Report (2nd Day)
Relevant documents: 9th, 10th, 11th, 12th and 14th Reports from the Delegated Powers Committee.
Moved By Viscount Younger of Leckie
That the report be now received.
My Lords, I beg to move that this Bill now be further considered on Report.
My Lords, before we move to consideration of the matters before us today, I wonder whether I have missed something. Has this House appointed the noble Lord, Lord Geddes, to adjudicate on matters of order? I ask because my noble friend Lady Turner was interrupted disgracefully by a loud heckling by the noble Lord, Lord Geddes, from a sedentary position, because of his interpretation of what is right and wrong in this Chamber. It is disgraceful that she was treated in such a manner.
My Lords, who gave the noble Lord, Lord Geddes, the individual right to shout from a sedentary position about whether or not one small matter in relation to the Companion has been dealt with? Surely, shouting from a sedentary position is not allowed?
My Lords, this House is self-regulating, which also means that it conducts itself with self-restraint and follows the guidance in the Companion. I am sure that all noble Lords around the House are keen to do that. It is a good idea to discuss with our Chief Whips how that is best achieved. I know that the Opposition Chief Whip has recently sent to his own Back-Benchers what I consider to be a very helpful guide about what constitutes good behaviour. We should reflect on that. Without pointing fingers, we all should behave in ways that we feel are not becoming of this place. We all want to ensure that we do our job. After all, most people here say that for most of the time we try to do it well.
Schedule 17 : Heritage planning regulation
70A: Schedule 17, page 248, line 6, leave out paragraph 18 and insert—
“18 (1) Section 93 (regulations and orders) is amended as follows.
(2) In subsection (4) after “8(5),” insert “26C,”.
(3) In subsection (5A) after “section” insert “26C or”.”
My Lords, government Amendment 70A corrects an error made in government Amendment 26P, tabled in Committee. The purpose of Amendment 26P was to change the procedure for making a national class consent order, to ensure that it is subject to affirmative resolution. This responded to a recommendation made by the Delegated Powers and Regulatory Reform Committee. Unfortunately, Amendment 26P replaced the wrong paragraph of Schedule 17 and therefore did not achieve the intended result. Amendment 70A is a minor and technical amendment to put this right. I beg to move Amendment 70A.
Amendment 70A agreed.
Clause 57 : Commission for Equality and Human Rights
71: Clause 57, page 57, line 9, leave out paragraph (a)
My Lords, the purpose of my amendment is to retain Section 3 of the Equality Act. It is of critical importance. It articulates the fundamental principles that we as a society should be aiming for and clarifies the nature of the contribution that the Equality and Human Rights Commission should make towards those aims.
From the banking crisis to phone hacking, to the horrific abuse of people with learning disabilities, recent times have reminded us that culture, ethics and principles are at least as important as the law in securing a prosperous, safe, cohesive and healthy society. As Hector Sants, former chief executive of the Financial Services Authority, succinctly put it in 2010, until the issue of culture and ethics,
“is addressed we will not be able to prevent another crisis of this magnitude from occurring again”.
Section 3 explicitly imports the cultural and ethical principles of equality and human rights into the remit of the commission. It reinforces the notion that its role is more than promoting and enforcing the law. That is essential if it is to help bring about a society in which prejudice and discrimination are eliminated, human rights routinely respected and everyone can achieve their full potential.
Section 3 requires the commission to discharge its functions,
“with a view to encouraging and supporting the development of a society”,
in which specific aims are realised. This is what distinguishes it from other bodies. As Age UK notes in its briefing, it,
“makes clear that the job of the EHRC is to change culture, not just to enforce rules”.
The commission did exactly that in its widely praised inquiry into the human rights of older people receiving care at home. It identified an emerging problem and brought it to the attention of wider society with extensive media coverage. It looked beyond strict legal compliance to whether the principles of dignity, respect and autonomy were being upheld and made proposals including legislative reform. Is that the type of activity that the Minister associated with Section 3 when she said in Committee that the commission,
“should not be an impassioned lobbyist leading emotive campaigns”.—[Official Report, 9/1/13; col. GC60.]
or is it the role we want it to play—not simply a law enforcer but a body that uncovers scandals and working with others points the way forward?
The Minister has said that Section 3 wrongly implies that it is for the commission alone to bring about these changes in our society. However, Section 3 was amended in this House to make clear that this was not the intention. The commission’s duty is to encourage and support others to realise their aims in Section 3 whether Government, Parliament, the courts, public bodies, business, the media or civil society. It is ironic that many of the reforms proposed or under way will hamper the commission’s ability to work with others. For example, it has lost its helpline, its capacity to make grants and its authority as a source of advice to business.
The Minister has also argued that Section 3 is too broad. This suggests that she considers the duties in Sections 8 and 9 to be more restricted. Repealing Section 3 will do nothing to reduce the scope of issues with which the commission might engage. Therefore, we must assume that the repeal is to limit what the commission can do about those issues, otherwise it is unclear what will be achieved. Ultimately these reforms, including the repeal of Section 3, will focus the commission on law enforcement, especially in the field of discrimination. Bizarrely, this will stem from a Bill to promote enterprise and growth by reducing regulatory burdens. We risk creating a body increasingly reliant on costly and intrusive legal action to have any meaningful impact.
With fewer resources, the commission will have to be more judicious in the issues on which it focuses. We will do it no favours by leaving it simultaneously less clear about its aims and more dependent on legal enforcement to achieve them. I do not believe that the Government want this either, which is why I ask them to think again about the unintended impact of this repeal.
Yesterday’s headlines remind us that our human rights protections cannot be taken for granted. It is more important than ever that we retain the principles enshrined in Section 3. Section 3 is a declaration of our commitment to those principles. It requires us to be vigilant in their protection and restless in their promotion. It provides a direction of travel for the commission and others involved in the work. It makes clear that pursuing those aims requires both enforcement of the law and the development of a deeper cultural respect for equality and human rights, and it requires the commission to provide the leadership that Britain needs to make that commitment a reality.
The case for the repeal of Section 3 has not been made. The Government’s assurances that it will have minimal impact on the commission are unconvincing. If that is the case, what will it achieve? These assurances are also contingent on there being no further reforms of the commission’s role, yet the Government have established a review of the public sector equality duty, including some of the commission’s most significant functions.
We would not wish to risk slipping back to the time before the Stephen Lawrence inquiry, but if Section 3 goes and the equality duty is weakened or lost shortly after, I feel that is precisely where we will be heading. This is why I propose that the Government take the opportunity to reflect on the recommendations of the equality duty review and wait until other reforms have bedded in, giving the new commission some time to get to know each other and to really understand what their task ahead is, before deciding whether the repeal of Section 3 is sensible or justified.
Your Lordships may have seen a briefing from the Equality and Human Rights Commission suggesting a simpler purpose clause, but I fear that it is merely a description. There are no aims. It separates equality from human rights, rather than uniting them. It gives little or no direction and does not reflect what the Government have said about the commission’s future role. I am sure that your Lordships will agree that this late stage of the Bill is not the time to be suggesting such a proposal, with no opportunity for true debate. To debate it as good scrutineers is our job, after all. It is vital to keep Section 3 and I hope that your Lordships will support me in this endeavour. I beg to move.
My Lords, I apologise for not being able to be present when this amendment was debated in Committee. However, I have read the debate and the balance of opinion clearly lay with the noble Baroness, Lady Campbell of Surbiton—not surprisingly, given the powerful speech she made and the one which she has also made today. It is a privilege to support an amendment moved by such a respected champion of equality and human rights, who I would like to call my noble friend. In doing so, I wish to address just two points that emerged during the debate in Committee.
First, the Minister argued that the general duty contained in Section 3 “creates unrealistic expectations”. She went on to acknowledge the importance of the statement contained in the general duty and suggested that it could,
“be replicated in the commission’s own strategic plan”—[Official Report, 9/1/13; col. GC 61.]
or mission statement. Surely, however, that is to undermine her own argument because if the problem is one of unrealistic expectations, they would still be created if replicated in a strategic plan or mission statement.
The other main argument put forward in the debate was that repeal of the general duty would not make any difference anyway, as it is of symbolic rather than practical importance. This is the official stance taken by the commission itself. I have two responses to that: first, as a number of noble Lords noted in Committee, this justification was challenged by Professor Sir Bob Hepple of Cambridge University. He argued that Section 3 has an important legal function and that without it equality law would be “rudderless” and would lack the “important unifying principle” that Section 3 provides, and which the Joint Committee on Human Rights welcomed in its report on the Equality Bill. However, even if the significance of the general duty were more symbolic than practical, symbols matter in politics and we should not underestimate the symbolism of removing the section. The deluge of e-mails that I have received in recent days defending Section 3 is a testament to the power of that symbolism.
At a time when politics has become increasingly managerial and uninspiring, I find it rather wonderful that the Equality Act contains an aspirational, visionary statement of intent. Moreover, the European Commission study on national equality bodies advised:
“In order to fully realise their potential in promoting equal treatment for all, equality bodies should develop a vision of their role within the administrative culture and society”.
It is a sad day if the vision enshrined in the legislation is now struck out. As the British Institute for Human Rights argues, it sends a worrying message that the Equality and Human Rights Commission,
“is to be a compliance factory with no real ambition or purpose”.
I fear that the suggested alternative put forward by the commission in its briefing, namely that it should be,
“a national expert on equality and human rights”,
and the strategic regulator for equality offers neither ambition nor visionary purpose but is, as the British Institute argues, purely descriptive, as the noble Baroness has already said. It offers mundane prose where Section 3 offered the poetry of high ideals.
I hope that the Minister will have thought again in the light of the support for this amendment in Committee and the public concern now being expressed. If not, should the noble Baroness, Lady Campbell, decide to test the opinion of the House, I hope that noble Lords will support her. The amendment will cost nothing, but it will provide reassurance that the work of the Equality and Human Rights Commission will continue to be framed by a vision of society in which each of us without exception is treated equally and with dignity and respect—the core principles of human rights.
My Lords, I associate myself with what has been said by the noble Baronesses, Lady Campbell and Lady Lister. I do not want to repeat what I said at Second Reading—we had a very full debate then—but I was disappointed that we continue to hear that removing the general duty was a bit of tidying up and that it would have no effect whatever on the work or legal responsibilities of the commission. The question that has been put a number of times, including by myself, was then why do it? Why do something if it will have no impact at all? I am afraid that the reply has not given me much confidence.
I strongly believe that the Government have a choice between a strong independent body that is committed to promoting and safeguarding our values, which I believe are British values, independent of the Government of the day—whichever colour—or we go for the option of a watered-down, less independent, weaker institution, which in time would be rendered merely an enforcement agency or regulator without the vision and underpinning that is so important. I cannot think of another organisation, independent or statutory, that does not have some sort of mission statement or a duty to promote or do something. This is the only organisation of its kind in this country. Are we suggesting that the Equality and Human Rights Commission does not need such a mission or values, which were very much fought over and arose as a result of cross-party agreement when the Equality Act 2006 was debated and enshrined?
I said at Second Reading, and it is worth saying again, that the then Opposition gender and equality spokesperson Eleanor Laing, MP, spoke of how important it is that the general duty is ambitious and wide ranging. With the change of government and apparently as part of an unwritten agreement, this seems to have changed for whatever reason, and I am disappointed.
There is an opportunity here for the Government to say what sort of organisation we want. We have a choice, but I also think that maybe we need to take a step back. Perhaps this is not the right place to debate what sort of mission statement or general duty an organisation as important as this, with such a multifaceted function, should have at this stage. We evidently need more time to consider this. It cannot be resolved via this Bill on the Floor of the House.
Will the Government take this away and consider the type of organisation they want and what they want it to do? As I said, in line with other organisations, if not in this country then in the world, it should have some form of agreed mission statement incorporating its aims, responsibilities and duties to the taxpayers and citizens of this country. The Government should do this in consultation with the Equality and Human Rights Commission, and bring it back to the House. Will the Minister respond to that?
My Lords, in Committee I put down an amendment to this part of the Bill. I was overwhelmed by and supportive of the noble Baroness, Lady Campbell, who made a most eloquent plea in support of the case then. I hoped that because of the support that she had, the Government would have reconsidered their position and accepted what everybody was pressing for, and what a number of us will, I am sure, press for this afternoon.
The Bill seeks to do away with Section 3 of the Equality Act, which sets out the guidance, principles and values that define the commission. It attracted all-party support in Parliament when the legislation was first debated. They are very important in terms of both perception and symbolism, as a number of speakers have already pointed out. With such pressure on the Government to change their position on this Bill, I hope that they will tell us this afternoon that they have decided to do so. It is not only the law that is important but the culture in which we all operate, and the commission plays a very large role in changing that culture.
We all want to live in an equal and dignified society, which is what Section 3 envisages. I hope that the Government have changed their mind since Committee and will now agree to support what the noble Baroness and her supporters so eloquently expressed this afternoon.
My Lords, I, too, support the sentiments and comments made by all noble Lords who have spoken. I will add one further point. The distinction between compliance and a general duty implies that there is no need for anything until the point of compliance. However, many issues that relate to people with protected characteristics are often cultural, and may not get to a point where compliance is necessary straightaway. It would be much better for that culture—for example, the treatment of adults with learning disabilities, perhaps in one or two homes before it starts to gather momentum—if there were a general duty on the sector, and if the commission could go in, offer support and start to change the culture before a crisis develops that requires compliance. I echo the sentiments of others who have spoken before, and very much hope that the Government will reconsider the deletion of Section 3.
My Lords, I, too, support the amendment. Section 3 represents more than a statement. It represents a commitment to the principles of equality—equality of opportunity, equality of dignity and the responsibility of the state to its citizens.
The EHRC needs a benchmark, a flag, by which it can promote the principles on which it was founded. It needs to be measured, not against the principles of race, disability or gender, but in a much wider context, because it makes a statement about the sort of society we are, the aspirations that we hold for ourselves, and the signals that we send far and wide.
In that context, if the amendment before this House is not embraced, we will be sending a negative statement. We will be saying that after all that we have achieved over many years in terms of race, gender, disability and children, we have turned around and are heading in a totally different direction. It is not my belief that that is the Government’s intention: I believe that the Government’s intention is to continue to improve the standards and opportunities of all their citizens. However, in any journey, we all sometimes take a wrong turn; I genuinely believe that on this occasion, the Government—with all their good intentions—have got it wrong. It is for those reasons that I ask the Minister to look again and to say to the Government that so much depends on their credibility with a vast swathe of this nation and its citizens that to take this wrong turn would be an inevitable downgrading of the concept of equality of opportunity for all. We all believe in that principle and it is in that spirit that I support the amendment, but more importantly, I ask the Government to think again.
My Lords, I cannot begin to emulate the eloquence of the speech that we have just heard. I too regret that I was not present when this matter was discussed in Committee on 9 January but, after reading Hansard, it is clear to me that the debate was of an exceptionally high standard, particularly the contributions of my noble friends Lady Campbell of Surbiton and Lord Low of Dalston. Unfortunately, my noble friend Lord Low cannot be here today; I cannot begin to take his place, but I agree with everything he said in that debate.
There is another person who cannot be here today for a different reason. He was mentioned by the noble Lord, Lord Wigley, as one of those who led the way in this area of the law in the 1990s and long before that. I refer, of course, to the late Lord Morris of Manchester. It is not difficult for me—or I suspect, anybody else in the House today—to imagine what Lord Morris’s reaction to the proposed repeal of Section 3 would have been. I do not doubt for one moment that he would have regarded it as a serious backwards step, and he would have said so in his usual trenchant terms.
I want to deal first with the argument of the noble Lord, Lord Lester, as a lawyer—I am sure that his heart was not really in it—that if we leave out Section 3 we are losing nothing. Secondly, I want to comment on the reasons given by the noble Baroness, Lady Stowell, at the end of her reply for the Government’s decision to repeal Section 3. The noble Lord, Lord Lester, gave two reasons for his view. The first was that Section 3 was purely aspirational, so it would make no difference if it were repealed. It contained nothing, he said, that could be enforced in a court of law.
However, if that argument were correct, it surely proves too much. If Section 3 is purely aspirational, so, surely, are Sections 8 and 9. How would the noble Lord enforce in a court of law the duty under Section 8 to promote understanding of the importance of equality and diversity? How would he enforce in a court of law the commission’s duty under Section 9 to promote understanding of the importance of human rights? If the legal argument of the noble Lord, Lord Lester, were correct, it would surely mean that we should repeal not only Section 3 but Sections 8 and 9, which would leave us with absolutely nothing. Of course, the truth is that the argument is misconceived. Recent legislation is littered with examples of duties which cannot be enforced in a court of law but serve, nevertheless, a very useful purpose. For example, Section 1 of the Constitutional Reform Act 2005 provides that:
“This Act does not … affect … the existing constitutional principle of the rule of law”.
