Mr.
Harper: It is not just a case of how the balance would be
struck. As I said, the important point is who does the balancing. I
would rather that this place weighed up the issues that the Committee
has discussed at length and strike that balance for the public. The
problem with the new clause is that it effectively throws that balance
over to a judge and, with the greatest respect to our judges, I do not
think that they are in the best position to make that judgment. It is
for Parliament to make those difficult decisions, as we have done in
our debates on the Bill.
The
Solicitor-General: I completely agree, and I would have
gone on briefly to say the same thing. It is not only about filling in
the cracks in some undefined way, but about who defines where the
cracks are and who decides how to fill them.
Suppose we
get a situation in which we have said that multiple discrimination is
best called dual discrimination and it is confined to two
characteristics, and a judge perceives that there is a crack through
which somebody with four characteristics has fallen in terms of
discrimination and uses the right to equality across the board to put
that right. The whole of business and the whole Government would be
running on the basis that we had legislated for two sorts of
discrimination, when suddenly the courts
say, “Actually, ha ha, you are wrong; there are now four
sorts.” They would have seen a crack that needed to be filled in
with this polyfilla equality guarantee. Then, of
course, there would have to be the equality guarantee versus European
law, as the directives are also based on equality strands. A tribunal
would have to interpret our legislation, including any equality right,
in the light of those directives. An equality right of the kind in
South Africa, which allows or requires positive discrimination, would
run up against several requirements of European law that effectively
prohibit positive discrimination in relation to the majority of
protected characteristics. We might find that strand-based European law
would cover some of those things and block positive discrimination, but
it might not cover baldness, so that people could positively
discriminate happily in favour of the bald or the red-haired.
I hope that,
not in an unkind way, I have pointed out the difficulties. We do not
think that anything would be gained by the provision except for
uncertainty and complexity. I remind the Committee that it took the
Canadian courts about a decade and a half to get to grips with their
constitution equality provision, and they did not have to make it work
in line with the European law framework or with convention
rights.
The hon.
Member for Forest of Dean made the powerful point that there would be a
further ceding of power and the right to make such decisions away from
Parliament in the direction of the courts. The whole procedure of a
declaration of incompatibility makes a justifiable move in that
direction. However, a further significant shift of decision-making
power away from Parliament would have to be addressed in the context of
a constitutional debate—if it is to be addressed at
all—and not in the four corners of what is basically a
strand-based Bill against discrimination. We should be using the Bill
to advance practical equality as we have given effect to it in the
Committee, building on the draftsmen’s work before us.
On the
purpose clause tabled by the hon. Member for Daventry, we share a
common objective of clarity and certainty. However, we do not think
that a purpose clause will have that effect. In 2004, the then First
Parliamentary Counsel, Sir Geoffrey Bowman, set out before the House of
Lords Select Committee on the Constitution three key reasons why
purpose clauses are extremely
rare. First,
it is not easy to express a purpose in a few words without turning it
into mere pious incantation. Secondly, and crucially, the general
purpose provisions risk conflicting with the specific provisions of the
Bill. Often, the intention is to state essentially the same thing in
different words, but a court may potentially view it as meaning
something different, otherwise why have such a provision in the Bill in
the first place? Thirdly, even if there is no direct conflict, the
relationship between the specific provisions and the general purpose is
not
clear.
Mr.
Boswell: I am grateful to the Solicitor-General for
reminding the Committee of those interesting and authoritative
strictures. However, have there been any cases in practice where,
whether in a fit of inadvertence or otherwise, we have strayed into
accepting a purpose clause? Has such a clause ever done any judicial
harm or created difficulty in practice?
The
Solicitor-General: I will come to that, but such clauses
would have been accepted on a different basis from that on which the
hon. Gentleman put forward certain statutory provisions, none of which
we accept are purpose
clauses. Sir
Geoffrey cited an example from one of our tax statutes, which
states:
“This
section is enacted to prevent the avoidance of tax.”
