Equality Bill

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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.
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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