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Enterprise and Regulatory Reform Bill

Volume 561: debated on Tuesday 23 April 2013

Consideration of Lords message

A message has been received from the Lords relating to the Enterprise and Regulatory Reform Bill. Under the orders of the House of 16 April and yesterday, any such message may be considered forthwith without any Question being put.

We will debate two motions. The first relates to Lords amendments 35 and 36, and consequential amendments (a) to (c). The second relates to Lords amendment 37 and amendments (a) to (d) in lieu. The motions will be debated together and are available from the Vote Office, as is Bill 163.

At 12.44 today, the Government tabled a revised version of amendment (a) in lieu of Lords amendment 37. Despite the short notice, the Speaker has selected the amendment for debate. The revised version of the relevant paper is available in the Vote Office.

Lords message considered forthwith (Order, 22 April).

Clause 56

Commission for Equality and Human Rights

I beg to move,

That this House insists on its disagreement to Lords amendment 36, does not insist on its disagreement to Lords amendment 35 and proposes consequential amendments (a) to (c) to the Bill.

With this we will consider the motion that this House insists on its disagreement to Lords amendment 37, but proposes amendments (a) to (d) in lieu.

I would like to put on the record my thanks for your flexibility, Mr Deputy Speaker, in accepting the late tweak to the amendment that had been tabled earlier this morning in relation to Lords amendment 37 on the issue of caste. I shall come to that issue in a second or two.

We are returning to the discussion on the equality provisions of the Enterprise and Regulatory Reform Bill, which were debated in the other place yesterday. We have paid regard to the strong views and concerns that were expressed in that debate, and have tabled motions to respond to them.

As I have made clear in the course of our debates, the Government want a strong and effective Equality and Human Rights Commission. As part of that and to focus the EHRC on its core functions, we proposed the repeal of its power under section 3 of the Equality Act 2006, which is known more commonly as the general duty. However, in light of the clear views expressed in the other place, the Government have reconsidered our position and will not insist on our disagreement to Lords amendment 35. That will allow the general duty to remain in the 2006 Act. Although it is accepted by all that the duty has a symbolic rather than a practical effect, it is clear that considerable importance is attached to this overarching statement.

We maintain that the commission’s monitoring and reporting should be carried out in respect of its core equality and human rights duties. The EHRC will continue to be required to monitor and report on changes in society, but, as has been agreed to in the Bill, that should relate to the areas that it is uniquely placed to influence and change: equality, diversity and human rights. For that reason, the motion is to disagree with Lords amendment 36. Instead, the EHRC will monitor its progress against the duties specified in sections 8 and 9 of the 2006 Act, and the form of that reporting will remain unchanged.

My hon. Friend’s announcement is very welcome. She knows that our party has always argued that there should be a general overarching duty—[Laughter.] No, that is completely the case, but the matter had to be worked through within the coalition. Her announcement sends a strong signal that there is a principle and that practical implementation is available to the commission.

I thank my right hon. Friend for his intervention. He speaks with passion on equality issues and has done so for many decades. I know that he speaks from the heart on this matter. I also understand the strength of feeling on this issue that he and I have heard expressed by activists in our own party and from many other corners.

Ensuring that the EHRC reports on the aims set out in sections 8 and 9 of the 2006 Act means that it will be able to capture the situation more meaningfully over time by reporting every five years and monitoring its key equality and human rights duties.

Retaining the general duty in section 3 requires a consequential amendment to ensure that the word “groups” in the general duty is defined effectively. The amendment that we propose therefore reinserts the parts of section 10 of the 2006 Act that define the term “groups” for the purpose of the Act.

I turn now to Lords amendment 37, which relates to caste, and amendments (a) to (d) that the Government tabled today. In our previous debate on this matter, I made it clear that the Government recognise that caste prejudice occurs in the UK. Even if that happens at a low level, such prejudice is unacceptable and must not be tolerated. I also said that, although we remained unconvinced that there was sufficiently compelling evidence to require the introduction of legislation, the Government were not averse in principle to introducing legislation, should it become clear that that was the appropriate solution to the severity of the problem.

