Enterprise and Regulatory Reform Bill

Baroness O'Loan Excerpts

Monday 4th March 2013 Lords Chamber

[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.

[Baroness Hollins]

My Lords, I, too, support these amendments, and I congratulate my noble friend Lady Campbell of Surbiton on her perseverance in this matter.

The lack of respect shown to patients at Winterbourne View and at Mid Staffordshire shocked all of us. Laws must start with values and principles and not rely solely on regulation; nor should they assume, for example, that all public servants automatically hold and understand those values. The Government say that legislation is no place for declaring a mission but I disagree, and there are many people in the Chamber today who also disagree. For example, the Care and Support Bill includes principles which are perhaps individually unenforceable but they are critical because they remind us all that the primary purpose of care and support is ultimately to support the well-being of people. If we want to know how well our care and support system is doing, the well-being of older and disabled people and their families is our litmus test. Section 3 serves the same purpose. It imports these enduring values and principles into the duties of the EHRC and reminds it and us that, above all else, its role is to ensure that, as a society, we are upholding them.

A much celebrated initiative of the EHRC has been its inquiry into the human rights of elderly people receiving care in their own homes. The inquiry uncovered how the human rights of some older people were being placed at risk by care providers who required their staff to carry out tasks such as helping people to wash, dress or eat in time slots of 15 minutes or less. The dignity of older people was not being respected by a system which most assumed to exist principally for that purpose. It also highlighted how, as a consequence of outsourcing home care to private and voluntary sector providers, coupled with a narrow judicial interpretation of the meaning of “public authority” under the Human Rights Act, the majority of older people receiving care in their own homes could not rely on the Act to protect them.

That inquiry looked beyond existing law. It identified anecdotal evidence of an emerging situation, investigated it and made recommendations, including for law reform but equally for practice. It involved a particular constituency—older people—in circumstances where the values and principles of dignity and respect were being placed at risk but in which there were not at that time any legal cases to claim that human rights had been breached. This is not the sort of work that can be undertaken by charities. Charities are not the experts in equality and human rights. They can provide evidence but not leadership. They look to the EHRC to lead and promote.