Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 220 - 239)

MONDAY 20 MAY 2002


  220. Is it not your perception, particularly outside of Whitehall, that the attitude of human rights is defensive and reactive and not possibly proactive? Can I quote to you from an article which came out on the same day as you made your IPPR speech, though they have kind of parallel ends, which is citing the report of the district auditor which is part of the Audit Commission. The article is headed Human Rights Act being ignored in councils and hospitals. "Almost half of the councils assessed, and two-thirds of the NHS organisations, were found to have failed to develop a clear, organisation-wide approach to the Act. 42 per cent of health bodies, and 14 per cent of councils, had taken no action to ensure that workers in areas such as social care and nursing were well-informed . . ."

  A. What was it, 42 per cent?

  221. ". . . 42 per cent of health bodies, and 14 per cent of councils, had taken no action to ensure that workers in areas such as social care and nursing were well-informed about the legislation." The response seemed to be "let us wait until the challenge comes and then we will defend the challenge".

  A. Yes.

  222. Do you think that public authorities do have a public duty, a positive duty to promote human rights? Do you think they should have an obligation to do that?

  A. I cannot tell you precisely because it is not area which I am in the lead on. The only observation I would make about those figures, and I suppose it depends on how you approach life and politics, whether you are a glass half full or a glass half empty, is what those figures do show, Ms Baird, is there are quite a number of health authorities and is it the overwhelming majority of councils who do see things in a different sort of light. What I am not expert in is to what guidance or what training they have been given. I cannot go much further for you on that really.

  223. Do you think this time now there ought to be a positive duty on public bodies to promote human rights? That is going to feed, to some extent, is it now, how you consider the new equality body?

  A. I am sure you may well address those remarks to the Lord Chancellor. I do not think I had better exceed my brief and whatever opinion I have on that. What I would say to you, though, is that certainly I think that the positive duty, in terms of the Race Relations Act, that public bodies now have is extremely important. What I would say to you, also, is that as that duty unfolds more and more bodies now look to see what it is they have to do and what their obligations are, also as that feeds down, I expect that to have quite an effect.

Lord Lester of Herne Hill

  224. The Government has promised that positive duty will be extended to gender and disability.

  A. It has when parliamentary time allows.

  225. When parliamentary time allows.

  A. Yes, it has.

  226. I must say can you not do better than that and give us some indication that at least in the equality field one would see the positive duty in Northern Ireland applying, not only to race but the other forms of discrimination, within the lifetime of this Parliament. If that is so important, why can we not get parliamentary time?

  A. I think what I would say to that, Lord Lester, is this Committee, I always know it is going to be an interesting Committee to come to because obviously it is a Committee that has invited me already to risk life and limb, first of all by substituting my opinion in the Lord Chancellor's area that Ms Baird asked me to do and next to substitute my opinion for what might be in the next Queen's speech or in future Queen's speeches, so I think I had better stick to the formula of "as parliamentary time allows" but there is that commitment there.

Baroness Prashar

  227. I want to ask you about the possible models for a human rights commission and equality body. When the Lord Chancellor came to see us he outlined three possible models: a separate human rights commission alongside the new integrated equality body; an integrated body covering the full range of human rights issues and equality issues and thirdly a loose federation of differently focused bodies under a sort of human rights umbrella organisation.

  A. Yes.

  228. Do you think these are all possible or practical models? Do you favour one or the other?

  A. You are absolutely right. Genuinely, I have an open mind at the moment. What has been put to me, also, is there are different ways, you could have a single equality body which I suppose we have signalled already we think there are very good arguments for but there are different ways, I suppose, you could construct the existing strands and the new strands. You could have an umbrella organisation as they have in some countries with the new strands. I think in Australia they have an umbrella, I think I am right, on human rights and there are individual commissioners. There are all sorts of different models. I suppose the only thing I would say to this is that as I take my work forward on the equality side my abiding thing would be what works for us. I always think in these things you could never take a model from another country and say "that is the ideal template". I think you have got to look to say what suits us, what suits our history but also where we want to go. You could argue for all of them.