That sounds
straightforward and is a good purpose for a piece of tax legislation to
offer. Sir Geoffrey noted that, despite judicial expressions of opinion
on that, nobody is clear about what those words do. Some people and
judges say that they do nothing, while others say that they do
something, but they are not quite sure what. That is not a position
that we want to get into on an issue as complex and multifaceted as
equality. Sir Geoffrey’s points make clear that the overall
effect of a purpose clause would be to add uncertainty, which would
lead to practical difficulties for individuals, employers and service
providers, and to
litigation. The
provision in the Children Act 1989 is not a purpose clause. It imposes
a duty on the court to make the welfare of the child paramount, but it
does not offer an interpretative tool through which the rest of the
statute must be seen. Likewise, section 3 of the Equality Act 2006
imposes a general duty on the Equality and Human Rights Commission,
which has found it useful. It is not, however, a recipe for
interpreting the rest of the Act; its sole purpose is to impose the
nature of the duty on the commission. The provision in the Crime and
Disorder Act 1998 is also often cited, but it adds nothing of
substance. We do not therefore acknowledge that there is a trouble-free
zone around purpose clauses. It is significant that there are no
purpose clauses, which are a recipe for potential
problems. I
dealt with much of the concept of equality when I talked about the
equality guarantee suggested by the hon. Member for Hornsey and Wood
Green, but it would be worth, by way of headlines, citing specific
problems with the purpose
clause.
Mr.
Harper: The expressed reason for the purpose clause is to
help with judicial interpretation. The short interpretation section in
clause 199 is similar to that in other Bills in that it defines certain
expressions and words. Is there any merit in focusing on, and making
improvements to, a Bill’s interpretation section, or are
certainty, consistency and scope to be made clear to judges by the way
in which a Bill’s individual clauses are
drafted?
The
Solicitor-General: I think that it is the latter and that
the interpretation section is about particular terminology in the Bill.
It is not an attempt to offer a distant prism through which to view the
whole legislation. The concepts are different, and I am not aware of
any shortcomings in the interpretation sections, or whether anyone
believes that there should be more, better or different interpretation
sections. No amendments have been tabled, but we remain open to
suggestions.
Mr.
Boswell: To follow on from the point made by my hon.
Friend the Member for Forest of Dean, I sense how the
Solicitor-General’s argument is going. Will she accept that, if
nothing else, it is important that she gives some thought—I
suspect that she will do so anyway—to
the training and comparative studies of judges in this area? There is no
doubt that we have a commonality of purpose in trying to move the
matter forward. There may be some difference between us on whether the
Bill is the appropriate vehicle to do so, but the Government should
address the wider picture in forming their
judgment.
The
Solicitor-General: I am sure that there is bound to be
Judicial Studies Board training on the impact of the new legislation
and its purpose, and what we have said about its inclusive nature and
intention are bound to resonate in that training. None the less, it
will be necessary to interpret particular provisions according to the
words in the legislation. That is our tradition, and it is a system
that works well by and large.
I understood
the concerns about Amin, the recent concern about Malcolm, over-narrow
interpretations, the YL case and the Leonard Cheshire case about public
authorities. Do we throw over to the courts—that is what the
hon. Gentleman wants to do—for the sake of trying to remove what
I would consider to be over-narrow rather than legalistic
interpretations, the massive ability to have some sort of overarching
prism through which to look at the Bill? It will be an individualised
prism, according to how the judge looks through it. Do we leave the
cracks to be filled by the judiciary? The balance could produce
unfortunate results. We do not foresee real difficulties with such
cases. If over-narrow interpretation undermined the purpose of any
clauses, legislation would be
required. I
sense that the hon. Gentleman is a little more content, and that he
will perhaps not press his case to the bitter end because he
appreciates the two options and puts them together coherently with the
suggestion of training for judges. I will not trouble the Committee
with all the examples that I was going to give of where the new clause
would cause difficulty, except one, which makes the point for all of
them. Sub-section (1)(e) of new clause 22 refers to human dignity,
which is obviously part of the philosophical basis on which equality is
founded, but what does that concept add? The Canadian academic, Reaume,
said: “Dignity
is said to be vague to the point of vacuousness and, therefore too
easily useable to dress up decisions based on nothing more than
conservative gut reaction or excessive deference to Parliament. Recent
cases”— that
is, Canadian
ones— “might
be thought to bear out this
criticism”— as
might some of our recent cases.
