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. The
hon. Member for Hornsey and Wood Green will know that my party wants to
repeal the Human Rights Act and replace it with a different formulation
that we
think would work better. However, I do not want to get into that now and
I am sure that you, Lady Winterton, would not let me. When the hon.
Member for Hornsey and Wood Green makes her winding-up speech or
intervenes on me, will she say whether new clause 12 would operate in
the same way as the Human Rights
Act? 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. 12.15
pm
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?
12.30
pm
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