Equality Bill

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Lynne Featherstone: New clause 11 presents the commission with what we Liberal Democrats feel is perhaps an underpinning and a guarantee of equality, thus it is called the equality guarantee. There has been an undercurrent of mild concern from some quarters—certainly from ours—about whether we have ensured that everyone will be protected from discrimination and treated fairly and equally. While the Bill addresses the harms that might be done by discriminating against specific groups or individuals belonging to those groups—the so-called protected characteristics—it does not give an overarching guarantee to every individual to have freedom from discrimination, which is ironic, given that the Government have tried so hard to prescribe the detail of protected characteristics. In the very specific and precise description there is a danger that what is not described is not counted in, as though non-mention or non-inclusion in specific terms means that something might not be covered.
I have no doubt that the Government and the legions of lawyers that aid them have done their utmost to ensure that the legislation is tight and that the intentions of the Bill are given proper form in law, but few lawyers are a match for the Law Lords, and in our view equality rights are too important to allow them to be subject to the Law Lords. Parliament must be as explicit as it can be about its intentions so that judges are in no doubt at any point—ever—about the Bill’s intentions.
The idea of an equality guarantee has wide support beyond the House, most notably from the Equality and Human Rights Commission. I am sure that many hon. Members will have received its briefings, and it is important that we debate them. It is a key issue, and the EHRC feels that a constitutional promise is necessary and would provide a philosophical basis for judicial adjudication. I also welcome the new clause tabled by the hon. Member for Daventry, which is another form of the same idea. We support it because it addresses the underlying concern that perhaps not everything is covered, and that should there be any doubt about the wording or the nuance, a judge would be left in no doubt should there be a challenge in times to come.
John Mason: The hon. Lady makes an extremely good point. The public and many of us think that when the courts look at legislation, they sometimes become so bogged down in the individual words that they lose sight of the bigger picture. The new clause is a good attempt to create the bigger picture and get the courts to consider it.
Lynne Featherstone: I thank the hon. Gentleman for putting his finger on the point. I do not wish to criticise judges, but they can reach a different conclusion from what was intended in the original legislation. The Liberal Democrat new clauses and that tabled by the hon. Member for Daventry try to ensure that such harm cannot destroy the intention of legislation, because clever lawyers can argue the finer points that might not have been the exactitude of the words.
The equality guarantee would put the intention of the Bill beyond doubt. It would give an overarching protection to the right to equality and it would also be consistent with EU legislation. It is important because it would help to mainstream equality considerations into all state functions. I hope that the Solicitor-General hears the concern expressed about whether the Bill’s protections will be challenged in an unforeseen way and accepts that new clause 11, and the consequential provisions, would enshrine in law the right to equal protection, and therefore ensure that everyone has that right.
Lynne Featherstone: The hon. Gentleman and I will have to disagree slightly. The new clauses would be an overarching guide to future legislative arguments in a court of law. They would ensure that everyone has the right to equal protection and the benefit of the law, and that its interpretation would also be guaranteed. We would literally be guaranteeing real equality.
Mr. Boswell: I rise to speak to new clause 22, and to acknowledge and respond to the new clauses tabled by the hon. Lady, which are, as she said, very much in the same genre, with the same intention.
I have been encouraged by the general tone of the Committee. We have had our moments of levity—or our diversion to particular interests, as we saw this morning—but at all times there has been an attempt to produce a constructive dialogue about what we are trying to do, and to advance the cause of equality and the parallel, although not wholly distinct, issue of human rights. That has encouraged me because it is an advance if they are becoming fairly universal throughout this place, possibly in contradistinction to the sort of tabloid chatter to which I referred in a previous debate on the idea of a public equality duty for human rights.
We have been grateful throughout our time in Committee for the support and briefing of the EHRC, as I am to it for formulating the purposes clause that I tabled—new clause 22—and for its consistent briefing and support to generic as well as specific matters. I am entirely at one with the hon. Lady in feeling that there is a need for an overarching and positive gear on everything that goes beyond the mere letter of the law.
