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Before I go any further, I should like to pay tribute to the work of those who have campaigned so hard on behalf of victims of caste prejudice and discrimination, particularly the noble Lord, Lord Avebury, and the noble and right reverend Lord, Lord Harries of Pentregarth. I think they underestimate what they have achieved through their efforts over the last few years. Their commitment has already achieved a great deal in highlighting the problem and in ensuring consideration of this issue.

As noble Lords closely involved in this campaign know, the Government were already reviewing the NIESR report that has been referred to before my noble friend Lord Avebury tabled his amendment to this Bill at the end of last year. However, a decision by the Government as to what action they would take had not emerged at that stage. During debate in Committee, I undertook that the Government would reach a decision which would be announced before today’s Report. In the light of the strong arguments in Committee, I also undertook to ask the relevant departmental Minister, my honourable friend Helen Grant, to meet representatives from all the major pro-legislation caste organisations. That meeting took place earlier in February and my noble friends Lord Avebury and Lady Northover and the noble Baroness, Lady Thornton, were all able to attend. Though I was not able to be present myself because I was required

4 Mar 2013 : Column 1312

on other business in this House, I met Helen Grant beforehand to relay personally the details of our previous debate. She has since given me a comprehensive read-out of the discussions.

5.45 pm

Be under no doubt, the Minister listened carefully and has reflected thoughtfully since that meeting. For her and for me, the question is not and never has been, “Should we act to do something about caste prejudice and discrimination?”, but rather, “What is the best course of action when all the evidence is taken into account?”. My noble friend Lord Lester referred to some statements that my noble friend Lady Warsi made when we were in opposition about there being a serious problem of caste prejudice. She was right then and she is right now; our position on that has not changed.

There is a clear demand for legislation; that has been put forward without any doubt today. That demand is from those who are affected as well as from those who are speaking for them today. But new legislation is always a big step. Before taking it, we need to be satisfied that it is the most appropriate and effective way of tackling the specific problem. My noble friend Lord Deben, as other noble Lords have rightly acknowledged, made an incredibly powerful speech in this debate. One of the things he said was that no one should suffer discrimination on the grounds of something that they cannot help. He was referring to castes and I agree with him. However, there are other people who suffer prejudice in this country because of their class, their background or their place of birth but we have no legislation on these matters and we deal with them through other approaches.

Lord Deben: I understand that, but none of those things is fixed in the way in which caste is fixed. Those are things which can be changed—sometimes they are just changed by speaking differently. You cannot change your caste, and that is why it is an exact parallel with race and may indeed be included within race. Surely it is not acceptable to say that there is anything else like caste.

Baroness Stowell of Beeston: As I continue laying out the Government’s response, I will answer more directly the points that my noble friend has made. I want to make it plain that there are other forms of prejudice from which people in this country suffer to a great extent for which no clear, direct legislation exists to prevent it happening.

The noble and right reverend Lord, Lord Harries of Pentregarth, provided some rather shocking evidence and stories of discrimination outside the UK, as did other noble Lords. The Government have to legislate to tackle what happens in this country; that is what we—what all Governments—must ensure that we do. The noble Lord, Lord Alton, and the noble Baroness, Lady Flather, talked about the huge number of crimes committed against Dalits in India. We have existing criminal law here in Great Britain for dealing with those kinds of assaults and other crimes if they take place in this country.

At this point, let me make it clear that we remain willing to consider whether there may be a case for

4 Mar 2013 : Column 1313

legislating specifically in regard to caste discrimination, and hence our willingness to meet representatives of the key groups. I will return in a moment to the circumstances that would lead us to such a decision, and why we remain unconvinced that legislation is the best answer. It is clear from the NIESR report, which is the most robust study available so far, that the majority of incidents of caste-related prejudice or abuse would not be covered by equality legislation. Our assessment is that the great majority of cases in the report are either in areas outside the legislation—such as in relation to volunteering, which is not covered by discrimination law—or would already be subject to redress through a range of measures from claims for constructive dismissal to criminal prosecution. That said, we are clear that no one should suffer prejudice because of caste. Such prejudice should not be condoned and it should never be ignored, and that is why I am pleased that the Government have announced that they are taking clear action to tackle caste prejudice and discrimination through an education initiative. I thank my noble friend Lord Sheikh for his support for this initiative, and I must say that I was rather surprised that the noble and right reverend Lord, Lord Harries, dismissed it as being patronising and interfering. Even if a new law on caste discrimination was to be introduced, without education it would not address the underlying causes.

Lord Avebury: Did my noble friend note the quotation I gave from the NIESR report which talked about the educational effect of legislation? The fact is that because employers would have to discharge their responsibilities, they would educate their workforces and thus the whole of society.

Baroness Flather: Who is going to educate whom? We have put down so many things under education that I should think they could fill a whole blackboard. Without legislation, I do not understand who will give this education and who will be educated.

Baroness Stowell of Beeston: I hope that, as I continue my remarks, I will be able to answer the points made by my noble friend and the noble Baroness. My noble friend Lord Avebury talked about business only needing to familiarise itself with caste legislation when a case of discrimination occurs. I would argue that that is not the case. Employers and service providers have to familiarise themselves with the law in order to avoid being faced with claims for discrimination. The noble and right reverend Lord, Lord Harries, asked about the cost of the education initiative. I can inform him that the estimated cost is around £20,000. I should also say that I thought that the contribution made by the noble Lord, Lord Singh, on the history behind caste was very illustrative because it demonstrated the point I have just made in response to my noble friend Lord Avebury about the need, if we were to introduce a law, to educate business in just how complex an issue this is and therefore how much education will be necessary.

The joint initiative between the Department for Communities and Local Government and the Government Equalities Office has already appointed a body called Talk for a Change to take this work

4 Mar 2013 : Column 1314

forward in partnership with any organisation that wishes to become involved in finding practical, community-based solutions to the problems and harm that caste-based prejudice can cause. Over the next few months, the programme will see Talk for a Change running a series of regional workshops that will engage with individuals and organisations from local communities to explore the nature and sensitivities of the caste system and the emotional harm that caste prejudice and discrimination can cause. In response to a point made by my noble friend Lord Deben, I say that the workshops will also be used to raise awareness within those communities of the channels of redress that are already open to those who feel themselves to have been victims of caste prejudice, discrimination or harassment. The outcomes from these events will be used to provide material that can be made available to local authorities, schools, colleges, employers, the police and any others who may come into contact with caste-related issues. The details of how those who wish to participate in this project can get involved will be available shortly on the Talk for a Change website, and we will also ensure that these projects are widely advertised.

We believe that this education programme, which will explore all the issues, not just those covered by discrimination legislation, is an appropriate and targeted way of dealing with incidents related to caste that are not already susceptible to the criminal law or other remedies such as employment law or informal grievance procedures. However, that is not all we are doing. As has already been referred to, the Equality and Human Rights Commission was mentioned several times during our debate in Committee as an important player in this issue. We have been in discussions with the commission about caste discrimination, and both the Government Equalities Office and the commission have agreed that it would be useful to examine the evidence from existing studies and the extent to which different approaches might address the problem. This work will not duplicate the previous work undertaken in the area, such as the NIESR report.

In response to the noble and right reverend Lord, Lord Harries, and my noble friend Lord Avebury, who I think used the term Groundhog Day when commenting on this issue, let me make it absolutely clear how this is going to be different. NIESR carried out primary research to determine whether caste prejudice and discrimination exists in Great Britain. That research included discussions with a range of organisations and interviews with individuals who have claimed to be the victims of such behaviour. The commission will use the evidence that is currently available as part of its consideration of the nature of caste prejudice and harassment and the extent to which this problem is likely to be addressed by legislative or other solutions. The commission intends to publish its findings later this year, which we will of course consider carefully. My noble friend Lord Avebury asked whether a budget had been set aside for the commission to look at this issue. The commission has not requested a budget for this work because, as we debated at length in the previous debate, it is an independent body that takes its own decisions about its workload and spending within its own overall budget.

4 Mar 2013 : Column 1315

My noble and learned friend Lord Mackay of Clashfern raised an important legal matter, and he was supported in doing so by my noble friend Lord Lester. He said that caste is already potentially a subset of race and that perhaps the current existence of the separate power on caste in the Equality Act 2006 detracts from that. It goes without saying that my noble and learned friend knows far more about the law than I could ever begin to know myself, and whenever he intervenes to make a point, I consider it carefully and with great seriousness. However, we are not aware of any case law directly on this point, although I note that my noble friend Lord Lester seemed to suggest that some exists. What I would like to suggest is that, when the commission undertakes its study, this is an area on which it might properly reflect as part of its work. This is precisely the kind of thing that the commission should consider in the work that it is about to do.

Lord Lester of Herne Hill: Is the Minister aware that the UN Committee on the Elimination of Racial Discrimination has called on the United Kingdom to legislate in this area?

Baroness Stowell of Beeston: My noble friend is familiar with the detail in this area. If that is so, I am not in a position to suggest that he is wrong. However, we do not believe that it is necessary to introduce legislation at this time.

The Government are largely in accord with the aims of this amendment. We all want to see an end to caste-based prejudice and discrimination. We are not closing the door to legislation. We have no plans to remove the power from the Act, and we will leave it there in case new evidence emerges which makes it clear that legislation would help to achieve the aim that we all share. As I have already made clear, we will consider the outcome of the commission’s study when it reports later this year.

6 pm

From the limited evidence of caste prejudice already available, we believe that there is much to be gained through a programme of education, and that is something that we can and will get on with immediately. Those who suffer this prejudice have strong support from all sides of this House—that has been made evident today. However, let me also make clear that the people who suffer from this prejudice also have support from Ministers who are currently in government; most particularly, my honourable friend Helen Grant and my noble friend Lady Warsi, who will take a very active role in monitoring the effect of this educational programme and will most definitely take quite seriously the results of the work that the commission has said that it will do. I cannot accept this amendment for all the reasons that I have given, and I hope that, in view of the comprehensive way in which I have responded today, it is possible for the noble and right reverend Lord to consider withdrawing his amendment.

Lord Harries of Pentregarth: First, I thank very much all those who have spoken in support of this amendment for their deeply felt speeches. I also thank

4 Mar 2013 : Column 1316

the Minister for the serious consideration which she has given to this, and for her obviously sincere commitment to the elimination of caste discrimination. I also thank the Minister in the other place, Helen Grant; the Dalit organisations found the meeting with her very helpful.

However, there is a clear division of opinion in this House between those who believe very passionately that it is essential to have a clear law in place at this stage, and those, like the noble Lord, Lord Sheikh, who are with the Government in believing that what is needed is an educational programme. All I ask the noble Lord is whether he would have taken that view when race relations legislation was first being introduced. I suspect he would not have; he would have argued for the importance of a clear law.

The Minister mentioned rightly that a number of the more horrible cases mentioned in our speeches concerned what is happening in India, rather than here. That is true, and this issue needs to be seen against that wider background. None the less, I myself gave a very clear example of employment discrimination in this country, and we can provide the Minister with a whole range of cases in this country, as the report sets out.

The Minister suggested that many of the cases mentioned in that study would not be covered by legislation. That is indeed true. However, a number clearly would, and that is surely the key point. At the moment, people have no legal address, and it is absolutely fundamental to all aspects of the law in this country that people have such address where they feel that they are being discriminated against. While I in no way doubt the sincerity of the Minister and the Government on this issue, there is a clear division of opinion in this House about the necessity of a clear law at this stage. I therefore wish to test the opinion of the House.

6.03 pm

Division on Amendment 73

Contents 256; Not-Contents 153.

Amendment 73 agreed.

Division No.  2

CONTENTS

Adams of Craigielea, B.

Addington, L.

Adebowale, L.

Adonis, L.

Ahmed, L.

Allenby of Megiddo, V.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Avebury, L.

Bach, L.

Bakewell, B.

Barnett, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Best, L.

Bew, L.

Bilimoria, L.

Bilston, L.

Blackstone, B.

Blood, B.

Borrie, L.

Bradley, L.

Bragg, L.

Brennan, L.

Brinton, B.

Brooke of Alverthorpe, L.

Brookeborough, V.

Brookman, L.

Browne of Belmont, L.

Browne of Ladyton, L.

Burnett, L.

Butler of Brockwell, L.

Cameron of Dillington, L.

Campbell of Surbiton, B.

4 Mar 2013 : Column 1317

Campbell-Savours, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cobbold, L.

Collins of Highbury, L.

Colville of Culross, V.

Condon, L.

Cormack, L.

Corston, B.

Cotter, L.

Coussins, B.

Cox, B.

Craig of Radley, L.

Craigavon, V.

Crickhowell, L.

Cunningham of Felling, L.

Davidson of Glen Clova, L.

Davies of Abersoch, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Deben, L.

Deech, B.

Desai, L.

Donaghy, B.

Drake, B.

Dykes, L.

Elder, L.

Elystan-Morgan, L.

Evans of Temple Guiting, L.

Falkland, V.

Farrington of Ribbleton, B.

Fellowes, L.

Filkin, L.

Finlay of Llandaff, B.

Flather, B.

Ford, B.

Foulkes of Cumnock, L.

Freyberg, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Glasman, L.

Golding, B.

Goldsmith, L.

Gould of Potternewton, B.

Grantchester, L.

Greengross, B.

Grenfell, L.

Grey-Thompson, B.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Hardie, L.

Harries of Pentregarth, L.

Harris of Haringey, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hereford, Bp.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Hooper, B.

Howard of Lympne, L.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hussain, L.

Hussein-Ece, B.

Hylton, L.

Irvine of Lairg, L.

Janner of Braunstone, L.

Jay of Ewelme, L.

Jones, L.

Jones of Whitchurch, B.

Jordan, L.

Kakkar, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kestenbaum, L.

