New Clause 11

Equality Bill – in a Public Bill Committee am 11:15 am ar 7 Gorffennaf 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn

The right to equality

‘(1) In this act “the right to equality” means the fundamental rights and freedoms set out in subsections (2) to (4).

(2) Everyone is equal before the law and has the right to the equal protection and benefit of the law.

(3) A public authority may not discriminate against anyone on any ground or combination of grounds such as colour, race, nationality, ethnic or national origin, language, gender identity, sex, sexual orientation, disability, religion or belief, and age.

(4) Subsections (2) and (3) do not preclude any law, programme or activity that has as its object and outcome the amelioration of conditions of disadvantaged persons or groups including those that are disadvantaged because of colour, race, nationality, ethnic or national origin, language, gender identity, sex, sexual orientation, disability, religion or belief, and age.’.—(Lynne Featherstone.)

Brought up, and read the First time.

Photo of Ann Winterton Ann Winterton Ceidwadwyr, Congleton

With this it will be convenient to discuss the following: new clause 12—Interpretation of legislation—

‘(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the right to equality.

(2) This section—

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.’.

New clause 13—Declaration of incompatibility

‘(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with the right to equality.

(2) If the court is satisfied that the provision is incompatible with the right to equality, it may make a declaration of that incompatibility.

(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with the right to equality.

(4) If the court is satisfied—

(a) that the provision is incompatible with the right to equality, and

(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.

(5) In this section “court” shall have the same meaning as the meaning given in section 4 of the Human Rights Act 1998.

(6) A declaration under this section (“a declaration of incompatibility”)—

(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b) is not binding on the parties to the proceedings in which it is made.’.

New clause 14—Public authorities

‘(1) It is unlawful for a public authority to act in a way which is incompatible with the right to equality.

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the right to equality, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4) In this Act the factors which may be taken into account in determining whether a function is a public function include—

(a) the extent to which the state has assumed responsibility for the function in question;

(b) the role and responsibility of the state in relation to the subject matter in question;

(c) the nature and extent of the public interest in the function in question;

(d) the nature and extent of any statutory power or duty in relation to the function in question;

(e) the extent to which the state, directly or indirectly, regulates, supervises and inspects the performance of the function in question;

(f) the extent to which the state make payment for the function in question;

(g) whether the function involves or may involve the use of statutory coercive powers;

(h) the extent of the risk that improper performance of the function might violate the right to equality.

(5) In subsection (3) “Parliament” does not include the House of Lords in its judicial capacity.

(6) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(7) “An act” includes a failure to act but does not include a failure to—

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order.’.

New clause 15—Statements of compatibility

‘(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before the second reading of the Bill—

(a) make a written statement to the effect that in his or her view the provisions of the Bill are compatible with the right to equality (“a statement of compatibility”); or

(b) make a statement to the effect that although he or she is unable to make a statement of compatibility the Government nevertheless wishes the House to proceed with the Bill.

(2) The statement must be published.’.

New clause 16—Proceedings

‘Sections 7, 8 and 9 of the Human Rights Act 1998 shall have effect in relation to acts made unlawful by section [Public authorities] (1) of this Act as if the act complained of were made unlawful by section 6(1) of the Human Rights Act 1998.’.

New clause 17—Power to take remedial action

‘Sections 10 of the Human Rights Act 1998 shall have effect in relation provisions of legislation declared under section [Declaration of incompatibility] of this Act to be incompatible with the right to equality as if the provisions had been declared incompatible with a Convention right under section 4 of the Human Rights Act 1998.’.

Clauses to establish an equality guarantee.

New clause 22—Purposes of the Act

‘(1) The purposes of this Act are to promote equality by—

(a) preventing discrimination, harassment and victimisation on any of the grounds set out in this Act whether singly or in any combination;

(b) ensuring that every person has an equal opportunity to participate in society, including by means of different treatment as required or permitted by the Act;

(c) eliminating and preventing patterns of systemic discrimination and inequality;

(d) permitting the adoption of measures to alleviate the disadvantage related to any of the grounds singly or in any combination;

(e) ensuring respect for and protection of the human dignity of every person;

(f) providing effective remedies for victims of discrimination, harassment and victimisation.

(2) Any person applying this Act must interpret its provisions to give effect to the purposes stated in subsection (1).’.

Amendment (a) to new clause 22, at end insert—‘;

(g) fostering good relations between persons who share a relevant protected characteristic and persons who do not share it’.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

New clause 11 presents the commission with what we Liberal Democrats feel is perhaps an underpinning and a guarantee of equality, thus it is called the equality guarantee. There has been an undercurrent of mild concern from some quarters—certainly from ours—about whether we have ensured that everyone will be protected from discrimination and treated fairly and equally. While the Bill addresses the harms that might be done by discriminating against specific groups or individuals belonging to those groups—the so-called protected characteristics—it does not give an overarching guarantee to every individual to have freedom from discrimination, which is ironic, given that the Government have tried so hard to prescribe the detail of protected characteristics. In the very specific and precise description there is a danger that what is not described is not counted in, as though non-mention or non-inclusion in specific terms means that something might not be covered.

