Lynne
Featherstone: This is not precisely on that point, but
before the hon. Gentleman concludes his remarks, I wondered whether he
would be likely to accept amendment (a), which uses the usual
language?
Mr.
Boswell: I need to reflect on that, and I shall do so in
the light of the Solicitor-General’s recommendation. At the
moment, I would be in favour of accepting it. We must remember that,
mercifully, another place will look at this legislation, and we want to
get it right. Given the genesis on mental capacity and the interest in
another place in the idea of a purposes or principles clause, I hope
that it will have a fair hearing. I was searching for a reference for
the Committee, and I will now give it to the Solicitor-General. It was
von Colson and Kamann v. Land Nordrhein-Westfalen, which
reported in 1984. That is reaching out.
These are not
loyalty issues, and nor should they be. They are issues for all of us
in getting it right. It is worth repeating Dame Nuala
O’Loan’s remark that such matters are the day job, and we
have to get them right. The law must never be interpreted in such a way
as to diverge from that. When looking at a purposes clause, I feel that
the important parallel is with the European convention on human
rights—that is a purposes or principles clause. That is set out
very clearly, and the legislation is now incorporated, rightly or
wrongly, into our
statute.
Mr.
Harper: I have a question on how things might interact. My
hon. Friend mentioned the European convention on human rights ,
which has been incorporated into British law by the Human Rights
Act. That involves some of these issues. How does his purposes clause
interact with that particular obligation, which is both international
and in UK statute? It seems that some of the things that the hon. Lady
has in her new clauses are similar to provisions in the Human Rights
Act. How will the two pieces of legislation
interact?
Mr.
Boswell: I think that at the moment, if the Committee or
Parliament saw fit to embody either the big group of new clauses that
the hon. Lady has produced, or my smaller and more perfectly formed new
clause 22, some general principles would be set out. In adjudicating,
judges would have to have regard to those principles as well as to
existing jurisprudence and the Human Rights Act.
I do not want
to fall into the trap of being thought of as unable to see a
distinction, but as we have debated in the Committee, there is a
distinction between rights to equality—whatever that
means—and the various kinds of rights, and human rights
themselves. I do not seek to conflate the two, but it would be helpful
to us and reassuring to the general public, who tend to see human
rights as involving pettifogging lawyers helping terrorists to get let
off, to start seeing that we need to embody much wider concerns. This
has been a modest attempt to set out the principles with which we could
go forward.
We are in a
world where we need to establish those principles against the
predominance of the state and the public authorities, We are also in a
world where we have entered into several significant international
commitments. That is no accident. The universal principles of decency
and equality, which are certainly embodied by the Bill and are not
confined to this country—and nor should they be—go wider
than the law asserts. The new clause is an attempt to say that such
things matter even more than the detailed provisions of all the clauses
of the Bill. We need to say that that is where we start from and from
where we operate all the time, and that that continues for the full
life of the legislation in full force because such things really matter
to us. It is for that reason that I tabled the new clause and I was
pleased to do so. It is important that the Committee considers whether
it is appropriate to add to the detailed provisions that will be set
out in
statute.
Mr.
Harper: I listened carefully to the hon. Lady and to my
hon. Friend. A few questions arose from both their arguments, the first
of which is general and which I touched on in my intervention. It
concerns the debate about judicial activism and the extent to which
having a purposes clause or an equality guarantee is likely to promote
it or restrain it. I do not hold the view that the
life of judges is activist in nature. They should interpret the law as
Parliament intended and, if there is a doubt about it, they should
consider it more narrowly. This is the place in which law should be
made and, if we want to make wide-sweeping laws, we should decide that,
not unelected
judges. However,
I listened to my hon. Friend when he made the powerful point that, if
we had an equality guarantee or a purposes clause, we might still get
judicial activism, but it would be within defined boundaries and that
those boundaries would be the ones that we define, rather than have
judges who, if they decide that they do not like the legislation, can
interpret it as widely as they want. There is a check on such action of
judges in a lower court because obviously a judge in a higher court can
restrain them and interpret the legislation more narrowly. I will
consider what my hon. Friend said about such
matters. Turning
to the new clauses tabled by the hon. Lady, I note that they are
supported by the EHRC, which we should bear in mind. Subsection (3) of
new clause 11
states: “A
public authority may not discriminate against anyone on any ground or
combination of
grounds”, which
is similar language to that used by my hon. Friend in the first part of
subsection (1)(a) of his new clause 22, which states that
“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”. I
mentioned that because it raises the issue of multiple discrimination
that we discussed at considerable length last week. The purposes
clauses highlight the clash between what we have decided to do and what
a judge might decide. When we debated that, we discussed whether we
could have multiple grounds of discrimination and whether there was a
real wrong that we were trying to
right. The
Solicitor-General said that the consultation carried out by the
Government on multiple discrimination had demonstrated evidence of some
real issues. She said that the consultation responses would be
published this summer, so we could study them with care before the Bill
was discussed on
Report.