How is that to be enforced in a court of law? However, it serves an extremely useful purpose.
Another example that occurred to me is Section 1 of the Climate Change Act, which provides that:
“It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline”.
How—perhaps I should say, when—is that duty, clearly stated by Parliament, to become enforceable: in 2048, 2049, or when? Therefore, with respect, that argument carries very little weight. For all those reasons, I suggest, with the utmost delicacy, that the legal argument of the noble Lord, Lord Lester, should not deter us in any way from supporting this amendment.
However, the noble Lord had a second argument. He said that there is nothing in Section 3 which is not also contained in Sections 8 and 9, so Section 3 is in effect otiose. I suggest that he is wrong, but suppose for a moment that he is right: if Section 3 adds nothing to Sections 8 and 9, how is that consistent with the Government’s argument all along that Section 3 is too broad? As the noble Lord, Lord Low, pointed out, the Government simply cannot have it both ways. I suggest that he was right. In truth, Section 3 does indeed add something which is not in Sections 8 or 9, and something of the very greatest importance. It provides for the first time in legislation the unifying link between equality and other fundamental human rights. This was the point made by Sir Bob Hepple in his memorandum, which I hope the noble Baroness has read, and which has already been referred to by the noble Baroness, Lady Lister. That deserves an answer and I hope that it will get one. Indeed, the assertion of a unifying principle in Section 3 was surely one of the main objectives of the 2006 Act, as the noble Lord, Lord Lester, himself pointed out when he was promoting the Bill. Therefore, I again suggest, as delicately as I can, that the noble Lord might in this instance have done better to follow his heart than his head.
My Lords, I was not intending to speak and it is a misfortune for the House that I now do so, with extraordinary brevity. When I joined this House almost 20 years ago, Lord Alexander of Weedon said to me, “Remember, Anthony, that the House of Lords is not a court of appeal, it is a jury. Try, if you can, to speak to a jury”. I totally disagree with almost everything that the noble and learned Lord, Lord Lloyd of Berwick, has said today, and would do so in a court of appeal. However, when we are dealing with a jury whose sentiment has already been powerfully expressed, I do not think that it would do the slightest good if I were to explain exactly why I continue to hold the view that I did previously.
By the way, I did not promote the 2006 Act, but I certainly took part in debates on it and I did not oppose Section 3. However, being a practical person—I am no philosopher—I shall concentrate in these debates on three practical things: one is caste discrimination, the second is the abolition of the questionnaire procedure, and the third is the relationship between the Joint Committee on Human Rights and the commission. I hope that I shall not speak on anything else.
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.
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.
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.
My Lords, I shall intervene just briefly. I was in hospital when this was debated in Committee, but I was very taken by the speech of the noble Baroness, Lady Campbell of Surbiton—the Surbiton charioteer, as I think of her—who spoke with a verve and passion and with considerable conviction. Everybody has spoken in like terms and it seems to me that there has to be a convincing answer from my noble friend on the Front Bench if we are not to go along with this amendment in one way or another.
There is a place for the declaratory. This House said that last Thursday, when, by a pretty large majority, it passed what was in effect a declaratory Motion. There is a place for the aspirational in legislation. There are many precedents and it would take too long even to begin to give examples, but I hope that my noble friend will, at the very least, say to the House this afternoon that she will reflect further on this, if she cannot accept the amendment now, and come back on Third Reading with a definitive answer. I hope that the door will not be shut today.
My Lords, I also intend to be brief. Having listened to all these speeches, which are so resonant of what has been said on many other occasions, I particularly congratulate my noble friend Lady Campbell on her brilliant speech. Equally, we have heard from the noble Lord, Lord Lester, a marvellous argument from the legal viewpoint about why it would be quite absurd to get rid of this clause. Section 3 helps us to achieve that commitment to equal opportunity, and to dignity and respect for others from different ethnic backgrounds, for those with disadvantages and for older people who, as we have just heard, will live much longer and have to cope with increasing disabilities as they grow old.
One issue which struck me is the time it has taken to achieve the steps towards equality of opportunity that we already have, and how long we will need to complete the task. This clearly indicates to us that we need every form of additional commitment to let us achieve it. A tiny example is Business in the Community, which has played an important role in lots of ways. It set up a committee looking into this subject, called Opportunity 2000. Surprise, surprise, a little further on, guess what it decided to change the name to? Opportunity Now. That is what we need: opportunity now to achieve this with all the added bits of legislation. There is clearly no time and no need to get rid of this clause. It would be quite absurd, and I say to the noble Baroness responsible for replying that she will need to use her considerable influence on her Government to achieve what we all want. She will have to do it because it would be quite absurd to resist the opinions that we have heard and the excellent background to what has been said.
My Lords, I begin by declaring an interest as the chair of the Equality and Human Rights Commission. I have appreciated the arguments made on this by many noble Lords, including many noble friends. I can say only a limited amount from the position that I occupy, but I should at least remind your Lordships of the position that the commission has taken on the removal of Section 3. This is not a new position since I became chair, but one that was already taken when my predecessor Trevor Phillips chaired the commission. It is summarised in one sentence. It is not a sentence of high enthusiasm, but it states the balance of the issues. It says,
“on balance, the Commission concludes that the changes currently proposed are unlikely to have a significant adverse impact on its work”.
That is partly because other sections still preserve the wider duties, but it is also because the very task of an equality and human rights body is, by its nature, aspirational. That is to say, nobody goes into this domain without profound aspirations for respecting the human rights of each and every one of us in this country and their equal treatment.
My Lords, I am greatly honoured to follow the lead offered by the noble Baroness, Lady Campbell, and all the speeches that have been made today. When you are on the Front Bench, it is always easy to put your name to amendments but on this occasion I felt that it was very important that the Government heard the voices of the Back Benches of your Lordships’ House. I felt—as has been proved to be the case—that people would feel passionately that the Government are in the wrong place and that Section 3 should not be removed.
I have two questions for the Minister. The first partly follows the remarks made by the noble Baroness, Lady O’Neill. It concerns the recent briefing from the EHRC, which states that, on the one hand,
“that the inclusion in its founding legislation of a unifying principle to bridge equality and human rights is important”,
but that, on the other hand, perhaps the answer to the dilemma of Section 3 would be a simpler purpose clause which described the commission,
“as the national expert on equality and human rights”,
and the strategic regulator for equality. It is not quite the poetic and aspirational language in the current legislation. Do the Government regard this intervention at this stage of the Bill as helpful or not?
I think that it muddies the water quite considerably. It adds force to the argument put by the noble Baroness, Lady Campbell. Let us be clear, the Government started by wanting to delete the section completely for reasons which the noble and learned Lord, Lord Lloyd, has demolished. However, if they want to change it and if the EHRC is suggesting that it should be changed, this is surely not the place to do so. This has to be a matter of great consideration and discussion among all the different organisations and across both Houses of Parliament. That was the import we gave Section 3 at the beginning in 2006. I suggest that the latest intervention by the EHRC on this matter serves only to underline the case that we should not go down the route proposed by the Government.
My second question is why does not one single stakeholder organisation—I apologise for that phrase, but I cannot find a better one—agree with the noble Baroness and her Government? Why does she think that Sir Bob Hepple has given the advice that he has about Section 3? Has she had discussions in the past month with the bodies which care about this matter? If so, what is the outcome of those discussions? Given that the Government are in absolutely no doubt that all these organisations are concerned about this and do not want this change to happen, have the Government had discussions with them? Have any discussions influenced their position? I hope that their position will be that they will accept this amendment. Certainly, from these Benches, we are adamantly opposed to the deletion of Section 3. If the noble Baroness, Lady Campbell, decides to test the opinion of the House, we will be with her.
My Lords, this has been an important debate and I am grateful to all noble Lords who have contributed. We have covered an important matter about which we all feel strongly. We all want a society based on equality of opportunity which respects human rights. I pay tribute, as I did in Committee, to all noble Lords who have worked hard in this arena over many years. I especially pay tribute to the noble Baroness, Lady Campbell, not just for everything that she has done but for the very open and straightforward manner in which she and I have discussed her amendments at various stages of the passage of this Bill. I really am grateful to her for that.
A lot has been achieved since we last debated this issue. We have appointed new commissioners and the commission’s budget has been announced. I will come back to these points later today when we debate the accountability of the commission in the final group of amendments. First, I shall be absolutely clear about what this Government seek to achieve via this Bill. We want a strong and independent Equality and Human Rights Commission which promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as for being a strategic enforcer of equality law.
Under the leadership of the noble Baroness, Lady O’Neill, who is respected and renowned the world over for her evidence-based approach, we are confident that the commission’s work will be respected, but in order for her, her board and its successors to determine their priorities and agree a coherent strategy, we must first be clear on the purpose of the commission.
The commission has done some good work since it was established in 2007—most recently, the inquiry into the home care of elderly people and the disability harassment inquiry, among other things, which were referred to by the noble Baroness, Lady Hollins. Let me be clear: removing the general duty would not prevent this kind of work taking place in the future. I will explain in a moment why that is the case. However, we also have to acknowledge that the commission has not been universally acclaimed as a national institution. Indeed, it has been criticised for the way that it has been run. Poor financial management resulting in qualified accounts was the most serious evidence of its failures.
In the past couple of years things have started to improve. Indeed, the past two sets of accounts have been clean and substantial savings have been made. I pay tribute to all those who played their part in that, which includes several Members of this House. However, when an organisation seriously underperforms, it would be negligent not to understand what caused those problems and take steps to put things right. As most successful leaders, whether they are in business or politics, will testify, when things go wrong in an organisation it is often because the organisation lacks clarity of purpose. Indeed, they will argue that for any organisation to be successful, it needs clarity of purpose.
The general duty is not a core purpose. It is a statement with which we all agree, but it is not a purpose. As I said in Committee, that statement for the general duty includes the requirement that:
“We must encourage and support 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”,
and goes on. If the statement were enshrined exclusively in statute and described as the commission’s general duty, that would imply that the commission is responsible for encouraging and supporting the development of such a society on its own.
I know that the noble and learned Lord, Lord Lloyd of Berwick, questioned my reasoning, but I stand by it. The Government’s argument remains that several institutions—Parliament, the Government, other public sector organisations, business and everyone—are collectively responsible for achieving the kind of society that that general duty sets out. Having such a wide-ranging and unrealistic general duty would make it harder than it should be for the commission to prioritise its work. That would be the case for any organisation given that general duty.
The noble Baroness, Lady O’Neill of Bengarve, made clear in her contribution the commission’s view of what the Government are proposing, and I am grateful to her for that. She said that while the commission lacks enthusiasm in the language that uses for the Government’s proposals to remove the general duty, it none the less acknowledges that it would not impact significantly on its work. She also agreed that that general duty is aspirational, the nature of the Equality Human Rights Commission is for it to be aspirational and that that is not required to be set out in statute.
The noble Baroness, Lady Campbell, the noble and learned Lord, Lord Lloyd of Berwick, and other noble Lords referred to the memo from Sir Bob Hepple and questioned the unifying link that Section 3 provides between equality and human rights. The commission can perform its functions under its duties in respect of equality under Section 8 and of human rights under Section 9, so that any unifying link between these two concepts provided by the duty is not essential. As the commission made clear in the briefing distributed at the end of last week, it sees the general duty as symbolic rather than practical.
The Government are clear that the commission’s core purpose is to promote equality and to protect human rights. These duties are set out in Sections 8 and 9 of the 2006 Act. They are supported by a suite of enforcement powers in that Act, such as conducting inquiries and investigations, issuing compliance notices or entering into agreements with organisations and instigating or intervening in judicial reviews or other legal proceedings.
In her opening remarks, the noble Baroness, Lady Campbell of Surbiton, referred to the banking crisis and argued that the removal of the general duty would prevent the commission becoming involved in addressing the kinds of problems associated with that. I would make a different point. To put it in its simplest terms, Sections 8 and 9, covering equality and human rights, should inform the commission’s strategic and business plan—in other words, its proactive work—and its enforcement panels are what authorise it to act when it suspects unlawful activity is occurring. So there is in the Act, without the general duty, the clarity that is necessary to inform the activity that the Equality and Human Rights Commission rightly needs to be able to carry out, which is important to it and what it is there to do. As I stated in Committee, the repeal of the general duty will neither stop nor hinder the commission’s ability to fulfil its important equality and human rights duties. I believe that by providing the clarity which will come through removing the general duty we will help it become more effective.
There is nothing to stop the commission reflecting the contents of the general duty in a mission statement, if it feels that that would help it in its work. Several noble Lords asked me to respond to the proposal circulated by the commission at the end of last week about an alternative to the general duty, reflecting some other kind of language. Let me be absolutely clear: the Government are not proposing an alternative to Section 3. We are clear that Section 3 is not required; if the commission decides it wants to produce its own internal mission statement, that is a matter for it.
Amendment 72, tabled by the noble Baroness, Lady Campbell of Surbiton, is about monitoring duty and seeks to halt the changes to Section 12 of the 2006 Act. I reiterate the point I made in Committee that this change is being made to ensure that the commission reports on progress against its core equality and human rights duties. It is a consequence of the changes that we are making to remove Section 3. It will also amend the reporting cycle from three to five years. As I also stated in Committee, I should like to be clear that there is nothing to stop the commission reporting more frequently if it wishes to do so. Our change would simply reduce the risks of overburdening the commission with reporting obligations and of it being unable to fulfil its duty of monitoring progress adequately.
The commission has had a difficult birth, but it has also done some good work. I believe that, with a clarified legislative mandate, the commission will continue to promote equality of opportunity, tackle discrimination and protect and promote human rights. It will be able to do so more effectively than before and so will gain the respect we all want it to have as our equality body and national human rights institution.
I hope that, in responding in this way to the noble Baroness and all noble Lords who have contributed to the debate, I have given an assurance of what we expect from the commission as well as of the importance we attach to it and to the work it does. I hope that I have also been able to give the noble Baroness the assurance she needs that, in making these changes, we believe the result will be that the commission will be able to exercise its responsibilities more effectively than it has been able to until now.
My Lords, I thank all the supporters of my amendment because they have expanded the argument by bringing forward evidence with brilliance and accuracy. I also thank the Minister. She is right to say that we have spent honest time together discussing this issue in great detail and she has tried hard to understand and reflect upon the arguments, but I have to say that I am disappointed with her reply. As the noble Lord, Lord Cormack, suggested, I thought that perhaps we could come back at a later stage to discuss an alternative that would meet the requirements of noble Lords who have participated in this debate. Like many organisations—I would say all of them—we feel that this is an area of enormous significance in terms of culture change in this country. I do not feel that Section 3 hindered in any way the difficulties faced by the commission when it came to merge.
When three major commissions at different stages of their growth and liberation are merged and, at the same time, another three strands are added, people are brought together to work on a totally new concept. I am not surprised that the commission had a difficult few years. I have merged two organisations and it took me five years to get them to work together successfully and well, so I do not think that that is a good argument. I do not agree with the arguments around wideness and ambivalence or on the fact that Section 3 somehow takes the rudder away from the Equality and Human Rights Commission. It does not; it just puts some passion into those sometimes very dusty legal arguments.
I have reflected deeply on this and worked hard to understand all the arguments for and against, but at this time we need to listen to and test the House to see what it has to say.
Amendment 72 agreed.
73: After Clause 57, insert the following new Clause—
“Equality Act 2010: caste discrimination
(1) The Equality Act 2010 is amended as follows.
(2) After section 9(1)(c) (race) insert—
My Lords, this amendment seeks to add the word “caste” into the Equality Act 2010 and I will very briefly sketch in its background. The Dalit communities in this country, which are about 480,000 strong, have been concerned for some time about discrimination against them. The previous Government, aware of this, introduced an order-making power into the Equality Act 2010 and to assess the evidence commissioned a report from the National Institute for Economic and Social Research. The NIESR concluded that there was discrimination in the areas covered by the Equality Act; namely, education, employment and the provision of public goods and services. It recommended legislation as one of the ways of dealing with this.
The present Government, understandably, wanted time to consider this issue but on Friday gave their response. They recommended that discrimination be tackled by education first rather than by triggering the order-making power in the Act. The Dalit communities in this country are deeply disappointed by this long-awaited response. Indeed, there are more than 400 community leaders from all over the country expressing their feelings outside the House at the moment. I find it disappointing and genuinely distressing because not only are the recommendations a distraction from the real issue but they could cause a great deal of hard feeling and resentment and be seriously counterproductive.
