Equality Bill

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John Howell: Does my hon. Friend accept a distinction that is beginning to emerge in my mind over this? One might get the purpose clause right and it might reflect what is already in the Bill. That is possible, but it contrasts considerably with an equality guarantee, which seems to go much wider than the Bill. The EHRC briefing, which he will have seen, says that other legislation would also need to be interpreted by courts compatibly with the equality guarantee. If the equality guarantee is so important, it should be in separate legislation, not tacked on to the Bill.
Mr. Harper: My hon. Friend makes a good point. I will come on to the comparisons between the way the hon. Member for Hornsey and Wood Green has gone about this and the way the Human Rights Act 1998 works. My hon. Friend touches on an important point.
When my hon. Friend the Member for Daventry was running through his new clause 22, he made the point that it was designed to help judges to interpret the rest of the Bill and ensure that they were not constrained narrowly, and perhaps be made by the Bill’s drafting to do something that they did not think would have the right outcomes for the purposes of justice. To the extent that the new clause is about making clear the purposes of the Act to ensure that the Act, as stated, would be read in that way, I am a little more content with it. I think that my hon. Friend the Member for Henley is right to say that the equality guarantee goes wider, and I think that it is akin to the Human Rights Act. He has pointed out a valuable distinction.
Mr. Boswell: May I say, as it were, tripartitely, that I again have considerable sympathy with the comments made by our hon. Friend the Member for Henley? In relation to the judicial process, perhaps I should admit to the Committee—he might be interested to know—that in my brief and very inglorious time as a member of a tribunal, as a lay empanelled flanker to the legal chairman, I always tried to operate on the basis of what was the right thing to do and whether we could make the law fit with it.
When I have had discussions with other, more distinguished persons, including judges, there has been a tendency for them to agree with that approach. They would really like to do the right thing and do not want to feel that the statute is unduly restrictive in pursuing that. That is perhaps an underlying motive in my purpose new clause.
Mr. Harper: I am grateful to my hon. Friend for that intervention. What he has just outlined, if I think back to the brief legal training that I did as part of my professional training, sounds like the Denning doctrine of trying to do justice and fluxing the law to enable that to be done. I would not want to put myself up against a historical legal mind such as that.
Let me move away from new clause 11 to new clause 12, on interpretation of legislation. Looking at the next few new clauses, I was struck by—I think the hon. Member for Hornsey and Wood Green referred to this—the similarities to and the differences from the Human Rights Act. I want to probe her on something and she can either intervene or come back to me when she winds up the debate.
Subsection (2)(b) is obviously comforting, because if a judge decided that legislation was incompatible with the equality guarantee that would not affect the validity of the primary legislation. A declaration of incompatibility could be made, as can be done with the Human Rights Act, but it would still fall to Parliament to change that primary legislation. I think that that is right.
I want to probe subsection (2)(c), which says that the provision
“does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if... primary legislation prevents removal of the incompatibility.”
I want to check whether that is exactly the same as the provision in the Human Rights Act or slightly different. I looked at the chart on page 8 of the guide to the Human Rights Act. There is a useful little flow chart on how it works and it makes the point that subordinate legislation could be disapplied or quashed unless it was inevitably incompatible. I was not sure whether that was the same as what we are discussing.
Lynne Featherstone: I cannot give the hon. Gentleman an answer off the top of my head because I do not have the comparator here, but it is meant to operate in a similar way. Perhaps I can come back to him on that.
Mr. Harper: I am grateful to the hon. Lady for that intervention. I am not clear about the matter, but I will wait until the end of the debate to give her a chance to explain. Perhaps the Solicitor-General, with the legal resources at her disposal, will fill the Committee in when she runs through her analysis of the new clauses and tell us whether the Government are minded to accept them.
I would like to raise one issue in relation to new clause 14, which refers to public authorities. Again, I wonder whether the hon. Member for Hornsey and Wood Green has covered this. I hope that the Committee will forgive me for not having the provisions of the Human Rights Act in front of me. The hon. Lady knows that there is real issue with the definition of public authorities in the Act and that that matter has taxed the Joint Committee on Human Rights in this Parliament. Last Friday, the hon. Member for Hendon (Mr. Dismore) was debating the issue on Second Reading of his private Member’s Bill. He considered the definition of public authorities, and specifically whether private care homes fall within the definition of public authorities.