The only point I would make on that—I am not hired by the Solicitor-General or anyone else to say it—is that not all lawyers are pettifoggers, although they obviously have to defend their clients’ briefs. As one gets to a higher level of seniority or abstraction, such as the Law Lords, where I have heard one or two judgments, there is an amazing ability to integrate arguments and come to the heart of the matter, and not simply to get cast down in the small print.
John Mason: I am intrigued, because the hon. Gentleman seems to be making the same points as the hon. Lady. How would he answer the question put by the hon. Member for Forest of Dean that the new clauses do not go beyond the letter of the law, but just have more letters of more law?
Mr. Boswell: Such things will always have a point. We all know what Dickens said about the law. He is not always right, but sadly he is not always wrong. We have to find a balance.
Before I miss the point and appear churlish, which would be wrong—and I think I know the stable from which the drafting of some of these multiple and interesting new clauses on the equality guarantee have come—I want to say that I respect the new clauses. I also respect the effort that the hon. Lady has made in developing them and her attempts to embellish my new clause. I have no objection to that; I only wonder whether the new clause adds value, which brings us to the general debate on the whole business of purposes clauses. Do they add value or merely clutter up the page, and could they possibly cause confusion?
Although I want to deploy my arguments—I hope not at inordinate length, but it is worth getting them out to the Committee—I say from the outset that I do not want to oversell the idea of the new clause. The Bill is good taken as a whole. We may have reservations about individual bits, but that is essentially a matter for our political and personal judgment. However, I do not want to get to the stage where we say, “If there’s no purposes clause, the Bill is useless and I’m going to take my toys away.” That is not at all what we want to say. The question is whether having a purposes clause would add value to the text, and whether there might be any compensating costs, on which basis I suspect the Solicitor-General has been briefed not to adopt it.
Over the years, and one need not go back down memory lane as it is not that long ago, I have grown to like the concept of purposes clauses, or principles clauses—the modern terminology is the purposes clause—which set out the principles behind a piece of legislation. I have referred once or twice to my own experience of the Mental Capacity Act 2005, but I also draw the Committee’s attention to the early use of the purposes clause in the Children Act 1989, which is Conservative legislation. Section 1 of that Act explicitly establishes the paramountcy of the child’s welfare as the central principle in determining the situation in relation to children.
The Crime and Disorder Act 1998, introduced under Labour, provides an unusual instance of a purposes clause. Even the civil procedure rules of that year refer and define, to some extent, how to deal with each case justly. There is a test, which is, “This is what we are trying to do to deal with each case justly.”
Mr. Harper: I am listening carefully to my hon. Friend’s argument in favour of his new clause. Perhaps it is just me, but will he set out the difference between his approach and the approach of the hon. Lady, with her range of new clauses? I have read the EHRC briefing, which supports what the hon. Lady is trying to achieve with her equality guarantee and what my hon. Friend is trying to achieve with his purposes clause. I am not sure whether we need either, or both, and of the extent to which they interact. If the hon. Lady will forgive me for saying so, my hon. Friend’s new clause is more elegant simply because it is shorter. If it could achieve what hers would achieve, and we could do that in one clause, then it would be preferable. Perhaps he can help me on that.
Mr. Boswell: My flippant answer, while I collect my thoughts on my hon. Friend’s difficult conundrum, is that heightism is not one of the protected characteristics under the Bill, and therefore the length, or otherwise, of the new clause in question is not determined, as I think lawyers would say.
I am inclined to the view that it would be rather nice to have the two, because the pursuit of equality is of interest. I also appreciate the point about having a definition of purposes that is, in my view, crisper and more succinct. My hon. Friend will not be surprised that if I am forced to make a decision between the two, I will be inclined towards my version, but that is in no sense to subvert the other one.
