Mr.
Harper: My hon. Friend refers to historical customs and
practices, whether in statute or not. The problem in this case is that
if it involved just historical custom and practice, the way it is used
would probably fall within the purview of existing discrimination
legislation, and if not within that, certainly within the purview of
the Bill. The problem is that because the provision concerning the
Forest of Dean is an Act of Parliament, it triggers one of the
statutory exceptions. Due to the legislation being an Act of
Parliament, we need to amend that Act to fix the
ill. 11
am
Mr.
Boswell: I am grateful to my hon. Friend for elucidating
that explanation. I think he is exactly right. All I need to say to the
Solicitor-General—we should not spend all day on the
matter—is that there will be cases, which I doubt very much will
be confined to the Forest of Dean and its distinct and proud tradition
of free mining, in which things will be adrift from the spirit and
intention of the Equality Act, as the Bill will become. There might be
scope for some mechanism that will enable those matters to be redressed
as and when an ill is discovered, and to be remedied appropriately. I
hope that she will consider whether that approach could commend itself
to the Government and to the
Committee.
Mr.
Drew: I accept what the hon. Member for Daventry said. I
shall be brief, but I rise to support my neighbour, the hon. Member for
Forest of Dean. I was born in Gloucestershire, but would never pretend
to have any connection to the Forest of Dean. However, the issue is
worthy of proper debate and of some
settlement. There are,
as the hon. Member for Daventry said, many examples in statute in which
particular groups have been and remain disadvantaged because of how, at
that time, it was appropriate to form laws such that those who were
able to take advantage of them could do so. That is clearly not the
case nowadays and, if the Bill means anything, it should override some
of those quirks of history and, indeed, of nature. I hope that that can
be rectified, even if only one person is discriminated against,
although I suspect that it would be many more.
If the
legislation is to mean anything, we need to update other bits of
legislation and make it clear that we believe in people being given an
equal chance and not being prevented from taking on positions that may
be somewhat historic and more to do with terminology than actions, but
that are nevertheless important to people. I know how much people guard
and still respect the title of free miner in the forest. It is held in
great respect. If someone is not allowed the title, when they have met
the other criteria, that is simply
wrong.
The
Solicitor-General (Vera Baird): I was pleased but not
surprised that the hon. Member for Daventry is the chair of the
all-party group on archives. Archives are important tools and I am
pleased that there is an all-party
group. A
tremendous British Steel archive in Redcar is very extensive and still
being catalogued. It offers an important educational tool. For
instance, there are the plans for the Sydney Harbour bridge, which was
made from Redcar steel and put together by the Cleveland Bridge
company. A young person from school can go to look at the archive and
see how those plans developed, knowing that that was at the other end
of the world, and at the same time can also see in the same archive his
own grandfather’s clock card, so he can understand that he is
part of a proud heritage in our steel-oriented
area.
Mr.
Boswell: I respond warmly to what the Solicitor-General
has said. I confirm to the Committee that the group does not merely
concern itself with what one might call antiquarian archives. We are
very much and actively interested in the prosecution and dissemination
of good practice in modern business and government archives as
well.
The
Solicitor-General: I was reminded at some points during
the contribution of the hon. Member for Forest of Dean of a quiz
programme that used to be on TV when I was at school, and, for all I
know, still survives, called “What’s My Line?” A
panel had to guess from a mime done by the person coming in and through
10 questions what that person did for a living. The deputy
gaveller would probably have baffled even Gilbert Harding, who I am
just old enough to remember being on when I was at school, and would
have won some special prize on “What’s My
Line?”. Another
thought that I had while the hon. Gentleman was setting out his good,
clear case for change was that it is a shame that under the legislation
women are also excluded from mining humour. I do not imagine that the
Forest of Dean miners are any less funny than the coal miners in County
Durham used to be. I remember being told of one frequent practice,
which was that when an apprentice went underground for the first time
in the coal mine he was given a pound and told by his principal to
stand there, because at 10 o’clock on a Monday morning the
window cleaner would want paying. So it would be good if women could
join in all of that fun, as well as digging for minerals in the Forest
of Dean.