I want to explain briefly why I believe this to be so. It is natural in every society for people to mix with other like-minded people—those with the same education, background, religion, class or occupation. If sometimes this goes along with feelings of superiority to other groups this is reprehensible but when it is manifested only in social life it is not a matter for legislation. By focusing on education there is a huge danger that these kinds of social distinction will become blurred and confused with the real issue of discrimination in the public sphere when people are not employed or are harassed in their jobs because of their caste. An education programme, however sensitive—and frankly one wonders how on earth this one is going to be costed—is likely to be regarded as patronising and interfering, while at the same time distracting from the essential issue.
We hear that there is opposition to triggering the order-making power. I find it very difficult to work out what are the grounds of this opposition. The NIESR is a highly reputable academic body, well used to doing this research, and it has concluded that there is clear evidence of discrimination in the public sphere. Therefore, I wonder about the Government’s second recommendation, which is that the Equality and Human Rights Commission should be asked to look again at the evidence. Is there something flawed with the original evidence? Why is it being asked to look at it again?
Another possible reason is that discrimination does indeed exist, as the Government seem to accept, but should be tolerated. That position would be quite unacceptable to all your Lordships. So we come to the third reason. Is the law really needed? We know that in the case of legislation on race nothing has been more effective in reducing racial prejudice than the law. It has had a most powerful educative effect. Nothing could be more significant and effective in reducing discrimination on the grounds of caste than to have a clear-cut law saying that discrimination in the public sphere will not be tolerated. India, Bangladesh and Nepal all have laws against discrimination on the grounds of caste. The problem in those countries is that the caste system is so deeply entrenched that the laws are not properly enforced. The situation in this country is very different. The law is, on the whole, effective. If other countries see nothing shaming in having a law, why should we?
There are something like 200 million Dalits in the world and the institutionalised prejudice against them is one of the most degrading and humiliating forms of rejection invented by cruel human beings, of which being confined to jobs such as manual scavenging is only one expression. It is indeed a surprise and a shock to learn that caste prejudice has come to this country. It is not, of course, in that extreme form but we need to show that in any public form it is totally unacceptable. We can do that quite simply and clearly by accepting this amendment.
At the moment, when a person believes that they have been discriminated against because of their caste, they have no legal means of redress. Someone I once interviewed had had a good training in India as a medical technician and was employed by the NHS in this country. All went well until this person asked their Asian boss for leave to go back to India for a family wedding. There then followed a set of highly intrusive questions about their family background, after which the person’s life was made hell for the next year, which nearly brought on a breakdown. The trade union that he consulted thought that he had certainly been the subject of unfair discrimination and harassment, but had to advise him that at the moment it was not possible to bring a case for discrimination on the grounds of caste.
Even if there are likely to be few such cases, it is essential that there should be a proper means of legal address for those that exist. I appreciate that the Government are serious in wanting to do something about caste discrimination but I honestly believe, for the reason I have given, that their education programme could turn out to be highly counterproductive. No less importantly, it will blur the issue and distract attention from what is really needed: a clear legal signal that discrimination in this country in the public sphere—in education, employment and the provision of public goods and services—is quite unacceptable. I beg to move.
My Lords, I put my name to this amendment because it seems a very fundamental and simple question. Is it right that a person who is a subject of Her Majesty in this country shall not be able to claim against discrimination when they would be able to in India or Nepal, or indeed in Bangladesh? Is it right that when we have clear evidence that caste has become a feature in this country, they have no defence against it?
I have had very informative and helpful discussions with the Minister responsible in another place and the usual extremely well thought-out discussions with the noble Baroness. It is with considerable sadness that I have to say to her that I am not convinced by the Government’s argument. First of all, it has only just become the Government’s argument. In opposition, the Conservative Party said that this was necessary because it was the only way in which more than 400,000 of Her Majesty’s subjects could properly be protected. If it were possible for the Government to explain to the House that in taking office there were circumstances of which they were unaware that changed their mind, then I would be happier.
However, that is not the argument that has been put forward. What has been suggested is that we need to have yet another investigation. As the noble and right reverend Lord, Lord Harries, rightly says, the investigation by the previous Government was not by some small, unimportant body without respect, but by exactly the people to whom one might turn to find that answer, and their answer was unequivocal. It seems difficult to suggest there should be yet another investigation unless there is a clear statement of what has changed since that one, what was missed out by that one or what the Government felt should further be looked at which had not been looked at. Yet that is not anywhere in the Government’s response.
I believe we have to look at this extremely carefully for a reason which will be perhaps more understood on these Benches than anywhere else. If there is one thing that really annoys people about immigration, it is when people bring to this country attitudes that are wholly contrary to the traditions of Britain. That is why people have reacted so firmly against the attempt, for example, to introduce Sharia law into this nation. Most people in Britain feel that we have a society that should be welcoming, but it should be welcoming on the terms of the tolerance that has been so much part of our history.
There are, after all, fewer Jews in this country than there are Dalits. They are wholly protected under the laws. There are fewer Sikhs in this country than there are Dalits, but they are wholly protected under the laws. Most people would say that there is no place for discrimination by caste in Britain. If there is no place for that discrimination, how can it be that all the other discriminations for which we think there are no place are covered by the law but this one alone is not?
I have to say to my noble friend that I find the arguments used deeply distressing because they go like this: first of all, that we do not know quite enough about it so let us have a further investigation. Frankly, having had the investigations up to now, if it turns out that there are no cases, what harm will have been done? We will have protected people and they will feel protected. If it turns out the investigation that took place under the previous Government was unnecessary and its findings were not true, then we have done no harm. However, if we leave it for another year—and I am told, with some authority, that we will have to wait only a year for a further investigation—we will have another year in which people have no recourse, and at the end of that we may still have no recourse, because there will not necessarily be a legislative opportunity for us to bring this home to the Government.
The second reason that I find so difficult to hear is that we will not deal with it that way anyway, but will deal with it through education, with or without the investigation. Here I do not want to follow the noble and right reverend Lord, Lord Harries, except to say: what do people say in this education? A Dalit in a class says “Okay, I shouldn’t be discriminated against, but what happens if I am?”. The fact that there is now education on this means that the answer will be, “Tough luck, because there is nothing you can do about it, as we have specifically refused to ensure that there is an opportunity for you to take your case”. That is a recipe for lack of integration, poorer community relations, and a worse situation than would have arisen had we had no education or had not raised the matter in the first place.
The third reason that comes up is one that I find more distressing than any other. Every Minister who speaks about it—and we have two Ministers of particular quality here—assures me that they are totally committed to the eradication of discrimination, which includes the eradication of discrimination on the grounds of caste, but that theirs is a better way to do it. I believe that a decision has been made somewhere else that is not on this ground at all, and is not worthy. It is no good listening to those who, in their own circumstances, have a view of caste that is different from that of the majority of us in this House.
In Britain no one should suffer discrimination on the grounds of anything that they cannot help. They cannot help their sexual orientation and their colour; they very often cannot help their religion, or they have chosen that religion; and they cannot help their gender. What on earth is different when they cannot help their caste? You can change the name from “untouchable” to Dalit, but you cannot change the fact that some people are treated in an appalling way, simply because of the person they were born.
I have absolutely no doubt that it would be utterly wrong for us to say to the world that we had the opportunity to protect people from this disgraceful discrimination but decided not to do it because we had to have another investigation. I invite all noble Lords to look back on the history of the fight against discrimination. What happened at every point? Those who did not want to change suggested that we looked again and examined it once more. They said, “Let education deal with it; it’ll all come right in the end”. It was only when we changed the law, however, and made it wrong not only morally but legally as well, that we actually had a change in attitudes and gave the protection which was needed.
I want to finish by saying something very tough: if anybody in this House has any history of discrimination—whether it is the small amount that Catholics have today, which is still real, or the great amount that people have because they are of colour or Jewish or in any other minority group—let them make sure that they do not fail the Dalits, because they have a greater responsibility than those who are lucky enough not to have suffered discrimination as a subject of Her Majesty.
My Lords, I have seldom listened to a more powerful speech in this House. I agree with every single word that was said by the noble Lord, Lord Deben, except for one very minor point which has to be mentioned. The Government are not proposing to undertake any further investigation, but simply to review the investigations that have already taken place. Therefore, what they are proposing to do is of even less consequence than he credited them with.
We already know, from the study undertaken by the National Institute for Economic and Social Research—which was mentioned by the noble and right reverend Lord, Lord Harries, in introducing this amendment—that caste discrimination actually occurs in the United Kingdom. That study confirmed that discrimination and harassment of the type that would be dealt with under the Act exists in the UK, as was reiterated only the other day in a letter from one of its authors, Hilary Metcalf, to my noble friend Lord McNally.
The Government now recognise the existence of caste discrimination. As the Minister for Equalities said, in words very similar to those used by my noble friend Lord Deben just now,
“We obviously do not think that anyone should suffer prejudice or discrimination, whether it is because of caste or any other characteristic. Such behaviour is wrong and should not be condoned, whether or not it is prohibited by legislation”.
However, no Minister has explained properly, in the extended correspondence that we had with the Government over the past three years, why caste should be treated differently from age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex or sexual orientation—the protected characteristics that are already covered by the Equality Act.
The Minister Helen Grant MP wrote to us on 5 February, saying:
“We need to be satisfied that it is the most appropriate and targeted way of tackling a specific problem before legislating”.
I respectfully suggest that Parliament wisely decided that legislation was indeed the right way to tackle discrimination across the board after many years of trying to apply remedies to particular kinds of discrimination such as for race—with the Race Relations Board—or gender, by compliance with the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women. Nobody ever said that before including race and gender in the Equality Act, we needed to be satisfied that it was the most appropriate and targeted way of dealing with the problems that still remained. Legislation was seen as the top storey of the edifice of ways of tackling discrimination of all kinds. The onus is on the Government to prove that, in the unique instance of caste, we should return to non-legal remedies which proved insufficient in respect of the nine existing protected characteristics and are no substitute for the right to take complaints of discrimination to court.
The original reason given by the Government for failing to enact Section 9(5)(a) was that there was no consensus on the need for legislation even among the communities that were potentially most affected by it. We naturally interpreted that as meaning the Dalit communities whose members are the victims of this discrimination. However, it emerged in a letter from the noble Baroness, Lady Verma, to the noble Baroness, Lady Prashar, of May 2012, that the reference was to the wider Hindu and Sikh communities. In that sense, there is never a consensus for legal measures against particular kinds of discrimination. The policy of ending apartheid in South Africa was vociferously opposed by certain groups within the white population. At one time, plenty of men’s organisations were opposed to women’s equality, including, I may say, Parliament itself, and there are still institutions opposed to LGBT rights. Fortunately, the absence of consensus was not used as an argument for blocking legislation for the rights of racial minorities, women or gay people.
However, I realised quite recently that some Hindus and Sikhs believe that what we are seeking to do labels their communities as a whole as persecuting Dalits. I assure them that nobody has any such idea, any more than the Equality Act labels native British as being intrinsically racist, or men as being intrinsically misogynist. There are already cases where litigants such as the Begraj have done their best to use the existing law to make a claim on caste discrimination grounds in the courts. However, there has been no suggestion that a handful of cases point to a general pattern of conduct among people belonging to certain religions.
Recently, the Prime Minister raised an additional objection that needless red tape, as he calls it, and additional unnecessary cost burdens for business might be caused by this provision. That is not the case. Employers would already have the duty to prevent caste discrimination as part of their general duty of care towards their staff, and to take remedial action if it occurred. The difference would be minor one-off familiarisation costs, plus, of course, the liability of the employer to court proceedings and payment of damages if this amendment is passed, as identified by the Bill’s impact assessment.
The apparent rarity of caste discrimination, judging from the NIESR report, and the fact that employers would already be looking carefully at race anyway, of which caste would be a subset, means that the amount of extra work is likely to be minimal. One suggestion in the letter from Helen Grant MP is that gender reassignment is included in the protected characteristics because of our obligations under EU law rather than because the Government considered that it was wrong in principle to discriminate against transgender people.
The recommendation of the UN Committee on the Elimination of Racial Discrimination, echoed in the UN’s universal periodic review of the UK, that we should include caste in the protected characteristics is also a legal obligation according to the advice obtained by the National Secular Society from lawyers Gráinne Mellon of Bedford Row Chambers and Lionel Nichols, fellow of St Anne’s College, Oxford.
However, there are no sanctions against non-compliance and whether or not the CERD recommendations should be treated as obligatory depends more on the Government’s sense of loyalty to their international commitments than on legal principles. However, it is not good to see the UK in the company of states which flout the recommendations of the Committee on the Elimination of Racial Discrimination.
The Government’s proposals, which we received only a couple of days ago, reminded me of Groundhog Day. We are back where we were three years ago, with the Government commissioning a study, this time on whether caste discrimination is likely to be more effectively addressed by legislation or by other unspecified solutions. This is another act of procrastination, as has already been said, because the question is precisely the one they have been considering since the NIESR report in December 2010.
The Equality and Human Rights Commission, which has been asked to undertake this study, expressed its opinion shortly after I and a few colleagues had a meeting with its legal director, John Wadham, on 25 September last year. It supported the activation of Section 9(5)(a) and issued a statement to that effect which is on its website. I suppose that now Mr Wadham has left the EHRC, it could do a U-turn, but the legal arguments have not changed, nor has the experience of unsuccessful attempts to combat discrimination over many years prior to 2010. I am surprised that the noble Baroness, Lady O’Neill, has accepted such a thankless task, particularly as the Government have given no undertaking that if the EHRC reaffirms its opinion that legislation is the right way forward, the Government will take its advice. Will the Minister clarify that point and indicate what budget the EHRC has been given for this operation?
As for the Government’s other proposal, what funding has Talk for a Change been given for the educational programme on this complex and sensitive issue? In its section dealing with alternatives to legislation, NIESR said that,
“the educational approach is only relevant where people are unaware of caste, i.e. in organisations where senior people are not Asian”.
However, NIESR emphasised the educational side-effects of legislation. It said:
“Because of discrimination legislation, employers, educators and providers of goods and services developed non-discrimination and anti-harassment policies. These not only provide structures for redress, but also lead to much greater understanding of the issues and reduce the acceptability of such discrimination and harassment. In the case of caste discrimination, this educational effect is particularly necessary because the vast majority of the population is almost entirely ignorant of caste issues”.
Therefore, legislation would have meant that money being spent on both EHRC and Talk for a Change could have been saved. I do not believe the Government’s antipathy to legislation is really to do with the cost. What is certain is that, just as the Home Secretary and the Lord Chancellor are bent on reducing the means of legal redress available to victims of human rights violations—about which we read in the press every day—as part of this mindset, there is a doctrinal aversion to this proposal in the Cabinet, which is not going to be eliminated by any number of studies and failed alternatives. It is time for the House to make a decision.
My Lords, I want briefly to intervene in order to support the amendment that has been laid before this House by my noble and right reverend friend Lord Harries of Pentregarth, and to support the powerful speech made by the noble Lord, Lord Deben, and the intervention by the noble Lord, Lord Avebury.
As I heard their speeches, I was thinking of two things that I have in my study. One is a poster on the wall that says:
“God so loved the world that he did not send a committee”.
I recalled that it was William Wilberforce who, after the abolition of the slave trade, said that the next great challenge was the abolition of the caste system. Here we still are setting up yet more committees and more inquiries. I really do not believe that that is the signal that we want to send today.
The other thing in my study is a terracotta pot that I brought back with me from Uttar Pradesh two years ago. When a Dalit has held that pot, they are required to break it, because nobody else must touch it if they have drunk from that pot. That is what it means, in simple terms, to be untouchable. Those two simple things motivated me to speak in this debate.
I know that my noble friend has pursued this issue with great vigour and doggedly over the years, and I think that the House ought to support him today not least because, as we discovered in the earlier amendment, the importance of making declamatory statements is sometimes crucial in advancing a cause. The Minister should perhaps recall the wise advice that was given to her on an earlier amendment by my noble friend Lord Cormack. He suggested that if she were not able to accept that amendment today, it would be wisest to come back at Third Reading. The same is true with this amendment. She ought to go away and think about it further if she cannot accept the amendment today, not least because of the declamatory nature of not accepting it.
