Enterprise and Regulatory Reform Bill

Lord Low of Dalston Excerpts

Wednesday 9th January 2013 Grand Committee

[Baroness Turner of Camden]

My Lords, I recently put my name down to this amendment at the instance of the TUC. It is one of the many bodies that have written to us, including the Law Society and other organisations, which are very concerned at the requirement in this Bill to remove the general Section 3 duty from the Equality and Human Rights Commission.

The general duty is very important. It is essential because it requires the EHRC to encourage and support a society based on freedom from prejudice and discrimination; individual human rights;

“respect for the dignity and worth for each individual”;

and on having an,

“equal opportunity to participate in society”,

and a,

“mutual respect between groups based on understanding and valuing of diversity and on shared respect for … human rights”.

A recent report from the European Commission on national equality bodies said:

“In order to … realise their potential in promoting equal treatment for all, equality bodies should develop a vision of their role within the administrative culture and society”.

This is exactly what Section 3 does. Furthermore, it provides a guiding vision for the EHRC that unifies equality and human rights.

Section 3 of what became the Equality Act 2006 was extensively debated within Parliament during its passage and its final drafting, from which this Bill takes a piece away, was agreed by all the parties participating. There is very general agreement around what we are proposing. I hope therefore that the Government will think very seriously about what was set before us so eloquently, if I may say, by my noble friend Lady Campbell of Surbiton. It really is terribly important for all kinds of groups to ensure that the general duty in the Equality Act is maintained in this Bill. To leave this provision in the Bill would threaten a lot of the work that the EHRC has done. That would be an awful shame. Certainly, a lot of bodies have written to us to say, “Please, please don’t let them get away with this. We don’t want this to happen”. I therefore hope that the Minister will listen very seriously to what has been said and accept what we are proposing.

[Lord Low of Dalston]

My Lords, I put my name to this amendment because I do not support the removal of the commission’s general duty. The Government say that it is too broad, then go on to say that there is nothing in Section 3 that is not sufficiently covered elsewhere in the Act—in other words, that it adds nothing. Yet if it adds nothing, it cannot be too broad. You cannot have it both ways. Again, the Government say that Section 3 is aspirational and that there is no way that the commission can accomplish all that is encompassed in it but, again, that is at odds with the argument that the same ground is covered elsewhere in the Act.

No institution can achieve all that it was set up to do all at once; there would otherwise be no reason for it to go on existing. Yet that is no reason not to have a statement of aims or objectives to indicate the direction of travel or guide the commissioners in framing their actions. On balance, the commission concludes that removing Section 3 is unlikely to have much practical effect. The Government have made great play with that, but the commission agrees that a unifying statement of principle is important and that it is beneficial to have a vision or mission statement, such as is provided by Section 3, for symbolic if not for practical reasons. However, if its inclusion has symbolic value, is it not the case that its removal will have symbolic significance also?

This, I think, is the nub of it. The repeal of Section 3 is just part of the Government’s broader attack on the EHRC. The commission’s statutory remit was the product of cross-party agreement when the Equality Act 2006 was passed. Indeed, the original wording was amended in the House of Lords to take account of Conservative concerns that it was too broad.

What has changed in the past six years to make it no longer appropriate for the commission to have the general duty set out in Section 3? I will tell you what has changed. The Government have changed. The commission is charged with championing the cause of those who are the victims of prejudice and discrimination on the part of those in positions of power and privilege and with promoting a more egalitarian society. This does not always go down too well with those in positions of power and privilege. We all know that anything with the words “human rights” in it is like a red rag to a bull to the right-wing of the Conservative Party. The Government have decided to throw the dismantling of the EHRC as a bone to their right-wing. Labour in another place has described this as abolition of the EHRC by stealth, but I am not sure what is so stealthy about it. Already, in relation to its grant-making function, the commission’s helpline and conciliation functions—the very things which ensure that it remains anchored in the realities of life with which it needs to engage—have been removed. The Bill proposes also to remove its good relations duty—something else which helps it to remain grounded. By 2014-15, it will have had its budget reduced by 62%, a far bigger cut than is being imposed anywhere else in the public sector, and will have lost 72% of its staff.