I have one question for the hon. Member for Hornsey and Wood Green. Will she say whether the definition of public authorities in her new clause 14 is the same as the one in the Human Rights Act? If it is, will it not fall foul of the same problem? By that I mean that there may be things that the House intended to cover, but did not. Moreover, would her equality guarantee in new clause 11, or the purpose clause tabled by my hon. Friend the Member for Daventry, mean that if a court was reading that definition of public authorities, it would change how it was interpreted—perhaps to avoid the problem that has exercised the hon. Member for Hendon and his Committee, which I know has been concerned about those subjects?
My final point concerns new clauses 16 and 17 on proceedings and the power to take remedial action. I wonder why the hon. Member for Hornsey and Wood Green has used provisions from the Human Rights Act, particularly on the power to take remedial action, when the legislation is declared incompatible with that Act. I think that I am right in saying that it gives Ministers the power to make orders to bring secondary legislation into line with the Act. Why would the hon. Lady effectively allow those provisions in the Human Rights Act to take effect, rather than defining new provisions? Is there some clever legal reason for doing that and for not going for a new power?
Given my party’s view on replacing the Human Rights Act and doing things differently, I am concerned that if the Committee tied those two together and decided to support the hon. Lady’s new clauses things would start to go horribly wrong if we then changed the Human Rights Act.
My hon. Friend the Member for Daventry made a stronger case. Picking up the point made by my hon. Friend the Member for Henley, I am more comfortable about a purpose clause, which effectively would give judges some extra rules or some guidance on how to read the Bill. My hon. Friend the Member for Daventry put his finger on the point when he talked about the new clauses tabled by the hon. Member for Hornsey and Wood Green. I am much less convinced by an equality guarantee because it goes much further and is the sort of thing that one would expect to see in an Act of its own. Moreover, it could override the detail in the rest of the Bill.
We have spent a considerable time in debate and are now in the home strait of consideration of this considerable Bill, but it seems that popping these innocuous-sounding new clauses in at the end means that we need not have bothered to debate the Bill because we could have passed these very broad guarantees and handed the matter over to the judges.
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Lynne Featherstone: That is really egging it. The new clause would give an equality in terms of the Human Rights Act. There is an overarching equality guarantee, exactly as it says, but it would not remove any of the power of the Bill. The Bill dispenses the equality measures in that Act and the new clause would simply add to it in an overarching sense, and that is its importance.
The hon. Member for Forest of Dean is right to say that the new clause provides a different and broader equality guarantee than the purpose clause, which is more directly and narrowly focused on the functions of the Bill. However, the Equality and Human Rights Commission feels that the new clause would be a necessary addition to the Bill, and obviously on the Liberal Democrat Benches we agree.
Mr. Harper: I am grateful for the hon. Lady’s intervention. I obviously did not make myself clear. I was not suggesting that her guarantee negated what was in the Bill, or struck down some of the provisions that we have discussed. My concern is actually the opposite. We have gone through the Bill at length, and there has been careful balancing by the Government when they introduced provisions and by members of the Committee when we disagreed with some of them. We have been arguing about the effectiveness of what has been proposed, and also the balance. The hon. Member for Oxford, West and Abingdon spoke at length about the clash between different kinds of rights, and we listened at great length to that debate. Members on both sides have participated in it and have weighed up the arguments.
After that careful analysis and debate whereby Parliament works out where the balance should lie, and after all that careful weighing up and setting out of what we think the right answers are and where the balance lies, putting in that broad equality guarantee at the beginning would, in effect, say to a judge, actually, there is an overarching equality guarantee—the hon. Lady’s very words. If a judge were so minded, he could put to one side all the careful debate and argument that we have had, insert his or her interpretation and override the clauses as drafted. That gives too much power to judges and takes power away from the House, which is where it should properly stay.
Lynne Featherstone: I want to intervene.
Mr. Harper: I have sat down.