Kidron, B.

Kilclooney, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Laming, L.

Layard, L.

Lea of Crondall, L.

Leitch, L.

Lester of Herne Hill, L.

Liddell of Coatdyke, B.

Lipsey, L.

Lister of Burtersett, B.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

Mackay of Clashfern, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maginnis of Drumglass, L.

Mallalieu, B.

Mar, C.

Marks of Henley-on-Thames, L.

Martin of Springburn, L.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Methuen, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan of Drefelin, B.

Morgan of Huyton, B.

Morris of Handsworth, L.

Morris of Yardley, B.

Neville-Jones, B.

Noon, L.

Oakeshott of Seagrove Bay, L.

O'Loan, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Pannick, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Peston, L.

Phillips of Sudbury, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prashar, B.

Prosser, B.

4 Mar 2013 : Column 1318

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Rees of Ludlow, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Robertson of Port Ellen, L.

Rogers of Riverside, L.

Roper, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scotland of Asthal, B.

Selkirk of Douglas, L.

Sharples, B.

Sheldon, L.

Sherlock, B.

Shipley, L.

Shutt of Greetland, L.

Simon, V.

Singh of Wimbledon, L.

Slim, V.

Smith of Basildon, B.

Smith of Clifton, L.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Steel of Aikwood, L.

Stevenson of Balmacara, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Tenby, V.

Thomas of Winchester, B.

Thornton, B.

Tomlinson, L.

Tonge, B.

Tordoff, L.

Touhig, L.

Truscott, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Tyler, L.

Uddin, B.

Wall of New Barnet, B.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wilkins, B.

Williams of Crosby, B.

Wills, L.

Wilson of Tillyorn, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

NOT CONTENTS

Ahmad of Wimbledon, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Bates, L.

Berridge, B.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Bottomley of Nettlestone, B.

Bowness, L.

Brabazon of Tara, L.

Brittan of Spennithorne, L.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Cathcart, E.

Chidgey, L.

Colwyn, L.

Cope of Berkeley, L.

Courtown, E.

De Mauley, L.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Edmiston, L.

Falkner of Margravine, B.

Faulks, L.

Fearn, L.

Fellowes of West Stafford, L.

Fink, L.

Fookes, B.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Geddes, L.

Glasgow, E.

Gold, L.

Goodlad, L.

Goschen, V.

Greenway, L.

Hamilton of Epsom, L.

Hanham, B.

Harris of Peckham, L.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Howard of Rising, L.

Howe, E.

Howe of Aberavon, L.

Howell of Guildford, L.

Hunt of Wirral, L.

Inglewood, L.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

4 Mar 2013 : Column 1319

Loomba, L.

Lothian, M.

Lucas, L.

Luke, L.

Macfarlane of Bearsden, L.

MacGregor of Pulham Market, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Mancroft, L.

Marland, L.

Marlesford, L.

Mayhew of Twysden, L.

Moore of Lower Marsh, L.

Naseby, L.

Nash, L.

Newby, L. [Teller]

Newlove, B.

Northbrook, L.

Northover, B.

O'Cathain, B.

Oppenheim-Barnes, B.

Palmer of Childs Hill, L.

Parminter, B.

Perry of Southwark, B.

Popat, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Ryder of Wensum, L.

Saatchi, L.

Seccombe, B.

Selborne, E.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Sheikh, L.

Shephard of Northwold, B.

Spicer, L.

Stedman-Scott, B.

Stewartby, L.

Stoddart of Swindon, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Taverne, L.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Tope, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Younger of Leckie, V.

6.17 pm

Clause 58 : Equality Act 2010: third party harassment of employees and applicants

Amendment 74 not moved.

Clause 59 : Equality Act 2010: obtaining information for proceedings

Amendment 75

Moved by Lord Lester of Herne Hill

75: Clause 59, leave out Clause 59

Lord Lester of Herne Hill: My Lords, I was unable to take part in the debate on this issue on 14 January in Committee because of ill-health. I am grateful to those who spoke at that time. We are dealing here with a procedure invented in 1974, one that has worked very well and is designed to help people without legal aid to know whether they have a good case for discrimination. This procedure concerns not only ethnic minorities, religious minorities, women, the disabled and the elderly, but everybody protected by the Equality Act 2010.

The repeal of the statutory procedure that enables would-be claimants to use a standard form to find out whether they have a good case would greatly diminish and impair the ability of potential claimants to have effective access to justice in pursuing claims of alleged unlawful discrimination. It would be regressive and undermine the practical benefits of the Equality Act

4 Mar 2013 : Column 1320

for women and girls, ethnic and religious minorities, the disabled, the elderly, and gay and lesbian men and women. I therefore hope that the Minister will be able to accept this amendment so that the procedure may be retained.

The questionnaire procedure was introduced into the Sex Discrimination Act 1975 and the Race Relations Act 1976 when I was special adviser to Home Secretary Roy Jenkins. The White Paper, Racial Discrimination, published in September 1975 explained in paragraph 85 that:

“Help will be given to a person who considers that he may have been discriminated against unlawfully to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner … In addition to helping the aggrieved person to ascertain the nature of the respondent’s case at an early stage by means of a simple, inexpensive procedure, this provision will also enable complaints which are groundless or based on misunderstandings to be resolved without recourse to legal proceedings”.

The position with discrimination law is that the burden of proof remains, as it has always done, on the claimant to make out a prima facie case before the burden shifts to the employer or service provider. The Explanatory Notes to Section 136 of the Equality Act 2010 explain that,

“the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”.

That has always been the position and it involves a fair sharing of the burden of proof. As Karon Monaghan QC notes in the leading textbook on equality law in paragraph 14.18:

“The courts have long acknowledged that proving direct discrimination ... is peculiarly problematic. This is reflected in such statistical data as exists, which indicates that discrimination, particularly race discrimination, cases have lower prospects of success than any other comparable claims”.

She reviewed the case law and concluded:

“The outcome of a case will ... usually depend on the inferences which it is proper to draw from the primary facts. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with the questionnaire provisions”.

Abolishing the questionnaire procedure would deprive the tribunal or court of the power to draw such inferences because of the failure by the employer or other respondent to answer the questions or because they did so in an equivocal and shifty way. That would be unfair and unjust. The Minister accepted in Grand Committee that the questionnaire form is “simple and straightforward” but she cited fears expressed by the Opposition in 1975 that the procedure might be abused. That was before the forms were published and used and there is no evidence of which I am aware that the procedure has been abused or indeed criticised by any court, tribunal, legal practitioner or academic during the 35 years it has operated. I invite my noble friend the Minister to indicate whether she agrees, or has even a scintilla of evidence—as opposed to assertion—that any court, tribunal, legal practitioner or academic during the past 35 years has ever suggested that the procedure is abusive. In Grand Committee the Minister referred to the procedure as not being replicated in other areas of employment law. That is because there

4 Mar 2013 : Column 1321

are special difficulties in proving discrimination cases, as the courts have repeatedly said.

The procedure has proved to be of real practical benefit for potential claimants and respondents and was extended by successive Governments and Parliaments to the other forms of unlawful discrimination in the employment, education, goods and services, and public service provision fields. It applies to alleged discrimination because of religion or belief, sexual orientation, disability, and age, and in relation to equal pay without sex discrimination. It was included in Section 138 of the 2010 Act without controversy or any opposition in either House. It does not require the complainant to use the forms prescribed by the Minister, so there is no micromanagement here.

Complaints of alleged discrimination—whether direct or indirect—are, as I have said, very hard to prove and most of the relevant information is in the possession of the respondent rather than the claimant. For example, in a direct discrimination case the claimant has to choose a comparator to prove less favourable treatment on a ground forbidden by the Act. The burden of proof is on the complainant. Only the respondent is in possession of the relevant facts about whether the comparison is appropriate and whether the facts show less favourable treatment, and, if so, the reason for this. Similarly, in an indirect discrimination case, the claimant has to prove disproportionate adverse impact on forbidden grounds. Again, only the respondent has the facts, including statistical or other material and whether there is an objective justification for the discriminatory barrier.

It is essential that the potential respondent is encouraged to disclose the essential facts at an early stage to help the potential claimant to know whether to proceed and also to encourage conciliation and settlements by encouraging the respondent to take the matter seriously pre-litigation. If the procedure were abused, the employer or service provider could refuse to reply and the tribunal would uphold their position because of the abusive approach of the claimant.

These considerations were not brought out in the Government’s consultation paper, which stated that the Government had seen no evidence that the question and answer procedure reduces litigation. As a result of the consultation, however, evidence did come to light, notably from the Equality and Human Rights Commission, about the practical utility of the procedure. The commission’s position paper was published in August 2012. Its evidence is particularly important. Parliament has made the commission responsible for monitoring the effectiveness of the legislation and the likely effect of a proposed change of law. That is what Parliament has decided. The commission is able to draw on 35 years of experience by the equality agencies it has replaced.

The commission has explained that the procedure has led to cases being resolved or not being pursued and that repealing Section 138 would limit the evidence on which a claimant can rely in proving their case. The commission has found the procedure useful in assessing the strength of a case and has made decisions not to assist a case under Section 28 based on the response to questionnaires. By making it harder for the claimant to seek an effective remedy for discrimination there is

4 Mar 2013 : Column 1322

an increased risk of a legal challenge to the repeal of Section 138. The commission also rightly points out that claimants will still have the right to pose questions pre-claim but that it is preferable to do so on the basis of the questionnaire.

The Government’s response does not address any of the issues raised by supporters of the procedure—some 83% of respondents—including not only the EHRC, trade unions and the equality NGOs but also the judiciary. The Government dismiss the evidence as not “quantifiable” and state that the question and answer procedure,

“encourages undesirable micro-management of the process by government, including prescribing the nature of the forms to be used, and the time limits involved”.

It is difficult to understand how the procedure can be described as micromanagement, still less as undesirable micromanagement. The Government consider that the more effective approach is to leave,

“businesses free to decide how and whether they respond to enquiries of this sort, with any attendant balance of risk that may be involved”.

I cannot agree. With the existing questionnaires, the tribunal or court can draw a negative inference against an employer who fails to respond to the questionnaire. That is an important incentive for employers, trade unions and services providers to respond. Without that incentive the help given under the Equality Act and its predecessor Acts is taken away and the claimant falls back on the disclosure powers of the courts and tribunals. These are extensive and disclosure orders are far more time consuming than filling out the existing questionnaires.

In its excellent briefing, the Equality and Diversity Forum expressed concern about the proposal to abolish the questionnaire procedure because it saves money by deterring ill-founded litigation, enables the early resolution of disputes, clarifies the issues in contention and facilitates access to justice. Some 83% of consultees oppose the repeal of this provision. Indeed—your Lordships may think this is a killer point—the president and the regional employment judges of the employment tribunals have described it as a retrograde step. There is no credible evidence that I know of that the procedure is a burden on business. I agree and I beg to move.

6.30 pm

Lord Ouseley: My Lords, I support this amendment in the name of the noble Lord, Lord Lester of Herne Hill. I do so on the basis of comments that I made in Committee, which I will try not to repeat while trying to contextualise this Bill and where the equality aspects sit in it. Clearly, much of what the noble Lord has already said explains the difficulty that victims of discrimination have in proving discrimination, with the whip hand being with the employer and with the information often being inaccessible.

The Bill itself has an underlying theme. I feel that it is to allow employers to hire and fire without any fear, weakening employees’ rights and reducing the support and representation available to victims of discrimination in the workplace, while making the EHRC weaker. It transfers many of its resources and functions to the GEO, where the Government will have greater control. The Government have cut the previous grants programme

4 Mar 2013 : Column 1323

and diminished the helpline. They are converting the EHRC into some form of strategic think-tank, which is unrelated to the reality and everyday struggle of disadvantaged and disaffected communities across the country. It is among those groups that we find many of the less powerful victims of unlawful discrimination. In addition, there are closures of advice and law centres, with legal aid being denied and costs now being associated with employment tribunal cases. That is the severe context in which we have to look at the attempt to withdraw the questionnaire procedure.

This is being done largely on the basis, as argued by the Government, that it is a burden on employers to have to respond to questions being asked by employees about their treatment. Employees have to get that information to determine whether they have a basis on which to go forward with a case of unlawful discrimination. Without that information, they literally have no basis for doing so. The basis of my support for this amendment is my experience of working with and against employers who want to get rid of their employees. Many employers clearly support the reform put forward here—getting rid of the questionnaire—because they do not want to be accountable for their actions or to respond to questionnaires in which they have to provide explanations for their actions. They regard these questionnaires, as the government side have argued in taking this forward, as a nuisance.

Employers also find some of the questions being asked challenging. That is not simply because they are seen and interpreted as a fishing exercise but because unless those questions are asked, employees who have a feeling that they have been discriminated against or an awareness that they have been treated unfairly, and probably unlawfully, are unable to carry forward their grievance. They cannot get redress without assistance, which I have already mentioned is vanishing, and certainly without the information that they need. Some of the questions asked, which may bring forward information or are sometimes not answered, are exactly what is required to help employees understand the nature of the discrimination they have suffered or understand the explanation for why they have been treated in certain ways that render it impossible for them to succeed in a case before a tribunal.

As the noble Lord, Lord Lester, pointed out, 83% of those who responded to the consultation opposed the repeal of the questionnaires. We have had submitted to us the EHRC’s position which recognises the usefulness and importance of retaining questionnaires. Indeed, we have had a submission from the Discrimination Law Association, which provided examples of the usefulness of the questionnaires in helping both employees and employers. Practitioners right across the country have contributed to that. I hope that the Minister will recognise that the case has not been made, with evidence, of how questionnaires are a burden for employers, other than that they see them as a nuisance and an irritant. In fact, in the name of justice, equality and fairness, and to enable the existing legislation to be undertaken and enforced effectively, as it has to be, the usefulness of the questionnaires should be retained for that purpose.