Lynne
Featherstone: The hon. Gentleman raises an interesting and
valid point. There might on the surface seem to be a contradiction
between two types of discrimination and the plurality with no actual
limit. However, the Solicitor-General accepted the view that, although
no evidence has come to light to date, there might be some in the
future—as yet unforeseen. The new clauses allow for that
possibility in times to come. They would not set up a conflict because
the intention is still clear in terms of the allowance of two claims of
multiple discrimination as opposed to multiples thereof. Ultimately,
they will allow for a judge to look back and see what the evidence has
been thus far.
Mr.
Harper: The hon. Lady makes an interesting point, but it
does not help her case if she has the same view, which I suspect she
does not, about judicial activism.
If we had either of the new clauses in the Bill, it would enable a judge
to widen its scope. We spent quite a long time listening to the
Minister carefully, and debating whether it was proportionate to allow
discrimination cases to be brought on more than one ground. I put on
the record some of the concerns that were expressed in the consultation
by the business community—including the British Chambers of
Commerce—about the size of the wrong that was trying to be
righted, and whether having dual discrimination was a proportionate
response.
We spent
quite a long time debating that matter, and the Committee came to a
view—the House will be asked to do the same on Report before it
goes to the other place. We made a decision, but both new clauses could
change that decision by allowing a combination of grounds. Even if one
argues that they would not change it now, they would allow a judge to
come to a view different from the one decided by this House. That is
certainly not something that I want to do. I want to ensure that it is
Parliament that decides the proper scope of the matter, and weighs up
the costs that we are imposing on businesses and other organisations
against the wrong that we are trying to
right.
Mr.
Boswell: Leaving aside the separate issue about what I
might call creeping jurisprudence and whether things stay the same in
the future—I am not necessarily talking about judge-made laws
here or in Europe—does my hon. Friend accept that, if one has a
clear statement of purposes, at least a judge is entitled to look at
whether or not it functionally happened? While he is quite right to
express some entirely proper concerns about the role of Parliament in
the matter and the concerns that businesses may have expressed, which
again are legitimate, being able to say, “The outcome was fair
enough” may be, in itself, a defence against some procedural
issue, which only too often characterises the work of employment
tribunals. In other words, if the answer is fair, the route to get it
is not necessarily disreputable.
Mr.
Harper: My hon. Friend makes a good point. Both of the
approaches would at least mean that a court would not be frustrated in
a case where it thought the right thing to do was to allow something,
but it was being constrained by the narrowness of the law. Although
everyone else agreed with them, it would say, “This would be the
right thing to do, but our hands are tied.” I can see the
argument in that case, but having debated some of the detail—we
had to balance those issues when we debated a number of clauses,
recognising that some of the rights conflict—it seems that the
beginning of both new clauses would immediately set out a general
power, which could be used to override some of that careful balancing
of interest that we have weighed up. That is one of my concerns, which
I am a little nervous about.
John
Mason: I wonder whether the hon. Gentleman is slightly
overstating his concern. New clause 11 states
“any ground or
combination of
grounds”, which
can be interpreted as two or whatever—it seems to me that it can
be interpreted as two, which is what the Bill specifically states, but
I stand to be corrected on that point. When we discussed the issue, a
lot of the discussion was around the practical issues of bringing
three, four or more protected characteristics in one case. It is still a
desire of this Committee, and hopefully, of Parliament, that all the
elements of discrimination are looked at. Does he accept that it is a
good balance to have the two in place, which do not contradict each
other? Mr.