Strong views have been expressed in the other place on this matter. In the light of those views, we have reconsidered our position and agreed to introduce caste-related legislation. However, we need to ensure that any legislation that we introduce will have the desired effect. We therefore propose amendments in lieu of Lords amendment 37 that will impose a duty on the Government to exercise the power in the Equality Act 2010 that would make caste an aspect of race for the purposes of the Act. We think that that option, rather than the amendment proposed yesterday in the other place, is the best way forward.

As has been discussed in this House and in the other place, the issue of caste is very complex. Many people have voiced the opinion that our understanding of the relevant issues would benefit from some form of consultation to ensure that all the pertinent considerations are identified and, where possible, taken into account. Converting the order-making power in the 2010 Act into a duty will ensure that the Government legislate to incorporate caste protection into discrimination law. It will also give us an opportunity to undertake consideration, possibly through consultation, on whether any other factors, such as the need for specific caste-related exceptions, need to be introduced at the same time that caste is given legal protection. One example that has been raised is that we would not want monitoring forms to demand that people say which caste they are from, because we want to see such a characteristic gone from society and do not want to perpetuate it. Ensuring that there is proper guidance, and that we legislate sensitively, is therefore important. We will all welcome the opportunity of a little time to ensure that it is got right. That will help to ensure that the legislation is focused and robust and addresses all the relevant factors.

I turn to the slight tweak to the motion, which now includes a provision enabling review of the duty and the effect of the order once the Act, as I hope it will become, has been on the statute book for five years and periodically thereafter. That picks up on the concern expressed in recent debates that, because caste is inherently an undesirable concept that we want to fade away, we do not necessarily want to be stuck with references to it on the statute book, given that that will no longer be necessary once, as we all hope, the concept has disappeared from UK society. The hon. Member for Stretford and Urmston (Kate Green) said in a letter to me at the end of last week:

“Given that we are all united in our desire to see caste as an identifier in the UK erode over time, it would also be possible to put in place a timetable for statutory review to establish at what point the measure could be withdrawn if caste discrimination has become a thing of the past.”

That point was also picked up by Baroness Thornton in her closing remarks in last night’s debate. The new provision addresses those concerns by introducing a review and sunset clause.

I am very pleased indeed that the Government now accept the importance of retaining the general duty. I must say that I was surprised that the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) argued that that had always been the position of his party, given that only the other day the Minister, who is also a member of his party, argued the exact opposite. None the less, we are prepared to welcome repenting sinners to the fold.

As the Minister is well aware, there was widespread concern in civil society and across Parliament at the prospect of repealing the general duty. I pay particular tribute to the noble Baroness Campbell on her championing of the retention of the duty both in the House of Lords and outside Parliament. I also pay tribute to the Minister for heeding the concerns that have been expressed.

The Minister has said in the past that section 3 of the 2006 Act is of symbolic importance. That is right, and symbolism is important, but perhaps even more importantly, it is a powerful statement of our values, aims, approach and ambitions for equality and human rights. I am pleased that that strong message and that underpinning of what equality and human rights mean to us will remain at the heart of our equalities legislation.

We are pleased by the Government’s acceptance of the vote in the House of Lords last night, and we will accept their insistence on disagreement to Lords amendment 36, on monitoring. However, I issue a word of caution to the Minister, which Baroness Campbell raised when the amendment was proposed. It is important that the Government take care to ensure that the EHRC does not simply monitor its own actions but that its role in holding up a mirror to the whole of society on progress on equality and human rights is properly cemented and protected. Ongoing monitoring and reporting enabling that is important, as is the EHRC having the resources necessary to do that properly.

We are pleased that the Government have now accepted the need for legal protection against discrimination on the grounds of caste. Everyone agrees that caste has absolutely no place in our society, and that if there is even one case of such discrimination, proper action must be taken and there must be proper access to redress. The Minister is well aware of the strength of feeling on the matter—she alluded to it in her remarks. I pay tribute to the common effort across Parliament among the parties and with Cross Benchers to reach this point. I especially want to place on record again our gratitude to the noble Lords Harries and Avebury and, of course, my noble Friend Baroness Thornton, who have done a tremendous amount to bring us to this point.