The 1838 Act
is the basis for free mining today, but it made few changes to the
pre-existing custom, simply clarifying the rules of the working of
mines and quarries in the hundred of Saint Briavels and the Forest of
Dean in Gloucester, putting the custom straight into
parliamentary statute. As the hon. Gentleman said, only men aged over
21, who were born there—but there are no hospitals, so I assume,
as the hon. Gentleman said, that the qualifying status is more
difficult to attain—who live in the area of the Forest of Dean
and who have worked for a year and a day in coal mining can be free
miners; quarrymen can do so too, so long as they satisfy the same
qualifications and have worked a year and a day in a stone quarry. At
the moment, women cannot be free miners. It is a birthright to be a
free miner; my hon. Friend the Member for Stroud has said that it is a
proud birthright, and one would imagine that that is so. It is derived
from the 13th century, from King Edward I; the people who advise me
suggested that that is the
origin. Sections
14 and 15 of the Act set out the conditions, and one of them is being a
man. I acknowledge freely—especially now that we know that there
is a woman who is interested in the status—that there is
implicit ancient sexism in that Act. We would like to help, as much as
we can, to stamp it out. The difficulty is what the hon. Member for
Daventry invited me to lecture about, which is the issue of hybridity.
This is a short lecture: where a Bill affects the private interests of
some members of the group in a different way from others, it is a
hybrid Bill. If it is going to be such, it must go through a different,
more complex procedure than a public Bill, among other things, to allow
those affected to make representations—presumably in this case,
the woman, and perhaps the men, about whose attitudes we are not clear.
The difficulty with including the new clause is that we would tumble
the Bill into a hybrid, and we would have wasted all the time we have
spent here in the Public Bill Committee, and require it, if it was to
survive at all, to go through a different procedure. Clearly, that is
not a practical option, and it is not one that is being recommended by
the hon. Member for Forest of Dean.
We have
looked at going the extra mile. All we have to do is look at how we can
get the Bill through. But how can we help with the problem? It is not,
we hope, the case that there are a large number of similar provisions.
There has been a fairly deliberate attempt to change other legislation.
The hon. Member for Daventry pointed out that the repeals in the back
of the Bill are mostly from modern times. But, for instance, the
Employment Act 1989 repealed a section of the 1975 Act, which did not
allow females to work underground in a mine, to comply with a 1976
equal treatment directive on employment. There has been a distinct
effort, particularly because of the pressures of European equal
treatment directives, to identify any legislation that contains
provisions that would not be compatible with those directives. We are
confident that we are doing this on an ongoing basis, but if there are
any lying doggo that we have not seen, we will be glad to have our
attention drawn to them.
The hon.
Member for Daventry talked about some sort of Henry VIII power. Section
2(2) of the European Communities Act 1972 allows changes by
regulation to make our legislation compatible with European
Communities legislation. It is adequate for all the provisions that I
have referred to that have already been repealed, but it is difficult
to know what application it would have here. I suggest that the best
way forward for the hon. Gentleman would be to come top in the private
Members’ ballot. However, his Bill would have to go through the
hybrid procedure. We do not plan to include the provision
in the Bill, as that would spoil it completely, but we would be happy to
go away and see whether we can use our combined resources to advise the
hon. Gentleman on whether there is any other way
forward. Mr.
Harper: I am grateful to the Solicitor-General for the way
that she has outlined the Government’s position. Without wishing
to tempt her into the full-blown lecture on hybridity that my hon.
Friend the Member for Daventry alluded to, for my benefit, if not that
of the rest of the Committee, I would like to tempt her into a slightly
more detailed explanation than the one she gave.
I have
considered the issue of hybridity and two things struck me.
First—this may not be correct—when I was reading a
description of the relevant history using a local website, it referred
to the 1838 Act as being a public Act as opposed to a hybrid or private
Act. I do not know whether that is an issue of historical time or
whether that aspect existed in 1838. Secondly, I am not entirely clear
about the definition of hybridity. The entitlement applies to anyone
born within the hundred of St. Briavels, and I am not clear whether
widening that class of people to include women would take away or
affect the interests of the men. People are not fighting over a limited
pool of resources where giving one group of people more resources would
damage the interests of another group. I agree that we do not want the
Bill to become hybrid, but perhaps the Solicitor-General could give us
a little more detail about hybridity, and explain why she thinks that
the new clause would trigger that.
