Deregulation Bill

Lord McNally Excerpts

Thursday 20th November 2014 Grand Committee

Moved by

[Lord McNally]

93: Clause 84, page 58, line 38, at end insert—
“(d) a regulatory function of the Equality and Human Rights Commission”

[Lord McNally (LD)]

My Lords, I do not think I have ever seen such a galaxy of talent on the Opposition Benches. I counted eight Front-Benchers in that debate. It was extremely interesting and I do not envy my noble friend in his further discussions.

I did not find it entirely helpful of the noble Lord, Lord Tunnicliffe, to remind us that it was 52 years since he and I first met at University College London in that fierce, harsh winter of 1962-63. He and I think the noble Lord, Lord Rooker, also mentioned arm’s-length bodies. I am the chair of an arm’s-length body at the Ministry of Justice—the Youth Justice Board—but it is not in this capacity or due to anything related to that responsibility that I put this amendment down. It relates instead to my experience as an MoJ Minister responsible for human rights. With my right honourable friend Maria Miller, who was then Secretary of State for Culture, Media and Sport, I conducted a very vigorous campaign to help the Equality and Human Rights Commission gain UN accreditation.

I may be able to shorten the Committee’s debate on the basis of a letter that has been sent to the chairman of the ECHR by the Secretary of State for Business, Innovation and Skills, Vince Cable. Before I touch on that, I shall explain that at the moment, thanks to that exercise we conducted, the commission has the highest possible UN accreditation—A status—as a national human rights institution rated against the UN Paris principles which clearly and unequivocally require NHRIs to be independent of government. In addition, as a national equality body under EU equality directives, the body must be able to provide independent assistance to victims of discrimination. This need to operate independently is reflected in domestic legislation.

In the commission’s analysis, subjecting the commission to the growth duty presents a real risk of the UN NHRI A status being downgraded for non-compliance with the Paris principles because the growth duty is or could be perceived to be a constraint on the independent exercise of the body’s core functions. The growth duty also has the potential to compromise the ability to fulfil the requirement under EU law to provide independent assistance to victims of discrimination.

I hope that we are dealing with what the noble Lord, Lord Tunnicliffe, referred to as unintended consequences and that it was never the Government’s intention to compromise the EHRC in this way and that they wish to clarify the matter. Just to be clear, the Equality and Human Rights Commission believes that it needs to protect its ability to operate independently in order to preserve its a status as a United Nations-accredited national human rights institution and the UK’s compliance with European Union law, and to ensure that it can exercise that function and powers in accordance with clear and foreseeable legal limits. That is the objective of the amendment.

I was very pleased that, with his usual courtesy, Vince Cable, the Secretary of State for Business, Innovation and Skills, copied me in on a letter that he sent to the noble Baroness, Lady O’Neill, the chair of the Equality and Human Rights Commission, in which he writes:

“I would like to take this opportunity to state that the Government has taken the decision to fully exclude the EHRC from the growth duty. This decision was taken to ensure that the Government mitigated the risk of this policy unintentionally triggering a review of the important ‘A’ status that EHRC holds as a National Human Rights Institution”.

At that point, I said “Yippee! I’ll be in and out in two minutes”. However, I thought it was worth checking with the commission what its reaction was. It said:

“While we welcome this undertaking we understand that this doesn’t mean that we’ll be removed on the face of the Bill”.

All I can say to my noble friend in the usual constructive way that I try to approach these matters is: get this out of the way clearly and now. If he is going to tell me that the letter is sufficient, or that somehow it will all be dealt with in the washing, he is inviting further grief and pain.

[Lord Rooker]

My Lords, as chair of the Joint Committee that scrutinised the Bill, to the best of my knowledge none of the regulators is mentioned in the Bill. The only time they are mentioned is in the guidance notes in preparatory work for the statutory instruments. If that is the noble Baroness’s worry—Ministers can confirm this—to the best of my knowledge, none of these regulators is mentioned in the Bill.

[Lord McNally]

Of course it is not mentioned in the Bill. Only one of the regulators is in fact part of an international scrutiny and accreditation process. The longer the noble Lord, Lord Rooker, stayed in office and had responsibility, the more a stickler he became for the rules. I am saying that this is an exception. I have already heard one argument that this would open the floodgates, but this is an exception, and a very important one. My amendment makes it very clear that it may be the only organisation mentioned in the Bill, but I assure the Committee that it is the only organisation where a great deal of work was done to get its A status accreditation with the UN. That A status accreditation is very important for the status of the organisation.