The Solicitor-General: I do not know whether the hon. Lady wants to intervene on me at this point. I intend to be helpful.
New clauses 11 to 17 and the equality guarantee model derive a good deal from the Human Rights Act, as the hon. Gentleman said. Indeed, it appears that all of them are drawn to some extent from the Act, save perhaps subsection (2) of new clause 11, which may come from the South African constitution. Let me first go through how the clauses fit together to demonstrate how difficult it would be to get an equality guarantee that has the right effect and avoids unintended consequences.
New clause 11 in subsection (1) refers to
“the fundamental rights and freedoms set out in subsections (2) to (4)”,
but subsection (4) is the power of a public authority to ignore subsections (2) and (3) about the purpose of ameliorating disadvantage. Subsection (4) is most certainly not a right or freedom, and nor is subsection (3).
Looking speedily at how the new clauses are composed, they do not work at all. Subsection (3) would prohibit public authorities from discriminating on a broad range of grounds. This point may have been made while I was briefly out of the Committee: the range of grounds goes way beyond the protected characteristics set out in the Bill.
Mr. Harper: For the avoidance of doubt, I made the argument that there could be many more than two, and that the new clause therefore ran counter to our discussion last week about multi-discrimination, but I did not get to the fact that it contains a much wider list of characteristics, which the Solicitor-General highlighted.
The Solicitor-General: I heard the hon. Gentleman, and I thought he made an effective argument about the contrast between what we defined as appropriate for going forward and some general view about filling in the gaps that people might fall through, and how the concepts might clash.
However, I did not hear anyone make the point that, of course, all new clause 11(3) says is:
“A public authority may not discriminate against anyone on any ground or combination of grounds such as”.
I will mention a few hair-raising examples of what might apply if that is agreed to. Interestingly, subsection (4) would wipe out the duty not to discriminate if the public authority is about the purpose of ameliorating disadvantage. Presumably that is a licence—is it?—to discriminate on the basis of colour to alleviate the disadvantage of a different-coloured group. Although the proposal is no doubt well-intentioned, its unintended consequences are likely to be significant.
In respect of new clause 11(3), which mentions any combination of grounds, what are we talking about? The words,
“such as colour, race, nationality, ethnic or national origin, language, gender identity, sex, sexual orientation, disability, religion or belief, and age”,
will not confine any grounds significantly, because they are interpretable themselves, of course, in a wide range of ways. For instance, in respect of “colour”, which is an aspect of personal appearance, why would it not be possible to find that there was a ground against which people could not be discriminated against for having a particular hair colour, which is another aspect of personal appearance, or for being bald? If one goes along with the words
“such as...religion or belief”,
why could there not be discrimination wrapped up in that in respect of political affiliation? What if somebody had a criminal conviction, say, or what if height or weight were at issue? The list that tries to confine the ambit of subsection (3) is non-exhaustive and does not confine it at all.
Committee members can just imagine—this is the best I could come up with quickly—a question arising about whether there was indirect discrimination on the basis of a provision criterion or practice that not necessarily deliberately, but inadvertently, discriminated against someone on the ground that they were bald. We really are getting into deep, extraordinary and obscure water, and we have only reached new clause 11 so far. What about discrimination on the ground that somebody is very tedious? That is probably another ground that we could examine with interest.
New clause 12, like section 3 of the Human Rights Act, would require primary and secondary legislation to be interpreted by the courts in a way that is compatible with the right to equality, but that right, as I have just said, is a wide one and includes equality on any old basis whatever that links in any way to any of the strands set out in new clause 11.
New clause 14 would make it unlawful for public authorities, including courts and tribunals and any person certain of whose functions are of a public nature, to act in a way incompatible with this massive and broad-ranging right to equality. The proposed new clause differs from the approach in the Human Rights Act because it contains a non-exhaustive list of factors to be taken into account when determining whether a function is a function of a public nature. We would have two different definitions of what a public function was: one in the Human Rights Act and this one, even though, as the hon. Member for Henley has said, the proposed new clause is an equality guarantee that goes way beyond the four corners of the Bill. So the Human Rights Act test of a public function and a public body would be applicable to all the Bills in the country and a different definition of such a function would be applicable to all those Bills, too. I cannot see that that will help anyone.