What signal will that send to the extraordinary number of people who remain in India as Dalits, some 170 million of them in addition to the 400,000 in our own country? When the House considers that every single day in India every 18 minutes a crime is committed against a Dalit; every day three Dalit women are raped; two Dalits are murdered; two Dalit houses are burned; 11 Dalits are beaten; that many are impoverished; some half of Dalit children are under-nourished; 12% die before their fifth birthday; vast numbers are uneducated or illiterate; and 45% cannot read or write it is quite clear that we do not need more inquiries or studies. We have to be certain about what it is that we want for ourselves. The noble Lord, Lord Deben, is right: there are values that we hold dear in this country that we stand for and believe in. We must stand firmly on those principles, not suggest to others that somehow or other to import those kinds of conditions into the United Kingdom would ever be acceptable. Furthermore, however important things such as trade relations are—and they are important to British industry in developing cordial and good relations with India or China—none the less, the stand we take on upholding not just human rights but human dignity, and the belief that no one is untouchable and that every person is of equal value, certainly in the sight of God and as they certainly ought to be in the sight of their fellow human beings, are important. For those reasons, I am happy to support the amendment of my noble friend.
I apologise to the noble Lord. We know very well what a terrible and shameful thing the caste system is for us Indians. Two issues are the most shameful in Hindu culture—caste and dowry. Both have significant effects on people. Dowry leads to the aborting of girl foetuses and the killing of girl children. Caste puts people down; a whole group of people are there to do the worst jobs that no one else will do. That can never be right.
The problem is that Hindus are discriminating against other Hindus. Very few British people understand the caste system or even know what caste means, other than that there are higher and lower castes. Hindus in this country discriminate against lower-caste Hindus. That is so appalling and unacceptable that I cannot understand how it can be allowed to go on. In India, as the noble Lord, Lord Alton, said, the caste system is getting worse, not better. When India became independent in 1947 and Gandhi started a campaign to allow lower-caste people to do all different levels of work, we all thought that by now there would be no caste system in that country. There was a great hope that the caste system would die out. It has not done so but has got worse. People have killed their own children because they have married a person in a different caste. There are organisations in Delhi that find and bring back young people who run away from their villages to escape the wrath of their parents. They pick them up and bring them to their parents, who have them killed. It is not a joke in India. It is horrible.
We have heard that there are laws in India, Bengal, Bangladesh and Nepal. Those laws are not enforced. No one cares about them, and a few rupees will buy you the willingness of anyone from a different caste to help out, so there is no question of the laws being effective. That also applies to the laws against dowry and aborting girl babies. None of those laws is enforced. A law that is not enforced is of no use whatever.
If we were to pass the amendment, we would be making the clearest statement that society can make that such behaviour is unacceptable in this country. We also need to state to our own people, the Hindus: “You cannot come here and behave as if you are in India because there are laws here that will be enforced and will not be overlooked”. I know how some children were treated in schools when I was teaching. That was some years ago, and things have got worse, not better. Unfortunately, there are Hindu organisations that are against the amendment and feel that it is targeting them and saying that high-caste Hindus are the ones to blame. Well, they are to blame if this discrimination happens, because they start it. I hope that today noble Lords will accept this amendment. It is a very small thing, but it will mean a lot to 400,000 people.
My Lords, speaking from a Sikh perspective, I give my full support to the amendment. Guru Nanak, the founder of the Sikh religion, taught, “Ask not a person’s caste but look to the inner light within”. At a time when even the shadow of a lower caste person was said to pollute the food of a higher caste, he instituted the system of langar, where people of all religions and social backgrounds were, and are, welcomed to share a gurdwara meal. The historic Golden Temple in Amritsar, recently visited by the Prime Minister, has, as he will have noticed, four doors at its sides, signifying a welcome to all people regardless of religion or supposed social difference.
Emphasis on the equal dignity of all human beings is central to Sikh teachings. I was slightly bemused by the readiness of some, including ministerial advisors I have met—and we see the same misinformation in the ministerial statement—to display their ignorance of basic Sikh teachings and, in a near-colonial way, to conflate caste, class and all undesirable social discrimination and religions on the subcontinent in the word “caste”. Attitudes of superiority and inferiority are found in all societies. We should remember the media headline “Prince William marries a commoner”.
Caste has a very precise meaning attached to practices associated with the Hindu faith. It has its origin in the desire of the Aryan conquerors of the subcontinent in pre-Vedic times to establish a hierarchy of importance, with priests at the top followed by warriors, those engaged in commerce and then those engaged in more menial tasks. The conquered indigenous people were considered lower than the lowest caste. Accident of birth alone determined a person’s caste. Sadly, thousands of years latter, and despite legislation by the Indian Government, which has been referred to, this hierarchy of importance still lingers on.
I have gone into detail because it is important to understand what we are talking about when we discuss discrimination on grounds of caste. It is discrimination arising from supposed Hindu religious belief, but what passes for religion is not always all it seems. Caste in no way relates to underlying and uplifting ethical Hindu teachings. It is simply questionable culture that has, over the years, managed to attach itself to Hinduism in much the same way as discrimination against women—
The caste system was established very early in Hinduism. The Sanskrit for caste is “varna”, which is also the word for colour. The noble Lord mentioned the Aryan conquerors, who were supposed to be lighter skinned. They wanted a division not only on the basis of who would do what but on the basis of colour.
I thank the noble Baroness for that. I repeat: caste in no way relates to underlying and uplifting ethical Hindu teachings. It is simply questionable culture that has, over the years, managed to attach itself to Hinduism in much the same way as discrimination against women is seen by some as part of their faith.
The Sikh gurus were acutely aware of such negative cultural practices, and they openly discussed and criticised the prevalence of rituals, superstitions and cultural practices contrary to underlying ethical teachings. At a time when all religions all around the world were emphasising difference and exclusivity, the Sikh gurus stressed the importance of showing respect for sister faiths. The fifth guru, Guru Arjan, showed his respect for Islam by asking a Muslim saint, Mian Mir, to lay the foundation stone of the Golden Temple. The ninth guru, Guru Tegh Bahadhur, gave his life defending the right of Hindus to freedom of worship at a time of forced conversion by the Mogul rulers. At the same time, the gurus taught that people of all faiths must respect fundamental human rights and the equality of all people, including full gender equality.
While I have the greatest respect for a sister faith, I also believe that Hinduism without the old-fashioned concept of caste will be infinitely stronger. Similar negative cultural clutter exists in all our different faiths. Its removal would help religions work together for a fairer society, and it is in that spirit that I support this amendment.
My Lords, I fully support this amendment because it deals with a problem which ought not to disfigure our national life. My only point is somewhat technical. I notice that in one of his quotations, the noble Lord, Lord Avebury, mentioned race, of which he said caste is a subgroup. I believe it is quite reasonable to suppose that the definition of race in the Equality Act, including ethnic considerations, will include caste. The fact that an additional power was taken to make orders in relation to caste puts that, in the context of the Equality Act, in a certain amount of doubt. However, it is quite important that we recognise that “ethnic” is a broad consideration and idea. According to the Shorter Oxford English Dictionary, which I suppose has a special authority in some parts of the House, “ethnic” means,
“relating to national and cultural origins … denoting origin by birth or descent, rather than by present nationality”.
It also has the definition of pertaining to or designating a,
“population subgroup (within a larger or dominant national or cultural group) with a common national or cultural tradition”.
In effect, that is what caste is. In the context of the 2010 Act, the fact that a separate order-making power was introduced may have been unnecessary. However, it is worth recognising, as the quotation used by the noble Lord, Lord Avebury, shows, that caste can be regarded as a subgroup of race which, of course, is a characteristic that is at present the subject of antidiscrimination provision.
It looks to me as though we have here the necessary push behind this, but I would like the Government to consider it. It may be a reason for reconsideration at Third Reading, separate from other things that have been said, but it is important for a view to be taken about this matter.
My Lords, I pay tribute to the noble and right reverend Lord, Lord Harries, and others proposing this amendment, to which I give my full support. I do not want to delay this debate too much because it is quite clear what many of your Lordships think. However, I will make three brief points. First, I go back to the theme touched on by the noble and right reverend Lord, Lord Harries, and others about the Government’s plans to address this underlying issue by way of education. We have just been reminded about dictionary definitions. Education is from “educere” to lead us out; to lead us out, surely, into greater truth and the fullness of that truth; for us to flourish as human beings; and to become the best human beings we can be. Within that, I believe, the spirit of God leads us into the fullness of that truth of all being valued in the sight of God.
Secondly, we need consistency in how we approach these issues. Yes, there should be education but not only education. As we have been reminded by the noble Lord, Lord Deben, where does that lead? If it does not lead to the possibility of those who are being educated to treat others equally, to have the law support that as well, we let them down and fail them. Surely, our law is but the right ordering of our society. As we have been reminded by the noble and right reverend Lord, Lord Harries, this issue is about the public arena.
Thirdly, and to which the noble Lord, Lord Alton, has drawn our attention, having had this debate, if we should turn away and not support this amendment, we are giving a worse signal than if we had never had the debate. We need the debate and we need it to be in the open. Having got to this point, we cannot let ourselves turn away. That would cause more harm, more damage and more discrimination. I hope very much that the Minister will accept this amendment and, if not, that it will have the support of all the Benches.
Perhaps I may follow especially what was said by the noble and learned Lord, Lord Mackay of Clashfern, with which I agree. However, first, I recall that the previous Government, led by the noble Baronesses, Lady Royall and Lady Thornton, met with a large group of Dalits, introduced by my noble friend Lord Avebury and the noble and right reverend Lord, Lord Harries of Pentregarth. As I recall, they listened to them for the best part of three or four hours and were deeply affected by what they learnt from them. It was decided to include a power in the 2010 Act precisely to deal with the problem about which they had heard and to get the necessary research, which they did, and then to deal with the problem of legal uncertainty. As I understand it, the whole reason for the power was because it was necessary to deal with the problem of legal uncertainty if the Government were satisfied that there was evidence of discrimination.
During the debates that then took place, the noble Baroness, Lady Warsi, played a conspicuous role. I was looking back to some of the things that she said. She referred to a study, Hidden Apartheid—Voice of the Community—Caste and Caste Discrimination in the UK. She said that the study,
“illustrates that there is a real and widespread problem, whereas that does not appear to come back from the Government's consultations”.—[Official Report, 11/1/10; col. 340.]
She also referred to a “serious problem”. I pay tribute to her for that.
The noble and learned Lord, Lord Mackay, rightly suggested that it is strongly arguable that the concept of race, notably of ethnic origins, might be capable of being extended to cover caste. I agree with him that that might be possible, especially when one considers the position of Jews and Sikhs. In the Jewish free school case, the Supreme Court had to deal with a dispute between orthodox Jews and Jews outside the United Synagogue. The Supreme Court interpreted the notion of ethnicity to include descent and held on the fact that a school was discriminating on the basis of descent as part of race.
Many years before, in the Sikh Mandla v Lee case—in which representation was made by an extremely able young advocate, now the noble and learned Lord, Lord Irvine of Lairg—a school refused to allow a Sikh boy to be a member of the school if he wore a turban. The House of Lords decided that the word “descent” as part of ethnic origins was capable of being construed to treat Sikhs as being protected by the Racial Discrimination Act.
We are in the position in which some 300,000 Jews—as the noble Lord, Lord Deben, indicated in his extraordinarily powerful speech—and 300,000 Sikhs in this country are protected against race discrimination as ethnic groups, but Dalits are not yet protected. It would take a case all the way to the Supreme Court to try to prevail in the way that Sikhs and Jews have done.
Noble Lords will have read in the newspapers that there was indeed a test case brought in an employment tribunal by Vijay and Amardeep Begraj. After a 36-day hearing, the judge recused herself on the application of the defendant after a visit from two West Midlands Police officers. As a result, there is no determination of their complaints of caste-based discrimination, caste-based victimisation and caste-based harassment. They ran out of money, and I cannot imagine how it would be possible for anyone in the Dalit community to be able now to bring a case that could go before a tribunal, the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court. It would cost hundreds of thousands of pounds for the costs of both sides.
Therefore, one of the overwhelmingly strong reasons for supporting this amendment is not, as was suggested by the noble Lord, Lord Alton, that it is declaratory. The whole point is that it is not declaratory: it would bring the Dalits within legal protection. They would at last have effective remedies.
I was trying to say—and perhaps my voice was not particularly helping—that it was more that we had made a declaratory statement in the earlier amendment and I felt that it would be a negative declaratory statement if we were not to pass this amendment because of the message that it would send, not just to the 400,000 Dalits in this country but to those living in India.
I am most grateful. Contrary to the impression that I might create, I am not simply a cold-hearted lawyer: I value symbols very much indeed.
I finish with this about education and legislation. It is almost 50 years since, in 1967, in its first annual report, the Race Relations Board summarised the role of legislation in this way: First:
“A law is an unequivocal declaration of public policy”.
“A law gives support to those who do not wish to discriminate, but who feel compelled to do so by social pressure”.
“A law gives protection and redress to minority groups”.
“A law thus provides for the peaceful and orderly adjustment of grievances and the release of tensions” ,
“A law reduces prejudice by discouraging the behavior in which prejudice finds expression”.
Gandhiji is no longer alive, but I have no doubt that his spirit would guide us in a vote if it is decided to divide the House.
My Lords, I strongly support what has been said. As my noble friend Lord Deben, with whom I do not always agree, made his powerful and convincing speech, I could not help but remember a conversation I had with my father—who loved India and travelled there often before the Second World War—in 1947, 66 years ago when India became independent. I thought of that conversation, too, when the noble Baroness, Lady Flather, was addressing us a few moments ago. My father said, “India will have its independence, and I hope that that will mean the end of the caste system”.
As a young boy of seven, I had not a clue what he was talking about. He sat me down and explained the plight of the untouchables, which had moved him many times in his visits to India. Here we are, 66 years on, and there are people not only in India but in our own land who do not have the protections for which my noble friend Lord Deben and others have argued so articulately this afternoon.
A few months ago, we had a fine debate introduced by my noble friend Lord Popat, who is sitting on the Front Bench now. It was to commemorate the 40th anniversary of the admission of the Uganda Asians. From all sides of the House, people spoke with passion, conviction and affection for the way in which that community adapted and adopted itself and enriched us all in the process. It was right that we should pay our tributes. But is it not sad that there are still 400,000 in this country who do not enjoy the full protection of the law in the way in which the Ugandan Asians rightly do?
I very much hope this afternoon that the House will not need to divide. I hope that it will carry this amendment by acclamation. If there is any chance at all of the Government not being able to accept the amendment, I hope—and here I repeat what I said in an earlier debate and echo what the noble Lord, Lord Alton, said—that at the very least, my noble friend the Minister will think again and come back at Third Reading. If she cannot do that and does not feel that she can discuss with senior colleagues in the Government the need to do that, the House has a duty incumbent on it to strike a blow—brief but effective.
If we wanted to be convinced of the need for that, we need only reflect on the words of the noble Lord, Lord Lester, a few moments ago when he talked about the expense of going to law. Do we wish to create a situation where the only way of seeking redress of the basic grievance of not being treated equal is to go to law? No, we do not. If the amendment cannot be accepted and if there cannot be a promise to come back at Third Reading, I hope that it will be carried.
My Lords, it was with enormous pleasure and humility that I put my name to this amendment on behalf of these Benches. It is true what the noble Lord, Lord Lester said. In 2009-10, I attended a meeting of hundreds of Dalits and their organisations and found myself completely convinced that there was a gap in the law. Our equality legislation did not cater for this group and it was something that we needed to resolve. That is all that is before us today.
I thank the movers of the amendment and I particularly want to thank the noble Lord, Lord Deben, because I thought his speech was extraordinary. All we want and all that we need to do is to add “caste” to,
“colour, nationality or ethnic or national origins”,
under the race characteristic of the equality legislation. It is not actually a very big thing to do, but it is a very important thing that we have to do today.
My Lords, I am grateful for the opportunity to contribute to the debate and thankful to the Government for introducing this Bill, which will support British businesses in cutting unnecessary costs and red tape, boost consumer confidence and help to create more jobs.
I wanted to speak briefly on the amendment of the noble and right reverend Lord, Lord Harries, relating to the inclusion of caste when considering cases of discrimination. This is not a new debate; indeed, when the Equality Act was published in 2010, a specific provision was included to allow for caste to be added as an aspect of race at a later date. Later that year, the National Institute of Economic and Social Research undertook an extensive government-commissioned study into the prevalence and severity of caste discrimination in the United Kingdom and concluded that it does in fact occur in many of the areas covered by the Equality Act, such as education and the workplace. That led me to conclude that government action is indeed required as a matter of some urgency.