4 Mar 2013 : Column 1324

Baroness Turner of Camden: My Lords, I have no desire to add to the two very detailed contributions that have just been made to this debate. However, I fully support the amendment. I am opposed to the abolition of the questionnaire procedure. I cannot understand why the Government are proceeding down this path. As has already been indicated, the questionnaire procedure saves money by deterring ill founded litigation. Most of the consultees, including the British Chambers of Commerce, were opposed to it while surveys have shown that none of the businesses questioned raised concerns about the questionnaire procedure. Quite honestly, there is no evidence at all that the questionnaire procedure is a burden on business. As far as the trade union movement is concerned, the TUC is totally opposed to the abolition of the questionnaire. I hope that the Government, having listened to the two previous noble Lords, will agree that this is not the path to go down and will not proceed with the abolition.

Baroness Thornton: My Lords, I was very happy to put my name to this amendment from the noble Lord, Lord Lester. He spoke with great passion and authority about this issue at Second Reading and has done so again to explain why this amendment is so important. In terms of practical equalities on an everyday basis, this is probably the most important amendment we are going to discuss today because it is about how ordinary people can start to challenge whether they have been discriminated against.

As the noble Lord, Lord Lester, and my noble friend Lady Turner have just said, there is no evidence that this procedure is being used as a fishing exercise. Case law makes clear that businesses and other respondents are not required to answer questions which are disproportionate and that a poor response would not automatically lead to a finding of discrimination. Indeed, the Government’s impact assessment fails to provide any empirical support for removing this so-called regulatory burden on businesses. The questionnaire procedure facilitates access to justice. It helps both parties to assess where a claim lies and enables them to reach an early settlement where appropriate. It is therefore crucial that the Government should not repeal Section 138 of the Equality Act 2010.

Baroness Stowell of Beeston: My Lords, I am grateful to all noble Lords for their contributions today on this matter. I start by repeating what I said in Committee on this measure: our proposal does not impact on the substantive rights of those who believe that they have encountered discrimination. It does not deny people access to justice or reduce the remedies available to those who have experienced discrimination. It simply replaces an out-of-date system with a simpler and fairer approach for all. Let me be clear: we want a process that commands confidence from all the parties likely to be involved in discrimination cases.

Before I go any further, I will respond to a point made by the noble Lord, Lord Ouseley, about legal aid. He suggested that it was being denied, making it harder for people to bring claims. Legal aid continues to be available in discrimination cases.

Our concerns are with the nature of the statutory mechanism around Section 138 of the Act, and the particular combination of features—an unlimited

4 Mar 2013 : Column 1325

scope for request of detail concerning a possible complaint, a short deadline for response and the tribunal’s power to draw pejorative inference from the response or lack of it—which employers and businesses feel really back them into a corner. This process started off, as my noble friend Lord Lester said, over 40 years ago with the intention of a straightforward question and answer procedure. In 1975, the then Minister described it as a way of enabling the complainant to obtain simple, basic information on which to decide whether to start a case. Noble Lords might compare that sentiment to actual, although, of course, anonymised, examples of the sort of questions that are nowadays put to employers. Here are a couple: “Please specify the number of employees who have requested, applied for or been invited to transfer to another department within the 18 month calendar period prior to” whatever date; “Please explain how many of those transferred had raised grievances whether formal or informal, prior to their transfer.”

At times the number of supplementary questions runs to 40, 50 or even 100, all of which employers, including small employers, often feel required to answer within eight weeks or face a tribunal case where they are already handicapped by the inferences which the tribunal may draw under the statute. It is, therefore, not surprising that many businesses feel that the balance has shifted too far in favour of the claimant. The repeal that we propose will address this and, together with the non-statutory arrangements that we are working on, will make for a fairer and simpler process, as I said before, for all involved.

My noble friend Lord Lester said that no court, tribunal or legal practitioner had ever suggested that the procedure is abused. I am happy to write to my noble friend about this because we believe some legal practitioners would certainly disagree with his statement that no abuse occurs. I hope he will not mind if I follow up on that in writing rather than trying to respond today on the Floor of the House.

When we debated this in Committee, some noble Lords doubted my contention that,

“not one single employer or business organisation told us that they saw value in the questionnaires”.—[

Official Report

, 14/1/13; col. GC 136.]

Indeed, that has been challenged again today by my noble friend Lord Lester and the noble Baronesses, Lady Turner of Camden and Lady Thornton. I find that a bit surprising because I thought that the letter I sent to the noble Baroness, Lady Thornton, on 8 February provided the evidence for that statement. Indeed, I noted in that letter the alienation of employers and other companies from the view expressed frequently in debates on this clause that the obtaining information process benefits business as well as individuals by weeding out unmeritorious claims. In support of this, I refer to one particular response which sums up the employer view: “The information we send in response is rarely if ever used subsequently in the case, but does require us to undertake a considerable amount of work obtaining and collating the requested information.” It is a matter of concern that what is seen in Parliament as a major benefit of the procedure—its usefulness, on

4 Mar 2013 : Column 1326

occasion, to both parties as a prevention mechanism—is in reality simply not shared, or even recognised, by respondents to the questionnaires.

Despite this, I emphasise that we are not trying to do away with the concept of pre-claim disclosure. We do indeed note the claim of those arguing in favour of retaining these provisions that pre-claim disclosure can on occasion be helpful to all concerned. That brings me to what we propose to put in place of Section 138 of the Equality Act. I underline what I said in Committee about the value we see in encouraging a pre-claim dialogue and exchange of information. Our early conciliation provisions in the Bill are intended to achieve just that and will provide the right sort of platform to help establish the basic facts to determine if discrimination has occurred. However, even if parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding—

6.45 pm

Lord Lester of Herne Hill: I would like clarification, although I am listening very carefully. Is it contemplated that the conciliation procedure will enable a claimant to do something like serve such a questionnaire in order to try to understand whether they have a good case or not, or is this procedure to be abolished if the Government have their way?

Baroness Stowell of Beeston: To be absolutely clear, this is not about abolishing the opportunity for anybody to submit questions to an employer to gather information. All we are removing is the statutory requirement for that employer to have to respond to those questions within a time limit, and, if they were not to do so, providing for their non-response to be considered by the tribunal service.

I will return to what I was saying. If parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding of the issue and of the tribunal process. The individual will then still be able to seek information from the employer or service provider, before making any decision on whether to take their claim to the tribunal. Individuals will still be free to seek information from an employer or service provider about alleged discriminatory conduct without the statutory process. Information can be sought informally, in writing or orally.

To help this process, this informal approach will be set out in ACAS-approved guidance. This is being developed with the input of interested parties, including the Equality and Diversity Forum, the Equality and Human Rights Commission, and the CBI. Since we last debated this issue, ACAS has developed draft guidance for consideration by the group of interested parties. The guidance will include advice on how to seek pre-claim information in the employment as well as the goods and services context.

My noble friend Lord Lester referred to the fact that without statutory procedure employers will not help claimants by providing information. My response is that we are removing that statutory requirement for them to respond. When that ceases to exist, courts and tribunals may still take into account a refusal to

4 Mar 2013 : Column 1327

answer questions or their provision of answers that look evasive when deciding whether a case of discrimination has been made out. The fact that there is no statutory process does not remove the risk to an employer or service provider of deciding not to respond to a claimant; it only removes the unnecessary and prescriptive process around that.

In conclusion I remind noble Lords of what I said in Committee, that we are now in a different climate to 40 years ago when this legislation was introduced. Businesses are more concerned with upholding their reputations and the damage reputational risk may have on their position in their market. There is a greater trend towards transparency around information held by business. Clearly that is progress and something that we support.

I hope that noble Lords can agree that the statutory process is no longer the right approach and that our alternative arrangements will continue to enable the kind of pre-claim dialogue that business and the Government are fully committed to supporting, with a lighter-touch process which benefits all equally. I hope that in responding I have given my noble friend at least some assurance that might lead him to withdraw his amendment.

Lord Lester of Herne Hill: I am grateful to the Minister and to others who have taken part in the debate. I wish that there had been some assurance that I could rely upon, because I very much hoped that it would not be necessary to test the opinion of the House. However, as the noble Baroness, Lady Thornton, said, this is probably—in fact it is—the most important amendment that the House is considering, because it seeks to help the vulnerable, who are more than half the population. If you add together women, elderly people, the disabled, black people, brown people, religious minorities, and the gay and lesbian community, it comes to more than half the population. Therefore, to take away a simple procedure that has worked well in the estimation of all the judges and experts whom I have ever known—and I can claim a bit of expertise, since I have been arguing cases in this area for about 30 years, God help me, and perhaps I have a little more practical experience than some others who are advising the Government—will make it very hard to bring a discrimination claim.

It is all very well to say, “Oh well, you don’t need the statutory thing—you can just go and write a letter”. To write a letter that will lead to any kind of result probably means going to a solicitor or a trade union representative, if you are lucky enough to have one in the real world. In the real world, without this procedure, and without legal aid for employment tribunals, the applicant will bring cases that are misconceived, the conciliation process will not work well because of a lack of information, and the whole situation will be worse for victims. I do not know whether the Conservative part of the coalition wishes to go into the next election with credit for having dismantled one piece of valuable assistance to claimants. If it does, so be it. That, however, would be foolish. I speak only for the Liberal Democrats, but I do not believe that the Conservative part of the Government wishes to undo the valuable

4 Mar 2013 : Column 1328

work done by previous Conservative Governments over the past 30 or 40 years in supporting this measure and others like it.

We put this on the statute book only two years ago in the 2010 Act, with all-party support. What has changed since then? The Red Tape Challenge. The original notion of that was to dismantle the whole of the equality legislation, and this is one part that has survived. It is foolish of the Government to continue to do this, and therefore I must reluctantly beg leave to test the opinion of the House.

6.52 pm

Division on Amendment 75

Contents 167; Not-Contents 179.

Amendment 75 disagreed.

Division No.  3

CONTENTS

Adams of Craigielea, B.

Adonis, L.

Ahmed, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Avebury, L.

Bach, L.

Barnett, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Bhatia, L.

Bilimoria, L.

Blackstone, B.

Blood, B.

Borrie, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Ladyton, L.

Campbell of Surbiton, B.

Campbell-Savours, L.

Clancarty, E.

Clark of Windermere, L.

Clinton-Davis, L.

Collins of Highbury, L.

Colville of Culross, V.

Corston, B.

Cunningham of Felling, L.

Davidson of Glen Clova, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Desai, L.

Donaghy, B.

Drake, B.

Elder, L.

Elystan-Morgan, L.

Falconer of Thoroton, L.

Farrington of Ribbleton, B.

Fellowes, L.

Filkin, L.

Ford, B.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Golding, B.

Goldsmith, L.

Gould of Potternewton, B.

Grantchester, L.

Grenfell, L.

Grey-Thompson, B.

Grocott, L.

Hanworth, V.

Hardie, L.

Harris of Haringey, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Janner of Braunstone, L.

Jay of Ewelme, L.

Jones, L.

Jones of Whitchurch, B.

Jordan, L.

Kennedy of Southwark, L.

Kidron, B.

Kinnock, L.

Kirkhill, L.

Layard, L.

Lea of Crondall, L.

Lester of Herne Hill, L.

Liddell of Coatdyke, B.

Lipsey, L.

Lister of Burtersett, B.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Mallalieu, B.

Martin of Springburn, L.

Masham of Ilton, B.

Maxton, L.

Mitchell, L.

4 Mar 2013 : Column 1329

Monks, L.

Morgan of Huyton, B.

Morris of Handsworth, L.

Morris of Yardley, B.

Noon, L.

O'Loan, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Pannick, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Prashar, B.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Robertson of Port Ellen, L.

Rogers of Riverside, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scotland of Asthal, B.

Sharp of Guildford, B.

Sheldon, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Steel of Aikwood, L.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Tonge, B.

Tope, L.

Touhig, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Wilkins, B.

Williams of Crosby, B.

Wills, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Barker, B.

Bates, L.

Berridge, B.

Bew, L.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Bottomley of Nettlestone, B.

Bowness, L.

Brabazon of Tara, L.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browne of Belmont, L.

Browning, B.

Burnett, L.

Buscombe, B.

Cathcart, E.

Chidgey, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Craig of Radley, L.

Craigavon, V.

Crickhowell, L.

De Mauley, L.

Deben, L.

Deech, B.

Deighton, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Falkner of Margravine, B.

Faulks, L.

Fearn, L.

Fellowes of West Stafford, L.

Fink, L.

Fookes, B.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

Glasgow, E.

Goodlad, L.

Goschen, V.

Greenway, L.

Hamilton of Epsom, L.

Hanham, B.

Harris of Peckham, L.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Hooper, B.

Howard of Lympne, L.

Howard of Rising, L.

Howe, E.

Howe of Aberavon, L.

4 Mar 2013 : Column 1330

Howell of Guildford, L.

Hunt of Wirral, L.

Hussain, L.

Inglewood, L.

James of Blackheath, L.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kakkar, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Laming, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Loomba, L.

Lothian, M.

Luke, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Maginnis of Drumglass, L.

Mancroft, L.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Mayhew of Twysden, L.

Moore of Lower Marsh, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Palmer of Childs Hill, L.

Parminter, B.

Patel, L.

Perry of Southwark, B.

Popat, L.

Randerson, B.

Razzall, L.

Redesdale, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Roper, L.

Saatchi, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Shutt of Greetland, L.

Spicer, L.

Stedman-Scott, B.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Taverne, L.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Tordoff, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Tyler, L.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Younger of Leckie, V.