Separately, the review of the public sector equality duty, one of the most powerful engines for change and progress on the equalities front, has been brought forward. Taken together with those changes, the removal of the general duty can be seen for what it is: part of a sustained attack on the equality agenda in our society and the institutions which exist to promote it. Of course, the Minister will tell us that the Government are fully committed to equality and that the Bill is just about housekeeping and legislative tidying up, but I am reminded of an occasion when I had been rather critical of someone’s organisation. When he challenged me about it, I replied—rather lamely, I fear—that I meant no ill will, to which he said, “But if you tell me something is chocolate pie but it tastes to me like cardboard, what am I supposed to think?”.

The heads of justice, the Fawcett Society, Mind, the Refugee Council, the Equality Trust and others have expressed opposition to those changes in an open letter, stating that they will leave the EHRC a weaker body. In their consultation paper of March 2011, the Government state that Section 3 has no specific legal function, but that is not correct. The eminent lawyer, Professor Sir Bob Hepple QC, who was co-author of the Cambridge independent review of the enforcement of UK anti-discrimination legislation, which is the foundation stone of much of the equality legislation of the past decade, has issued to a memorandum in which he set up three reasons for thinking that.

First, in the absence of a purpose clause in the Equality Act 2010, the courts and others enforcing the Act were able to use Section 3 as a guide to the interpretation of the single Equality Act, enabling them to fill gaps and resolve ambiguities. The absence of a purpose clause in the single Equality Act is less important than it might otherwise have been because of the EHRC’s general duty set out in Section 3 of the 2006 Act. He says that the repeal of Section 3 will deprive those applying the law of interpretive principles and will leave equality law rudderless. It increases the likelihood of inconsistencies in the way in which the single act is applied.

Secondly, repeal will remove the unifying principle linking equality and other fundamental human rights. Respect for and protection of each person’s human right is at the core of the EHRC’s general duty and implicitly underlies the specific rights against discrimination, harassment and victimisation, and the positive duty to advance equality, which are set out in the Equality Act 2010. Professor Hepple cites the noble Lord, Lord Lester, who was chair of the advisory committee to the Cambridge review in the debates on the Equality Act 2006, as emphasising the importance of equality as a fundamental human right to be enjoyed together with other human rights—civil and political, and economic and social—and of promoting a culture of human rights. The Equality Acts 2006 and 2010 seek to overcome the fragmented approach to different strands of discrimination, which Professor Hepple says has characterised British legislation in the past. Repealing Section 3 will undermine the historic unification of equality and human rights law which was achieved under those Acts.

Thirdly, taken in the context of all the proposed changes, the proposed repeals are likely to further weaken the EHRC’s case for accreditation by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, the ICC, as an “A” status body in full compliance with the Paris principles, which Ministers have consistently said is a high priority for the UK Government. The International Council on Human Rights Policy has emphasised:

“The most effective national institutions generally have a broad and non-restrictive mandate … an all-encompassing jurisdiction”,

and “adequate budgetary resources”.

The EHRC’s “A” status is already being questioned. In a letter from the ICC chair, Dr Mousa Borayzat, to the Home Secretary, Dr Borayzat suggests that the Government should use the opportunity of the present Bill not to weaken the EHRC but to strengthen the provisions in the Equality Act 2006 related to the commission’s independence. This letter was part of correspondence between the UN and the British Government, centring on the UN’s concerns that the Government’s approach to the commission might compromise its independence and thus jeopardise its national human rights institution status.

The Government argue that Section 3 does not cover any ground that is not perfectly adequately covered by the EHRC’s core equality and human rights functions in Sections 8 and 9. But there are reasons for thinking that repeal of Section 3 could well have the effect of making the commission’s duties at Sections 8 and 9 more vulnerable to judicial review on the ground of challenges based on the proper statutory remit of the commission, thus handing power to the courts to determine the EHRC’s scope and weakening the influence of Parliament.

Of course, Section 3 is susceptible to judicial review. But the lesson from elsewhere, particularly Northern Ireland, is that the more specific and less general the duty, the more susceptible to challenge it becomes. Related to this point, in the absence of Section 3, there is little by which to judge whether the duties under Sections 8 and 9 are sufficient as they become freestanding and detached from any specified outcomes or overarching purpose, thus making further reform of the commission’s duties and powers more straightforward. This is of particular concern given that the terms of reference of the review of the public sector equality duty include the EHRC’s duties and powers in relation to the duty.