As a man with Indian ancestry, I am all too aware of the deep-rooted prejudice and unfair treatment that results from allowing the caste-based system to persevere. The Minister may be aware of the religious concept of untouchability, whereby certain individuals are declared untouchables due to their perceived association with impurity and pollution. As a result, they are ostracised and isolated from the rest of society in order to protect and preserve the quality of the majority.
In particular, across much of south Asia, the Dalit community has suffered greatly from this deep, ingrained form of discrimination. Dalits are a community considered so lowly in the social hierarchy that in some circles they are in fact excluded from the caste system altogether and completely segregated by social customs.
Historically, in countries such as India, Dalits have also been physically separated from the rest of society, housed outside the main villages and entitled to perform only the most menial of jobs. This horrendous social mentality still prevails in some rural communities, although thankfully it is becoming less common. Today, the Indian constitution outlaws discrimination based on caste and provides for the reservation of seats in the House of the People and the states’ legislative assemblies for those who have been historically disadvantaged due to the caste system. There are also programmes to promote and provide educational and employment opportunities for those such as Dalits. Many people in this country will be completely unaware of the existence of such a caste system and its history in suppressing minorities here. This is why it is particularly important that we acknowledge the potential extent of the problem in the United Kingdom.
I was instinctively drawn to support this amendment. Following further reading and a highly reassuring discussion with the Minister this morning, I am now very much aware of how seriously the Government are taking this matter. They have been very clear that nobody should suffer prejudice because of their caste, and as such have developed the Talk for a Change programme to work with the communities affected by this discrimination. As with so many of the most deep-rooted cultural ills, education and awareness is the key to prevention and this is exactly the approach this programme will take. I also appreciate that there will be a political focus on the Hindu and Sikh communities where the problem is most prevalent. Such assertive action is extremely welcome and is necessary both in the name of protecting vulnerable individuals and in maintaining our reputation as a country that embraces progressive and tolerant attitudes.
The Government have also been clear that they have no plans to remove the provision contained within the Equality Act which allows for caste to be included at a later date. This again reassures me that they are maintaining a flexible approach to tackling this problem and were we to enforce the type of legislation called for in this amendment we would simply be pushing against an open door.
We must realise that, as a nation which has so proudly and successfully championed the fusion of a diverse range of minority communities with modern-day Britain, we have inevitable responsibilities. These responsibilities should be seen as challenges to relish; ways in which we can assist our new communities and help them to integrate better into what many see as the mainstream of British life.
Our Prime Minister has made the point that Britain is open for business, and I believe that furthering our commitment to fairness and equality in our boardrooms, offices and factories can only serve to make us an even more attractive nation to do business with. I believe that the Government share this sentiment and I look forward to following the progress of the Talk for a Change programme.
If a Division is called, I shall certainly vote not-content.
My Lords, I am grateful to all noble Lords who have contributed to this very important debate. Let me start by being absolutely clear: the Government recognise that there is some evidence of caste prejudice and discrimination taking place in the United Kingdom. Such behaviour is wrong; no one should suffer prejudice or discrimination, whether because of caste or any personal characteristic, and it should not be condoned whether or not it is prohibited by legislation.
Before I go any further, I should like to pay tribute to the work of those who have campaigned so hard on behalf of victims of caste prejudice and discrimination, particularly the noble Lord, Lord Avebury, and the noble and right reverend Lord, Lord Harries of Pentregarth. I think they underestimate what they have achieved through their efforts over the last few years. Their commitment has already achieved a great deal in highlighting the problem and in ensuring consideration of this issue.
As noble Lords closely involved in this campaign know, the Government were already reviewing the NIESR report that has been referred to before my noble friend Lord Avebury tabled his amendment to this Bill at the end of last year. However, a decision by the Government as to what action they would take had not emerged at that stage. During debate in Committee, I undertook that the Government would reach a decision which would be announced before today’s Report. In the light of the strong arguments in Committee, I also undertook to ask the relevant departmental Minister, my honourable friend Helen Grant, to meet representatives from all the major pro-legislation caste organisations. That meeting took place earlier in February and my noble friends Lord Avebury and Lady Northover and the noble Baroness, Lady Thornton, were all able to attend. Though I was not able to be present myself because I was required on other business in this House, I met Helen Grant beforehand to relay personally the details of our previous debate. She has since given me a comprehensive read-out of the discussions.
Be under no doubt, the Minister listened carefully and has reflected thoughtfully since that meeting. For her and for me, the question is not and never has been, “Should we act to do something about caste prejudice and discrimination?”, but rather, “What is the best course of action when all the evidence is taken into account?”. My noble friend Lord Lester referred to some statements that my noble friend Lady Warsi made when we were in opposition about there being a serious problem of caste prejudice. She was right then and she is right now; our position on that has not changed.
There is a clear demand for legislation; that has been put forward without any doubt today. That demand is from those who are affected as well as from those who are speaking for them today. But new legislation is always a big step. Before taking it, we need to be satisfied that it is the most appropriate and effective way of tackling the specific problem. My noble friend Lord Deben, as other noble Lords have rightly acknowledged, made an incredibly powerful speech in this debate. One of the things he said was that no one should suffer discrimination on the grounds of something that they cannot help. He was referring to castes and I agree with him. However, there are other people who suffer prejudice in this country because of their class, their background or their place of birth but we have no legislation on these matters and we deal with them through other approaches.
I understand that, but none of those things is fixed in the way in which caste is fixed. Those are things which can be changed—sometimes they are just changed by speaking differently. You cannot change your caste, and that is why it is an exact parallel with race and may indeed be included within race. Surely it is not acceptable to say that there is anything else like caste.
As I continue laying out the Government’s response, I will answer more directly the points that my noble friend has made. I want to make it plain that there are other forms of prejudice from which people in this country suffer to a great extent for which no clear, direct legislation exists to prevent it happening.
The noble and right reverend Lord, Lord Harries of Pentregarth, provided some rather shocking evidence and stories of discrimination outside the UK, as did other noble Lords. The Government have to legislate to tackle what happens in this country; that is what we—what all Governments—must ensure that we do. The noble Lord, Lord Alton, and the noble Baroness, Lady Flather, talked about the huge number of crimes committed against Dalits in India. We have existing criminal law here in Great Britain for dealing with those kinds of assaults and other crimes if they take place in this country.
At this point, let me make it clear that we remain willing to consider whether there may be a case for legislating specifically in regard to caste discrimination, and hence our willingness to meet representatives of the key groups. I will return in a moment to the circumstances that would lead us to such a decision, and why we remain unconvinced that legislation is the best answer. It is clear from the NIESR report, which is the most robust study available so far, that the majority of incidents of caste-related prejudice or abuse would not be covered by equality legislation. Our assessment is that the great majority of cases in the report are either in areas outside the legislation—such as in relation to volunteering, which is not covered by discrimination law—or would already be subject to redress through a range of measures from claims for constructive dismissal to criminal prosecution. That said, we are clear that no one should suffer prejudice because of caste. Such prejudice should not be condoned and it should never be ignored, and that is why I am pleased that the Government have announced that they are taking clear action to tackle caste prejudice and discrimination through an education initiative. I thank my noble friend Lord Sheikh for his support for this initiative, and I must say that I was rather surprised that the noble and right reverend Lord, Lord Harries, dismissed it as being patronising and interfering. Even if a new law on caste discrimination was to be introduced, without education it would not address the underlying causes.
Did my noble friend note the quotation I gave from the NIESR report which talked about the educational effect of legislation? The fact is that because employers would have to discharge their responsibilities, they would educate their workforces and thus the whole of society.
I hope that, as I continue my remarks, I will be able to answer the points made by my noble friend and the noble Baroness. My noble friend Lord Avebury talked about business only needing to familiarise itself with caste legislation when a case of discrimination occurs. I would argue that that is not the case. Employers and service providers have to familiarise themselves with the law in order to avoid being faced with claims for discrimination. The noble and right reverend Lord, Lord Harries, asked about the cost of the education initiative. I can inform him that the estimated cost is around £20,000. I should also say that I thought that the contribution made by the noble Lord, Lord Singh, on the history behind caste was very illustrative because it demonstrated the point I have just made in response to my noble friend Lord Avebury about the need, if we were to introduce a law, to educate business in just how complex an issue this is and therefore how much education will be necessary.
The joint initiative between the Department for Communities and Local Government and the Government Equalities Office has already appointed a body called Talk for a Change to take this work forward in partnership with any organisation that wishes to become involved in finding practical, community-based solutions to the problems and harm that caste-based prejudice can cause. Over the next few months, the programme will see Talk for a Change running a series of regional workshops that will engage with individuals and organisations from local communities to explore the nature and sensitivities of the caste system and the emotional harm that caste prejudice and discrimination can cause. In response to a point made by my noble friend Lord Deben, I say that the workshops will also be used to raise awareness within those communities of the channels of redress that are already open to those who feel themselves to have been victims of caste prejudice, discrimination or harassment. The outcomes from these events will be used to provide material that can be made available to local authorities, schools, colleges, employers, the police and any others who may come into contact with caste-related issues. The details of how those who wish to participate in this project can get involved will be available shortly on the Talk for a Change website, and we will also ensure that these projects are widely advertised.
We believe that this education programme, which will explore all the issues, not just those covered by discrimination legislation, is an appropriate and targeted way of dealing with incidents related to caste that are not already susceptible to the criminal law or other remedies such as employment law or informal grievance procedures. However, that is not all we are doing. As has already been referred to, the Equality and Human Rights Commission was mentioned several times during our debate in Committee as an important player in this issue. We have been in discussions with the commission about caste discrimination, and both the Government Equalities Office and the commission have agreed that it would be useful to examine the evidence from existing studies and the extent to which different approaches might address the problem. This work will not duplicate the previous work undertaken in the area, such as the NIESR report.
In response to the noble and right reverend Lord, Lord Harries, and my noble friend Lord Avebury, who I think used the term Groundhog Day when commenting on this issue, let me make it absolutely clear how this is going to be different. NIESR carried out primary research to determine whether caste prejudice and discrimination exists in Great Britain. That research included discussions with a range of organisations and interviews with individuals who have claimed to be the victims of such behaviour. The commission will use the evidence that is currently available as part of its consideration of the nature of caste prejudice and harassment and the extent to which this problem is likely to be addressed by legislative or other solutions. The commission intends to publish its findings later this year, which we will of course consider carefully. My noble friend Lord Avebury asked whether a budget had been set aside for the commission to look at this issue. The commission has not requested a budget for this work because, as we debated at length in the previous debate, it is an independent body that takes its own decisions about its workload and spending within its own overall budget.
My noble and learned friend Lord Mackay of Clashfern raised an important legal matter, and he was supported in doing so by my noble friend Lord Lester. He said that caste is already potentially a subset of race and that perhaps the current existence of the separate power on caste in the Equality Act 2006 detracts from that. It goes without saying that my noble and learned friend knows far more about the law than I could ever begin to know myself, and whenever he intervenes to make a point, I consider it carefully and with great seriousness. However, we are not aware of any case law directly on this point, although I note that my noble friend Lord Lester seemed to suggest that some exists. What I would like to suggest is that, when the commission undertakes its study, this is an area on which it might properly reflect as part of its work. This is precisely the kind of thing that the commission should consider in the work that it is about to do.
My noble friend is familiar with the detail in this area. If that is so, I am not in a position to suggest that he is wrong. However, we do not believe that it is necessary to introduce legislation at this time.
The Government are largely in accord with the aims of this amendment. We all want to see an end to caste-based prejudice and discrimination. We are not closing the door to legislation. We have no plans to remove the power from the Act, and we will leave it there in case new evidence emerges which makes it clear that legislation would help to achieve the aim that we all share. As I have already made clear, we will consider the outcome of the commission’s study when it reports later this year.
From the limited evidence of caste prejudice already available, we believe that there is much to be gained through a programme of education, and that is something that we can and will get on with immediately. Those who suffer this prejudice have strong support from all sides of this House—that has been made evident today. However, let me also make clear that the people who suffer from this prejudice also have support from Ministers who are currently in government; most particularly, my honourable friend Helen Grant and my noble friend Lady Warsi, who will take a very active role in monitoring the effect of this educational programme and will most definitely take quite seriously the results of the work that the commission has said that it will do. I cannot accept this amendment for all the reasons that I have given, and I hope that, in view of the comprehensive way in which I have responded today, it is possible for the noble and right reverend Lord to consider withdrawing his amendment.
First, I thank very much all those who have spoken in support of this amendment for their deeply felt speeches. I also thank the Minister for the serious consideration which she has given to this, and for her obviously sincere commitment to the elimination of caste discrimination. I also thank the Minister in the other place, Helen Grant; the Dalit organisations found the meeting with her very helpful.
However, there is a clear division of opinion in this House between those who believe very passionately that it is essential to have a clear law in place at this stage, and those, like the noble Lord, Lord Sheikh, who are with the Government in believing that what is needed is an educational programme. All I ask the noble Lord is whether he would have taken that view when race relations legislation was first being introduced. I suspect he would not have; he would have argued for the importance of a clear law.
The Minister mentioned rightly that a number of the more horrible cases mentioned in our speeches concerned what is happening in India, rather than here. That is true, and this issue needs to be seen against that wider background. None the less, I myself gave a very clear example of employment discrimination in this country, and we can provide the Minister with a whole range of cases in this country, as the report sets out.
The Minister suggested that many of the cases mentioned in that study would not be covered by legislation. That is indeed true. However, a number clearly would, and that is surely the key point. At the moment, people have no legal address, and it is absolutely fundamental to all aspects of the law in this country that people have such address where they feel that they are being discriminated against. While I in no way doubt the sincerity of the Minister and the Government on this issue, there is a clear division of opinion in this House about the necessity of a clear law at this stage. I therefore wish to test the opinion of the House.
Clause 58 : Equality Act 2010: third party harassment of employees and applicants
Amendment 74 not moved.
Clause 59 : Equality Act 2010: obtaining information for proceedings
75: Clause 59, leave out Clause 59
My Lords, I was unable to take part in the debate on this issue on 14 January in Committee because of ill-health. I am grateful to those who spoke at that time. We are dealing here with a procedure invented in 1974, one that has worked very well and is designed to help people without legal aid to know whether they have a good case for discrimination. This procedure concerns not only ethnic minorities, religious minorities, women, the disabled and the elderly, but everybody protected by the Equality Act 2010.
The repeal of the statutory procedure that enables would-be claimants to use a standard form to find out whether they have a good case would greatly diminish and impair the ability of potential claimants to have effective access to justice in pursuing claims of alleged unlawful discrimination. It would be regressive and undermine the practical benefits of the Equality Act for women and girls, ethnic and religious minorities, the disabled, the elderly, and gay and lesbian men and women. I therefore hope that the Minister will be able to accept this amendment so that the procedure may be retained.
The questionnaire procedure was introduced into the Sex Discrimination Act 1975 and the Race Relations Act 1976 when I was special adviser to Home Secretary Roy Jenkins. The White Paper, Racial Discrimination, published in September 1975 explained in paragraph 85 that:
“Help will be given to a person who considers that he may have been discriminated against unlawfully to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner … In addition to helping the aggrieved person to ascertain the nature of the respondent’s case at an early stage by means of a simple, inexpensive procedure, this provision will also enable complaints which are groundless or based on misunderstandings to be resolved without recourse to legal proceedings”.
The position with discrimination law is that the burden of proof remains, as it has always done, on the claimant to make out a prima facie case before the burden shifts to the employer or service provider. The Explanatory Notes to Section 136 of the Equality Act 2010 explain that,
“the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”.
That has always been the position and it involves a fair sharing of the burden of proof. As Karon Monaghan QC notes in the leading textbook on equality law in paragraph 14.18:
“The courts have long acknowledged that proving direct discrimination ... is peculiarly problematic. This is reflected in such statistical data as exists, which indicates that discrimination, particularly race discrimination, cases have lower prospects of success than any other comparable claims”.
She reviewed the case law and concluded:
“The outcome of a case will ... usually depend on the inferences which it is proper to draw from the primary facts. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with the questionnaire provisions”.
Abolishing the questionnaire procedure would deprive the tribunal or court of the power to draw such inferences because of the failure by the employer or other respondent to answer the questions or because they did so in an equivocal and shifty way. That would be unfair and unjust. The Minister accepted in Grand Committee that the questionnaire form is “simple and straightforward” but she cited fears expressed by the Opposition in 1975 that the procedure might be abused. That was before the forms were published and used and there is no evidence of which I am aware that the procedure has been abused or indeed criticised by any court, tribunal, legal practitioner or academic during the 35 years it has operated. I invite my noble friend the Minister to indicate whether she agrees, or has even a scintilla of evidence—as opposed to assertion—that any court, tribunal, legal practitioner or academic during the past 35 years has ever suggested that the procedure is abusive. In Grand Committee the Minister referred to the procedure as not being replicated in other areas of employment law. That is because there are special difficulties in proving discrimination cases, as the courts have repeatedly said.