I understand the offence and hurt that the very notion of caste causes. As the Minister said, it is important that nothing we do in the House entrenches caste in our society. Rather, we must help to move forward in a direction that leads to its eradication. In recent weeks, the Opposition have been bringing people together to discuss the right way to do that in the context of what is, as the Minister said, a complex subject. I venture to suggest that we have already done more in three weeks than the Government have done in three years.

I want to place on record our gratitude to the Sikh Council UK, the Sikh Federation, the British Sikh Consultative Forum, the Anti-Caste Legislation Committee, the Alliance of Hindu Organisations, the Dalit Solidarity Network UK, CasteWatchUK, the Anti Caste Discrimination Alliance and others, all of which have spent time talking to us over recent weeks.

For our part, we have always been clear that there needs to be legal protection, and we welcome the Minister’s commitment to legislation today. However, having decided that they will legislate, the Government have a responsibility to get the detail right. We have consistently called for both legislation and safeguards, and my noble Friend Baroness Thornton repeated the necessary safeguards in the House of Lords yesterday. I know from the Minister’s remarks this afternoon that she has taken account of them. We called for the definition of caste to be set out following consultation, which should include consideration of the possibility of substituting descent for caste, which has some support. The definition must recognise that caste is not specific to any religion but is a social and cultural practice extending across different parts of communities. It can be subscribed to by, and affect, members of any or no religion, and the definition must reflect that.

As the Minister said, it is crucial that legislation is not implemented in a way that entrenches caste identifiers in day-to-day employment and other services. We should reduce, not increase, the number of people who are identified by caste. The guidance must ensure that there is no requirement on individuals to disclose their caste in any circumstances, and employers and providers of services should never seek such data.

Concerns have been expressed to us, and were expressed in the House of Lords last night, about the possible perverse effect of education programmes, including the Government’s programme “Talk for a Change”. I urge Ministers to discuss those concerns with the community.

Like the Minister, I hope that caste as an identifier in the UK will be eroded over time, and we will support the late-tabled amendment (a) to Lords amendment 37, which will introduce a sunset clause. We suggested such a change, so that if we achieve the state that we hope to and caste is wholly eradicated, we may remove the provision from the statute book. I hope that the sunset clause will act as an impetus for action, and we welcome it in that spirit.

Yesterday in the House of Lords, the noble Baroness Stowell argued that the Government needed time to address the detail of the matter, and we agree. We have always been clear about the need for a guarantee of legislation, but it is vital that the Government take time to consult carefully and in detail on its implementation. As a result of the conversations that we have had with community organisations, we proposed that safeguards should be subject to consultation in communities, with a delay in implementation to allow that to happen. I would be grateful if the Minister assured us that commencement of the provision will leave enough time for that thorough community consultation to take place. That will be vital to achieving cross-community support.

The Opposition are pleased at the progress that has been made on both the general duty and the caste amendment. This is a good day for equality, and I thank the Minister and many others for the efforts that have been made to bring us to this point.

I would like to pick up where the hon. Lady finished and say that I share the view that this is a good day for equality. I thank my hon. Friend the Minister for getting us to this point. I will not resile from what I said in my intervention, which is that I and my colleagues have always held such views. Indeed, our party worked with the Labour party when it was in government to put into legislation the general equality duty governing the Equality and Human Rights Commission. Anyone who is critical of that assertion clearly does not understand that in coalition Governments one party can hold a continuing obligation or view that is not necessarily persuasive to the Government as a whole. The two parties in the coalition clearly started from a different position, and it has taken until today and the clearly expressed view of the House of Lords for people to arrive at an understanding that it is better to retain the general equality duty. I am sure that is the right decision. It sends out the right signals and guides the commission in its work ahead.

Like others—certainly like my hon. Friend the Member for Bedford (Richard Fuller)—I was at the Bar of the House of Lords yesterday evening listening to the debate on caste. There were views on both sides. The Government were arguing to retain their position and said that we should not add caste to the Equality Act 2010, and others argued against that. The Government were supported by people on both sides, but the view of the House of Lords was that we should add caste to the list of issues on the basis of which people could allege discrimination, but that we must recognise that there is a division in the communities affected as to what that measure will mean in practice and how it will be responded to.