The
Solicitor-General: I do not think that the issue is about
whether the original Bill that gave rise to the 1838 statute was
hybrid. I am told that a hybrid Act is a kind of public Act anyway. Its
reference to being a public Act does not take away the fact that it
could be hybrid. I cannot say what its status was at the time or what
it is now, but it is not necessarily that status that is determinative.
Putting this provision in the Bill would affect the interests of a
specific group of Forest of Dean miners only, and it would turn the
Bill into a hybrid Bill.
Although
I can see the point that a man does not have to be knocked off in order
to allow a woman in, none the less there could be arguments that the
status of being a Forest of Dean miner, which is a specific interest,
would be altered if women were allowed in—a terrifying prospect
to some, I am sure. Whether or not that be so, I am sure that the hon.
Gentleman understands that there would be a change of status by
widening the ambit of people who can come in. Although, according to my
hon. Friend the Member for Stroud, it is a proud status now, and would
be prouder if it had women in it, it is still an alteration. That is
the best I can do to help the hon. Gentleman. I am glad that the hon.
Gentleman’s lady constituent is working in the field that she
wants to work in at the moment, and I am sorry that we cannot stamp out
this ancient sexism, but it would put the whole Bill in jeopardy.
However, we will do our best to help her in any other
way.
11.15
am
Mr.
Harper: I am grateful for the serious way that the
Solicitor-General has approached this. Having investigated the issue of
hybridity when I first came across it in the
House, I recognise the complexities that it brings with it. I understand
why the Solicitor-General would not want to put the Bill at peril by
including the new clause, and I am grateful to her for saying that she
will go away and think about whether there is some other way of
achieving the goal. No doubt she and I can correspond on this issue and
see whether there are any other options. I beg to ask leave to withdraw
the motion.
Clause, by
leave,
withdrawn.
New
Clause
11The
right to equality ‘(1) In
this act “the right to equality” means the fundamental
rights and freedoms set out in subsections (2) to
(4). (2) Everyone is equal
before the law and has the right to the equal protection and benefit of
the law. (3) A public authority
may not discriminate against anyone on any ground or combination of
grounds such as colour, race, nationality, ethnic or national origin,
language, gender identity, sex, sexual orientation, disability,
religion or belief, and
age. (4) Subsections (2) and
(3) do not preclude any law, programme or activity that has as its
object and outcome the amelioration of conditions of disadvantaged
persons or groups including those that are disadvantaged because of
colour, race, nationality, ethnic or national origin, language, gender
identity, sex, sexual orientation, disability, religion or belief, and
age.’.—(Lynne
Featherstone.) Brought
up, and read the First
time. Lynne
Featherstone (Hornsey and Wood Green) (LD): I beg to move,
That the clause be read a Second
time.
