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. New
clause 11 and its consequential clauses would deliver an equality
guarantee to ensure that the right to equality has the same status as
other human rights. The amendments would codify that principle. The
Government have thus far rejected that idea because they do not
believe it necessary and are sure that their legislation is crystal
clear, making the guarantee that we are proposing unnecessary. With the
best will in the world, I do not share their confidence. I am sure that
when the Disability Discrimination Act 1995 was drafted, its authors
believed that they had dotted every i and crossed every t, and that it
would be infallible, and yet a decade later we had the Malcolm case,
which in one fell swoop undid a lot of what that Act sought to
achieve. 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.
Mr.
Harper: I am following the hon. Lady’s argument
about new clause 11 and the other new clauses, but given that the Bill
does not have a particular status—this
country does not have the concept of constitutional Bills that have a
status over and above others—what is it about the new clause and
the consequential provisions that would provide the barrier to clever
lawyers going through the wording? The new clauses would be mere
wording in Bills and would be just as susceptible to people arguing
about them. As we do not have Acts that are constitutional in nature,
the new clauses would not give us any more protection than the Bill
that we have been discussing at great length. I am not against what the
hon. Lady is saying, but I am not sure that the new clauses would
achieve her
objective.
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. 11.30
am 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. It
might be convenient at this point to refer to the specific provisions.
Sub-section (1) of new clause 22 begins by setting out the objective of
preventing discrimination, harassment and victimisation on any of the
equality grounds, and it refers to the fact that that can take place on
more than one count. It also links to the need to provide appropriate
remedies, to which I have referred, and sanctions for multiple
discrimination.
It indicates that the Bill is intended to ensure equality of
opportunity, which is an element of all the appointed duties and of the
EHRC itself. That is in section 8(1)(c) of the 2006 Act, and it also
makes the point that there will be occasions when it is appropriate to
involve differences of treatment—for example, on pregnancy leave
or reasonable adjustment. It then goes on to make it clear that the
Bill not only seeks to provide redress for individuals but has a group
and social dimension. However we want to interpret or enact it, there
is clear reference to the tackling of disadvantage, social inclusion
and systematic discrimination, to try to stamp out abuses of individual
rights
alone. 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. 11.45
am
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