The procedure has proved to be of real practical benefit for potential claimants and respondents and was extended by successive Governments and Parliaments to the other forms of unlawful discrimination in the employment, education, goods and services, and public service provision fields. It applies to alleged discrimination because of religion or belief, sexual orientation, disability, and age, and in relation to equal pay without sex discrimination. It was included in Section 138 of the 2010 Act without controversy or any opposition in either House. It does not require the complainant to use the forms prescribed by the Minister, so there is no micromanagement here.
Complaints of alleged discrimination—whether direct or indirect—are, as I have said, very hard to prove and most of the relevant information is in the possession of the respondent rather than the claimant. For example, in a direct discrimination case the claimant has to choose a comparator to prove less favourable treatment on a ground forbidden by the Act. The burden of proof is on the complainant. Only the respondent is in possession of the relevant facts about whether the comparison is appropriate and whether the facts show less favourable treatment, and, if so, the reason for this. Similarly, in an indirect discrimination case, the claimant has to prove disproportionate adverse impact on forbidden grounds. Again, only the respondent has the facts, including statistical or other material and whether there is an objective justification for the discriminatory barrier.
It is essential that the potential respondent is encouraged to disclose the essential facts at an early stage to help the potential claimant to know whether to proceed and also to encourage conciliation and settlements by encouraging the respondent to take the matter seriously pre-litigation. If the procedure were abused, the employer or service provider could refuse to reply and the tribunal would uphold their position because of the abusive approach of the claimant.
These considerations were not brought out in the Government’s consultation paper, which stated that the Government had seen no evidence that the question and answer procedure reduces litigation. As a result of the consultation, however, evidence did come to light, notably from the Equality and Human Rights Commission, about the practical utility of the procedure. The commission’s position paper was published in August 2012. Its evidence is particularly important. Parliament has made the commission responsible for monitoring the effectiveness of the legislation and the likely effect of a proposed change of law. That is what Parliament has decided. The commission is able to draw on 35 years of experience by the equality agencies it has replaced.
The commission has explained that the procedure has led to cases being resolved or not being pursued and that repealing Section 138 would limit the evidence on which a claimant can rely in proving their case. The commission has found the procedure useful in assessing the strength of a case and has made decisions not to assist a case under Section 28 based on the response to questionnaires. By making it harder for the claimant to seek an effective remedy for discrimination there is an increased risk of a legal challenge to the repeal of Section 138. The commission also rightly points out that claimants will still have the right to pose questions pre-claim but that it is preferable to do so on the basis of the questionnaire.
The Government’s response does not address any of the issues raised by supporters of the procedure—some 83% of respondents—including not only the EHRC, trade unions and the equality NGOs but also the judiciary. The Government dismiss the evidence as not “quantifiable” and state that the question and answer procedure,
“encourages undesirable micro-management of the process by government, including prescribing the nature of the forms to be used, and the time limits involved”.
It is difficult to understand how the procedure can be described as micromanagement, still less as undesirable micromanagement. The Government consider that the more effective approach is to leave,
“businesses free to decide how and whether they respond to enquiries of this sort, with any attendant balance of risk that may be involved”.
I cannot agree. With the existing questionnaires, the tribunal or court can draw a negative inference against an employer who fails to respond to the questionnaire. That is an important incentive for employers, trade unions and services providers to respond. Without that incentive the help given under the Equality Act and its predecessor Acts is taken away and the claimant falls back on the disclosure powers of the courts and tribunals. These are extensive and disclosure orders are far more time consuming than filling out the existing questionnaires.
In its excellent briefing, the Equality and Diversity Forum expressed concern about the proposal to abolish the questionnaire procedure because it saves money by deterring ill-founded litigation, enables the early resolution of disputes, clarifies the issues in contention and facilitates access to justice. Some 83% of consultees oppose the repeal of this provision. Indeed—your Lordships may think this is a killer point—the president and the regional employment judges of the employment tribunals have described it as a retrograde step. There is no credible evidence that I know of that the procedure is a burden on business. I agree and I beg to move.
My Lords, I support this amendment in the name of the noble Lord, Lord Lester of Herne Hill. I do so on the basis of comments that I made in Committee, which I will try not to repeat while trying to contextualise this Bill and where the equality aspects sit in it. Clearly, much of what the noble Lord has already said explains the difficulty that victims of discrimination have in proving discrimination, with the whip hand being with the employer and with the information often being inaccessible.
The Bill itself has an underlying theme. I feel that it is to allow employers to hire and fire without any fear, weakening employees’ rights and reducing the support and representation available to victims of discrimination in the workplace, while making the EHRC weaker. It transfers many of its resources and functions to the GEO, where the Government will have greater control. The Government have cut the previous grants programme and diminished the helpline. They are converting the EHRC into some form of strategic think-tank, which is unrelated to the reality and everyday struggle of disadvantaged and disaffected communities across the country. It is among those groups that we find many of the less powerful victims of unlawful discrimination. In addition, there are closures of advice and law centres, with legal aid being denied and costs now being associated with employment tribunal cases. That is the severe context in which we have to look at the attempt to withdraw the questionnaire procedure.
This is being done largely on the basis, as argued by the Government, that it is a burden on employers to have to respond to questions being asked by employees about their treatment. Employees have to get that information to determine whether they have a basis on which to go forward with a case of unlawful discrimination. Without that information, they literally have no basis for doing so. The basis of my support for this amendment is my experience of working with and against employers who want to get rid of their employees. Many employers clearly support the reform put forward here—getting rid of the questionnaire—because they do not want to be accountable for their actions or to respond to questionnaires in which they have to provide explanations for their actions. They regard these questionnaires, as the government side have argued in taking this forward, as a nuisance.
Employers also find some of the questions being asked challenging. That is not simply because they are seen and interpreted as a fishing exercise but because unless those questions are asked, employees who have a feeling that they have been discriminated against or an awareness that they have been treated unfairly, and probably unlawfully, are unable to carry forward their grievance. They cannot get redress without assistance, which I have already mentioned is vanishing, and certainly without the information that they need. Some of the questions asked, which may bring forward information or are sometimes not answered, are exactly what is required to help employees understand the nature of the discrimination they have suffered or understand the explanation for why they have been treated in certain ways that render it impossible for them to succeed in a case before a tribunal.
As the noble Lord, Lord Lester, pointed out, 83% of those who responded to the consultation opposed the repeal of the questionnaires. We have had submitted to us the EHRC’s position which recognises the usefulness and importance of retaining questionnaires. Indeed, we have had a submission from the Discrimination Law Association, which provided examples of the usefulness of the questionnaires in helping both employees and employers. Practitioners right across the country have contributed to that. I hope that the Minister will recognise that the case has not been made, with evidence, of how questionnaires are a burden for employers, other than that they see them as a nuisance and an irritant. In fact, in the name of justice, equality and fairness, and to enable the existing legislation to be undertaken and enforced effectively, as it has to be, the usefulness of the questionnaires should be retained for that purpose.
My Lords, I have no desire to add to the two very detailed contributions that have just been made to this debate. However, I fully support the amendment. I am opposed to the abolition of the questionnaire procedure. I cannot understand why the Government are proceeding down this path. As has already been indicated, the questionnaire procedure saves money by deterring ill founded litigation. Most of the consultees, including the British Chambers of Commerce, were opposed to it while surveys have shown that none of the businesses questioned raised concerns about the questionnaire procedure. Quite honestly, there is no evidence at all that the questionnaire procedure is a burden on business. As far as the trade union movement is concerned, the TUC is totally opposed to the abolition of the questionnaire. I hope that the Government, having listened to the two previous noble Lords, will agree that this is not the path to go down and will not proceed with the abolition.
My Lords, I was very happy to put my name to this amendment from the noble Lord, Lord Lester. He spoke with great passion and authority about this issue at Second Reading and has done so again to explain why this amendment is so important. In terms of practical equalities on an everyday basis, this is probably the most important amendment we are going to discuss today because it is about how ordinary people can start to challenge whether they have been discriminated against.
As the noble Lord, Lord Lester, and my noble friend Lady Turner have just said, there is no evidence that this procedure is being used as a fishing exercise. Case law makes clear that businesses and other respondents are not required to answer questions which are disproportionate and that a poor response would not automatically lead to a finding of discrimination. Indeed, the Government’s impact assessment fails to provide any empirical support for removing this so-called regulatory burden on businesses. The questionnaire procedure facilitates access to justice. It helps both parties to assess where a claim lies and enables them to reach an early settlement where appropriate. It is therefore crucial that the Government should not repeal Section 138 of the Equality Act 2010.
My Lords, I am grateful to all noble Lords for their contributions today on this matter. I start by repeating what I said in Committee on this measure: our proposal does not impact on the substantive rights of those who believe that they have encountered discrimination. It does not deny people access to justice or reduce the remedies available to those who have experienced discrimination. It simply replaces an out-of-date system with a simpler and fairer approach for all. Let me be clear: we want a process that commands confidence from all the parties likely to be involved in discrimination cases.
Before I go any further, I will respond to a point made by the noble Lord, Lord Ouseley, about legal aid. He suggested that it was being denied, making it harder for people to bring claims. Legal aid continues to be available in discrimination cases.
Our concerns are with the nature of the statutory mechanism around Section 138 of the Act, and the particular combination of features—an unlimited scope for request of detail concerning a possible complaint, a short deadline for response and the tribunal’s power to draw pejorative inference from the response or lack of it—which employers and businesses feel really back them into a corner. This process started off, as my noble friend Lord Lester said, over 40 years ago with the intention of a straightforward question and answer procedure. In 1975, the then Minister described it as a way of enabling the complainant to obtain simple, basic information on which to decide whether to start a case. Noble Lords might compare that sentiment to actual, although, of course, anonymised, examples of the sort of questions that are nowadays put to employers. Here are a couple: “Please specify the number of employees who have requested, applied for or been invited to transfer to another department within the 18 month calendar period prior to” whatever date; “Please explain how many of those transferred had raised grievances whether formal or informal, prior to their transfer.”
At times the number of supplementary questions runs to 40, 50 or even 100, all of which employers, including small employers, often feel required to answer within eight weeks or face a tribunal case where they are already handicapped by the inferences which the tribunal may draw under the statute. It is, therefore, not surprising that many businesses feel that the balance has shifted too far in favour of the claimant. The repeal that we propose will address this and, together with the non-statutory arrangements that we are working on, will make for a fairer and simpler process, as I said before, for all involved.
My noble friend Lord Lester said that no court, tribunal or legal practitioner had ever suggested that the procedure is abused. I am happy to write to my noble friend about this because we believe some legal practitioners would certainly disagree with his statement that no abuse occurs. I hope he will not mind if I follow up on that in writing rather than trying to respond today on the Floor of the House.
When we debated this in Committee, some noble Lords doubted my contention that,
“not one single employer or business organisation told us that they saw value in the questionnaires”.—[Official Report, 14/1/13; col. GC 136.]
Indeed, that has been challenged again today by my noble friend Lord Lester and the noble Baronesses, Lady Turner of Camden and Lady Thornton. I find that a bit surprising because I thought that the letter I sent to the noble Baroness, Lady Thornton, on 8 February provided the evidence for that statement. Indeed, I noted in that letter the alienation of employers and other companies from the view expressed frequently in debates on this clause that the obtaining information process benefits business as well as individuals by weeding out unmeritorious claims. In support of this, I refer to one particular response which sums up the employer view: “The information we send in response is rarely if ever used subsequently in the case, but does require us to undertake a considerable amount of work obtaining and collating the requested information.” It is a matter of concern that what is seen in Parliament as a major benefit of the procedure—its usefulness, on occasion, to both parties as a prevention mechanism—is in reality simply not shared, or even recognised, by respondents to the questionnaires.
Despite this, I emphasise that we are not trying to do away with the concept of pre-claim disclosure. We do indeed note the claim of those arguing in favour of retaining these provisions that pre-claim disclosure can on occasion be helpful to all concerned. That brings me to what we propose to put in place of Section 138 of the Equality Act. I underline what I said in Committee about the value we see in encouraging a pre-claim dialogue and exchange of information. Our early conciliation provisions in the Bill are intended to achieve just that and will provide the right sort of platform to help establish the basic facts to determine if discrimination has occurred. However, even if parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding—
I would like clarification, although I am listening very carefully. Is it contemplated that the conciliation procedure will enable a claimant to do something like serve such a questionnaire in order to try to understand whether they have a good case or not, or is this procedure to be abolished if the Government have their way?
To be absolutely clear, this is not about abolishing the opportunity for anybody to submit questions to an employer to gather information. All we are removing is the statutory requirement for that employer to have to respond to those questions within a time limit, and, if they were not to do so, providing for their non-response to be considered by the tribunal service.
I will return to what I was saying. If parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding of the issue and of the tribunal process. The individual will then still be able to seek information from the employer or service provider, before making any decision on whether to take their claim to the tribunal. Individuals will still be free to seek information from an employer or service provider about alleged discriminatory conduct without the statutory process. Information can be sought informally, in writing or orally.
To help this process, this informal approach will be set out in ACAS-approved guidance. This is being developed with the input of interested parties, including the Equality and Diversity Forum, the Equality and Human Rights Commission, and the CBI. Since we last debated this issue, ACAS has developed draft guidance for consideration by the group of interested parties. The guidance will include advice on how to seek pre-claim information in the employment as well as the goods and services context.
My noble friend Lord Lester referred to the fact that without statutory procedure employers will not help claimants by providing information. My response is that we are removing that statutory requirement for them to respond. When that ceases to exist, courts and tribunals may still take into account a refusal to answer questions or their provision of answers that look evasive when deciding whether a case of discrimination has been made out. The fact that there is no statutory process does not remove the risk to an employer or service provider of deciding not to respond to a claimant; it only removes the unnecessary and prescriptive process around that.
In conclusion I remind noble Lords of what I said in Committee, that we are now in a different climate to 40 years ago when this legislation was introduced. Businesses are more concerned with upholding their reputations and the damage reputational risk may have on their position in their market. There is a greater trend towards transparency around information held by business. Clearly that is progress and something that we support.
I hope that noble Lords can agree that the statutory process is no longer the right approach and that our alternative arrangements will continue to enable the kind of pre-claim dialogue that business and the Government are fully committed to supporting, with a lighter-touch process which benefits all equally. I hope that in responding I have given my noble friend at least some assurance that might lead him to withdraw his amendment.
I am grateful to the Minister and to others who have taken part in the debate. I wish that there had been some assurance that I could rely upon, because I very much hoped that it would not be necessary to test the opinion of the House. However, as the noble Baroness, Lady Thornton, said, this is probably—in fact it is—the most important amendment that the House is considering, because it seeks to help the vulnerable, who are more than half the population. If you add together women, elderly people, the disabled, black people, brown people, religious minorities, and the gay and lesbian community, it comes to more than half the population. Therefore, to take away a simple procedure that has worked well in the estimation of all the judges and experts whom I have ever known—and I can claim a bit of expertise, since I have been arguing cases in this area for about 30 years, God help me, and perhaps I have a little more practical experience than some others who are advising the Government—will make it very hard to bring a discrimination claim.
It is all very well to say, “Oh well, you don’t need the statutory thing—you can just go and write a letter”. To write a letter that will lead to any kind of result probably means going to a solicitor or a trade union representative, if you are lucky enough to have one in the real world. In the real world, without this procedure, and without legal aid for employment tribunals, the applicant will bring cases that are misconceived, the conciliation process will not work well because of a lack of information, and the whole situation will be worse for victims. I do not know whether the Conservative part of the coalition wishes to go into the next election with credit for having dismantled one piece of valuable assistance to claimants. If it does, so be it. That, however, would be foolish. I speak only for the Liberal Democrats, but I do not believe that the Conservative part of the Government wishes to undo the valuable work done by previous Conservative Governments over the past 30 or 40 years in supporting this measure and others like it.
We put this on the statute book only two years ago in the 2010 Act, with all-party support. What has changed since then? The Red Tape Challenge. The original notion of that was to dismantle the whole of the equality legislation, and this is one part that has survived. It is foolish of the Government to continue to do this, and therefore I must reluctantly beg leave to test the opinion of the House.
76: After Clause 59, insert the following new Clause—
“Equality Act 2010: Equality Impact Assessment
(1) The Equality Act 2010 is amended as follows.