The appeal of Section 3 signifies that the Government have no great love for the EHRC. It is opposed by many highly reputable organisations that are in a good position to know about these things. The courts will be deprived of a road map for interpreting the legislation. That legislation will be stripped of its unifying principle linking equality and other fundamental rights. The commission’s standing as an “A” status national human rights institution will be weakened. The commission will also be rendered more liable to judicial review. In the light of all that, I do not believe that the repeal of Section 3 has anything at all to be said for it.

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[Baroness Thornton]

My Lords, I thank the noble Baroness, Lady Hussein-Ece, and the noble Lords, Lord Low and Lord Crisp, for supporting me on the amendment. This is by way of trying to be helpful. As the Government, in their wisdom, chose to alter our equalities framework, we thought that we would take them at their word and make even more improvements. I suspect that the amendment is not perfect, but I hope that it gives the gist.

I acknowledge, as was outlined by the noble Baroness, Lady Greengross, when she was in her place, that the balance of accountability has already started to shift. I should also say, as a member of the Government who put the 2010 Act on the statute book and supported the Equality Act 2006, that perhaps we did not get it quite right then. This is an attempt to remedy that. The amendment amends the Equality Act 2006 so that Parliament can have a greater say in appointment to the EHRC, its budget setting and its reporting.

The EHRC put forward a proposal that required the commission to lay its business plans before Parliament, achieving, as he put it, an optimal balance between independence, accountability and transparency. I recommend Members of the Committee to read what the commission said in its document of 2011, Building a Fairer Britain: Reform of the Equality and Human Rights Commission. That discusses in detail what the balance between independence, accountability and transparency should be. This amendment is drawn very largely from those proposals.

Parliamentary accountability was recommended also by the Joint Committee on Human Rights, which stated that,

“the standard model of non-departmental public body accountability is [not] a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission)”.

Similar constitutional bodies with a role in holding the Government to account, such as the National Audit Office, report directly to Parliament, as do other national human rights institutions such as the Scottish Human Rights Commission, which is accountable to the Scottish Parliament.

Furthermore, the previous and current chairs of the UN International Coordinating Committee endorsed this model. In June 2011, the then chair of the ICC, Rosslyn Noonan, wrote to Theresa May MP and the noble Lord, Lord McNally, stating:

“The challenge is in the nature of the accountability, which should not be, as proposed, to an agency of the government, but should be to the Parliament … Providing an individual government agency (other than the official Auditor) with active oversight powers would undermine the independence of the NHRI in relation to its monitoring of that agency”.

To this end, we tabled this amendment, which seeks to change the balance of accountability of the EHRC in accordance with the Paris principles that gave our EHRC its “A” status.

I hope that this will be seen in the light of trying to start a discussion. The amendment will strengthen the commission’s accountability to Parliament, thereby making it better able to fulfil its mandate as Britain’s equality regulator and national human rights institution. It covers the appointment of commissioners and the chief executive of the EHRC and includes requirements for the commission to lay annual reports and strategic plans before Parliament and for the commission’s budget to be subject to approval by a resolution of each House of Parliament.

The commission has a strategy responsibility to assess how the Government are complying with their domestic and international equality and human rights obligations. It will do that job very much better if parliamentary accountability provides it with the appropriate independence from government. I mean any Government, not just this Government. I include what I hope will be my own Government after 2015. That is the right way to go. It is not always comfortable for Governments to be held to account in this way on their equalities and human rights record, but it is vital that they are.

In addition, this approach will offer long-term consistency of accountability arrangements to the commission. This will overcome some of the major difficulties recognised in the establishment of the commission, which to date has had a number of different sponsor departments. Again, I hold my own Government responsible for the movement of the Government Equalities Office and therefore for the commission. I understand that it is now on the move from the Home Office to the DCMS; a machinery of government announcement was made just before Christmas. Frankly, that is not consistent. We will have a few months of planning blight, because that is what happens when departments have to move their base and find themselves a new home. I do not think that that is a particularly good move, but if the commission is accountable to Parliament for its work, that will help and perhaps, as the future unfolds, we will find a permanent home in government for the Government Equalities Office. That would be a very good idea.

This does not mean that Ministers and the Government do not have responsibility for the overarching policy and the policy framework through which our equalities and human rights legislation should take place. That is not the purpose of this amendment; its purpose is to make the EHRC a more effective and accountable body to our Parliament. I beg to move.