New clause 15 would require a Minister to make a written statement that the Bill is compatible with the right to equality. I would find that extremely difficult to do, for the reasons that I have set out.
As the hon. Member for Forest of Dean said, new clause 16 would, unlike the rest of the proposed new clauses, apply particular sections of the Human Rights Act. Under new clause 14 a completely different test would be set up from that in the HRA, but under new clause 16 that Act would be applied.
The Government understand the thinking behind the proposal and believe that securing equality’s place at the highest level of political principle is an aim worth pursuing. As I told the Joint Committee on Human Rights a couple of weeks ago, the Government are considering a statement of equality as part of the consultation on the Green Paper “Rights and responsibilities: developing our constitutional framework”, which was published in March. The Green Paper proposes that any such statement of equality would be accessible and straightforward, and should embody a central place in UK society. It would be constitutional provision, though “accessible and straightforward” would be its watchwords. This specific, strand-based, discrimination-oriented Bill is not the place to deal with constitutional principles of that kind.
Careful thought is necessary about whether such a statement could be justiciable in the way that the equality guarantee is clearly intended to be. We would have to work out carefully what impact anything with legal effect would have on the obligations imposed and rights given by discrimination law. Otherwise, we would just create levels of uncertainty.
It is not clear what the equality guarantee would add, although I know what the hon. Lady intends it to add. Domestic anti-discrimination legislation has been operating reasonably adequately, if not perfectly, for 40 years. As we have gone along, we have built in new strands and new areas of coverage, such as the public sector duty, for instance. The evolution of anti-discrimination law has been positive, and the Bill builds on it. It is difficult to see what the new clauses would add.
There is a wider question about the basis on which equality or anti-discrimination legislation ought to rest. I do not deny for a moment that the framework for the basis of human rights and equality can still be discussed. Usually, people who want equality guarantees are interested in widening the basis of equality legislation so that it is closer to human rights law. We would have to work out how widening that basis would interact with EU legislation, which is strand-based like our own. Indeed, as recently as the discrimination law review, the Government asked the public and considered the question. We found no point in changing the current basis, and a danger of consequential burdens and unintended outcomes. We have recently considered a different basis publicly and have concluded that the right way forward for the purposes of the Bill is the Bill.
The basic proposition in clause 11 is in clause 11(2):
“Everyone is equal before the law”.
That requires us to know what equality means. It is not defined anywhere. One might say that it is self-evident, but it is not. As John Schaar said in “Equality of Opportunity, and Beyond”, it is
“one of that genre of words that...have both a vague conceptual meaning and a rich emotive meaning”, with the conceptual meaning “subject to constant redefinition”.
Many jurisdictions with written constitutions have equality, but in no two jurisdictions that we have looked at are the meaning or effect of a constitutional provision precisely the same.
Concepts of equality are usually thought of as being on a continuum between formal equality, which is the idea that like situations should be treated alike, and substantive equality, which means that far from being blind to differences, the law focuses on them, thereby requiring, or at least allowing, treatment that runs directly contrary to the formal notion of equality by driving positive action forward. A good example of substantive equality is found in South Africa, from which part of the new clause seems to be derived. In that jurisdiction, positive discrimination, for understandable reasons, is actively required in certain circumstances.
One of the key areas of debate on an equality provision in the context of the bill of rights will no doubt concern what we mean by equality and where on the continuum any British statement of equality should lie. Our position is fundamentally different from South Africa’s. Would we want equality to be defined in the same way? It is not defined at all in the guarantee, so we would not know its reach, as I said, into baldness or having red hair—or indeed, false red hair—or where it would go.
There is also the important point, which I do not need to set out extensively as the hon. Member for Forest of Dean put his finger on it, that we would have to be careful to ensure that the equality right did not cut across specific provisions in discrimination legislation. We have spent a good deal of time on the Government’s attempts to strike a balance, which we believe we have got in the right place, between sensitive matters such as the rights of people with a religion or belief, and the rights of gay, transsexual and lesbian people. How would those delicate balances be affected by the superimposition of this undefined concept of equality?
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