Dignity “can
be used as an empty place-holder for...less presentable reasons
for finding for or refusing to find a violation of
equality.” That
is a telling quote, but my worry about the provision is that in seeking
to bring a formalised, dignity-based approach to equality by the back
door, there would be a loss of clarity. Those who favour a
dignity-based approach to discrimination run the danger of seeking to
fill a gap with a concept of dubious merit or additional value. Would
human dignity, for example, be undercut by measures aimed at preventing
systemic discrimination in the context of positive action? That might
need to be qualified with a view to it fostering good
relations—another aspect of the Bill—and the need not to
discriminate. If we have those loose concepts thrown into the mix, it
does not add anything. It makes for a very complicated attempt to
balance and we are balancing generalities; the Bill is really about
specifics.
12.45
pm
Mr.
Boswell: While not having finally taken my tanks off the
lawn yet, will the Minister at least—having dangled before us
the prospect of a full revelatory account of all the concerns she has
about the purpose of the new clause—indicate that that concern
about the human dignity, described by her as a somewhat vacuous
concept, is perhaps the greatest of her objections to it? I am trying
to get an idea of the hierarchy of concerns that she has established on
the various
points.
The
Solicitor-General: I think that that is where it
descends—I say this without the slightest disrespect—into
the apotheosis of the hon. Gentleman’s vagueness. That is the
worst aspect of it, but it is really intended less to demonstrate that
and more to exemplify the difficulties to which lots and lots of those
concepts, which the new clause would require to interact, would give
rise. It would just give an extra layer of foggy concept over the top
of provisions that the judiciary are perfectly capable, in my view, of
interpreting in a positive way and have been fairly successful in doing
so over the past few years, with the few exceptions that the hon.
Gentleman quoted. However, they are not enough in my summation to
justify that kind of
thing.
Mr.
Boswell: I mentioned a number of things about the
international aspects, compliance with international conventions and,
possibly, developing jurisprudence. Does the Minister see any merit for
at least being able to accommodate those things where they go beyond
the immediate statute of the Equality Bill? How are we going to cope
with them in
future?
The
Solicitor-General: I might have missed the essence of the
hon. Gentleman’s point, but as far as moving legislation in the
UK forward to match European jurisprudence, there is the clause 2(2)
provision that we have already discussed, and on which we, with the
hon. Gentleman’s support, will rely. If I have missed a further
point about that, I apologise and will write to him. However, I took no
more from what he said than that.
I hope that I
have convinced the hon. Gentleman and the hon. Lady that the new
clauses will not help us to have a positive interpretation. They are
capable of being counterproductive and they do not significantly add
anything to the Bill except the opportunity for confusion. I invite
them not press the new clauses to a
Division.
Lynne
Featherstone: I am left in no doubt that the Minister is
not keen on including the equality guarantee in the Bill. I will
reflect on what she says. Clearly, I need to have another look at the
wording and compatibility to see where it is the same as the European
convention on human rights and where it differs. That might be a valid
point. However, the Minister has not really addressed the harm that was
done by the Malcolm case. I think that whether it is by purpose clause
or the equality guarantee, it is a real and live
issue.
Mr.
Harper: I was listening to the Minister carefully. I think
that she did deal with that issue. If there are cases—there have
not been many—where judges interpret that provision very
narrowly, as they did in the Malcolm case, the solution is for this
Parliament to legislate
specifically to deal with it, as we have done in the Bill. That is the
better solution than allowing judges to roam more widely and make law
more widely than this Parliament intends.
Lynne
Featherstone: I am not sure that I was trying to allow
them the leeway to roam more widely. I was trying to narrow their
guidance within a defined framework. We will just have to disagree on
that. What has been given voice to is a genuine underlying concern
about such issues and also the fact that the Bill may miss a unique
opportunity to engage with equality in the wider sense. Perhaps the
overarching comment about the Bill is that it is confined to the
specifics and the precise. How often does an Equality Bill come along?
The equality guarantee is an attempt to reach for a wider and higher
definition, and to give people the security to feel that they will be
protected, whether or not the specifics have in any way omitted or
misinterpreted that
policy.
The
Solicitor-General: What about the baldness point and the
idea that the hon. Lady would extend the reach of equality law way
beyond the specifics, to any characteristic under subsection (2) of new
clause
11?
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