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House of Commons
Session 2008 - 09
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General Committee Debates
Equality Bill

The Committee consisted of the following Members:

Chairmen: Mr. Joe Benton, David Taylor, Ann Winterton
Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)
Baird, Vera (Solicitor-General)
Baron, Mr. John (Billericay) (Con)
Boswell, Mr. Tim (Daventry) (Con)
Brown, Lyn (West Ham) (Lab)
Drew, Mr. David (Stroud) (Lab/Co-op)
Featherstone, Lynne (Hornsey and Wood Green) (LD)
Foster, Michael Jabez (Parliamentary Secretary, Government Equalities Office)
Griffith, Nia (Llanelli) (Lab)
Harper, Mr. Mark (Forest of Dean) (Con)
Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Howell, John (Henley) (Con)
Mason, John (Glasgow, East) (SNP)
Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
Penrose, John (Weston-super-Mare) (Con)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Thornberry, Emily (Islington, South and Finsbury) (Lab)
Alan Sandall, Eliot Wilson, Committee Clerks
† attended the Committee

Public Bill Committee

Tuesday 30 June 2009


[Mr. Joe Benton in the Chair]

Equality Bill

Written evidence to be reported to the House
E57 - Michael Connolly
E58 - Union of Shop, Distributive and Allied Workers
E59 - Rory O’Loughlin
E60 - British Chambers of Commerce (additional memorandum)
10.30 am
The Solicitor-General (Vera Baird): On a point of order, Mr. Benton. Good morning and welcome back to the Chair. May I mention that yesterday we published our consultation paper on ending age discrimination in public service? Copies are available here and in the Libraries. The document is about the order-making power in clause 190, which we shall debate soon.
May I draw the Committee’s attention to some important Government amendments that we tabled last Friday, which are about multiple discrimination, adding a new clause 26? I have written to all Committee members in connection with that.
The Chairman: I thank the Minister for that.

