rather than being repealed, it should, if anything, be amended to establish more clearly the EHRC’s overriding purpose, powers and duties and to support the focus on being an equality regulator and a general human rights institution.

I have concern also about the proposal to move from a three-year to a five-year progress report cycle. There is a real danger here that if the cycle were to start coinciding with the electoral cycle, we could find many of these issues becoming politicised, which is in nobody’s interest. I have further reservations about the repeal of the conciliation powers, which would amount to the loss of the EHRC’s wide-ranging, background role in monitoring the effects of legislation.

The Government need to make a very strong case for repealing Section 3 as the Bill proposes, and I doubt that they can do so. If they are not prepared to think again between now and Report, we should support similar amendments at that stage in the Chamber in order to give the EHRC and all involved in disability the strongest possible messages.

[Lord Lester of Herne Hill]

My Lords, I apologise to the mover of the amendment that I was not present when she spoke. I shall be extremely brief, because I explained at Second Reading that nothing in this clause would remove any of the commission’s powers or functions and why I regarded what was being deleted as not harming, but improving, the performance of the commission.

The general duty arose not in the 2010 Act but in the 2006 Act, and the 2006 Act unfortunately put the cart before the horse, as some will remember. Instead of doing what was done in the 2010 Act, which was to reform the underlying discrimination law and bring it all together, the then Government instead put the cart before the horse by setting up a commission without having reformed the underlying law. They put into the 2006 Act this general duty, which is unenforceable and purely aspirational—for those who pull faces when I say that, I remind them of the aspirational language, which is very fine but not capable of being enforced in any court of law. What they did in addition to that, and which is unaffected by the Bill now before the Committee, was to put in Section 8:

“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of equality and diversity … encourage good practice in relation to equality and diversity … promote equality of opportunity … promote awareness and understanding of rights under the equality enactments … enforce the equality enactments … work towards the elimination of unlawful discrimination, and … work towards the elimination of unlawful harassment”.

That is in Section 8 and is unaffected by anything in this present Bill. They then went on in Section 9, also unaffected by this Bill, to provide that:

“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of human rights … encourage good practice in relation to human rights … promote awareness, understanding and protection of human rights, and … encourage public authorities to comply with section 6 of the Human Rights Act 1998”.

Those are completely intact, as are all the enforcement powers given to the commission under the 2010 Act. Rather like the socio-economic disadvantage rhetoric that the Government have rightly not sought to rely on, all that has been taken away in the general duty is the following:

“The Commission shall exercise its functions under this Part with a view to encouraging and supporting the development of a society in which … people’s ability to achieve their potential is not limited by prejudice or discrimination ... there is respect for and protection of each individual’s human rights … there is respect for the dignity and worth of each individual … each individual has an equal opportunity to participate in society, and there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights”.

Everybody in the Committee would agree with those sentiments, but the point that I make as a lawyer, for which I do not apologise, is that none of that is capable of being enforceable in any way. A duty that is written in water—it is clearly aspirational—may make us all feel joyful but it is not sensible to have it in legislation for a commission that in the past, as many in this Room will know, has been distracted by an overbroad and vague mandate. It is time that the new commission, as it were, concentrated on what it is meant to do, which is strategic law enforcement and everything else associated with that. I know that I am in a minority in this Committee but I for one consider that it is perfectly legitimate to get rid of Section 3, while retaining intact all the commission’s powers and statutory functions.

--- Later in debate ---

[The Deputy Chairman of Committees]

Indeed, so my predecessor told me, but since then we have had the great advantage of electronic checking and back came the reply just as I have given it. That may be for the assistance of future proceedings of Grand Committee.

[Lord Wigley]

My Lords, before we leave that point, it would be very helpful if the Annunciator could keep up with the debate, so that we can be here in time, because there are times when it is five or 10 minutes behind in showing the changes of speakers and the issue being debated.

[The Deputy Chairman of Committees]

With great respect to the noble Lord, that is known as the art of keen anticipation, which I learnt many, many years ago.