7.03 pm

Amendment 76

Moved by Baroness Thornton

76: After Clause 59, insert the following new Clause—

“Equality Act 2010: Equality Impact Assessment

(1) The Equality Act 2010 is amended as follows.

(2) In section 149 (public sector equality duty), after subsection (6) insert—

“(6A) A public authority shall make the following arrangements for compliance with the duties under this section—

(a) assessing and consulting on the likely impact of its proposed policies on the promotion of its duties under this section;

(b) monitoring its policies for any adverse impact on the fulfilment of its duties under this section;

(c) publishing the results of such assessments and consultations as are mentioned in paragraph (a) and of such monitoring as is mentioned in paragraph (b);

4 Mar 2013 : Column 1331

(d) ensuring public access to information and services which it provides; and

(e) training staff in connection with the duties imposed by this section.””

Baroness Thornton: My Lords, Amendment 76 concerns equality impact assessments and would reinstate statutory requirements to undertake them as part of the public sector equality duty. An equality impact assessment involves assessing the likely or actual effects of policies or services on people in respect of disability, gender and racial equality. While equality impact assessments are not legally required, they have been widely adopted as an effective and efficient means for public authorities to undertake proper consideration of equal opportunities. They are described by the authorities that use them as,

“a positive force for the delivery of real equality”.

Moreover, case law suggests that these assessments provide robust evidence documenting how decisions were reached. Indeed, case law has confirmed that to have due regard to equality, a public authority needs to gather sufficient information about the impact on equality, give such information proper consideration at a formative stage of decision-making and consider whether any negative impact can be eliminated, mitigated or justified. Authorities are also advised to have some kind of audit trail to show that the actions they took comply with the duty. Therefore, while it is true that the courts have never held that there is a requirement to complete a written equality impact assessment or that having an equality impact assessment itself is sufficient to show compliance with a duty—especially if it has been completed with a purely tick-box or form-filling mentality—the main components of a good-quality, substantive equality impact assessment process are what the courts have held to be necessary in order to have due regard to equality.

It does not help to ensure public authorities’ compliance with their duty to have the Prime Minister and other government Ministers simply dismissing equality impact assessments as wasteful, bureaucratic and unnecessary exercises. Rather than calling time on equality impact assessments, as the Prime Minister did at the CBI conference in November 2012, we believe that these vital assessments should be enshrined in legislation. We therefore call for an additional amendment to be made to the Enterprise and Regulatory Reform Bill that would require public authorities to assess, consult, publish and monitor the likely impact of proposed policies.

This becomes even more important when, days after the announcement of a review of the public sector equality duty by the Secretary of State, Maria Miller, the Prime Minister announced that public sector organisations will no longer be required to undertake equality impact assessments as a means of fulfilling their obligations outlined in the public sector equality duty. Instead, these important assessments have been dismissed as unnecessary.

Repeated government announcements about equality law being burdensome red tape, the declaration of the Prime Minister at the CBI conference, and the dismissal of equality monitoring by the Communities Secretary Eric Pickles as unnecessary, intrusive and a waste of taxpayers’ money, fuel our concerns about the removal

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of these assessments. Indeed, I was reflecting that it would be nice if this Government actually made some positive announcements about equality impact assessments and how they are necessary to judge the impact of how public money is spent and used. Just saying, as the Prime Minister did, that,

“We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff … so I can tell you today, we are calling time on equality impact assessments”,

seems to me to be a somewhat facile assessment of what is a useful public sector tool.

It is notable that the review of the public sector equality duty comes after the Government were criticised by the EHRC for failing to abide by the requirements within it. Furthermore, despite its membership including four Conservatives, not one Labour politician has been appointed to the steering committee that is reviewing this. Will the Minister tell us when the steering group looking at the public sector equality duty is due to report? My understanding is that it has been further delayed and that it will not now report until the summer. How is the steering group conducting its inquiry and who is it inviting to talk to it about the public sector equality duty?

Will the Minister also comment on a recent blog for Liberal Democrat Voice by the BIS and Equality Minister Jo Swinson? She seemed to imply that the duty has actually held policymakers back from properly considering equality. She said:

“As Liberal Democrats, we do not think equalities should be about ticking boxes and regulatory hoops—it’s too important to be relegated to an administrative duty. Advancing LGBT, gender, disability and race equality will only be achieved by putting equalities at the heart of every department”.

She is right about that, but you also need to see the effects of the policies you are pursuing.

The Minister needs to address two issues. First, if you do not have an equality impact assessment, how will you assess the effect of the work of public authorities? Secondly, if the body that is reviewing the public sector equality duty reports back that it does not think it is necessary, what will the Government do with that information? Are we going to find ourselves at the end of the summer in a situation in which the Government completely stop looking at the impact of any of their policies, spending commitments and decisions on factors such as age or gender, or on any of the different groups, such as LGBT people, covered by equality legislation? I am at a loss to know what direction the Government think they are taking with this so-called regulatory reform. I beg to move.

Baroness Hussein-Ece: My Lords, I, too, support this amendment, to which I have added my name, as it seems to me there is an awful lot of misinformation regarding the benefits of having an equality impact assessment as part of the public sector equality duty. The noble Baroness has just mentioned tick-box exercises and bureaucracy, and described how this provision can be seen as a burden. However, it is an important tool and has been successfully used to assess the impact of public services and of government policy on vulnerable people. For many decades this was not the case. I cite my experience of working in a health authority before the public sector equality duty came

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into force, when it was very much up to the relevant health authority to assess whether different sections of the community or different groups received the same level of service, whether they could access that service and, indeed, whether the service was even appropriate. The public sector equality duty has gone some way to ensuring that vulnerable people, who are not always able to articulate the fact that they are not accessing a service or not benefiting from public services, are catered for and is an important way of ensuring that services are tailored to the local community. As I say, it has achieved some success.

I am not going to defend in your Lordships’ House every aspect of the way that this provision has been implemented. Of course, there is always room for improvement and greater accountability, and the amendment tries to address that. However, we must ensure that equality and the right of access to services is open to all, regardless of who they are or their background. Concerns have been raised about the way in which the steering group that has been mentioned has been established to review this issue. There does not seem to be a lot of transparency in the way that the review will conducted. There is also a lot of concern about the independence of the group given that everybody on it seems to be from a political party. I know that there is somebody from the Liberal Democrats on it but I have had no contact with that person. I would like to know how the group will take evidence and evaluate whether equality impact assessments should be changed or, indeed, removed. I, too, would like more information about this steering group which has been charged with this very important task.

As I say, the duty encourages proactive action to close equality gaps in health provision for different ethnic and other groups, and to ensure that services meet the needs of those who use them. It provides an important evidence base to support provision that is effective and efficient and ensures that services provide value for money, so it has served an important purpose. I hope that the Minister will accommodate some sections of this amendment and will look at equality impact assessments as a way of assisting the provision of services as opposed to being detrimental to them. I declare an interest as a commissioner of the Equality and Human Rights Commission when it instigated a review of the Treasury’s compliance with the duty as regards the 2010 spending review. The public sector equality duty can make a huge difference if applied purposefully, and was seen by people in the Treasury and, indeed, by people in government as a helpful thing to do. Aspects of that spending review, such as its impact on women and minority groups, might not have been considered, so the duty was seen as a positive and helpful measure. I hope that the Minister will say how she thinks we may continue on a positive note by rolling this out.

7.15 pm

Lord Deben: I hope that the Minister will not accept this amendment because it seems to me that this is a good example of substituting reality with a bureaucratic answer. Surely what we are trying to do in this legislation is so to embed it in people’s attitudes and concepts that there is no need to have complicated bureaucratic

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form-filling and ticking-off. Most of us who run businesses would not dream of having a provision like this. However, most of us who run businesses would also be very insistent that decisions were made with a proper understanding of their impact on women as well as men and on minorities as well as majorities.

I hope the Minister will accept that many in today’s society consider that these issues should perfectly properly be dealt with in law—a law which I am happy to say looks as if it will be more inclusive than it has been up to now—but that people should themselves find the best way of handling them. The Government should not present people with a detailed arrangement such as appears in this amendment, which I am afraid very often becomes a substitute for action. People may say, “I have done my assessment and therefore I don’t have to think”. What we really need is for people to think creatively about how best to do these things. It is very much better not to lay down a recipe of the kind proposed in the amendment, which slightly reminds me of the nannying schemes which have made these provisions less popular than they ought to be. I am afraid that many people do not think of equality as a progressive and positive thing but rather as merely another drudgery which is laid on them. We do not want that; we want a society where equality is included as a natural way of looking at how you run a business, a local authority or a public authority. We do not want someone to feel that he or she has done their bit of homework, has ticked the boxes the right way and can now forget about it. I am afraid that the “I can now forget about it” syndrome cannot be legislated against but is very often the result of an amendment such as the one before us.

Lord Harris of Haringey: My Lords, having listened to all the debates today in your Lordships’ House, I am very conscious that there is a clear consensus among your Lordships on the importance of all organisations, particularly public sector organisations, working towards achieving equality. That has emerged in all the discussion that we have had. Core to that is the equality duty on public bodies.

I understand that the Government are reviewing all this but I hope that this evening’s debate will be influential in ensuring not only that they recognise the value of that general equality duty for the whole of the public sector, but also see the value of strengthening it in the way that this amendment seeks to do. My experience is that, if you are to achieve equality in the workplace—equality in terms of the way in which you provide services—it requires several things to be in place.

First, it requires visible leadership from those responsible for the organisation or in charge of it that shows that they believe that this is important. Secondly, it requires that policies are made in an evidence-based way; that information is used to assess how the policies are working, how the services are being delivered, who benefits and who perhaps is missing out. That requires the collection and collation of information, so that those in charge of the organisation can make the appropriate decisions. It also requires a degree of enforcement. But to say that you can achieve all of these things only by enforcement or only by one element of those different requirements is to set the arrangement up to fail.

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I have listened with great interest to the speech of the noble Lord, Lord Deben, who has highlighted that you do not want to create a tick-box mentality. That is absolutely right and is true in all sorts of areas. That is not what you want to achieve. However, if people are trying to apply the general duty on equality—or indeed what would be implied by this amendment in terms of the way in which equality impact assessments are concerned—in a tick-box mentality, then you will lose out entirely. This amendment sets a framework by which all public authorities can say, “We are doing our job properly and effectively”. How can you argue that there is something overprescriptive by saying that the duty of the public authority should be to assess and consult on the likely impact of its proposed policies? Surely that is sensible good practice. How can you say that that is overprescriptive? It is simply requiring public authorities to do what is right.

Similarly, requiring public authorities to monitor their policies for any adverse impact is again requiring that they do what is right. It is not being overprescriptive; it is simply saying to them, “This is what you should do to deliver your general duty on equality”. This is not an overprescriptive amendment; it is something that is there to provide a framework which public authorities can use.

I am also very clear that, in making decisions, public bodies have to look, check and see what the implications are. These assessments provide a framework which requires them to consider all the relevant factors in doing that. I know that when we make a decision on a public body we are required to consider all the relevant considerations and not consider those considerations which are irrelevant—I forget the precise form of words, but that is the standard rubric. This provides a framework to make sure that all the relevant considerations are being addressed. More importantly, it provides an audit trail, so that anyone looking at it can see how a decision has been taken and how the different issues have been factored in because there has been an equality impact assessment. That places quite a pressure on those making decisions that they have not only considered all the relevant factors but are able to justify what they have done. That is an extremely important and very good discipline for those who make public decisions.

The equalities duty has been an important step forward for public bodies in this country. Some of them still struggle with how to implement it and some still have a long way to go but, as a basic building block for ensuring that public services are delivered fairly and in line with the objectives that I think all of your Lordships have said they support during the course of various debates today, they have been extremely valuable.

I mentioned at the beginning that one of the requirements for delivering equality, whether at local level, public body or by government, is leadership. I hope that the Government will show clear leadership in agreeing that there is an importance to the public sector general duty on equality and accepting the importance of this amendment, which provides a sensible framework for equality impact assessments.

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The Prime Minister is worried that this is going to become overbureaucratic. I suspect that by providing a framework in legislation for what is needed, some of those overbureaucratic elements will disappear simply because people are no longer trying to interpret what might be a necessary way of doing this and erring on the side of caution. This is a way of setting out a framework which will enhance the work that public authorities should be doing to promote equality.

Baroness Prosser: My Lords, I support this amendment. I was reminded by the noble Lord, Lord Deben, of something that happened a good many years ago when I was the national women’s secretary of the Transport and General Workers’ Union. I was on a mission to include within the rulebook of the union requirements for each of our administrative areas to provide positive action programmes for women, and for sanctions to be introduced into the rulebook against those senior officials of the union who might be found guilty of harassment or bad behaviour towards women. “Attacked” is not the right word, but the response of more senior people in the union than me—men—verged on that. They said to me: “We don’t need a change in the rulebook, what we need is a change of culture”. I said: “Of course we do, I absolutely agree that we need a change of culture, but while we are working on the change of culture we will have a change in the rulebook so that outwith those rules you will not operate”.

We all know that large bureaucracies find it terribly difficult to shift. The idea that organisations out there—public sector bodies, services, et cetera—are going to be able to change their culture, and be willing or capable of doing that in any speedy fashion without some framework within which we require them to operate, seems to me to be cloud-cuckoo-land. I do not believe that if we remove the pressure for equality impact assessments to be the final step in delivering public sector equality duties we will see any change at all going on out there. I support this amendment and I hope that others will also do so.

Baroness Stowell of Beeston: My Lords, I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece. I will explain my views on their amendment. I am grateful to them because it provides me with an opportunity to respond to some points which are important in this wider debate about equality impact assessments and the public sector equality duty.

Before I get into that, let me say from the start that this Government have a strong commitment to establishing a strong, modern, fair Britain which is built on two key principles: equal treatment and equal opportunity for all. The equality duty was designed to ensure that the needs of people are taken into account when public bodies develop, change, implement or review a new policy or service.