Clause 143

Public sector equality duty
Mr. Tim Boswell (Daventry) (Con): I beg to move amendment 242, in clause 143, page 105, line 13, at end insert—
‘(d) respect and protect the human rights of any person for whom it has responsibility, whether or not they have a relevant protected characteristic.’.
The Chairman: With this it will be convenient to discuss the following: amendment (a) to amendment 242, at beginning insert ‘fulfil’.
Amendment to take the usual formation of human rights legislation.
Amendment 19, in clause 143, page 105, line 14, at beginning insert
‘Subsection (1) will also apply to’.
Amendment 20, in clause 143, page 105, leave out lines 15 and 16 and insert
‘except in relation to matters of employment’.
Amendment 279, in clause 143, page 105, line 31, leave out ‘and’.
Amendment 280, in clause 143, page 105, line 32, at end insert ‘and,
(c) eliminate hatred and hostility towards members of different groups.’.
Amendment 21, in clause 143, page 105, line 35, at end insert—
‘(5A) A public authority must collect and publish data annually showing, in the exercise of its functions, the extent to which it has succeeded in meeting the requirements under subsection (1).’.
Amendment (a) to amendment 21, line 2, leave out from ‘meeting’ to end and insert—
‘(a) eliminating discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) fostering good relations between persons who share a relevant protected characteristic and persons who do not share it.’.
Public authorities must publish data on whether they have achieved the three parts of the equality duty, rather than on whether they have had regard to this requirement.
Clause stand part.
Mr. Boswell: Welcome back to the Chair, Mr. Benton. I am pleased to be back after leave of absence last week to attend the Council of Europe. I shall refer to that briefly.
I am grateful, first, to the Solicitor-General for her statement this morning, for publishing that document and for what she has done on multiple discrimination, which we shall need to consider at greater length. I am also grateful to my hon. Friend the Member for Forest of Dean for picking up the new clause on volunteering that I tabled for last week. There was a useful scoping debate on it, which was the intention of the new clause. Given the huge progress made, the Committee may heave a sigh of relief that I did not have to share with it the comments and jottings that I had made on parts 9 and 10. In that spirit, I shall be as succinct as I can this morning.
I return to discussing the Council of Europe, which is germane to my amendment. Attending the Council is healthy and always interesting, giving the opportunity of getting close to real human rights issues in a way that sometimes our debates do not, however good natured and well intended. In the same afternoon I found myself speaking in debates on the position of Roma in Europe, as part of the annual human rights discussions, and the widespread arrests in Armenia. As parliamentarians, we can across the board understand the need for action in such areas, those really serious breaches of human rights. In the same way 60 years ago, the drafters of the European convention on human rights—mainly British lawyers, incidentally—fully understood their human duty in the light of the holocaust and the events of the second world war. That is real human rights. I do not wish to pretend for a moment that what we are discussing is not real human rights, but that puts it in the context of immediate needs.
In principle, therefore, I welcome the extension of those positive duties that the Government are introducing to the other protected characteristics. I shall leave others to speak about their specific concerns with the wording and details of the clause, but to some extent they will give us a chance to look back at some of the underlying issues, which are being considered throughout the Bill—notably the balance between a purely reactive mode for public authorities and what I call a more positive and forward-gear approach. We touched on that when we discussed clause 1, as we do here.
Secondly, the concomitant debate is about how much positive discrimination is required to meet a wish for equal treatment and fairness for all. There is an underlying concern about the extent to which human rights are seen as the rights of individuals or groups and how they should be expressed. At least the effect of last week’s recharging of the human rights batteries at the Council of Europe stimulated me to take such issues a little further. It is clear when we re-read the convention—which I do from time to time, at least the shortened part of it—that the genesis of the document is personal rights, or the rights of the individual. It starts with a pretty firm list: the right to life, the right not to be tortured, the right not to be enslaved, the right for a fair trial and the right for a measure of distance in a person’s personal and family life. They reflect not only the collective tragedies of the second world war, but their real-world emanation in the denial of the rights of the individuals who suffered under those tragedies.
It is quite interesting that the convention brings in anti-discrimination only a little later in the list, under article 14. That provision is conditional on the context of the application of the other articles of the convention. It is also worth remarking that the right to property, which some of us may think quite important, is brought in only under the first protocol.
The fact that the hierarchy starts with the individual is important and we should not lose it. I am not saying that that is wrong, but in the intervening years—in continental Europe and especially in the United Kingdom—there has been a shift to looking at human rights as collective rights, particularly as people sometimes recognise that public policies, or policies in the conduct and practice of public authorities, are defective and affect the rights of more than one individual.
I am thinking about institutional racism or the material failure of inclusive employment policies. I sometimes wonder whether local authorities or others have got round to thinking about them more than in name only, yet even if we are not collectively, as a society, setting out to kill or torture our citizens, and even if our public authorities are properly mindful, which they will be after the clause is enacted, of their public responsibilities to avoid discrimination and promote positive values, including the wider ones of community cohesion, something is missing in the debate.
We are in difficulty as a society if we think that human rights belong only to those with first-rate lawyers, the politically correct and those who might be a threat to society, and that they are not shared with us. They are our rights, too. We benefit from them, and we should celebrate them. That brings me straight to the point of the amendment. As I have said, it arises from the recent EHRC inquiry on human rights, which was published two weeks ago. I attended the launch and, more to the point, the Secretary of State for Justice, who introduced it, spoke at it very well. It was a very positive occasion.
In these days of declaring even the most vestigial interest, I should make it clear that the commission did not commission me to table the amendment or new clause 18, which I shall touch on in a moment, but, fired by the enthusiasm of attending the launch, I could not resist the temptation to do so.
The amendment is essentially an attempt to recover the human rights debate from the idea that it is somehow the ground for individuals—people who sometimes might be malicious or contrary to the interests of society—who are wriggling to protect their position and that that debate is nothing to do with us. We have a problem of perception of what human rights are and of execution as to how they might be taken forward. Paragraph 30 of the executive summary of the report on the inquiry found:
“There were a number of factors inhibiting the assertion, provision and enjoyment of rights, including: a lack of leadership, especially from the Government, the Commission and politicians; a lack of knowledge and insufficient mainstreaming of a human rights approach in core processes; a lack of confidence inhibiting members of the public from asserting their rights; organisational culture and structure; the use of general rather than specific language; and inaccurate media reporting.”
When summarised, a report tends to emphasise the bad side and I would not like to suggest—I do not think the report does—that everything is negative, but it is clearly unfinished business. Evidence tendered by the Gwynedd local health board said:
“A lack of awareness of human rights issues can be a barrier to mainstreaming throughout the organisation.”
The distinguished chair of the inquiry, Dame Nuala O’Loan, who has hands-on Northern Ireland experience, was quoted in relation to public authorities that complained that all the human rights stuff got in the way of the day job. She replied—majestically and magisterially—that human rights “are the day job”. That is an eloquent statement of the approach of most members of the Committee, and I hope it is shared a little more widely.
Human rights are about our right to be fed properly when we are in hospital or a care home, and about reasonably law-abiding persons not being subject to excess surveillance by the security authorities. They include the loss of personal data by public officials. Those are all part of how the state interfaces with us. I believe strongly—this is the substance of the amendment—that public authorities need to mainstream human rights, and they should not be frightened of using human rights language and the human rights approach in forming their policies and drawing up their performance standards and evaluation of achievements. Is what they are doing fit for purpose in terms of the human rights we all have?
That human rights approach is intended to move somewhat away from what, with due respect to the Solicitor-General, I might term the legalistic, which she is not, or box-ticking, which she also is not, approach. It is, however, the approach taken by some public authorities. The question should not be simply or naively, “Did we avoid discrimination? Did we meet our statutory duties as set out in the clause?” It should not be, “Can we get away with it in court?” The questions that public authorities—their councillors, elected members and us—should be asking is, “Did we treat that person with fairness, dignity and respect?”
Bear in mind the fact that more than one authority might be involved because there are border issues, which are touched on in the report. We need to ask, “On the whole, was the outcome what we would have wished for ourselves or our loved ones or was it defective?” In other words, does the public service work for the public?
All that leads me inexorably to the specific recommendations of the inquiry, a lot of which are addressed to public authorities directly and are not really matters of law. The two recommendations that I want to touch on include my amendment 242, which would mean the Government consulting on whether a statutory duty should be imposed on all public authorities to take into account human rights before they implement new policies. That is precedented by what is already in the provision and, somewhat obliquely, by what the Committee has already approved in clause 1 in relation to socio-economic duties.
10.45 am
If we can do that in the one case, sauce for the goose should be sauce for the gander, so we could do something in relation to human rights, although I do not want to force the Solicitor-General to say yes or no to my amendment now. Incidentally, as the hon. Member for Hornsey and Wood Green is dutifully listening to me, I am perfectly happy with her amendment (a) to amendment 242. Although Rome is not going to be taken in a day, we should now be looking at extending the duty.
My second point is a little more sensitive, not least because the Government have already rejected it, and is encapsulated in new clause 18, which I tabled.
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