[Lord Low of Dalston]

My Lords, I support this amendment, which has been ably moved by the noble Baroness. As a minimum requirement, “A” status national human rights institutions must comply with the Paris principles. The key ones among them relate to independence from government, guaranteed by constitution or legislation. Greater parliamentary accountability would also be helpful in this regard.

Parliamentary accountability has also previously been recommended by the JCHR in three reports. In 2003, it stated that the “standard model” of non-departmental public body accountability is not,

“a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission)”.

The proposed single equality body did not exist at that time. Again, it said:

“On the whole we would tend to favour a form”,

of appointment,

“which requires a duty to consult Parliament on the appointment of commissioners as a guarantee of independence and democratic accountability, so long as this was a statutory duty”,

and that,

“as a guarantee of independence … Parliament should be directly involved in the setting of any commission’s budget”.

More recently, the JCHR has agreed the Belgrade principles, which relate to the relationship between national human rights institutions, such as the commission, and national Parliaments. The principles were adopted by participants at an international expert seminar led by the UN Office of the High Commissioner for Human Rights in 2012. The Belgrade principles include several mechanisms for closer relationships between Parliaments and the national human rights institutions: for example, that such institutions,

“should report directly to Parliament”,

and that,

“Parliaments should develop a legal framework for”,

the national human rights institution,

“which secures its independence and its direct accountability to Parliament”.

Again, the principles say:

“Parliaments should invite the members of”,

national human rights institutions,

“to debate the Strategic Plan and/or its annual programme of activities in relation to the annual budget”.

The Public Administration Committee has also emphasised the importance of parliamentary accountability and scrutiny of non-departmental public bodies. As the noble Baroness has told us, many similar constitutional bodies with a role in holding the Government to account, such as the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman, report directly to Parliament. So do other national human rights institutions, such as the Scottish Human Rights Commission, which is accountable to the Scottish Parliament. Other regulators, such as the Office of Fair Trading, also report directly to Parliament with the status of non-ministerial departments. The Government have recently published plans to make the Office of the Children’s Commissioner for England more accountable to Parliament. In future, that office will lay its own business plan before Parliament and will be expected to involve appropriate Select Committee chairs in developing its business plan.

In framing this amendment, we have taken account of many precedents that suggest the appropriateness of greater accountability to Parliament for national human rights institutions, both in terms of the advocacy of the Joint Committee on Human Rights and the Public Administration Select Committee and precedents constituted by the existence of a raft of other bodies, which report directly to Parliament. We have also taken account of the Belgrade principles in framing the matters which we think ought to come before parliamentary scrutiny. I hope that the Committee will feel that this amendment is very much in keeping with the way in which these matters have been developing over the past few years, and that we have framed the amendment by taking full account of the issues which it is suggested should form the subject of parliamentary scrutiny. I am happy to support the amendment.

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[Lord Low of Dalston]

Before the Minister sits down, would she reply to the point made by the Joint Committee on Human Rights that the standard model for non-departmental public body accountability is not a sufficiently outward and visible guarantee of independence from the Government to be appropriate to a national human rights commission and, indeed, the points raised by the chair of the UN commission about the need to strengthen the commission’s accountability by making it more accountable to Parliament?

[Baroness Stowell of Beeston]

The simplest response that I can offer the noble Lord, Lord Low, is that we are in active dialogue with the ICC. My right honourable friend the Minister for Women and Equalities, Maria Miller, has exchanged correspondence with the ICC, as I know has the noble Baroness, Lady O’Neill. This dialogue has been very productive. As I said at the beginning, the commission has a status under its existing arrangements. Its reporting to Parliament has not been questioned when it was given its status. We are retaining its reporting to Parliament via the Minister but we are seeking to strengthen the transparency of its roles and to ensure greater scrutiny of its work, if that is something that the Joint Committee on Human Rights would like to carry out. I think that the combination of both those things will safeguard its status. I am not aware, from the correspondence with the ICC, that that is in doubt.

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The public sector equality duty and quality impact assessments provide encouragement and support to public bodies and deliverers of public services in understanding how different people will be affected by their activities, so that their policies and services are appropriate and accessible to all and meet different people’s needs. In turn, this will assist a better understanding of the impact of their activities on different people, of how inclusive public services can support and open up people’s opportunities, and of how public bodies can be more efficient and effective. I beg to move.

[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.