Equality Bill

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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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