The amendment was discussed in Committee and, as has been explained by the noble Baroness, Lady Thornton, seeks to impose a number of processes on public bodies in addition to the central requirement to have due regard to the three main aims of the equality duty when exercising their functions. Some of the requirements it seeks to impose are already an integral

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part of the process of complying with the public sector equality duty. Having due regard to the equality duty when exercising their public functions is the legal duty on all public bodies. Let me be clear; that has not changed, nor has the requirement to be able to demonstrate that it has happened. For example, the proposal for public bodies to assess and monitor the likely impact of their proposed and actual policies is already required, while the requirement to publish the results of such assessments is caught by the requirement in the specific duties to publish information to demonstrate compliance with the duty. These requirements include considering the need to eliminate unlawful discrimination, advance equality of opportunity, and foster good relations between people with different characteristics. Public bodies are also required to publish information at least annually to show how they have done this, and to set at least every four years equality objectives that will promote these aims. There is therefore already a thorough requirement on public bodies to have due regard to the public sector equality duty.

7.30 pm

In his speech to the CBI last year, to which the noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred, the Prime Minister was calling time only on the equality impact assessment process, which seemed to have become meaningless around Whitehall. He was not calling time on the duty to have due regard to equality in decision-making itself. Indeed, I referred in Committee to “reverse-engineering” where it was clear that departments had sometimes not considered equality as they made a decision, but used the form at the end of the decision-making progress to justify that decision. My noble friend Lord Deben in Committee referred to an example of a local authority taking matters too far to the other extreme and, perversely, being proud that it had done so because, for the local authority, it had demonstrated its commitment. I am grateful to my noble friend for his comments today and for expressing eloquently and powerfully, as he always does, why greater prescription on the equality impact assessment would have a detrimental effect on the way that we expect bodies to carry out this duty, and the ultimate outcome that it exists to achieve.

There are examples in case law that demonstrate that the courts have found a lack of due regard to equality in instances where an equality impact assessment has been produced. The fact that this has happened shows that some public bodies have done no more than do what we all say we do not want—a tick-box process.

I turn now to the review of the public sector equality duty, which the noble Baroness, Lady Thornton, asked about in particular. It is important to be clear on this. This is a review of how the duty is operating. In other words, is it delivering what was intended? It is not a review of whether public bodies should have due regard for equality when exercising their functions. To be clear, this is about how they have, not whether they should have, due regard to equality. It is vital to review our approach in this area to ensure that it is delivering as effectively as it can what all of us believe in and want: the achievement of equality and fairness, and

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that the elimination of discrimination as policy is made and services designed. My noble friend Lord Deben was eloquent in explaining why that is so important.

The review will explore the impact of the duty in terms of costs, burdens and benefits, and recommend what changes, if any, would ensure better equality outcomes in a non-bureaucratic way. The review is being overseen by an independent steering group, chaired by Rob Hayward, who, among other things, is a trustee of Central YMCA and an adviser to the Terrence Higgins Trust. The steering group is made up of senior figures with experience in public sector delivery, including the noble Baroness, Lady O’Neill, in her capacity as the chair of the Equality and Human Rights Commission.

Baroness O'Neill of Bengarve: I have observer status; I am not a member of the working party.

Baroness Stowell of Beeston: I am grateful to the noble Baroness for her clarification, and I am sorry if I misrepresented her position on the steering group.

The noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred to the membership of the steering group. I say clearly that its members have been selected because of their experience and knowledge around these issues, and it is not intended at all to be a politically representative body. The steering group represents the main delivery public sectors of policing, education, health, local and central government. It can use their expertise to shape the scope of the evidence-gathering and develop the final recommendations. As the noble Baroness, Lady Thornton, said, we have extended the timetable to June from the previous announced date of the end of April at the request of the chair and the steering group to help to ensure that the review and its recommendations are robust.

The evidence-gathering for the review began in January and includes a series of round tables, involving a wide variety of experts, to gather evidence on how the duty is operating. The first round table involved voluntary and community sector organisations such as the Equality and Diversity Forum, the Stephen Lawrence Trust and Age UK. The second involved lawyers from across the public sector. A further six round tables are planned, including with inspectorates, private sector contractors and senior decision-makers. The work will include site visits to public bodies, for example to a police force or a school, to examine the experiences of different individuals within an organisation. The work will also include the commissioning of qualitative research, which will be conducted independently—as is always the case in these matters—through a series of in-depth interviews with public bodies. We will be inviting evidence from organisations and individuals about the operation of the duty, which should provide insight about public bodies’ experiences of working with the duty. We are also analysing written evidence in the form of existing literature, case law and international comparisons. We are therefore approaching this review with an open mind and gathering evidence from numerous sources to get a comprehensive picture of how the duty operates in practice.

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The noble Baroness, Lady Thornton, asked how we would respond once the work is complete and the steering group produces its report. As I am sure she would expect me to say, it is far too early for me to speculate on how we will respond. However, given that we have set up the review and given it the remit to roam and consult as widely as it is doing, we will clearly take the report seriously and are looking forward to receiving it.

The equality duty and supporting regulations provide sufficient safeguards for holding public bodies to account, and introducing a further legal requirement for an equality impact assessment will not add anything material. Furthermore, the timing is not right when we are taking stock of how the current legislation is operating in practice. As I have said before and to make absolutely clear, this is a review of how that responsibility is operating, not whether public bodies should have due regard for equality. I hope that I have been able to give the noble Baroness more information about the review, and I am grateful for that opportunity.

Baroness Thornton: My Lords, I thank my noble friends Lord Harrison and Lady Prosser, and the noble Baroness, Lady Hussein-Ece, for their comments. I also thank the noble Lord, Lord Deben, who, as ever, made pertinent comments.

The response from the Minister was actually very helpful. We do not agree and I would obviously much prefer that the equality impact assessments were mandatory. There is no question that that would work better. However, while the Minister may not have given much comfort to her noble friend Lord Deben in what she said about the way she sees the public sector equality duty and impact assessments working, I found the Minister’s response useful and helpful, and I will read her comments in greater detail.

As to the public sector equality duty review, it was useful and reassuring to know that the review is ranging far and wide and taking evidence from a range of bodies. The Government would have been wise to make the review more balanced, given that politicians from different councils are taking part. It would have been useful to have had a Labour person on the steering group, but that does not mean that the outcome will not be useful. I am also reassured that the review is taking time to get this right.

Given the information that the noble Baroness has provided to the House, I am happy, at this stage, to beg leave to withdraw the amendment.

Amendment 76 withdrawn.

Amendment 77

Moved by Baroness Prosser

77: After Clause 59, insert the following new Clause—

“Commission for Equality and Human Rights: appointment of Chair and commissioners

(1) Schedule 1 to the Equality Act 2006 (the Commission: constitution, &c) is amended as follows.

(2) In Part 1, after paragraph 1(1) insert—

“(1A) Appointments shall not take effect until such time as they are approved by a Committee of both Houses of Parliament.”

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(3) In Part 2, paragraph 7, for sub-paragraph (2) substitute—

“(2) An appointment under sub-paragraph (1)(a) shall not take effect until such time as it has been approved by a Committee of both Houses of Parliament.””

Baroness Prosser: Before speaking to this amendment, I should like to clarify for your Lordships any question of a possible conflict of interest. I was until 3 December last year the deputy chair of the Equality and Human Rights Commission. At that point, I had served two three-year terms and my appointment terminated. I therefore no longer have a direct interest in the commission but I do of course retain a general interest in both the commission and its work.

Turning to the matter at hand, perhaps I may express to noble Lords my overall view of the value of this part of the debate on Clause 57 and why this group of amendments is so important to the future of the commission and to equalities in our country more generally. The ability of citizens to feel and believe that they have an equal chance in life and, importantly, to feel and believe that their Government think they should have an equal chance is key and central to the development of a harmonious and comfortable society. At this particular time, with its harsh economic circumstances and shortage of employment opportunities, it is common for those who are struggling to lay the blame for their plight on those less familiar to them.

Situations such as these require Governments to be strong and forthright in making clear their support for tolerance and fairness, and to speak loudly of the value of legislation and government machinery which helps people to enjoy equal rights and to access recourse to justice when those rights are violated. Comments from government which continually link equalities legislation with red tape, bureaucracy and burdens undermine the confidence of citizens and allow for the growth of intolerance and unfair behaviour. The purpose of this group of amendments is to enable the Government to be seen to recognise that the Equality and Human Rights Commission is a valuable, serious and important tool in delivering and regulating equality legislation in this country. It would put the commission on the same footing, for example, as the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman.

Strengthening the commission’s accountability to Parliament has been endorsed by the United Nations International Co-ordinating Committee chair. In a letter to the then Minister for Equalities, Theresa May, the ICC chair, Dr Mousa Borayzat, suggests that the Government should use the opportunity of this Bill to strengthen the provisions of the Equality Act 2006 in areas related to the commission’s independence.

Parliamentary scrutiny of the appointment of the commission chair has already taken place. The noble Baroness, Lady O’Neill, appointed in November of last year, appeared before the Joint Committee on Human Rights. That extra interest and study of the recommended candidate not only adds to the status of the appointment but involves and includes Parliament in the process. Greater knowledge and greater transparency ensue. Amendment 77 calls for this process to be extended to the appointment of commissioners—again, increasing knowledge and transparency—and I look forward to the Minister’s response on that point.

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Amendments 78 and 79 seek to rectify the current unsatisfactory position whereby the commission’s annual report and accounts and the strategic plan are presented to whichever Secretary of State happens to have the current responsibility for equalities generally. Since its inception, the commission has reported to four different Secretaries of State, each of whom has had equalities added to their already busy portfolio of responsibilities. Changes to the responsibilities of those Secretaries of State have meant that the commission has been shuffled around Whitehall depending on where the Secretary of State came from. It is a very unsatisfactory state of affairs. Given that the rights and responsibilities contained within the equalities agenda touch every single adult in the land, is it not more sensible and more appropriate for Parliament to oversee and question these important reports and plans?

Finally, I turn to Amendment 80, which calls for the commission’s budget to be approved by Parliament. Two dangers arise from leaving the situation as it is. First, the current practice is for a budget allocation to be drawn up and allocated to the Government Equalities Office. This money then gets separated out with a share going to the EHRC. This hardly helps to instil any sense that the commission can maintain a healthy independence from government. Secondly, and most seriously, the EHRC is internationally recognised as the national human rights institution for England and Wales. Crucially, financial health and independence are central to our being able to maintain that international recognition.

In 2012, the UN General Assembly adopted the Belgrade principles. These relate to the relationship between NHRIs and national parliaments, and they include several mechanisms for closer relations between parliaments and national human rights institutions. For example, parliaments should develop a legal framework for the NHRI which secures its independence and its direct accountability to parliament. The principles also suggest that parliaments should invite members of NHRIs to debate their strategic plan and/or their annual programme of activities in relation to their annual budget. These amendments would enable government to state clearly that arrangements in this country most certainly comply with the Belgrade principles.

None of these amendments should concern the Government’s desire to go easy on regulation or so-called red tape. They are all designed to help the Government to promote their commitment to the equality and human rights agenda and to send a message to the citizens of Britain that government believes in openness and transparency and the delivery of equal opportunities for all. I beg to move.

Baroness Hussein-Ece: My Lords, I shall not keep the House too long as the noble Baroness, Lady Prosser, has given such a comprehensive introduction to this group of amendments, to which I have added my name. There are just a few points that I should like to add.

The steps outlined in the amendments are, as I see it, enabling. They enable the commission to fulfil its mandate more effectively and to achieve more balance between independence, accountability and transparency.

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They build on recent developments such as the first pre-appointment hearing of the commission’s chair, as was mentioned.

I declare an interest as a commissioner of the Equality and Human Rights Commission until last December. I am all too well aware that the commission is very keen to advance its relationship with Parliament and to have the ability to work across government departments. As has been said, the current arrangement has acted as a hindrance and has not oiled the wheels, so to speak, to enable the commission to work more effectively with other government departments—something that it should be doing. It has the responsibility to work with all departments across government, given its wide-ranging remit. The current arrangement of going through the Government Equalities Office has limited this to an extent. I see the commission’s responsibility for assessing how the Government comply with, for example, domestic and international equality rights obligations as a positive development and a strengthening of its relationship with Parliament.

At Second Reading, I said that setting the budget is so important that it needs to be done in a more timely, transparent and effective way. I was at the budget-setting process last year. I remember being at a board meeting in February when the commissioners still had no idea what their budget would be from 1 April. That is not satisfactory or acceptable, and it needs to be addressed. Taking these amendments on board would go some way to addressing this and making sure that the commission becomes more transparent and accountable and is allowed to function. We talk about a red tape challenge, but it goes both ways. There has been a lot of red tape attached to this commission from its inception. It has almost been bound and gagged at birth and has not been allowed to function properly. This is a way of releasing it to an extent, while keeping some important checks and balances in place.

Baroness Thornton: My Lords, I agree completely with the noble Baroness, Lady Hussein-Ece. I have written down “micromanagement by the Government Equalities Office is a bit of a red tape challenge that the Government could probably do well to look at”, so our thoughts were heading in the same direction. I see this group of amendments as continuing the positive discussion that we had in Grand Committee, where the Minister started to explain where the Government were going and what the direction of travel was. I see this group of amendments as part of that process and discussion, and I congratulate my noble friend Lady Prosser on her introduction.

What we are essentially addressing here is how the EHRC can deliver its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations, how it can best do that and how it can be independent in doing so. It seems to us that parliamentary accountability would provide the commission with that appropriate independence from Government to fulfil its role impartially. I hope that the Minister will accept something that I said in Grand Committee: this is not a means of stopping the Government setting the overall policy direction on equality matters. Everybody accepts that that is the Government’s job. However, it

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means that our Commission for Equality and Human Rights, apart from anything else, has the necessary independence to from time to time be critical of the Government and hold them properly to account.