(2) In section 149 (public sector equality duty), after subsection (6) insert—
“(6A) A public authority shall make the following arrangements for compliance with the duties under this section—
(a) assessing and consulting on the likely impact of its proposed policies on the promotion of its duties under this section;(b) monitoring its policies for any adverse impact on the fulfilment of its duties under this section;(c) publishing the results of such assessments and consultations as are mentioned in paragraph (a) and of such monitoring as is mentioned in paragraph (b); (d) ensuring public access to information and services which it provides; and(e) training staff in connection with the duties imposed by this section.””
My Lords, Amendment 76 concerns equality impact assessments and would reinstate statutory requirements to undertake them as part of the public sector equality duty. An equality impact assessment involves assessing the likely or actual effects of policies or services on people in respect of disability, gender and racial equality. While equality impact assessments are not legally required, they have been widely adopted as an effective and efficient means for public authorities to undertake proper consideration of equal opportunities. They are described by the authorities that use them as,
“a positive force for the delivery of real equality”.
Moreover, case law suggests that these assessments provide robust evidence documenting how decisions were reached. Indeed, case law has confirmed that to have due regard to equality, a public authority needs to gather sufficient information about the impact on equality, give such information proper consideration at a formative stage of decision-making and consider whether any negative impact can be eliminated, mitigated or justified. Authorities are also advised to have some kind of audit trail to show that the actions they took comply with the duty. Therefore, while it is true that the courts have never held that there is a requirement to complete a written equality impact assessment or that having an equality impact assessment itself is sufficient to show compliance with a duty—especially if it has been completed with a purely tick-box or form-filling mentality—the main components of a good-quality, substantive equality impact assessment process are what the courts have held to be necessary in order to have due regard to equality.
It does not help to ensure public authorities’ compliance with their duty to have the Prime Minister and other government Ministers simply dismissing equality impact assessments as wasteful, bureaucratic and unnecessary exercises. Rather than calling time on equality impact assessments, as the Prime Minister did at the CBI conference in November 2012, we believe that these vital assessments should be enshrined in legislation. We therefore call for an additional amendment to be made to the Enterprise and Regulatory Reform Bill that would require public authorities to assess, consult, publish and monitor the likely impact of proposed policies.
This becomes even more important when, days after the announcement of a review of the public sector equality duty by the Secretary of State, Maria Miller, the Prime Minister announced that public sector organisations will no longer be required to undertake equality impact assessments as a means of fulfilling their obligations outlined in the public sector equality duty. Instead, these important assessments have been dismissed as unnecessary.
Repeated government announcements about equality law being burdensome red tape, the declaration of the Prime Minister at the CBI conference, and the dismissal of equality monitoring by the Communities Secretary Eric Pickles as unnecessary, intrusive and a waste of taxpayers’ money, fuel our concerns about the removal of these assessments. Indeed, I was reflecting that it would be nice if this Government actually made some positive announcements about equality impact assessments and how they are necessary to judge the impact of how public money is spent and used. Just saying, as the Prime Minister did, that,
“We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff … so I can tell you today, we are calling time on equality impact assessments”,
seems to me to be a somewhat facile assessment of what is a useful public sector tool.
It is notable that the review of the public sector equality duty comes after the Government were criticised by the EHRC for failing to abide by the requirements within it. Furthermore, despite its membership including four Conservatives, not one Labour politician has been appointed to the steering committee that is reviewing this. Will the Minister tell us when the steering group looking at the public sector equality duty is due to report? My understanding is that it has been further delayed and that it will not now report until the summer. How is the steering group conducting its inquiry and who is it inviting to talk to it about the public sector equality duty?
Will the Minister also comment on a recent blog for Liberal Democrat Voice by the BIS and Equality Minister Jo Swinson? She seemed to imply that the duty has actually held policymakers back from properly considering equality. She said:
“As Liberal Democrats, we do not think equalities should be about ticking boxes and regulatory hoops—it’s too important to be relegated to an administrative duty. Advancing LGBT, gender, disability and race equality will only be achieved by putting equalities at the heart of every department”.
She is right about that, but you also need to see the effects of the policies you are pursuing.
The Minister needs to address two issues. First, if you do not have an equality impact assessment, how will you assess the effect of the work of public authorities? Secondly, if the body that is reviewing the public sector equality duty reports back that it does not think it is necessary, what will the Government do with that information? Are we going to find ourselves at the end of the summer in a situation in which the Government completely stop looking at the impact of any of their policies, spending commitments and decisions on factors such as age or gender, or on any of the different groups, such as LGBT people, covered by equality legislation? I am at a loss to know what direction the Government think they are taking with this so-called regulatory reform. I beg to move.
My Lords, I, too, support this amendment, to which I have added my name, as it seems to me there is an awful lot of misinformation regarding the benefits of having an equality impact assessment as part of the public sector equality duty. The noble Baroness has just mentioned tick-box exercises and bureaucracy, and described how this provision can be seen as a burden. However, it is an important tool and has been successfully used to assess the impact of public services and of government policy on vulnerable people. For many decades this was not the case. I cite my experience of working in a health authority before the public sector equality duty came into force, when it was very much up to the relevant health authority to assess whether different sections of the community or different groups received the same level of service, whether they could access that service and, indeed, whether the service was even appropriate. The public sector equality duty has gone some way to ensuring that vulnerable people, who are not always able to articulate the fact that they are not accessing a service or not benefiting from public services, are catered for and is an important way of ensuring that services are tailored to the local community. As I say, it has achieved some success.
I am not going to defend in your Lordships’ House every aspect of the way that this provision has been implemented. Of course, there is always room for improvement and greater accountability, and the amendment tries to address that. However, we must ensure that equality and the right of access to services is open to all, regardless of who they are or their background. Concerns have been raised about the way in which the steering group that has been mentioned has been established to review this issue. There does not seem to be a lot of transparency in the way that the review will conducted. There is also a lot of concern about the independence of the group given that everybody on it seems to be from a political party. I know that there is somebody from the Liberal Democrats on it but I have had no contact with that person. I would like to know how the group will take evidence and evaluate whether equality impact assessments should be changed or, indeed, removed. I, too, would like more information about this steering group which has been charged with this very important task.
As I say, the duty encourages proactive action to close equality gaps in health provision for different ethnic and other groups, and to ensure that services meet the needs of those who use them. It provides an important evidence base to support provision that is effective and efficient and ensures that services provide value for money, so it has served an important purpose. I hope that the Minister will accommodate some sections of this amendment and will look at equality impact assessments as a way of assisting the provision of services as opposed to being detrimental to them. I declare an interest as a commissioner of the Equality and Human Rights Commission when it instigated a review of the Treasury’s compliance with the duty as regards the 2010 spending review. The public sector equality duty can make a huge difference if applied purposefully, and was seen by people in the Treasury and, indeed, by people in government as a helpful thing to do. Aspects of that spending review, such as its impact on women and minority groups, might not have been considered, so the duty was seen as a positive and helpful measure. I hope that the Minister will say how she thinks we may continue on a positive note by rolling this out.
I hope that the Minister will not accept this amendment because it seems to me that this is a good example of substituting reality with a bureaucratic answer. Surely what we are trying to do in this legislation is so to embed it in people’s attitudes and concepts that there is no need to have complicated bureaucratic form-filling and ticking-off. Most of us who run businesses would not dream of having a provision like this. However, most of us who run businesses would also be very insistent that decisions were made with a proper understanding of their impact on women as well as men and on minorities as well as majorities.
I hope the Minister will accept that many in today’s society consider that these issues should perfectly properly be dealt with in law—a law which I am happy to say looks as if it will be more inclusive than it has been up to now—but that people should themselves find the best way of handling them. The Government should not present people with a detailed arrangement such as appears in this amendment, which I am afraid very often becomes a substitute for action. People may say, “I have done my assessment and therefore I don’t have to think”. What we really need is for people to think creatively about how best to do these things. It is very much better not to lay down a recipe of the kind proposed in the amendment, which slightly reminds me of the nannying schemes which have made these provisions less popular than they ought to be. I am afraid that many people do not think of equality as a progressive and positive thing but rather as merely another drudgery which is laid on them. We do not want that; we want a society where equality is included as a natural way of looking at how you run a business, a local authority or a public authority. We do not want someone to feel that he or she has done their bit of homework, has ticked the boxes the right way and can now forget about it. I am afraid that the “I can now forget about it” syndrome cannot be legislated against but is very often the result of an amendment such as the one before us.
My Lords, having listened to all the debates today in your Lordships’ House, I am very conscious that there is a clear consensus among your Lordships on the importance of all organisations, particularly public sector organisations, working towards achieving equality. That has emerged in all the discussion that we have had. Core to that is the equality duty on public bodies.
I understand that the Government are reviewing all this but I hope that this evening’s debate will be influential in ensuring not only that they recognise the value of that general equality duty for the whole of the public sector, but also see the value of strengthening it in the way that this amendment seeks to do. My experience is that, if you are to achieve equality in the workplace—equality in terms of the way in which you provide services—it requires several things to be in place.
First, it requires visible leadership from those responsible for the organisation or in charge of it that shows that they believe that this is important. Secondly, it requires that policies are made in an evidence-based way; that information is used to assess how the policies are working, how the services are being delivered, who benefits and who perhaps is missing out. That requires the collection and collation of information, so that those in charge of the organisation can make the appropriate decisions. It also requires a degree of enforcement. But to say that you can achieve all of these things only by enforcement or only by one element of those different requirements is to set the arrangement up to fail.
I have listened with great interest to the speech of the noble Lord, Lord Deben, who has highlighted that you do not want to create a tick-box mentality. That is absolutely right and is true in all sorts of areas. That is not what you want to achieve. However, if people are trying to apply the general duty on equality—or indeed what would be implied by this amendment in terms of the way in which equality impact assessments are concerned—in a tick-box mentality, then you will lose out entirely. This amendment sets a framework by which all public authorities can say, “We are doing our job properly and effectively”. How can you argue that there is something overprescriptive by saying that the duty of the public authority should be to assess and consult on the likely impact of its proposed policies? Surely that is sensible good practice. How can you say that that is overprescriptive? It is simply requiring public authorities to do what is right.
Similarly, requiring public authorities to monitor their policies for any adverse impact is again requiring that they do what is right. It is not being overprescriptive; it is simply saying to them, “This is what you should do to deliver your general duty on equality”. This is not an overprescriptive amendment; it is something that is there to provide a framework which public authorities can use.
I am also very clear that, in making decisions, public bodies have to look, check and see what the implications are. These assessments provide a framework which requires them to consider all the relevant factors in doing that. I know that when we make a decision on a public body we are required to consider all the relevant considerations and not consider those considerations which are irrelevant—I forget the precise form of words, but that is the standard rubric. This provides a framework to make sure that all the relevant considerations are being addressed. More importantly, it provides an audit trail, so that anyone looking at it can see how a decision has been taken and how the different issues have been factored in because there has been an equality impact assessment. That places quite a pressure on those making decisions that they have not only considered all the relevant factors but are able to justify what they have done. That is an extremely important and very good discipline for those who make public decisions.
The equalities duty has been an important step forward for public bodies in this country. Some of them still struggle with how to implement it and some still have a long way to go but, as a basic building block for ensuring that public services are delivered fairly and in line with the objectives that I think all of your Lordships have said they support during the course of various debates today, they have been extremely valuable.
I mentioned at the beginning that one of the requirements for delivering equality, whether at local level, public body or by government, is leadership. I hope that the Government will show clear leadership in agreeing that there is an importance to the public sector general duty on equality and accepting the importance of this amendment, which provides a sensible framework for equality impact assessments.
The Prime Minister is worried that this is going to become overbureaucratic. I suspect that by providing a framework in legislation for what is needed, some of those overbureaucratic elements will disappear simply because people are no longer trying to interpret what might be a necessary way of doing this and erring on the side of caution. This is a way of setting out a framework which will enhance the work that public authorities should be doing to promote equality.
My Lords, I support this amendment. I was reminded by the noble Lord, Lord Deben, of something that happened a good many years ago when I was the national women’s secretary of the Transport and General Workers’ Union. I was on a mission to include within the rulebook of the union requirements for each of our administrative areas to provide positive action programmes for women, and for sanctions to be introduced into the rulebook against those senior officials of the union who might be found guilty of harassment or bad behaviour towards women. “Attacked” is not the right word, but the response of more senior people in the union than me—men—verged on that. They said to me: “We don’t need a change in the rulebook, what we need is a change of culture”. I said: “Of course we do, I absolutely agree that we need a change of culture, but while we are working on the change of culture we will have a change in the rulebook so that outwith those rules you will not operate”.
We all know that large bureaucracies find it terribly difficult to shift. The idea that organisations out there—public sector bodies, services, et cetera—are going to be able to change their culture, and be willing or capable of doing that in any speedy fashion without some framework within which we require them to operate, seems to me to be cloud-cuckoo-land. I do not believe that if we remove the pressure for equality impact assessments to be the final step in delivering public sector equality duties we will see any change at all going on out there. I support this amendment and I hope that others will also do so.
My Lords, I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece. I will explain my views on their amendment. I am grateful to them because it provides me with an opportunity to respond to some points which are important in this wider debate about equality impact assessments and the public sector equality duty.
Before I get into that, let me say from the start that this Government have a strong commitment to establishing a strong, modern, fair Britain which is built on two key principles: equal treatment and equal opportunity for all. The equality duty was designed to ensure that the needs of people are taken into account when public bodies develop, change, implement or review a new policy or service.
The amendment was discussed in Committee and, as has been explained by the noble Baroness, Lady Thornton, seeks to impose a number of processes on public bodies in addition to the central requirement to have due regard to the three main aims of the equality duty when exercising their functions. Some of the requirements it seeks to impose are already an integral part of the process of complying with the public sector equality duty. Having due regard to the equality duty when exercising their public functions is the legal duty on all public bodies. Let me be clear; that has not changed, nor has the requirement to be able to demonstrate that it has happened. For example, the proposal for public bodies to assess and monitor the likely impact of their proposed and actual policies is already required, while the requirement to publish the results of such assessments is caught by the requirement in the specific duties to publish information to demonstrate compliance with the duty. These requirements include considering the need to eliminate unlawful discrimination, advance equality of opportunity, and foster good relations between people with different characteristics. Public bodies are also required to publish information at least annually to show how they have done this, and to set at least every four years equality objectives that will promote these aims. There is therefore already a thorough requirement on public bodies to have due regard to the public sector equality duty.
In his speech to the CBI last year, to which the noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred, the Prime Minister was calling time only on the equality impact assessment process, which seemed to have become meaningless around Whitehall. He was not calling time on the duty to have due regard to equality in decision-making itself. Indeed, I referred in Committee to “reverse-engineering” where it was clear that departments had sometimes not considered equality as they made a decision, but used the form at the end of the decision-making progress to justify that decision. My noble friend Lord Deben in Committee referred to an example of a local authority taking matters too far to the other extreme and, perversely, being proud that it had done so because, for the local authority, it had demonstrated its commitment. I am grateful to my noble friend for his comments today and for expressing eloquently and powerfully, as he always does, why greater prescription on the equality impact assessment would have a detrimental effect on the way that we expect bodies to carry out this duty, and the ultimate outcome that it exists to achieve.
There are examples in case law that demonstrate that the courts have found a lack of due regard to equality in instances where an equality impact assessment has been produced. The fact that this has happened shows that some public bodies have done no more than do what we all say we do not want—a tick-box process.
I turn now to the review of the public sector equality duty, which the noble Baroness, Lady Thornton, asked about in particular. It is important to be clear on this. This is a review of how the duty is operating. In other words, is it delivering what was intended? It is not a review of whether public bodies should have due regard for equality when exercising their functions. To be clear, this is about how they have, not whether they should have, due regard to equality. It is vital to review our approach in this area to ensure that it is delivering as effectively as it can what all of us believe in and want: the achievement of equality and fairness, and that the elimination of discrimination as policy is made and services designed. My noble friend Lord Deben was eloquent in explaining why that is so important.
The review will explore the impact of the duty in terms of costs, burdens and benefits, and recommend what changes, if any, would ensure better equality outcomes in a non-bureaucratic way. The review is being overseen by an independent steering group, chaired by Rob Hayward, who, among other things, is a trustee of Central YMCA and an adviser to the Terrence Higgins Trust. The steering group is made up of senior figures with experience in public sector delivery, including the noble Baroness, Lady O’Neill, in her capacity as the chair of the Equality and Human Rights Commission.