  229. Which is more desirable, in your view?

  A. Certainly I hope I will be able to give you a bit of a firmer idea when I have listened to what people have to say when we look at the feasability study. I am sorry not to be able to give you a firm view now. As I say, I do not want to close my mind to some of the other models that people might give me. Certainly for me and what I signalled in the equalities area, I think there are still good strong arguments for a single equality body. You may well want to make recommendations to us for either there being perhaps a Northern Ireland model or the single equalities body and the human rights body if you were to go for a human rights body at all and to make that suggestion. I think I would want to listen to the arguments. I think I come with a fairly green mind to the subject.

  230. Can I ask another question. At the IPPR conference last week you said that in the medium term you did not think you would proceed with a single Equalities Act.

  A. Yes.

  231. Also, given the fact that the equalities commissions have different powers at the moment, how do you see them being structured other than a loose federation?

  A. As I understand it, in Northern Ireland they have the single equality commission without there as yet being a single equality act. Certainly I know that these are views that Lord Lester has strong views on and other people have as well. The answer that I would give is that I think you can do one without the other, although I know there are very many people who would strongly refute that. I think what I would say is that if you look at the legislation at the moment, we are in quite a state of flux and change with it. The definition, for example, that we will have on harassment, which has just come through from the conciliation of the Equal Treatment Directive, is slightly different from the one that has actually just been agreed in the Article 13 discussions. First of all, I am not always quite sure what people mean when they say a single Equality Act. I do not mean tinkering in the pejorative sense but do they mean bringing everything into some sort of line or do they mean tearing everything up and starting again, I think there are some differing opinions in that. I suppose my other abiding thought on this is that I do not think you could set these things in stone and I have a fear that we would spend a lot of time trying to set things in legislative stone and they will just stay there, they would not stand the test of time.

  232. If you did end up with a loose federation, how would you ensure it is properly funded?

  A. That will be a question. That could be one of the possible models you could have. I think as you saw, Lady Prashar, from last Wednesday, quite rightly, and I would do exactly the same if I was in their position, all the new commissions and the new strands as well were saying "We have to be properly funded", whether it be a loose federation. What they were saying, also, was if you have a single equality body what you must not do is lose our particular strand and that must be right. That is why I say if we do come to a single equality body it is going to be quite a complex process.

Lord Lester of Herne Hill

  233. Minister, I guess you will agree with us that equality law ought to be capable of being understood by ordinary folk and ought to be based on consistent and coherent principles. As I understand the Government's position, it is deciding to adopt a kind of elastoplast approach to implementing the Article 13 Directives, sticking bits of plaster on particular Statutes or bringing in, entirely by subordinate legislation, bits and pieces of stuff in order to comply strictly with the Article 13 Directives, rather than using primary legislation to clean up the forthcoming and past mess. In other words, as I understand the position, the Government has taken a firm decision to do the amending process in bits and pieces. Just to explain exactly what I mean, you have implemented the Burden of Proof Directive for sex discrimination in such a way that we now have the completely daft position that there is a different burden of proof in employment cases, an easier one for woman, than there is in non-employment cases. The only reason for that is that the Burden of Proof Directive applies only to employment. Similarly, to make it plain, if you do the same thing as you are going to for sexual orientation discrimination, it will apply to employment, not to non-employment, if you do the same for race it will apply only to race discrimination in employment, not non-employment. By the end of this process, you will finish up with the even more intractable problem of age discrimination. You will finish up with a yet further, and probably inconsistent, body of legislation. That is a long winded way of asking you the question: can you please think again about the idea that Baroness Prashar was putting forward of a single coherent intelligent principled piece of primary legislation that not only creates a single coherent commission but also makes the substantive law, one which is going to be as good as what we already have in the Race Relations and Sex Discrimination Acts but with these other kinds of discriminations added on, or is that something you will only think about when, if I may say so, an unwholly mess has been created by the elastoplast approach and then a future Government has to clean it all up again in future legislation?