There are clear community views. I was at a Vaisakhi event with colleagues from across the House last night, and views were expressed to me by members of the Sikh community that they did not want this change. I had just heard Lord Singh of Wimbledon arguing strongly that in Sikhism there is no such thing as caste, and I am persuaded to take his view as he is authoritative and well-regarded on that issue. However, I think that the Minister has now arrived at the right place, with the Government, and caste as a basis for discrimination will be added to the Equality Act. The problem might not be hugely prevalent, but there is enough evidence of it in certain places for it to be recognised. It is important—I am sure the Government take this view, and it was argued by the hon. Member for Stretford and Urmston (Kate Green)—to have a period between now, the passage of the Bill, and its implementation, to ensure that people understand the implications of the measure across communities.

In the Hindu community there is certainly a division of view and I think we are right to support those in the Dalit and other communities who say, “We should know. We are the victims.” Their voices have prevailed. It is also wise of the Government to hope that over five years this measure may become unnecessary, and there will later be the opportunity to review it.

The fact that a bicameral Parliament works is evidenced by where we are today, with two Chambers having debates and adding to the wisdom of one—I, of course, want the other one to be reformed and to become either wholly or partly elected, but that business has clearly been deferred. Until then, however, I am glad that the House of Lords has contributed so firmly to our debates, and I am grateful to the Minister and her colleagues for making it clear that the law will be changed. I look forward to working with many others across the House and the Government to ensure that communities understand the logic behind the change. At the end of the day, we must have a country in which people know that there is no discrimination on the basis of gender, race, ethnicity, sexuality or caste, and that discrimination is unacceptable wherever it occurs. I think we have got there, and we should be celebrating that.

I am grateful that common sense has prevailed with regard to the EHCR. It demonstrates that debates in this place and elsewhere do work, and that we can convince one another of the rightness of a particular position.

On caste, may I make a number of statements so that I can be clear about what we are agreeing to? If any of these statements is wrong, will someone get up and tell me? That would be helpful. I am sorry to reach this level of simplicity in the House, but it has been a long few weeks. First, if we pass this legislation over the next couple of days, caste discrimination will be outlawed in this country. Is that correct?

I am happy to make that clear for the House, and I wanted to respond to the hon. Member for Stretford and Urmston (Kate Green) on a similar point. The amendment changes the word “may” to “must” in the Equality Act 2010. At the moment, it states that the Secretary of State “may” make caste discrimination illegal, and that will be changed to say that they “must” lay regulations to make an order. That will require secondary legislation, which gives us time to consult and get that right. When the secondary legislation is passed, the measure will be on the statute book.

Let me try this phrase: if we enact this legislation, the Government must outlaw caste discrimination in due course.

That is point 1—stay with me on this. Point 2: in developing the detail of the legislation, we will ensure that we consult the wide range of communities that have an interest in this matter, and seek to mobilise them in eliminating caste discrimination—agreed?

Thirdly, I would be grateful for the Minister’s views on the limited period of time in which that will be done. I have heard about months and also a full year—whatever view is realistic. I think it would be possible in a year not only to deliver clear definitions and guidance on implementation, but to mobilise the whole community around this issue and to convince people about the need for this provision.

Finally, this amendment contains a review period so that if we reach nirvana and the elimination of caste discrimination in this country, we can return to the issue and remove the measure from the legislation.

If all those statements are accurate and agreed across the House, I now understand the point we are at, so perhaps others will as well. I think it has been a significant victory for democratic debate in this Chamber and the wider community. Lots of organisations have been involved in this discussion. Not everybody is happy, but we have reached an understanding that there is a problem to be addressed. No matter how small people think it may be, this issue is significant for many of us and it is being addressed appropriately with some subtlety and understanding of people’s views, so that those are taken into account. I welcome the overall approach that has been agreed.

I, too, thank the Minister for bringing forward this amendment and for the thoughtful way it has been crafted. I also thank and pay tribute to the hon. Member for Stretford and Urmston (Kate Green) for her speech, and for pointing out some of the practical steps that can be taken.