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We are trying to put a little bit of flesh and blood on to what might otherwise seem to be a rather lifeless structure and to encourage judges and people involved in tribunals to take the wider picture, rather than the purely narrow one. This has already been said—I hope there is no bitterness in these remarks—but from time to time, people fall foul of lawyers and think that they are taking the narrow view. Up to a point, that is what they are there for. If the statute, as drafted, is too narrow, we should not have allowed it through in its present form. The question is whether the proposal could provide a motor for interpretation.
I have already mentioned that there are a number of precedents of purposes clauses in British jurisdiction. The Equality Act 2006 sets out the EHRC’s duties in terms that are analogous to a purposes clause. The commission certainly feels that that has been essential in assisting it to embody in court proceedings a positive, proactive or forward-gear approach to securing equalities—those are my words rather than the commission’s.
Mr. Harper: My hon. Friend mentions the EHRC. He has drawn attention to the fact that the courts might interpret legislation more narrowly than was intended by Parliament. If we have a purposes clause, to what extent does he think there is a risk that we may get the opposite problem, whereby more activist judges interpret the law more widely than Parliament intended? We have spent a lot of time in Committee arguing over what is the right balance and what are the right things to have in the Bill. I wonder whether he can help the Committee to understand how those Acts that he mentioned, which effectively had a purposes clause, have worked in practice.
Mr. Boswell: I am beginning to think that I would not enjoy being cross-examined by my hon. Friend, but he is raising serious issues about the balance going the other way and producing something of such a nature. I cannot claim expertise in this, but my own view is that people are often faced with a choice of either judicial activism that will not go beyond the limits and parameters set out by the purposes clause—I do not think that anyone will argue with the purposes that are set out—or judicial activism that dislikes an over-narrow statute and goes off on its own trip, which is not regulated by a purposes clause or some general understanding. I am not sure that my hon. Friend is making an entirely fair distinction, but it is a reservation that we must have in mind. The issue is not what is perfect or what is required universally, but what will make things better.
Perhaps the Solicitor-General will disabuse me of this if I am wrong, but I can demonstrate no harm that has been done to justice or the underlying detailed provisions of any of the British Acts that I have cited or the rules arising from the existence of purposes clauses, where learned judges have had to deliberate the purposes clause and the detailed provisions of the statute.
Of course, there is an underlying difficulty. We perhaps should not, particularly at this stage, open issues about attitudes to Europe, although I do not foam at the mouth when that word is mentioned. But a number of people say that a purposes clause is the kind of thing that we see in continental jurisdictions and Roman law and that it is not British. It is quite important to remind the Committee that a number of other common law jurisdictions and some Commonwealth countries have employed purposes clauses specifically for equalities legislation. I cite South Africa, Australia and Canada. The Canadians reviewed the effect of the purposes clause in their review committee in 2000. The human rights panel there, which was established to review the operation of the their Act, suggested that the approach adopted by the courts had been so influenced towards the positive that the purposes clause had been invaluable in achieving a more outcomes-based interpretation of the law. That is, after all, what the EHRC and I suspect some others are anxious to achieve.
I now come to the British position and to new clause 22. Other members of the Committee might disagree, particularly after my revelations on Europe, but I do not like to pass myself off as a kind of Dave Spart radical. Mercifully, there are not too many of them on the Committee. I can see the hon. Member for Hackney, North and Stoke Newington smiling. We quite often agree on human rights matters—we tend to stick together generically and across parties on such issues. Anyway, I do not think that that new clause is meant to be radical or subversive.
I will not claim legal expertise, but I have some indirect or second-hand knowledge of judicial review and certainly some knowledge of the difficulties that I experienced as a Minister in the past, when I tried to decide the right thing without falling into the pitfall of judicial review, and on the whole I think that—modestly on the record—I succeeded in doing so.
The Government are calling for clarity, and in persistently resisting the EHRC’s wish for the purposes clause. In debates and various consultation exercises, they have suggested that it might obfuscate and create judicial difficulty. At that point, I become a little suspicious. At any rate, I do not think that the drafting could be faulted on the grounds of unclarity, although the Solicitor-General is welcome to try. It is meant to reflect all the different concepts enshrined in the rather testing concept of equality. We have equality of treatment, opportunity, participation, dignity and outcome, with balancing measures aimed at eliminating disadvantage and achieving remedies for the individual or groups. That is what we are trying to set out in new clause 22.
