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.
John
Wadham: We have looked at the ways in which the
current three equality duties are taken account of in relation to
public authorities, and unfortunately it is sometimes an add-on.
Sometimes it does not inform the decision-making process that leads to
the policy and
therefore affects the substantive policy. It is a case of, “Now
let us look at what the effect is in relation to women, race and
disability.” What we need to do with the socio-economic duty is
to ensure that the question is asked at the point in time when people
are designing their policies, rather than afterwards. If we can get
public authorities to do that—I am not saying it is easy, in
relation either to the equality duty or to this new proposal—the
chances of this working and delivering greater and more effective
outcomes are significant. How do we measure that? I cannot comment on
the example you gave as to whether it would make those bodies better,
but I would be surprised if the public authorities that do this
properly did not deliver better outcomes for people who are
disadvantaged because of their socio-economic status. Invite me back in
five years’ time and we shall find
out.
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.
Q
15John
Penrose: Put that aside for one second. What I am
concerned about is that if there is no evidence that you are aware
of—clearly it is important for the Committee to see such
evidence, if it exists—it is
entirely possible that the very real problem of health inequalities, for
example, which we have just been discussing, although there are many
other examples, arises not because of a failure to consider it. In
fact, given the terms of political debate, it has, quite rightly, over
many years in this country, been something that has been considered
very carefully and very deeply by a very large number of
people. 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.
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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