Baroness Stowell of Beeston: My Lords, as I said in response to the first debate this afternoon, the Government want a strong, independent Equality and Human Rights Commission that promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as a strategic enforcer of the law. Clearly, we also value its “A” status and want it to retain it. We are committed to strengthening its accountability to Parliament and, in responding to this debate, I hope I can demonstrate what progress we are making.

I start with the appointments. As already acknowledged by the noble Baroness, Lady Prosser, and others who have contributed to the debate, the appointment of the new chair of the commission, the noble Baroness, Lady O’Neill, was for the first time subject to pre-appointment scrutiny by the Joint Committee on Human Rights. That is a move that the Government welcome. In January, we appointed six new commissioners and, with the appointment of the new chair, we believe that the new board marks the start of a new era for the commission steering it in a new strategic direction. We want to see the commission go from strength to strength. We are open to discussing with the Joint Committee on Human Rights how it can be involved in future appointments.

Since the debate in Committee, the Joint Committee on Human Rights has been in touch with my honourable friend the Minister for Women and Equalities, Helen Grant, who is the Minister responsible for the commission. The JCHR has set out its plans to work with the commission to strengthen the commission’s accountability to, and co-operation with, Parliament and, in particular, with the JCHR itself. I am aware that the JCHR seeks to work with the EHRC to develop a protocol of collaborative working strategies to improve accountability. I certainly echo the sentiment expressed in my honourable friend Helen Grant’s reply to the letter from the chair of the committee. We welcome the non-legislative approach taken by the JCHR, and following this exchange of correspondence, which was circulated to noble Lords before today’s debate, I understand that at the request of the chair of the Joint Committee on Human Rights a meeting will take place soon. To reiterate: there is ongoing dialogue between the commission and the JCHR to the effect that the noble Baroness, Lady Prosser, has argued for in her amendment.

I reassure the House that the commission’s annual report and accounts are already laid before Parliament, as well as its strategic plan and its reports on progress. With respect to the commission’s budget, since Committee, and as I referred to earlier today, we have published the outcome of the comprehensive budget review. This review, conducted in partnership with the commission, sets out the agreed level of funding adequate for the commission to fulfil its functions. As the noble Baroness, Lady O’Neill, said, the review agrees a budget that will allow the commission to,

“continue as an effective organisation in all our roles”.

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Furthermore, as my noble friend Lord Lester mentioned in Committee, the commission’s founding legislation includes an obligation for Ministers to make sure that it receives reasonably sufficient funding to fulfil its functions. That will continue. As such, we do not believe that it is necessary for Parliament to set directly the commission’s budget.

The vast majority of public bodies are set up in a similar way to the Equality and Human Rights Commission, and that is because it is not practical as a general rule for Parliament to provide the level of day-to-day support often required. To agree a budget with an organisation requires quite a lot of ongoing detailed discussion to reach an agreed amount. That is not something which usually lends itself to the work of a Select Committee. My noble friend Lord Deben, who has a good deal of experience with this, made that argument during Committee. It is worth pointing out that, unlike most other such bodies, there is no power for Ministers to compel the commission to do anything, so in terms of the process by which it agrees its budget, it does not set a budget to ensure it fulfils something that it does not want to do.

Moving on to the framework document, officials are working with the commission to put in place a new, improved framework by the end of this month. While I cannot go into the detail as this work is ongoing, I can assure noble Lords that officials are working to ensure the commission’s independence is not compromised by the need for it to be accountable. The noble Baroness, Lady Prosser, and others referred to the ICC’s view of the commission’s accountability to Parliament. It is quite right that in 2010 the ICC, as part of its special review, suggested that it might be sensible for the Government to consider increasing the level of the commission’s accountability to Parliament. Our view is that this is being achieved through the steps we are taking, some of which I have just outlined. I should also make clear that the commission was accredited as an “A”-rated institution without any change in its reporting arrangements. My point is that its “A” status was conferred on it as it is currently constituted, so it already exists in the way that it is constructed. I am aware that the commission will be considered at the next meeting of the ICC’s sub-committee on accreditation in May. As I stated in Committee, we have a constructive dialogue with the chair of the ICC and this will continue.

8 pm

My noble friend Lady Hussein-Ece raised the relationship between the commission and Ministers and its accountability to Parliament. Let me be clear, the commission is accountable to the Secretary of State for Culture, Media and Sport in her capacity as the Minister for Women and Equalities. She in turn is accountable to Parliament. That is a standard arrangement for non-departmental public bodies. The rules governing the relationship between the Government and the commission are the same as those for the majority of non-departmental public bodies. As I said just a moment ago, like most other such bodies, Ministers have no power to compel the commission to do anything. Parliament has scrutinised and challenged the work of

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the commission through Parliamentary Questions, Select Committee hearings and correspondence and will continue to do so.

I hope I have been able to demonstrate that we have worked hard with the commission to strengthen its relationship with Parliament and that we continue to support further engagement. We believe that working in partnership with the commission, as we did on the recent budget review, is the most effective way of securing the best possible outcome for the commission in fulfilling its role as a respected and valued institution nationally and internationally.

The commission continues to make great strides in improving itself as an organisation, and we look forward, as I am sure the whole House does, to an improved and closer working relationship between the commission and Parliament. I hope that after this response, the noble Baroness, Lady Prosser, will feel able to withdraw her amendment.

Baroness Prosser: I thank the Minister for that very helpful response. In fact, it was rather more helpful than I thought it might be. Obviously, they were very positive words and comments. Perhaps I may make a couple of points on some of the matters that have been raised. I am grateful to hear that discussions are going on with the Joint Committee on Human Rights regarding further involvement in the appointment of commissioners, for example. The discussion around the development of protocol will be extremely helpful. On the budget, I of course understand that these matters start their life within the Treasury and work their way out from there. Perhaps some consideration might be given to the involvement of the Joint Committee on Human Rights as the debate evolves.

Finally, the framework document has gone through many iterations over the past year or so. I am grateful to hear that it seems to be moving towards containing a respect for the independence of the commission, which has been a concern during that time. With those comments and with thanks to the noble Baroness for her remarks, I beg leave to withdraw the amendment.

Amendment 77 withdrawn.

Amendments 78 to 80 not moved.

Consideration on Report adjourned.


First World War: Centenary

Question for Short Debate

8.04 pm

Tabled By Lord Clark of Windermere

To ask Her Majesty's Government what plans they have to commemorate the centenary of the First World War.

Lord Popat: My Lords, because the noble Lord’s Question for Short Debate will now be taken as last business, the time limit for the debate becomes 90 minutes rather than 60 minutes. Speeches should therefore be

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limited to three minutes, except for those by the noble Lord, Lord Clark of Windermere, and the Minister, which remain limited to 10 and 12 minutes respectively.

Lord Clark of Windermere: My Lords, it is a privilege to lead this debate on the Government’s proposals for the commemoration of World War I. It is a war which came to epitomise carnage and human sacrifice. Many in this House will have had grandparents and occasionally parents who participated in that conflict. My own grandfather left the pits of County Durham to mine under the German lines. I remember a photograph on the mantelpiece of my other grandfather handling horses with the border regiments.

There was a terrific response to the war and to patriotism. Even as late as the 1950s when I worked in Cumbria, there were still many who had fought in World War I. The interesting thing was that very few of them ever spoke about it. About 20 years later, when I was doing some research into the early years of the Labour movement in Britain, I met a great many other individuals who had taken the opposite point of view. Many had been conscientious objectors who opposed the war—not usually on religious grounds but on political grounds. Their opposition was not upheld by the tribunals and most of them ended up in prison. Indeed, they were very strange jailbirds. However, one thing was clear: both sides respected the other over the years and both groups of individuals were very brave. One must accept that.

I found preparing for this debate quite difficult. I am not a pacifist. For five years, I was the principal spokesman for my party as the Shadow Secretary for Defence. I was a member of the political wing of NATO for nearly 20 years and I had the pleasure of leading the British delegation for more than five years. However, I must admit that in studying World War I, at times I have found it very difficult to justify. World War I was divisive then and it is now, in both its justification and especially, probably, in its conduct. The latter continues to divide our society, which has been one of the challenges for the Government and Dr Murrison MP as he tried to outline a plan of approach. I think that basically he has got it right.

The phrase, “lions led by donkeys”, so aptly used by another former Member of the other House, Alan Clarke, still resonates today. The stories of hampers from Fortnum & Mason and the approximately 200 British generals driving their Rolls Royces behind the lines really did not go down well when those soldiers returned to the land fit for heroes.

In a sense, it was not only the beginning of the war that was divisive but the aftermath as well. I believe that every one of us in this House will agree on one thing; namely, the bravery, courage and valour of the men who suffered the horror and deprivations of that war. Life in the trenches was hell. With that we can all agree. I think that that is a rallying point for us tonight. One realises that more than 1.2 million allied servicemen lost their lives and double that number of Germans lost their lives in that conflict. Overall, 10 million people died.

Even today, going into the fields of Passchendaele you are told that there still are 100,000 bodies unaccounted for. In one day at the Somme, 200,000 British military

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personnel lost their lives. As the Prime Minister said when he launched the Government’s commemoration, of the 14,000 parishes in England and Wales, only 50 did not lose any parishioners during World War I. In Scotland and Northern Ireland, not a single community could boast even that.

I checked very quickly up the road from where I live in Grasmere, and 25 people in a very small village lost their lives in World War 1. Tragic as it was, only two lost their lives in World War 2. The scale of the carnage is clear for all.

The Government have recognised these sensitivities. Correctly, they have ruled out any talk whatever of celebration, and the emphasis is on commemoration and remembrance, and that is correct. They appear to have the tone right, although I trust that over the four years of the commemorations there will be flexibility in which we can adapt to what is needed. The Prime Minister identified the objectives when he said on 11 October last year that the commemoration was,

“to honour those who served; to remember those who died; and to ensure that the lessons learned live with us”.

That is absolutely right.

World War I was a turning point not only for us here in Britain, but for the whole of Europe. Initially, volunteers flocked to fight for king and country. That slogan began to lose its appeal fairly quickly and conscription had to be introduced. What began as a war between three conflicting empires headed by three monarchs—three cousins—quickly changed and the consequences for the class structure throughout Europe were certainly challenging.

What began as patriotic fervour ended by laying the groundwork for democracy and freedom across the continent and a growing awareness of internationalism. Those are three things that we should not shy away from. As we commemorate what those brave men fought for, it was for democracy, freedom and a better way of resolving international problems than going to war.

The effect shook the Government. Some 8.4 million women were given the vote in 1918. Hurrah to that. All men were given the vote, because prior to 1918, only just over half the men had the vote. Many working men did not have a vote and that was put right. It was a major step towards democracy.

We must make sure that the commemoration of which we speak flows across the nation and through local communities. There will be the great national events, with the Imperial War Museum providing the lead. Other national institutions such as Westminster Abbey, the British Library, the Armed Forces, the Royal British Legion, the BBC, the War Memorials Trust, the Woodland Trust and many others will all have their parts to play. But most of the activity will be at community level. This will underpin the activity and ensure that the commemoration is a success and long lasting.

The Government’s plan for every secondary school and a teacher to be able to go out to France, Belgium and further afield is very much to be welcomed. I understand that that will be paid for by a special government grant. However, the demand in the localities of the local history libraries and county archives will be very strong. We must make sure that people are not

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disappointed and I therefore ask the Government to make sure that adequate money is not only provided nationally but at a local level as well.

8.14 pm

Baroness Fookes: My Lords, I am sure that all of us in this Chamber are most grateful to the noble Lord for giving us the chance to debate this matter and for the thoughtful way in which he approached the subject himself. He reminded us that grandparents or even fathers fought in this war. As a private soldier, my own father did so as a very young man. When I was thinking about that, it suddenly struck me for the first time that had he not come through unscathed, at least in body, I should not be here at all. That may be a matter on which there is a division of opinion, but it is a sobering thought that so many lost their lives in that war, as has been said so eloquently this evening.

In the short time that remains to me, I want to stress the role of women, which was touched on by the noble Lord, Lord Clark. First, many young women lost their young husbands and probably for ever after remained widows, perhaps bringing up small children. We saw this in the Second World War as well of course, but in the First World War there was no War Widows’ Association, of which I am proud to be president, to take care of them. It was a very difficult road for them not only emotionally but in practical terms. We need to remember that.

We should also remember the immense contribution made by women in the workplace when so many young men were taken off to fight and the women filled in the gaps, even in the munitions factories. It was probably that contribution that contributed very much to their emancipation in 1918, although of course there was still a certain caution as I believe they could not vote until the age of 30. It was 10 years later before they could vote at the general age of 21, but at least it was a start.

We need also to remember those women who never even had the chance to be married or to have children because of this great dearth of young men who were sadly killed in the very prime of their lives. That must have been a very great tragedy for all those women—a kind of unseen tragedy—and we ought to remember them. It is my hope that, when the Minister answers tonight, he will indicate that this role of women in its various forms will permeate all the commemorations which will take place whether nationally or locally. I do not want to see this as an add-on or afterthought. I want it to be right in the midst of it. I shall conclude on that note.

8.17 pm

Lord Foulkes of Cumnock: My Lords, I am pleased to follow my almost namesake and I am sure I speak on behalf of the whole House in saying that we are glad her father did survive and that she is with us as a result. I am also glad that I have time to thank my noble friend Lord Clark of Windermere for raising this issue today.

