Equality Bill

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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.
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
Clause, by leave, withdrawn.

New Clause 11

The 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
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
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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