We then go to a linked provision: the social dimensions of equality and the ability of both public and private bodies to use public action or other measures to reduce disadvantage. We then come, because of my human rights interest, to the major underlying purpose of anti-discrimination legislation, which is to protect human dignity and treat people properly and with respect. That links equality legislation with the human rights principles of equality, as recognised in most of the international conventions that I will mention.
Finally, we move on to the effective remedies in subsection (1)(f), and we need to remember that they are already enshrined, for example, in the EU equality directives. Subsection (2) is an interpretative provision, although I am on less strong ground here because of my lack of legal qualification. It suggests that the Act must be interpreted in furtherance of the different purposes set out in subsection (1), which fairly closely mirrors the South African legislation, for example.
The clarity of what we seek to achieve has nothing wrong with it, but we may be at issue with the Government in the interaction with the detailed provisions. The Government position may be scarred by legal conservatism and fears of judicial review, or they may be genuinely concerned about legal muddle, interpretation or the difficulty for practitioners—all those things—but, essentially, I think that they feel that a number of lawyers may try to use a purposes clause to subject Ministers, public authorities or private individuals to some kind of double jeopardy or to play on the very interesting issue of potential anomalies between two different duties.
I have occasionally mentioned that I tend to carry around a copy of the Human Rights Act 1998 and the European convention, but when one reads the convention, it is amazingly prescient. It understands that rights can conflict and that things have to be resolved. That is not a new invention. We have not suddenly found that one right can trump another; we must have a basis for doing that. I am quite sensitive—I mentioned ministerial experience—to the worries of such double jeopardy. However, that must be balanced against the advantages of having a clear rubric for deciding in the court or tribunal of first instance.
The EHRC is rightly worried about the dangers of narrow and technical interpretations of equality legislation, some of which have been mentioned in Committee, notably the Malcolm judgment. I add the Amin judgment, which is earlier, from 1983, and excluded many public functions altogether, unless they mirrored a private function. There is also the interesting case of Redfearn, who was dismissed for being a member of the British National party.
In my layman’s language, what we are trying to do with the purposes clause is to provide a rubric. When a 50:50 issue is in court, it would be decided on the wider and more generous interpretation, rather than on the narrower and more limited interpretation. We hope that the underlying purposes clause would provide a ready opportunity to decide in the broader sense at first instance.
I begin to draw my remarks to a close. However, in my view, an even more important advantage is inherent in the idea of a purposes clause. In a way, that is where non-governmental organisations, such as the National Union of Students, have chimed in with their support. The Bill is intended to give effect to the principle of the right to equality. The hon. Member for Hornsey and Wood Green dealt with exactly the same issue in relation to the equality guarantee. We are looking at underpinning those rights.
Those principles are not confined to the United Kingdom, but are enshrined in international conventions to which the United Kingdom is a party, such as the United Nations convention on the rights of persons with disabilities, about which my hon. Friend the Member for Forest of Dean knows a great deal and which is one of the other equality strands. As I have mentioned, the European Union equality directives are already in place, particularly those on race and employment, and there is a growing body of jurisprudence, as well as legislation, to which we shall need to respond.
I am sure that the Solicitor-General is familiar with—it is her bedside reading—the case involving North Rhine-Westphalia and an individual before the European Court of Human Rights. The court not only adjudicated in the case but said that national Administrations must reflect the provisions of those directives in their national legislation and its interpretation. I hope that is a brief summary of that case. That has been the law, from recollection, since 1984.
We cannot get away from the fact that we have substantial international obligations that are likely to require a flexible and purpose-based approach, and nor should we want to. That is the point of what we want to do. In a way, we set out—the hon. Lady set it out differently—to state the right to equality and the concomitant human right to respect.
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