Harper: I listened to the hon. Gentleman carefully. I
heard, from a sedentary position, from the array of legal talent facing
me, that the problem with what he said arose when he said “two
or whatever”. The problem is “whatever” can mean
lots of them. If we are going to give organisations and businesses some
certainty about what we have passed and put into law, saying
“two or whatever” is the problem. Both the new clauses
allow any number of grounds of discrimination to be put together. We
discussed that in Committee in detail. The Minister set out powerfully
that if we allowed all the protected characteristics to be used
together there would be a huge number of potential combinations and
complexities.
The point of
the Bill is to simplify, bring together and treat consistently all the
different pieces of discrimination legislation, and to try to make them
simpler and more straightforward. As soon as we put one of these new
clauses in and allow the interpretation of judges to be a lot wider and
more flexible, the Bill will start to look more complicated. The
problem is that the complexity militates against the Bill’s
effectiveness. 12
noon
John
Mason: I used the words “two or whatever”.
The new clause does not go into that detail, but in the rest of the
Bill we are clearly talking about two protected characteristics. The
new clause would not in any way overrule the “two” that
has been decided. Again, we will hear what the Solicitor-General has to
say.
Mr.
Harper: The hon. Gentleman makes a point. He is saying
that the whole point of including a purpose clause, or an equality
guarantee, as we heard from the hon. Member for Hornsey and Wood Green
and my hon. Friend the Member for Daventry, is to give a judge a set of
ways to interpret the Bill. That is supposed to trump some of the
narrowness in the
detail. If
a clause was set up at the beginning—new clause 11 or
new clause 22—stating that any combination of the grounds could
be used and a more specific clause was then introduced, such as the
Minister’s new clause 26 on dual discrimination, stating that
only two could be used, there would be two incompatible clauses in the
same Act of
Parliament. If
I were a judge trying to interpret those provisions, would I look at
the specific new clause 26, where Parliament had set out its view
clearly, or should I look at new clause 22 or new clause 11 and say,
“No, I can look at all the grounds”? That is not helpful;
it is confusing, it would put judges in a difficult position and
ultimately it would let them second-guess decisions of the
House.
John
Mason: I do not want to keep intervening, but I appreciate
the hon. Gentleman giving way again. Using the word
“trump” was a little unfair, because I do not think that
either the hon. Member for Daventry or the
hon. Member for Hornsey and Wood Green used it or were even suggesting
that concept. The concept that they were painting was much more that
there might be cracks and that the new clause would help to fill in
those cracks and prevent people from falling into them. The word
“trump” was not the
concept.
Mr.
Harper: I take the hon. Gentleman’s point, but
there may well be people who feel that they have been discriminated
against, harassed or victimised because of a combination of three
protected characteristics. We debated last week the fact that people
will not be able to bring a claim on three grounds together. If they
were looking at purposes, they could bring such a claim and it would be
up to a judge to decide in each particular case. It may be desirable to
do that. From what I have said about judicial activism, I would rather
that judges were a little more constrained and had to stick more
closely to what Parliament decided, rather than to what they felt was
appropriate in the
case.
Lynne
Featherstone: I am not sure that new clause 11 says that.
It
says “or
combination of grounds such as”,
and gives a whole list.
It does not say that there could be more and does not quantify in any
way. If the Bill is quantifying this at two, the judge will look to
that as being the determination. The new clause is offering any
combination of grounds and giving an example of all the grounds that
might be combined within the number of two.
Mr.
Harper: I thank the hon. Lady for that point, but the fact
that the new clause is not clear is a problem. On my reading of the new
clause, it would at least open up the possibility of having that
argument. An organisation looking at this might think it entirely
likely that someone will bring a claim and people will start practising
defensive behaviours to avoid having the claim. That is my only point;
I did not want to spend quite so long on
this.
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