Equality Bill

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Q 12John Howell: May I pursue that further? Are you making the criticism that not enough public bodies—particularly local authorities—are taking this into account, and therefore it is a general criticism of what they are doing, or are you pointing to something that is going to be achieved as a result of tackling socio-economic inequality through this Bill that is additional to what they are doing now?
Sarah Spencer: The view is that, if we look at the evidence on health inequalities, for instance, we can see that there are sharp disparities between different sections of the public. Health providers are the bodies with the greatest capacity to do something about that and this is providing them with a duty to do so. It is not necessarily suggesting that the performance of every health provider at the moment is inadequate, because there are clearly some very good performers, but it is a measure that should help to raise the performance of others so that they are all working towards that objective and we can see if they are doing it.
Q 13John Penrose (Weston-super-Mare) (Con): May I pick up on those answers and push a little further? Do public authorities not already do this? Do they not already worry—in some cases, obsessively, and rightly so—about socio-economic inequality and whether they are achieving the right set of outcomes? Health outcomes, as John Howell was saying earlier, are particularly intractable. Are health authorities already worrying about whether they are putting the right level of resources into an area with high indices of multiple deprivation?
John Wadham: The commission has not done a lot of work on the socio-economic duty because it has not existed before and the commission has existed for only 18 months. However, going back to the comparison with the equality duties, I can say that there are different groups of public authorities that perform in different ways. Some—the good ones—will be asking the question whether there are any other duties, but others will not.
On socio-economic equality in relation to how services are delivered and policies decided, my guess is that that may be determined, to some extent, by the political make-up of a local authority or whatever else it is. The issue for the Equality and Human Rights Commission is that this is a key issue of equality and how we ensure that everyone delivers. Therefore, it needs to be written into the law; in other words, “You must take due regard of this factor when making decisions about policy or delivery of those services.”
Q 14John Penrose: I am sure that no one would argue with the importance of achieving that. What we are discussing is whether it will make any difference and whether it is the right method for achieving that. A question to all three of you: do you have any evidence that could be submitted to the Committee in the next little while of public authorities that are not considering the issue adequately, in your view?
John Wadham: I shall certainly go back and talk to my colleagues and ask whether we have such evidence. As I said, it is currently not a duty, but evidence that I can produce at the moment relates to the equality duties, for which there are examples that delivery of services for whichever group—gender or race—has improved.
It could be that what is involved is not a failure to consider, but the actions taken being the wrong ones, rather than people not being worried about the issue in the first place. In that case, this would be entirely the wrong policy approach to take. We should be focusing on actions rather consideration. We should be saying, “We know that there is a problem with health inequalities.” The problem is with something that the health authorities are doing, in spite of their best efforts and endeavours—something that they are getting wrong. Asking them to consider the matter again is not going to get us anywhere.
John Wadham: There may be all kinds of other things that can be done, and I am not suggesting that they should not also be taken forward, but in the context of the Bill the question for me is, “Can the law help?” That is what the Bill is about. It seems to me that the answer is, “Yes, it can”, because it will then ensure that people have to take the issue into account. Of course, there is a secondary issue about whether they are doing the right things and how effective they are, but that is not something a Bill can resolve, is it?
John Penrose: No, and that is rather the point—if it is not the secondary issue.
Sarah Spencer: I do not see this as either/or. Surely the Bill is simply a helpful measure to ensure that public bodies give consideration to this. It redresses a balance because the law says very clearly that you must consider gender, disability, race and so on. We also want them to consider socio-economic disadvantage, so it is simply saying you must consider that as well. If there are other things—or, indeed, a range of specific measures—that it ought to be doing, that may encourage them to think of those, but there is nothing to stop those being done separately.
Q 16John Penrose: But what happens if it distracts from the main issue—if the main issue is something else and costs money and time?
John Wadham: But is not that precisely the problem? One of the virtues of these duties, whether they are the equality or the socio-economic duties, is the fact that if people take them seriously it is likely that they will involve a different, although not necessarily greater, allocation of resources. Therefore, it is likely that the consequence of that will be a need to concentrate people’s minds on this being something that they have to think about. It is really saying, “Think about this”. There is no doubt whatever that there will be public authorities that are not taking this properly into account. I would be surprised if there were no examples whatever.
John Penrose: I look forward to your evidence.
John Wadham: I was running an issue of logic rather than an issue of evidence. Nevertheless, I would be surprised. As Sarah was saying earlier, this will also allow citizens, the voters, the people who are being provided with the service, or should be provided with the service, to ask the question—there is a duty—have you considered that duty? So, it is an issue not just about the law but about effectiveness and transparency.
As a person who lives in London, I would want to ask the London authorities to which this will apply, “What are you doing about the people who live in Clapham and Brixton, where I live? Is the consequence of your asking this question going to make a difference?” It is difficult for me to see why that is not a good thing to do.
Q 17John Penrose: But there is no obligation to publish information, so they will not necessarily know that. Your opening statement was about likelihood.