I am grateful to the noble Baroness for her clarification, and I am sorry if I misrepresented her position on the steering group.
The noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred to the membership of the steering group. I say clearly that its members have been selected because of their experience and knowledge around these issues, and it is not intended at all to be a politically representative body. The steering group represents the main delivery public sectors of policing, education, health, local and central government. It can use their expertise to shape the scope of the evidence-gathering and develop the final recommendations. As the noble Baroness, Lady Thornton, said, we have extended the timetable to June from the previous announced date of the end of April at the request of the chair and the steering group to help to ensure that the review and its recommendations are robust.
The evidence-gathering for the review began in January and includes a series of round tables, involving a wide variety of experts, to gather evidence on how the duty is operating. The first round table involved voluntary and community sector organisations such as the Equality and Diversity Forum, the Stephen Lawrence Trust and Age UK. The second involved lawyers from across the public sector. A further six round tables are planned, including with inspectorates, private sector contractors and senior decision-makers. The work will include site visits to public bodies, for example to a police force or a school, to examine the experiences of different individuals within an organisation. The work will also include the commissioning of qualitative research, which will be conducted independently—as is always the case in these matters—through a series of in-depth interviews with public bodies. We will be inviting evidence from organisations and individuals about the operation of the duty, which should provide insight about public bodies’ experiences of working with the duty. We are also analysing written evidence in the form of existing literature, case law and international comparisons. We are therefore approaching this review with an open mind and gathering evidence from numerous sources to get a comprehensive picture of how the duty operates in practice.
The noble Baroness, Lady Thornton, asked how we would respond once the work is complete and the steering group produces its report. As I am sure she would expect me to say, it is far too early for me to speculate on how we will respond. However, given that we have set up the review and given it the remit to roam and consult as widely as it is doing, we will clearly take the report seriously and are looking forward to receiving it.
The equality duty and supporting regulations provide sufficient safeguards for holding public bodies to account, and introducing a further legal requirement for an equality impact assessment will not add anything material. Furthermore, the timing is not right when we are taking stock of how the current legislation is operating in practice. As I have said before and to make absolutely clear, this is a review of how that responsibility is operating, not whether public bodies should have due regard for equality. I hope that I have been able to give the noble Baroness more information about the review, and I am grateful for that opportunity.
My Lords, I thank my noble friends Lord Harrison and Lady Prosser, and the noble Baroness, Lady Hussein-Ece, for their comments. I also thank the noble Lord, Lord Deben, who, as ever, made pertinent comments.
The response from the Minister was actually very helpful. We do not agree and I would obviously much prefer that the equality impact assessments were mandatory. There is no question that that would work better. However, while the Minister may not have given much comfort to her noble friend Lord Deben in what she said about the way she sees the public sector equality duty and impact assessments working, I found the Minister’s response useful and helpful, and I will read her comments in greater detail.
As to the public sector equality duty review, it was useful and reassuring to know that the review is ranging far and wide and taking evidence from a range of bodies. The Government would have been wise to make the review more balanced, given that politicians from different councils are taking part. It would have been useful to have had a Labour person on the steering group, but that does not mean that the outcome will not be useful. I am also reassured that the review is taking time to get this right.
Given the information that the noble Baroness has provided to the House, I am happy, at this stage, to beg leave to withdraw the amendment.
Amendment 76 withdrawn.
77: After Clause 59, insert the following new Clause—
“Commission for Equality and Human Rights: appointment of Chair and commissioners
(1) Schedule 1 to the Equality Act 2006 (the Commission: constitution, &c) is amended as follows.
(2) In Part 1, after paragraph 1(1) insert—
“(1A) Appointments shall not take effect until such time as they are approved by a Committee of both Houses of Parliament.”
(3) In Part 2, paragraph 7, for sub-paragraph (2) substitute—
“(2) An appointment under sub-paragraph (1)(a) shall not take effect until such time as it has been approved by a Committee of both Houses of Parliament.””
Before speaking to this amendment, I should like to clarify for your Lordships any question of a possible conflict of interest. I was until 3 December last year the deputy chair of the Equality and Human Rights Commission. At that point, I had served two three-year terms and my appointment terminated. I therefore no longer have a direct interest in the commission but I do of course retain a general interest in both the commission and its work.
Turning to the matter at hand, perhaps I may express to noble Lords my overall view of the value of this part of the debate on Clause 57 and why this group of amendments is so important to the future of the commission and to equalities in our country more generally. The ability of citizens to feel and believe that they have an equal chance in life and, importantly, to feel and believe that their Government think they should have an equal chance is key and central to the development of a harmonious and comfortable society. At this particular time, with its harsh economic circumstances and shortage of employment opportunities, it is common for those who are struggling to lay the blame for their plight on those less familiar to them.
Situations such as these require Governments to be strong and forthright in making clear their support for tolerance and fairness, and to speak loudly of the value of legislation and government machinery which helps people to enjoy equal rights and to access recourse to justice when those rights are violated. Comments from government which continually link equalities legislation with red tape, bureaucracy and burdens undermine the confidence of citizens and allow for the growth of intolerance and unfair behaviour. The purpose of this group of amendments is to enable the Government to be seen to recognise that the Equality and Human Rights Commission is a valuable, serious and important tool in delivering and regulating equality legislation in this country. It would put the commission on the same footing, for example, as the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman.
Strengthening the commission’s accountability to Parliament has been endorsed by the United Nations International Co-ordinating Committee chair. In a letter to the then Minister for Equalities, Theresa May, the ICC chair, Dr Mousa Borayzat, suggests that the Government should use the opportunity of this Bill to strengthen the provisions of the Equality Act 2006 in areas related to the commission’s independence.
Parliamentary scrutiny of the appointment of the commission chair has already taken place. The noble Baroness, Lady O’Neill, appointed in November of last year, appeared before the Joint Committee on Human Rights. That extra interest and study of the recommended candidate not only adds to the status of the appointment but involves and includes Parliament in the process. Greater knowledge and greater transparency ensue. Amendment 77 calls for this process to be extended to the appointment of commissioners—again, increasing knowledge and transparency—and I look forward to the Minister’s response on that point.
Amendments 78 and 79 seek to rectify the current unsatisfactory position whereby the commission’s annual report and accounts and the strategic plan are presented to whichever Secretary of State happens to have the current responsibility for equalities generally. Since its inception, the commission has reported to four different Secretaries of State, each of whom has had equalities added to their already busy portfolio of responsibilities. Changes to the responsibilities of those Secretaries of State have meant that the commission has been shuffled around Whitehall depending on where the Secretary of State came from. It is a very unsatisfactory state of affairs. Given that the rights and responsibilities contained within the equalities agenda touch every single adult in the land, is it not more sensible and more appropriate for Parliament to oversee and question these important reports and plans?
Finally, I turn to Amendment 80, which calls for the commission’s budget to be approved by Parliament. Two dangers arise from leaving the situation as it is. First, the current practice is for a budget allocation to be drawn up and allocated to the Government Equalities Office. This money then gets separated out with a share going to the EHRC. This hardly helps to instil any sense that the commission can maintain a healthy independence from government. Secondly, and most seriously, the EHRC is internationally recognised as the national human rights institution for England and Wales. Crucially, financial health and independence are central to our being able to maintain that international recognition.
In 2012, the UN General Assembly adopted the Belgrade principles. These relate to the relationship between NHRIs and national parliaments, and they include several mechanisms for closer relations between parliaments and national human rights institutions. For example, parliaments should develop a legal framework for the NHRI which secures its independence and its direct accountability to parliament. The principles also suggest that parliaments should invite members of NHRIs to debate their strategic plan and/or their annual programme of activities in relation to their annual budget. These amendments would enable government to state clearly that arrangements in this country most certainly comply with the Belgrade principles.
None of these amendments should concern the Government’s desire to go easy on regulation or so-called red tape. They are all designed to help the Government to promote their commitment to the equality and human rights agenda and to send a message to the citizens of Britain that government believes in openness and transparency and the delivery of equal opportunities for all. I beg to move.
My Lords, I shall not keep the House too long as the noble Baroness, Lady Prosser, has given such a comprehensive introduction to this group of amendments, to which I have added my name. There are just a few points that I should like to add.
The steps outlined in the amendments are, as I see it, enabling. They enable the commission to fulfil its mandate more effectively and to achieve more balance between independence, accountability and transparency. They build on recent developments such as the first pre-appointment hearing of the commission’s chair, as was mentioned.
I declare an interest as a commissioner of the Equality and Human Rights Commission until last December. I am all too well aware that the commission is very keen to advance its relationship with Parliament and to have the ability to work across government departments. As has been said, the current arrangement has acted as a hindrance and has not oiled the wheels, so to speak, to enable the commission to work more effectively with other government departments—something that it should be doing. It has the responsibility to work with all departments across government, given its wide-ranging remit. The current arrangement of going through the Government Equalities Office has limited this to an extent. I see the commission’s responsibility for assessing how the Government comply with, for example, domestic and international equality rights obligations as a positive development and a strengthening of its relationship with Parliament.
At Second Reading, I said that setting the budget is so important that it needs to be done in a more timely, transparent and effective way. I was at the budget-setting process last year. I remember being at a board meeting in February when the commissioners still had no idea what their budget would be from 1 April. That is not satisfactory or acceptable, and it needs to be addressed. Taking these amendments on board would go some way to addressing this and making sure that the commission becomes more transparent and accountable and is allowed to function. We talk about a red tape challenge, but it goes both ways. There has been a lot of red tape attached to this commission from its inception. It has almost been bound and gagged at birth and has not been allowed to function properly. This is a way of releasing it to an extent, while keeping some important checks and balances in place.
My Lords, I agree completely with the noble Baroness, Lady Hussein-Ece. I have written down “micromanagement by the Government Equalities Office is a bit of a red tape challenge that the Government could probably do well to look at”, so our thoughts were heading in the same direction. I see this group of amendments as continuing the positive discussion that we had in Grand Committee, where the Minister started to explain where the Government were going and what the direction of travel was. I see this group of amendments as part of that process and discussion, and I congratulate my noble friend Lady Prosser on her introduction.
What we are essentially addressing here is how the EHRC can deliver its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations, how it can best do that and how it can be independent in doing so. It seems to us that parliamentary accountability would provide the commission with that appropriate independence from Government to fulfil its role impartially. I hope that the Minister will accept something that I said in Grand Committee: this is not a means of stopping the Government setting the overall policy direction on equality matters. Everybody accepts that that is the Government’s job. However, it means that our Commission for Equality and Human Rights, apart from anything else, has the necessary independence to from time to time be critical of the Government and hold them properly to account.
My Lords, as I said in response to the first debate this afternoon, the Government want a strong, independent Equality and Human Rights Commission that promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as a strategic enforcer of the law. Clearly, we also value its “A” status and want it to retain it. We are committed to strengthening its accountability to Parliament and, in responding to this debate, I hope I can demonstrate what progress we are making.
I start with the appointments. As already acknowledged by the noble Baroness, Lady Prosser, and others who have contributed to the debate, the appointment of the new chair of the commission, the noble Baroness, Lady O’Neill, was for the first time subject to pre-appointment scrutiny by the Joint Committee on Human Rights. That is a move that the Government welcome. In January, we appointed six new commissioners and, with the appointment of the new chair, we believe that the new board marks the start of a new era for the commission steering it in a new strategic direction. We want to see the commission go from strength to strength. We are open to discussing with the Joint Committee on Human Rights how it can be involved in future appointments.
Since the debate in Committee, the Joint Committee on Human Rights has been in touch with my honourable friend the Minister for Women and Equalities, Helen Grant, who is the Minister responsible for the commission. The JCHR has set out its plans to work with the commission to strengthen the commission’s accountability to, and co-operation with, Parliament and, in particular, with the JCHR itself. I am aware that the JCHR seeks to work with the EHRC to develop a protocol of collaborative working strategies to improve accountability. I certainly echo the sentiment expressed in my honourable friend Helen Grant’s reply to the letter from the chair of the committee. We welcome the non-legislative approach taken by the JCHR, and following this exchange of correspondence, which was circulated to noble Lords before today’s debate, I understand that at the request of the chair of the Joint Committee on Human Rights a meeting will take place soon. To reiterate: there is ongoing dialogue between the commission and the JCHR to the effect that the noble Baroness, Lady Prosser, has argued for in her amendment.
I reassure the House that the commission’s annual report and accounts are already laid before Parliament, as well as its strategic plan and its reports on progress. With respect to the commission’s budget, since Committee, and as I referred to earlier today, we have published the outcome of the comprehensive budget review. This review, conducted in partnership with the commission, sets out the agreed level of funding adequate for the commission to fulfil its functions. As the noble Baroness, Lady O’Neill, said, the review agrees a budget that will allow the commission to,
“continue as an effective organisation in all our roles”.
Furthermore, as my noble friend Lord Lester mentioned in Committee, the commission’s founding legislation includes an obligation for Ministers to make sure that it receives reasonably sufficient funding to fulfil its functions. That will continue. As such, we do not believe that it is necessary for Parliament to set directly the commission’s budget.
The vast majority of public bodies are set up in a similar way to the Equality and Human Rights Commission, and that is because it is not practical as a general rule for Parliament to provide the level of day-to-day support often required. To agree a budget with an organisation requires quite a lot of ongoing detailed discussion to reach an agreed amount. That is not something which usually lends itself to the work of a Select Committee. My noble friend Lord Deben, who has a good deal of experience with this, made that argument during Committee. It is worth pointing out that, unlike most other such bodies, there is no power for Ministers to compel the commission to do anything, so in terms of the process by which it agrees its budget, it does not set a budget to ensure it fulfils something that it does not want to do.
Moving on to the framework document, officials are working with the commission to put in place a new, improved framework by the end of this month. While I cannot go into the detail as this work is ongoing, I can assure noble Lords that officials are working to ensure the commission’s independence is not compromised by the need for it to be accountable. The noble Baroness, Lady Prosser, and others referred to the ICC’s view of the commission’s accountability to Parliament. It is quite right that in 2010 the ICC, as part of its special review, suggested that it might be sensible for the Government to consider increasing the level of the commission’s accountability to Parliament. Our view is that this is being achieved through the steps we are taking, some of which I have just outlined. I should also make clear that the commission was accredited as an “A”-rated institution without any change in its reporting arrangements. My point is that its “A” status was conferred on it as it is currently constituted, so it already exists in the way that it is constructed. I am aware that the commission will be considered at the next meeting of the ICC’s sub-committee on accreditation in May. As I stated in Committee, we have a constructive dialogue with the chair of the ICC and this will continue.
My noble friend Lady Hussein-Ece raised the relationship between the commission and Ministers and its accountability to Parliament. Let me be clear, the commission is accountable to the Secretary of State for Culture, Media and Sport in her capacity as the Minister for Women and Equalities. She in turn is accountable to Parliament. That is a standard arrangement for non-departmental public bodies. The rules governing the relationship between the Government and the commission are the same as those for the majority of non-departmental public bodies. As I said just a moment ago, like most other such bodies, Ministers have no power to compel the commission to do anything. Parliament has scrutinised and challenged the work of the commission through Parliamentary Questions, Select Committee hearings and correspondence and will continue to do so.
I hope I have been able to demonstrate that we have worked hard with the commission to strengthen its relationship with Parliament and that we continue to support further engagement. We believe that working in partnership with the commission, as we did on the recent budget review, is the most effective way of securing the best possible outcome for the commission in fulfilling its role as a respected and valued institution nationally and internationally.
The commission continues to make great strides in improving itself as an organisation, and we look forward, as I am sure the whole House does, to an improved and closer working relationship between the commission and Parliament. I hope that after this response, the noble Baroness, Lady Prosser, will feel able to withdraw her amendment.
I thank the Minister for that very helpful response. In fact, it was rather more helpful than I thought it might be. Obviously, they were very positive words and comments. Perhaps I may make a couple of points on some of the matters that have been raised. I am grateful to hear that discussions are going on with the Joint Committee on Human Rights regarding further involvement in the appointment of commissioners, for example. The discussion around the development of protocol will be extremely helpful. On the budget, I of course understand that these matters start their life within the Treasury and work their way out from there. Perhaps some consideration might be given to the involvement of the Joint Committee on Human Rights as the debate evolves.
Finally, the framework document has gone through many iterations over the past year or so. I am grateful to hear that it seems to be moving towards containing a respect for the independence of the commission, which has been a concern during that time. With those comments and with thanks to the noble Baroness for her remarks, I beg leave to withdraw the amendment.
Amendment 77 withdrawn.
Amendments 78 to 80 not moved.
Consideration on Report adjourned.