I know that those on the Government and Opposition Front Benches have felt a sense of thoughtful consideration and sometimes anguish about this issue, but it has always been fairly straightforward for me. I am not diminished as a person because we ban discrimination on the basis of race or gender, and I will not be diminished as a person because we ban discrimination on the basis on caste. All those are exemplary measures for the Government to take.

I was reflecting on caste, and it occurred to me that if we define caste as occupation, I too carry my caste in my name. A fuller is an occupation; we are the cleaners of wool—with a rather unsavoury material, I think. I do not know where in the hierarchy that might sit, but I do not think it would be at the top. However, I am a greater man because I am my father’s son, and—to be clear for the record—also because I am my mother’s son.

I would like to ask a couple of questions and make a point. Will the Minister provide not precision but some clarification on the timetable and say when she anticipates that the order will be enacted?

May I point out something that has not been mentioned yet? Any repeal of the regulation will require a resolution of each House and will not simply be done by the Government of the day. That is a welcome feature of the legislation.

Finally, we have spoken of the great contribution to the legislation of community groups with differing views. I pay tribute to my constituents who have brought the matter to my attention and to the attention of others. As with all legislation that is enacted, there is a responsibility to ensure that the protections provided are used appropriately. We need to ensure that it is not open season for people to use the law just because it is another option. The measure is there to be used in very serious cases—hon. Members know that they are rare but extraordinarily important. We do not want the changes to the law to be misused by people, such that the voices that have been heard in the House today are drowned out in the legal courts in future.

With the leave of the House, it would be helpful if I responded to a few of the points that have been made in this brief debate.

I welcome the constructive approach of the hon. Member for Stretford and Urmston (Kate Green) and her support for the Government amendments. She raised several points, one of which was the definition of caste and the possibility of using the word “descent”. We will consider carefully how to define “caste”. There could be problems with the “descent” concept—descent is wider than caste, and a number of groups have expressed concerns about using that word as an alternative. We now have time to discuss a wide range of issues, and will involve all interested parties. I hope that also goes some way to dealing with the points made by the hon. Member for Hayes and Harlington (John McDonnell).

On EHRC monitoring, the hon. Lady referred to last night’s debate and the comments of Baroness Campbell of Surbiton. I watched her speech—she spoke powerfully, as always. The amendments require the EHRC to continue to monitor and report—it must still report on changes in society in relation to equality and human rights, which can mean broad reports on progress in society.

The hon. Member for Hayes and Harlington made a helpful speech. Perhaps we should adopt the format of making statements and seeing whether the Minister will stand up and make corrections if necessary. That could be deemed not to be the best way of dealing with parliamentary proceedings—the first suggestion was slightly above my pay grade.

The hon. Gentleman asked about the period of time over which the measure might be implemented. The hon. Member for Stretford and Urmston suggested in her letter that one to two years for enactment might be the right period. Enactment depends slightly on how much progress is made in dealing with those groups, but that time period is the general ballpark we are looking at.

That point also goes to a question asked by my hon. Friend the Member for Bedford (Richard Fuller). When I was summing up last week, time was of the essence, and I was unable to complete my remarks, but it is worth noting the powerful speech my hon. Friend made on behalf of his constituents last week as well as today. On his question about repeal, the amendments make it clear that the Minister “may by order” repeal or otherwise amend section 9(5) of the Equality Act 2010. Repeal would therefore happen by order, through the normal parliamentary processes, using the affirmative resolution procedure, so both Houses would have their say. That would happen only after a Minister had ordered a review and published a report. That would be the process by which repeal would happen. I hope that he welcomes that along with the Government amendments.

I hope that I have answered the questions asked, and that hon. Members feel able to support the motion and amendments.

Question put and agreed to.

Resolved,

That this House insists on its disagreement to Lords amendment 36, does not insist on its disagreement to Lords amendment 35 and proposes consequential amendments (a) to (c) to the Bill.

Consequential amendments (a) to (c) agreed to.

Government amendments (a) to (d) made in lieu of Lords amendment 37.