The Chairman: Order. Sorry to interrupt, but I have reached a point of exhaustion on this. Other people want to ask questions. I call Tim Boswell.
Q 18Mr. Tim Boswell (Daventry) (Con): If I may, following the questions so far, and then perhaps asking Mr. Sadler, who is somewhat beached at this discussion. The first issue is on the question of the socio-economic duties. Do you envisage that this will end up with a series of plans, which individual authorities will produce, or explanations as to where they are, rather along the lines of, say, disability awareness plans? Otherwise there will be no template to know what they are doing and whether it could even be sufficient.
I realise that there is no action in private law envisaged, but there could be a judicial review that in effect says, “You have not tried.” In a sense, your being a lawyer, Mr. Wadham, and my not being, you are not really seeking to get this into court, but you are at least trying to influence the action of authorities. How do you see the drivers of this working?
John Wadham: I am sure that in extreme cases people will use this to take judicial review proceedings, where public authorities have failed. In demonstrating whether a public authority has taken the action necessary, I would prefer transparency rather than a separate process. Perhaps amendments could be put together to ensure greater transparency.
When the business plan, the three-year strategy or whatever the public authority plans is integrated within the process, you can see the transparency because you can see the questions that they have asked themselves in the documents, strategies and business plans that they are already producing.
My anxiety is not to create a culture where there is a plethora of other ex-post facto justifications or tick boxes. The key question is, when planning services for the next year or three years, how do you take that into account? I would hope that the business plan or the annual report would set out how they have done so for the services or the policies that are crucial in this context. That is what I would hope, and people could measure that. Whether there are transparency measures, or whether in extremis they think that there is a complete failure to follow the duty, they are entitled to take judicial review proceedings, which I guess is likely to be rare.
Mr. Boswell: Ms Spencer?
Sarah Spencer: I am happy to leave it, because there are so many other issues in the Bill.
Q 19Mr. Boswell: Okay. We come quickly to two other points. The first came out of Mr. Wadham’s earlier remarks. Do you see the Equality and Human Rights Commission as the custodian in relation to developing inequalities? Is there a possibility of identifying separate protected characteristics that might need protection, especially in the Bill as drafted? If, for example, caste, or something dreadful such as being an MP in current circumstances, were to be regarded as grounds of discrimination—or harassment even—would you consider that the sort of machinery that would bring matters forward to the attention of Ministers?
John Wadham: The Equality and Human Rights Commission has statutory duty to monitor the law, which, in one sense, is why we are here today. Talking to my colleagues from other countries—somebody visited me from Australia—they have different lists of protected characteristics or grounds. We need to explore the extent to which those are necessary. The vast majority will be captured by the nine grounds set out here.
There are issues. For instance, one of the things that we are concerned about, which we are not in a position to make suggestions about, is the issue of genetics and discrimination—in others words, pre-employment screening and so on. That seems to be an obvious issue that we need to debate for the future. The commission will look carefully at issues of that kind and make proposals when we have considered all the issues that such a proposal might raise.
Q 20Mr. Boswell: Perhaps this is a lawyer’s point, so I will ask you before I pass it to Mr. Sadler—the question about principles. I know the Equality and Human Rights Commission wanted a principles clause, and I spoke up for that on Second Reading because I am familiar with the one in the mental capacity legislation. Is there a fear among Government lawyers that it will end up as a kind of double jeopardy? If they cannot get you under the exact terms of the Equality Bill, they will have a go at you because it is inconsistent with the principles. What is stopping a principles clause, and is it important to you that we should have one?
John Wadham: There are two parts to our proposals. The first is what we call an equality guarantee, and the second is a purpose clause. They are different. For various complicated reasons to do with particular provisions in the European convention on human rights, there is no constitutional equality guarantee. You may say that there is no constitution—
Mr. Boswell: You mean there is?
John Wadham: There is none in this country. The Human Rights Act 1998 and the convention, principles and articles have taken a step towards giving us the fundamental rights and protection that the commission believes we should have, but the equality provision in them is not as strong as it should be.
I am sure that members of the Committee have read the Bill in detail, and are asking themselves the question, as we are, “What does this mean?” That is what the courts will be doing. Where there are provisions that need help in interpreting what they mean and what the effect is in this or that particular circumstance, it would be important, first, to have an equality guarantee. So, secondary legislation would take second place to the provisions and the principles in our proposed equality guarantee, as is the case with the provisions in the Human Rights Act.
Secondly, in the context of equality itself, it would be helpful if we had a purpose clause, so that when there is a debate in the courts, where the lawyers are considering what the Bill means, it will be clear that they are talking about the fact that this is a significant 21st century Bill that will make a difference to equality across the board. Then the courts and others will not have to look at bureaucratic and mechanistic approaches to the interpretation. That works in other countries, and I am very surprised and disappointed that my colleagues will not adopt it. Nevertheless, I hope that they will change their mind as the Bill goes through. It will make a significant difference, which is why we suggested it.
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