My interest in these World War 1 commemorations arises for two reasons. The first is personal. Both speakers have said this already and I am sure more will do so. My maternal grandfather, Alexander Rhind,

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served with the 6th Gordons in France and Flanders. He won the Military Medal for Gallantry. I still have that medal and I am very proud to keep it.

I have also been pursuing the interests of a certain football club with which I have connections. I have raised this previously in a Question. Almost the whole of the first team of Heart of Midlothian Football Club joined up and served in McCrae’s Battalion in 1914-18. Sadly many of them did not return. Those of us connected with the club are particularly anxious that there should be a mention of this and an involvement in the commemorations of the club, the fans and everyone else. As a result, I have been in touch with many of the public and private people involved in the commemorations—and there are many groups already. I have encountered two problems that I wish to raise. The first is the lack of co-ordination at both a United Kingdom and a Scotland level. In Edinburgh the Lord Provost is bringing together all those involved so there is co-ordination there. However, it is important that there is greater co-ordination to help build up momentum at both a Scottish and a United Kingdom level, so that people know what others are doing and work together in a more effective way. With respect, I do not think this is happening at the moment.

Secondly, we also need some greater imagination and I think this is lacking at present. As my noble friend Lord Clark of Windermere said, we have the military, the museums and galleries, and the schools involved—the traditional interests—and they are planning the usual kind of activities. This is very welcome, very worthy, but it is not enough. This country which marvelled at the brilliant spectacle of the Olympics can and must do better. We must involve all aspects of our life. The theatre can put on great performances; music can be composed specially; the arts should be involved. All sorts of sporting activities can take place. After all, at Christmas there was a truce and a football match took place. We should take these things, work on them and make it much more exciting. Millions gave their lives for us in 1914-18 so we need a series of high-quality, imaginative and above all unforgettable events and activities in 2014-18.

8.21 pm

Baroness Bonham-Carter of Yarnbury: My Lords, like my noble friend Lady Fookes, I shall draw attention to the vital contribution made by women in the First World War. When I look around this House and see how many men and how few women have put down their names to speak, I hope I am not going to be too repetitive where this debate is concerned.

I want to start by congratulating the Heritage Lottery Fund on awarding £140,000 to centenary projects that specifically celebrate the war effort of women. This includes £70,000 to the Florence Nightingale Museum to commemorate the volunteer field hospital at Bourbourg near Dunkirk.

Women were not, of course, only field nurses. Approximately 1.5 million joined the workforce during World War 1. They worked across government departments, on public transport, running post offices, as clerks in businesses and, as the noble Baroness, Lady Fookes, mentioned, as munitionettes. Women’s

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war work included non-combat jobs in the military services but they were also part of anti-aircraft units which shot down German planes.

In the words of suffragette, Dame Millicent Garrett Fawcett:

“The war revolutionised the industrial position of women … It not only opened opportunities of employment in a number of skilled trades but, more important even than this, it revolutionised men’s minds and their conception of the sort of work of which the ordinary everyday woman was capable”.

That, of course, as was mentioned by the noble Lord, Lord Clark of Windermere, and the noble Baroness, Lady Fookes, led finally to emancipation. They also joined trade unions. In 1914 there were only 357,000 female members; in 1918 there were over a million. Despite this, women’s wages remained unequal. Today, 100 years after the First World War and 40 years after the Equal Pay Act, women working in the UK are still paid on average about 15% less per annum than men. Perhaps I may suggest to my noble friend the Minister that an appropriate and lasting legacy would be a commitment to closing this gender gap at last.

Finally, other noble Lords have talked about their ancestors. I will not go into too much detail about my great-grandfather, but my grandmother’s generation lost brothers, lovers and friends, and only 25 years later it was happening again. My own first cousin never knew his father due to conflict within Europe—due to European fighting European. In commemorating this centenary, let us please emphasise the importance of collaboration over isolation.

8.24 pm

Viscount Colville of Culross: My Lords, I declare an interest as a director of history programmes at the BBC. I should like to thank the noble Lord, Lord Clark, for bringing forward this timely debate.

Quite rightly, the big events planned for four years from 2014 will concentrate on remembering the dreadful loss of life that took place in the First World War, but if those sacrifices are to mean anything, they have to be put into an historical context and they have to raise questions which are relevant to the citizens of a democracy in this, the uncertain 21st century. The most important question of all is: when is it right and just to go to war? I know from making history programmes myself that the great stories of history remain just that, great stories, unless they raise questions which can connect with a modern audience. Our Armed Forces are still engaged in Afghanistan and there is the political temptation to become involved in other wars, albeit for the highest moral reasons. So these questions have never been more important for the people of our country and its leaders.

For this legacy to have a really lasting resonance, we need to bring fresh eyes and thoughts to the First World War as a great catalyst for change. I would like to see historians shine a light on to hitherto unexplored areas of change during that tumultuous era. After all, it was the first time that we saw total economic mobilisation, with its huge industrial and social consequences. Likewise, it would be good to look at the role of religion in the various arenas of the First World War because it is still not well understood.

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In the Middle East, we saw Islam, Judaism and Christianity come in conflict, a legacy that we still live with today. And maybe we should even investigate the states of emergency declared by Governments during the war which allowed the progressive extension of government intervention into the lives of citizens. Might this not help us in our debates about current terrorist legislation?

I would like the people of Britain to go on an extraordinary journey over the four years between 2014 and 2018. By 2018, I would like them to be giving recognition to the totally different world we live in by enhancing the appeal of Armistice Day so that it becomes not just a day of remembrance, but something even more powerful and forward-looking. All the veterans of the First World War have died and by 2018 the 70th anniversary of VE Day will have passed. There will be only a few veterans of the Second World War left. We will always need to remember the great sacrifices made by so many brave men and women in the First World War and in all wars. However, I would like to ask this of the Minister. Could 11 November also be a day of national reconciliation and self-awareness? Perhaps we could even give it an additional name. We could call it Remembrance and National Day.

8.27 pm

Lord Cope of Berkeley: “When you go home”, look at your local war memorial. War memorials are our inheritance from those who first resolved that, “We will remember them”. Most are getting close to their centenary now. They belong to us all, and therefore in a way often seem to belong to no one. I am a trustee of the War Memorials Trust. The trust helps to conserve such memorials of every kind in the UK. Jointly with English Heritage, we have just launched warmemorialsonline.org.uk which enables the public—including noble Lords, if I may say so—to register their local memorials and to tell us about their condition.

Another of our programmes helps to prevent the stealing of plaques by metal thieves. Metals at risk can be painted with a forensic liquid called SmartWater which enables stolen metals to be traced, even if they are melted down. It is a great deterrent that is now widely applied to church roofs and other vulnerable metals. Thanks to our partners, the SmartWater Foundation, any war memorial can be protected in this way free of charge. I hope that noble Lords will ensure that their local memorials are recorded and protected.

I hope also that the commemorations will include all the participants in that terrible war. It was not, as it sometimes seems, just Britain v Germany full stop, as it were. My father first served on the Western Front at Passchendaele and elsewhere, partly with colonial troops from the West Indies. After recovering from a wound, he was sent to join Allenby’s force in Palestine, which had a large Anzac element fighting alongside the Arabs against the Turks. En route there his troopship was torpedoed and sunk in the Mediterranean by a German submarine, and he and others were rescued by one of the escorting destroyers from the Japanese navy. It is for such reasons that it was called World

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War 1, and we should commemorate it in its entirety. However, in my view the real disaster was the Versailles Peace Conference. One commentator at the time said that we had fought the war to end all wars, and he feared that we had just agreed the peace to end all peace.

8.30 pm

Baroness Andrews: My Lords, I am very pleased to take part in the debate this evening. I congratulate the noble Lord, Lord Clark, on securing this opportunity, and on his speech which captured the totality and scale of the war without passing over the fact that what we remember—the extraordinary, haunting images which we hold of this war—are individuals, usually men, on the battlefield.

I declare an interest as chair of English Heritage. We will be commemorating the war in many different ways. We are going to focus on the sites and memorials associated with the First World War, and the often untold and unrecognised heritage. Many of the great buildings which we hold in trust—the castles and great houses—were, for example, turned into hospitals and training camps. We will be conserving the story of Cannock Chase, for example, which is the largest of the training camps. In Richmond Castle, there is graffiti left behind by conscientious objectors, which is now in a state of decay. This is an extremely important and honourable part of the memory which we must honour as well.

Obviously, we also want to generate new knowledge. We are seeking to fund a pilot national archaeology project to research and record traces of World War 1—another programme for the noble Viscount, Lord Colville, I hope. It will also enable us to think again about the significance of these sites, about how we designate them in the future and how we conserve them. The noble Lord, Lord Cope, spoke about the work that we are doing on war memorials, and we are very proud to be in partnership with the War Memorials Trust and with other partners up and down the country.

We will also generate new research. We have historians who will be working on aspects of the home front and on the shipwrecks, for example. Above all—and I hope that this will please the noble Lord, Lord Foulkes—we will be working very closely with schools to help young people to understand the impact of the war on their own families, communities and histories. Through the Heritage Schools Make History project, we will invite schools to make a national archive of local World War 1 stories, presented as short films and made publicly accessible. There have been wonderful ideas across the Chamber this evening already as to how we can make these live again and connect communities.

Picking up something that the noble Viscount, Lord Colville, said, I also hope that it will be a time to think about other aspects of how we construct our history and our memory. A great book written about 20 years ago by Paul Fussell entitled The Great War and Modern Memory demonstrated just how powerful the images, language, experiences and literature of the First World War are, and the impact that the war has had on our own history, lives and memories, and on how we think about our relationships. It is an

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extraordinary book about an extraordinary time and war. I hope that we will be able to listen again to those voices of the war, in literature and music; to think about how science and technology aided conflict, and about the abuse of science; about the many things which were done for the first time; about what we mean by patriotism; and about what Wilfred Owen meant when he talked about the pity of war.

8.33 pm

Lord Bilimoria:My Lords, I was with my 98 year-old grandmother, Ratti Bilimoria, in Mumbai last month. She calls herself a war baby because she was born in 1914, soon after the start of the First World War. I am a former chairman and current member of the Memorial Gates Commemoration Committee. Every year at the Memorial Gates on Constitution Hill here in London—erected primarily due to the efforts of the noble Baroness, Lady Flather—the committee commemorates the contribution of the nearly 5 million volunteers from the Indian subcontinent, Africa and the Caribbean who served in the two world wars. We would not have freedom today had it not been for the courageous sacrifice and service of these brave individuals. I thank the noble Lord, Lord Clark, for initiating this debate and for his powerfully delivered speech.

In the First World War, 1.5 million people from the Indian subcontinent served and over 70,000 made the ultimate sacrifice. My late father, Lieutenant-General Faridoon Bilimoria, was commissioned into and later colonel of the regiment of the 5th Gurkha Rifles (Frontier Force). The 5th Gurkhas served in the First World War in Gallipoli and Mesopotamia, and incurred huge loses. Sadly, over the past 100 years conflict has persisted. In the First World War, the only Indians allowed to become officers were those who served in the medical corps. After the First World War, my late grandfather, Brigadier Bilimoria, was one of the first Indians to be commissioned at Sandhurst, at a time when only eight Indians a year were given the opportunity to become officers.

Will the Minister assure us that next year, in 2014, when we commemorate the centenary of the First World War, this Government will not only acknowledge and recognise but prominently figure the amazing contribution of these millions of volunteers from the Indian subcontinent, Africa and the Caribbean, commemorated by the Memorial Gates? Will the Government also ensure that every school in Britain—every primary school and secondary school—has events, a whole day or even a week where the students are taught about the amazing contributions made by these individuals? The children must not only appreciate what these brave people did for us and how we benefit from that today but also understand that they gave their today for our tomorrow.

Sadly, as I said, conflict has persisted over the past 100 years and will continue to persist. It is crucial for our children to learn about and be inspired by the precious sacrifice that these millions of individuals made. We must always remember them. We must never forget them. We will be eternally grateful to them.

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8.36 pm

Lord Lexden: My Lords, it is surely imperative in this important debate, initiated with so much wisdom by the noble Lord, Lord Clark of Windermere, that due tribute should be paid to the contribution made by Ireland, north and south, both parts being full members of the United Kingdom throughout the war. Over 200,000 Irishmen enlisted voluntarily, since conscription was never applied to Ireland. Some 30,000 gave their lives in the wider cause of freedom, a cause that meant so much to many of them within Ireland itself.

Irish nationalists responded to the rallying call issued by their leader, John Redmond. Irishmen, he said, should go,

“wherever the firing line extends, in defence of right and freedom and religion”.

That firing line was at its most extensive and vicious at the Somme, where the blood of the famous 36th Ulster Division, composed mainly of Unionists, flowed abundantly. The war correspondent Philip Gibbs wrote:

“Their attack was one of the finest displays of human courage in the world”.

Of the nine VCs awarded in that battle, four went to the men of the 36th. Marshall Foch, supreme allied commander, said afterwards:

“I saw Irishmen of the North and the South forget their age-long differences, and fight side by side, giving their lives freely for the common cause”.

Tragically, sacrifice in the common cause went uncommemorated for many years at official state level in the independent south that emerged after the war. Thankfully, in our generation that has completely changed. Who could forget the wonderful sight of Her Majesty the Queen laying a wreath at the Irish National War Memorial Gardens in Dublin two years ago in honour of all Irish soldiers who gave their lives in World War 1? In planning events for 2014, our Government and that of the Irish Republic must ensure that sacrifices in the common cause are remembered with due reverence and gratitude, and with increased understanding of the background to them. I understand that welcome cross-border educational programmes are envisaged. They must be rigorous and soundly based in historical fact. There is always a danger that some facts of the past may be diluted to promote reconciliation in the present. In the words of Marshall Foch,

“the generations that come after us shall never forget the heroic dead of Ireland”.