The letter from BIS is very welcome and very timely. I urge the Minister to consider accepting the amendment, although it concerns the exception that the noble Lord, Lord Rooker, referred to. Indeed, it is almost the kind of declaration that I want: that we are determined to declare beyond peradventure that this important international body, with its A status in the UN, is not part of this domestic legislation. That would most certainly remove any unintended consequences. I fully accept from conversations with my noble friend that these are unintended consequences, but those who are involved in this area believe that it is a real threat and could cause real damage, and I believe that my amendment is a very simple, quick, clean way of handling the situation. I beg to move.

[Baroness Thornton]

My Lords, I have put my name to this amendment for the obvious reasons outlined by the noble Lord, Lord McNally. I very gently say to the noble Lord that it was my Government who set up the EHRC. In fact, the threats to it have come from his Government from time to time, the first time being in 2010. The review of the EHRC as an A status body is next year. The noble Lord is completely right to say that its inclusion in the list of regulators which have to have regard to economic growth in their regulatory functions would jeopardise its independence. There is no doubt about that.

The United Nations International Coordinating Committee, which is responsible for the accreditation of human rights bodies, wrote to the Minister for Equalities. It said that independence from government is an essential element of an NHRI—a national human rights institution. In considering whether an NHRI is independent, the ICC looked at all the ways in which the NHRI is subject to control or direction. The Bill may not intend to affect the independence of the EHRC but attaching an additional duty which could be seen as competing with or limiting its existing duties or core functions would have a direct effect on its decision-making. Being subject to ministerial direction and the possibility of legal challenge to its work could have a detrimental effect on its ability to make decisions in relation to upholding human rights. These clauses, combined with the existing connections and accountabilities to the British Government, would raise questions about the compliance of the EHRC with the Paris principles. That is absolutely right.

I shall add only one other matter to this debate. There is another reason why you would not want to have the EHRC included in this list, which is not just to do with its international status as a unique body. Part of its reason for existence is to make businesses behave better and make people behave better towards each other. That is good for business and you would not want to jeopardise that.

I am pleased to support the amendment. I realise that the Government have a dilemma. Do they include the amendment in the Bill and therefore mention the body or do something in another way? Whatever they do, they need to remove the EHRC from that list.

[Lord Wallace of Saltaire]

My Lords, when I first stood up today, I realised that I should have apologised to the Committee. I unintentionally misled the Committee the other day when I said that industry interests had not lobbied on the question of liqueur chocolates. I apologise because, on checking back, I discovered that there had indeed been some conversations in that regard. I trust that that corrects the record.

I am impressed by the youth of my noble friend Lord McNally and the noble Lord, Lord Tunnicliffe. I first met my noble friend Lord Deben in the winter of 1959-60 when we were undergraduates. The noble Lord is a mere stripling compared with my noble friend Lord Deben and me.

The issue at stake is simply whether one need include this body in an exceptional way in the Bill or whether this can be dealt with under secondary legislation. The noble Lord will be well aware that listing inclusions and exemptions in a Bill is not generally regarded as appropriate because primary legislation would then need to be amended each time a regulatory function were changed or created.

No specific regulatory functions of any other named body are listed in the Bill and the Government’s argument is that it is not necessary to do so in relation to the regulatory functions of the EHRC. The regulatory functions to which the growth duty is to apply will be set out in secondary legislation subject to the affirmative procedure to enable proper parliamentary scrutiny. Before any secondary legislation is made bringing the non-economic regulatory functions into the scope of the growth duty, the Minister must consult any person exercising functions to be specified in the order and such other persons whom the Minister considers appropriate. This consultation should provide enough opportunity for scrutiny, making it unnecessary to include this in the Bill. Naming a particular regulator or function in the Bill would also not allow the necessary flexibility for any new functions to be included.

I have some experience and some past expertise on the operations of international organisations. I know the speed at which they move, and I do not think that the delay between the passage of this Bill and the passage of the secondary legislation would jeopardise the position of the EHRC. I assure my noble friend Lord McNally and the noble Baroness that it is absolutely the Government’s intention that this will not be included in the Bill. I hope that that assurance is sufficient to reassure my noble friend and on that basis I hope that he will withdraw the amendment.

[Lord McNally]

My Lords, at this stage, I certainly will withdraw the amendment. I fear sometimes that my noble friend, rather like the noble Lord, Lord Rooker, takes responsibility for so long that the iron enters his soul. The truth is that on the international stage, people do not read the fine print. The rumours get about and a status can be undermined. I will discuss with my co-sponsor and will consult with the commission and others in your Lordships’ House who are not here today who have this concern. Although I will withdraw the amendment now, unless I get some good advice to the contrary this amendment will come back on Report with a great deal of support on the Floor of the House.

I say to the noble Baroness that I fully acknowledge the origins of the commission. I hope that when the history of events around 2010 comes to be written, my role in the commission’s survival will not be considered ignoble. I beg leave to withdraw the amendment.

Amendment 93 withdrawn.