  A. Just let me say, it will not surprise you to know I would not accept the elastoplast analogy. Let me outline what the approach is. We have not actually, as far as implementation of the Article 13 Directives, taken an uncoordinated approach, in fact we have taken a co-ordinated approach in that we have got the new strands coming in, it would be entirely possible for them to have been done quite separately by separate departments in—to use your phrase, Lord Lester—a piecemeal way but we have not done that. What we decided right from the beginning was that they would be co-ordinated centrally by Government and that is why I am doing it in the Cabinet Office and there would be one consultation document which would come out. The consultation document not only deals with the three new strands but deals with some of the tidying up that we are required to do, not because our legislation is a mess, it is actually because in some cases our legislation has advanced, certainly as far as race is concerned, and some of the things that have happened because of disability, so we have done that. I absolutely agree with your opening remarks about it being done in a way that people understand in order to implement it. That is why it is done in that way. I do hope people will agree as a document we do try to make it reasonably accessible. Looking at the number of replies we have had, over about 850 responses, I think that shows people have found it accessible. I suppose what I am saying to you is that there are more differences between the strands, they do operate in different ways. If I look at something like a genuine occupational requirement, there are reasons why that is going to be done differently. For example, on the belief strand, in order to be a CofE priest presumably you have to be a believing Christian. There are going to be those genuine occupational requirements. In some other areas it is actually quite difficult always to think of what a genuine occupational requirement could be. You are quite right, Lord Lester, to talk about the complexity of the age strand which is why, although we have consulted initially on this document, we are going to consult again next year on age because there are some very complex issues. All of the strands are alike. I suppose my feeling is that one could spend an awfully long time dealing with these things and trying to get some harmony while taking one's eye off the ball which I think is how can you mainstream some of these issues so that you get a true modern equalities agenda.

  234. If I can just briefly follow that up. There is no principled reason, is there, for treating employment differently from non-employment in this field of invidious discrimination? The only reason is, to take Lord Parekh's view, he believes that the Government does not want to lose parliamentary time on the primary legislation and has stuck with the European Community in that approach of subordinate legislation. It therefore cannot go beyond employment and obviously it is that approach which therefore produces an incoherence in the code.

  A. I am not sure it will. I do not think people have actually quite realised how soon some of these strands are coming in. We will be bringing in the new strands on sexual orientation and belief, by the end of 2003.

  235. But only by subordinate legislation and only in employment.

  A. Yes, and vocational training because that is what the Directive requires of us. In saying all of this, Lord Lester, I have always made the point, this is not the end of the equalities agenda on all this, of course it is not. What I would come back to is that this is a huge agenda that we are undertaking. If one thinks of the implementation of the new strands, and particularly again the age strand, which is going to be very, very complex—I know that you would agree with that, Lord Lester—what our consultation and response to this document showed was that certainly we were always going to consult again but that opinion was reinforced. If one thinks about the implementation of that, if you think about what we would need to do if we do decide to set up a single body, that is quite a lot we have to be getting along with.

Baroness Perry of Southwark

  236. Minister, we have referred several times to the two Commissions in Northern Ireland.

  A. Yes.

  237. In your future planning for the equality agenda in the United Kingdom have you given any thought to the place of those two Commissions? Will your equalities commission exclude Northern Ireland? Will it be for Great Britain only or what?

  A. No. We are talking about Great Britain only. Great Britain only. Northern Ireland clearly has its own equality bodies so if we do decide to go down this route we are talking about Great Britain.

  238. Even though the Northern Ireland Equality Commission is not as extensive as you are proposing here for the United Kingdom?

  A. I am not sure that is the case. Certainly they deal, as far as I am aware, though I will write to the Committee if I am wrong with that, with the strands that we are considering at the moment.

  239. I do not know the answer to that. Thank you.

  A. I think I am correct.

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