The
Chairman: With this it will be convenient to discuss the
following: new clause 12— Interpretation of
legislation— ‘(1)
So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible
with the right to equality. (2)
This section— (a)
applies to primary legislation and subordinate legislation whenever
enacted; (b) does not affect
the validity, continuing operation or enforcement of any incompatible
primary legislation;
and (c) does
not affect the validity, continuing operation or enforcement of any
incompatible subordinate legislation if (disregarding any possibility
of revocation) primary legislation prevents removal of the
incompatibility.’. New
clause 13—Declaration of
incompatibility— ‘(1)
Subsection (2) applies in any proceedings in which a court determines
whether a provision of primary legislation is compatible with the right
to equality. (2) If the court
is satisfied that the provision is incompatible with the right to
equality, it may make a declaration of that
incompatibility. (3) Subsection
(4) applies in any proceedings in which a court determines whether a
provision of subordinate legislation, made in the exercise of a power
conferred by primary legislation, is compatible with the right to
equality. (4) If the court is
satisfied— (a) that the
provision is incompatible with the right to equality,
and
(b) that (disregarding any possibility of
revocation) the primary legislation concerned prevents removal of the
incompatibility, it may make a
declaration of that
incompatibility. (5) In this
section “court” shall have the same meaning as the
meaning given in section 4 of the Human Rights Act
1998. (6) A declaration under
this section (“a declaration of
incompatibility”)— (a)
does not affect the validity, continuing operation or enforcement of
the provision in respect of which it is given;
and (b) is not binding on the
parties to the proceedings in which it is
made.’. New
clause 14—Public
authorities— ‘(1)
It is unlawful for a public authority to act in a way which is
incompatible with the right to
equality. (2) Subsection (1)
does not apply to an act
if— (a) as the result of
one or more provisions of primary legislation, the authority could not
have acted differently; or (b)
in the case of one or more provisions of, or made under, primary
legislation which cannot be read or given effect in a way which is
compatible with the right to equality, the authority was acting so as
to give effect to or enforce those
provisions. (3) In this section
“public authority”
includes— (a) a court or
tribunal, and (b) any person
certain of whose functions are functions of a public
nature, but
does not include either House of Parliament or a person exercising
functions in connection with proceedings in
Parliament. (4) In this Act the
factors which may be taken into account in determining whether a
function is a public function
include— (a) the extent
to which the state has assumed responsibility for the function in
question; (b) the role and
responsibility of the state in relation to the subject matter in
question; (c) the nature and
extent of the public interest in the function in
question; (d) the nature and
extent of any statutory power or duty in relation to the function in
question; (e) the extent to
which the state, directly or indirectly, regulates, supervises and
inspects the performance of the function in
question; (f) the extent to
which the state make payment for the function in
question; (g) whether the
function involves or may involve the use of statutory coercive
powers; (h) the extent of the
risk that improper performance of the function might violate the right
to equality. (5) In subsection
(3) “Parliament” does not include the House of Lords in
its judicial capacity. (6) In
relation to a particular act, a person is not a public authority by
virtue only of subsection (3)(b) if the nature of the act is
private. (7) “An
act” includes a failure to act but does not include a failure
to— (a) introduce in, or
lay before, Parliament a proposal for legislation;
or (b) make any primary
legislation or remedial
order.’. New
clause 15—Statements of
compatibility— ‘(1)
A Minister of the Crown in charge of a Bill in either House of
Parliament must, before the second reading of the
Bill— (a) make a written
statement to the effect that in his or her view the provisions of the
Bill are compatible with the right to equality (“a statement of
compatibility”); or
(b) make a statement to the effect that although he
or she is unable to make a statement of compatibility the Government
nevertheless wishes the House to proceed with the
Bill. (2) The statement must be
published.’. New
clause
16—Proceedings— ‘Sections
7, 8 and 9 of the Human Rights Act 1998 shall have effect in relation
to acts made unlawful by section [Public authorities] (1) of this Act
as if the act complained of were made unlawful by section 6(1) of the
Human Rights Act
1998.’. New
clause 17—Power to take remedial
action— ‘Sections
10 of the Human Rights Act 1998 shall have effect in relation
provisions of legislation declared under section [Declaration of
incompatibility] of this Act to be incompatible with the right to
equality as if the provisions had been declared incompatible with a
Convention right under section 4 of the Human Rights Act
1998.’. Clauses to
establish an equality
guarantee. New
clause 22—Purposes of the
Act— ‘(1) The
purposes of this Act are to promote equality
by— (a)
preventing discrimination, harassment and victimisation on any of the
grounds set out in this Act whether singly or in any
combination; (b) ensuring that
every person has an equal opportunity to participate in society,
including by means of different treatment as required or permitted by
the Act; (c) eliminating and
preventing patterns of systemic discrimination and
inequality; (d) permitting the
adoption of measures to alleviate the disadvantage related to any of
the grounds singly or in any
combination; (e) ensuring
respect for and protection of the human dignity of every
person; (f)
providing effective remedies for victims of discrimination, harassment
and victimisation. (2) Any
person applying this Act must interpret its provisions to give effect
to the purposes stated in subsection
(1).’. Amendment
(a) to new clause 22, at end
insert—‘; (g) fostering good
relations between persons who share a relevant protected characteristic
and persons who do not share
it’.
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