8.40 pm

Lord Watson of Invergowrie: My Lords, I, too, thank my noble friend Lord Clark of Windermere for achieving this important debate in the run-up to marking the terrible conflict of the First World War.

I was very pleased to note what the Prime Minister said in the press release that accompanied the announcement of the events that will form the commemoration. Those comments, I am pleased to say, were echoed by the Minister in his response to the Question from the noble Lord Clark of Windermere in this House two or three weeks ago when he said

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they would be about commemoration not celebration. There can be no room for triumphalism because there is nothing to be triumphal about.

Of course victory was important in 1918 but at such a terrible cost that I believe that all who died in that conflict—the Imperial War Museum says it was 16 million people worldwide—should not be forgotten. Although 16 million people lost their lives there was a ripple effect on the parents, wives, husbands and children who never completely got over the loss they suffered when their loved ones did not come back from war.

It is often said that death is a unifying force, and where great numbers are involved that certainly is the case. That is why I was pleased to read of the agreement recently signed by the Commonwealth War Graves Commission and the Volksbund Deutsche Kriegsgräberfürsorge, its German equivalent, to ensure that work on commemorating and maintaining the graves of those who lost their lives will be done, to some extent at least, on a joint basis. That is very much to be welcomed.

I am also pleased to see that education is at the heart of the events that are to be organised between 2014 and 2018. Education was responsible for my interest in the First World War. I am not particularly interested in military affairs; I am not even particularly interested in the rest of the First World War, but the Western Front just gripped me as a student studying the 50th anniversary of the Battle of the Somme at school. I sought out my grandfather, who had served in the Argyll and Sutherland Highlanders during the war, but he would not say a word about it. He had blanked his mind out as it was just too horrible to talk about.

I have since made many visits including—I have to say in respect of the remarks of my noble friend Lord Foulkes of Cumnock—to Contalmaison where the plaque is to the Heart of Midlothian footballers who so bravely gave their lives. I have also done much reading. I particularly recommend the first-hand accounts—many are still in print.

Finally, I want to say a bit about the question of loss. In Scotland 26% of those who marched away to war did not return. In the rest of the UK—and, as the noble Lord, Lord Lexden, reminded us, that included the whole of Ireland—it was something like 12%. I hope it will not just be in the commemorations that are going to take place in Scotland that the sacrifice made by the people of Scotland for the United Kingdom and, indeed, the Commonwealth will be remembered.

8.43 pm

Lord Shipley: My Lords, every time I attend a football match with a large crowd I go through the same routine. I estimate as best I can 21,000 people and then reflect that this is the number of men from Great Britain, Ireland and Newfoundland who died on the first day of the Battle of the Somme, and then I reflect that a further 35,000 were casualties on that day. World War 1 was a devastating war that should never be forgotten.

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I am a member of the War Memorials Trust and the Western Front Association, and am a friend of the Lochnagar crater on the Somme. I believe that events to mark the centenary should be based on the principles of commemoration, reconciliation and remembrance. These principles lead me to suggest that Mons should be a location for major commemorative events in 2014 and 2018. Mons is where the very first and very last shots of World War 1 were fired. It is also where British and German soldiers were buried in nearby plots in 1914 and so would be an appropriate location for services of reconciliation.

I suggest two ways in which we should maintain our local communities’ memory of the horrors of the Great War once the centenary is over. First, all local authorities should have an identified officer with responsibility for overseeing all war memorials in their area, if they do not already have one. They should all be asked to identify ways of ensuring the restoration of First World War memorials, where this is desirable, given that the centenary of those memorials will take place over a decade or so, from 2019. Public subscription, sponsorship and match funding, perhaps from the Heritage Lottery Fund—and, perhaps, using young apprenticeship schemes in restoration techniques—could all be encouraged.

Secondly, we need to keep the study of the First World War in our schools curriculum. I hope that the centenary will not be seen by anyone as a closure event, because young people’s learning is the best way to ensure that the memory of what happened, and how dreadful it was, is kept alive.

Finally, on the role of football, the Christmas truce in 1914, in which friendly games of football—or footer as it was known to many—were played, resonates with many people. It has been suggested that football games would make light of the war. I do not agree, for the reason that the football actually happened. I am keen to see a reconstruction of the truce where it is known to have occurred, particularly at Armentières, with football matches being played—perhaps by youth teams from the areas represented in each of the trenches in Christmas 1914.

There was a failure of international leadership in the period leading up to the outbreak of the war, as Europe slid into that war, and a failure to compound the power of newly invented weapons to wreak havoc. Both failures resulted in death and destruction beyond comprehension, so we have to remember to commemorate and to encourage reconciliation. I hope that the centenary will achieve just that.

8.46 pm

Lord Cormack: My Lords, it is a great honour to be able to take part in this debate. Like others, I thank and congratulate the noble Lord, Lord Clark of Windermere. The enormity and horror of the First World War came home to me in a very personal way when my mother died in 2000. In going through her papers, I discovered something that she had never told me: six of her cousins—six out of eight—had been killed in the First World War.

I would like to make a few suggestions as to our commemoration. At the very beginning of the year, it

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is terribly important that we focus attention on the horrors that came after. August is a difficult time to have a national commemoration, although we should set aside the Sunday nearest 4 August. However, so that our children can be engaged in their schools it would perhaps be sensible to have something on 28 June because in a sense that day, the day of the shooting of the Archduke in Sarajevo, was the event that triggered that appalling conflict. We need to engage the attention and imagination of our young people throughout these four years.

The noble Lord, Lord Davies of Coity, and I both introduced Bills—I in the other place and he in this place—which would have set aside Remembrance Sunday as a very special Sunday, on a par with Easter Day and Christmas, with all the shops closed. The bells might ring but not the cash tills. I suggest that during the four years of commemoration, we should do that with Remembrance Day. Then, when we come to 1918, we should set aside 11 November as a day of national reflection. Everything should close commercially and we should be able to focus upon what happened then and what has happened in the 100 years since. We should give thanks to those who lost or gave their lives and to those who were mutilated and whose lives were destroyed, even though they might have physically lived on.

In order to focus national attention on this, I would like there to be a competition involving all schoolchildren, on the theme “Lest we forget”. There would be essays, poetry and works of art, and the best of them would be collected into a volume that could then be given to all our schoolchildren. These four years are, as so many have said, four years not of celebration but of commemoration. It is crucial that we do not lose an opportunity to focus on the horror of war and the beauty of peace. I trust that we will be able to do that.

8.49 pm

Lord Maxton: My Lords, I thank my noble friend Lord Clark—and I call him my noble friend quite literally—for introducing the debate and for making a speech that was balanced, thoughtful and powerful. I come from a slightly different tradition from those who have spoken so far. My family did not fight in the First World War. In fact, my family opposed the First World War. My uncle, of course, was Jimmy Maxton and he went to prison in Edinburgh—the Calton Jail—for urging munitions workers to strike in order to stop the supply of munitions to the front and therefore trying to stop the war. My own father went to jail because he applied to be a conscientious objector. His appeal was turned down and he was conscripted under the 1916 Act. He was taken to Stirling Castle where he was ordered to put the uniform on. He refused to do so. He was court martialled and spent a whole year in Wormwood Scrubs as a result.

I come not only from a family that opposed the war but also from a city, Glasgow, although I may not sound as if I come from Glasgow, where to some extent—not a majority by any means—a revolt against the war was political and became part and parcel of the city’s experience. First of all there was a political side: the Jimmy Maxtons. We must remember that

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Keir Hardie, who was the founding father of the party on this side, opposed the war. One of the great iconic pictures for me is of Keir Hardie, leading an anti-war demonstration in August 1914, speaking in Trafalgar Square. Our first Prime Minister, Ramsay MacDonald, too opposed the war.

There was then increasing trade union activity in Glasgow against the war, led by people such as David Kirkwood and William Gallacher. David Kirkwood finished up as Lord Kirkwood of Bearsden—I gather the grandfather-in-law of the noble Lord, Lord Vallance. He did not go to jail. He suffered an even worse fate. He was deported from Glasgow to Edinburgh. It is difficult to imagine a worse fate than that. Therefore, I represent a different tradition and I hope that when we commemorate the war that tradition will be part and parcel of it. Perhaps I may suggest to the noble Viscount, Lord Colville, that he may want to look at doing programmes on that tradition. In terms of the women, there was the rent strike in Glasgow.

Lastly, the noble Lord, Lord Bilimoria, is wrong. Yes, there is still violence and killing in the world but can one imagine a Minister during the First World War standing up and reading out the list of those who have died, as Ministers do now for Iraq or Afghanistan? They would not have been off their feet for four years if they had done that in the First World War. We have reduced violence. Let it long continue.

8.53 pm

Lord Tyler: My Lords, my wife and I visited the western front battlefields last October. My father served as a young Royal Engineer officer. He never spoke about it, trying to blot out its nightmares. Only recently we discovered that he had been awarded the Croix de Guerre. He never said a word about that either. Of course, he was one of the lucky ones, and that is why I am here. Among the many military cemeteries, we found the memorials of my three uncles killed aged 26, 21 and just 18. So many young lives cut short. So many families bereft. Like many others, my grandparents never fully recovered from their loss.

Faced with row upon row of graves—we also visited Irish, French, Australian, Canadian and German memorials—it is frightening to think that their sacrifice did not achieve the war to end all wars that they thought they were fighting for. That surely must be the tone and the theme of any anniversary. That war was largely pointless, meaningless and avoidable. As others said, we should not be celebrating its absurd origins, however much we may pay tribute to those who fought, were wounded or lost their lives. Instead, we must remind ourselves of the futility of negative nationalism, so sharply distinct from positive patriotism.

The year 1914 marked a terrible failure of common sense and common humanity. Personally, therefore, I will find it difficult to mark the centenary of the war’s outbreak with anything other than a resolve that we should do all we can to reconcile the peoples of Europe in the 21st century, avoiding new “foreigner” scapegoats for our economic troubles, and perhaps also reminding ourselves of the 1914 warmongering populism of the British press, which seems familiar. I do not know where Mr Farage’s ancestors were between

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1914 and 1918, but he would do well to revisit the history of that period. Fomenting distrust can so easily lead to hatred.

The Armistice anniversary in 2018 may have more positive messages, but I agree with my noble friend Lord Cope that it also has some hidden dangers that we should remember, in the form of the Versailles peace treaty of the following year. We must also recall that only a generation later another ghastly but surely more justified war became unstoppable. The lessons for 2014, 2018—even 2019—for us all must surely be that the price of peace is eternal vigilance.

8.56 pm

Lord Sheikh: My Lords, I pay particular tribute to the contribution of our Indian soldiers during the First World War, as the significant part they played is not widely acknowledged. This is of personal significance to me as my grandfather served in the Indian Expeditionary Force E in Palestine. India raised the world’s largest volunteer army of 1.5 million during the First World War. They provided crucial support to our expeditionary forces and fought directly alongside British troops in various battles which took place in Europe, Africa and the Middle East.

Indian contributions were not just confined to the Army; they also served in the Royal Indian Marines, Indian merchant services and in the Army nursing units. Indian troops were awarded more than 9,200 decorations, including 11 Victoria Crosses. The first Indian to be awarded a Victoria Cross was Sepoy Khudadad Khan, who fought in Belgium in 1914. He was in the 129th Duke of Connaught’s Own Baluchis regiment during that period.

More than 74,000 Indian troops were killed or declared missing in action. A memorial site called the Chattri exists on the South Downs at Patcham, which commemorates the Indian soldiers who gave their lives during the First World War. In particular, it is associated with 53 Hindu and Sikh soldiers whose remains were cremated at that very spot, and a memorial service is held there every year.

The commitment of these brave men to the war effort often emerged from a strong sense of personal duty to the Empire. They felt honour in fighting for their King, and it was this sense of loyalty and dedication that endeared them to many of their British comrades.

I have long advocated the need for an emphasis on what we share in maintaining a stable and successful multicultural society. There can be few things more unifying than honouring the sacrifices which our British and Indian ancestors made, fighting and dying together 100 years ago. Finally, I ask that we consider acknowledging the contribution made by Indians in the First World War during the commemoration next year.

8.59 pm

Lord Jones: My Lords, I thank my noble friend for the debate, and my noble friend Lord Maxton for his pertinent speech. Here today in our safe, gilded, gothic palace, one can only be humbled and astounded by the

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loyalty, gallantry and resilience of Britain’s World War 1 regiments, of her naval fleet, of the Royal Flying Corps and the army of resourceful women who sustained British industrial production.

I have attended moving remembrance events at our village high school in Hawarden—Gladstone’s Hawarden. The students gave a lead of compelling dignity and sincerity, quoting from the novel All Quiet on the Western Front, reading World War 1 poetry, playing ancient films and offering the simplest of prayers. I hope the Department for Culture, Media and Sport will consult with our high schools concerning commemoration. They have a lot to offer.

Erich Maria Remarque’s novel is the story of a lost generation, of a modern and mechanised war. It is about terror—either waiting for death or trying desperately to avoid it, even if it means killing a complete stranger to avoid it. It is a depiction of the terror of heavy shelling, of losing a leg, of crawling blinded into No Man’s Land, and of being gassed. It is about the stench, the filth, the mud, the vermin and the blood and bone of all-out war. I just hope that the 2014 commemoration will ultimately be a hymn of praise for that war’s poor bloody infantry.

9.01 pm

Baroness Flather: My Lords, I thank the noble Lord, Lord Clark of Windermere, for giving me this opportunity to say a few personal words about 1914. When I was Mayor of Windsor, I had to lay a wreath on Remembrance Sunday. On that occasion, I was asked by a councillor, “Does Remembrance Sunday mean anything to you?”. That is my point: there are still educated people in this country who do not realise how much we Indians did in the First World War.