New clause 11 and its consequential clauses would deliver an equality guarantee to ensure that the right to equality has the same status as other human rights. The amendments would codify that principle. The Government have thus far rejected that idea because they do not  believe it necessary and are sure that their legislation is crystal clear, making the guarantee that we are proposing unnecessary. With the best will in the world, I do not share their confidence. I am sure that when the Disability Discrimination Act 1995 was drafted, its authors believed that they had dotted every i and crossed every t, and that it would be infallible, and yet a decade later we had the Malcolm case, which in one fell swoop undid a lot of what that Act sought to achieve.

I have no doubt that the Government and the legions of lawyers that aid them have done their utmost to ensure that the legislation is tight and that the intentions of the Bill are given proper form in law, but few lawyers are a match for the Law Lords, and in our view equality rights are too important to allow them to be subject to the Law Lords. Parliament must be as explicit as it can be about its intentions so that judges are in no doubt at any point—ever—about the Bill’s intentions.

The idea of an equality guarantee has wide support beyond the House, most notably from the Equality and Human Rights Commission. I am sure that many hon. Members will have received its briefings, and it is important that we debate them. It is a key issue, and the EHRC feels that a constitutional promise is necessary and would provide a philosophical basis for judicial adjudication. I also welcome the new clause tabled by the hon. Member for Daventry, which is another form of the same idea. We support it because it addresses the underlying concern that perhaps not everything is covered, and that should there be any doubt about the wording or the nuance, a judge would be left in no doubt should there be a challenge in times to come.

Photo of John Mason John Mason Scottish National Party, Glasgow East

The hon. Lady makes an extremely good point. The public and many of us think that when the courts look at legislation, they sometimes become so bogged down in the individual words that they lose sight of the bigger picture. The new clause is a good attempt to create the bigger picture and get the courts to consider it.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I thank the hon. Gentleman for putting his finger on the point. I do not wish to criticise judges, but they can reach a different conclusion from what was intended in the original legislation. The Liberal Democrat new clauses and that tabled by the hon. Member for Daventry try to ensure that such harm cannot destroy the intention of legislation, because clever lawyers can argue the finer points that might not have been the exactitude of the words.

The equality guarantee would put the intention of the Bill beyond doubt. It would give an overarching protection to the right to equality and it would also be consistent with EU legislation. It is important because it would help to mainstream equality considerations into all state functions. I hope that the Solicitor-General hears the concern expressed about whether the Bill’s protections will be challenged in an unforeseen way and accepts that new clause 11, and the consequential provisions, would enshrine in law the right to equal protection, and therefore ensure that everyone has that right.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am following the hon. Lady’s argument about new clause 11 and the other new clauses, but given that the Bill does not have a particular status—this  country does not have the concept of constitutional Bills that have a status over and above others—what is it about the new clause and the consequential provisions that would provide the barrier to clever lawyers going through the wording? The new clauses would be mere wording in Bills and would be just as susceptible to people arguing about them. As we do not have Acts that are constitutional in nature, the new clauses would not give us any more protection than the Bill that we have been discussing at great length. I am not against what the hon. Lady is saying, but I am not sure that the new clauses would achieve her objective.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

The hon. Gentleman and I will have to disagree slightly. The new clauses would be an overarching guide to future legislative arguments in a court of law. They would ensure that everyone has the right to equal protection and the benefit of the law, and that its interpretation would also be guaranteed. We would literally be guaranteeing real equality.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

I rise to speak to new clause 22, and to acknowledge and respond to the new clauses tabled by the hon. Lady, which are, as she said, very much in the same genre, with the same intention.

I have been encouraged by the general tone of the Committee. We have had our moments of levity—or our diversion to particular interests, as we saw this morning—but at all times there has been an attempt to produce a constructive dialogue about what we are trying to do, and to advance the cause of equality and the parallel, although not wholly distinct, issue of human rights. That has encouraged me because it is an advance if they are becoming fairly universal throughout this place, possibly in contradistinction to the sort of tabloid chatter to which I referred in a previous debate on the idea of a public equality duty for human rights.

We have been grateful throughout our time in Committee for the support and briefing of the EHRC, as I am to it for formulating the purposes clause that I tabled—new clause 22—and for its consistent briefing and support to generic as well as specific matters. I am entirely at one with the hon. Lady in feeling that there is a need for an overarching and positive gear on everything that goes beyond the mere letter of the law.

The only point I would make on that—I am not hired by the Solicitor-General or anyone else to say it—is that not all lawyers are pettifoggers, although they obviously have to defend their clients’ briefs. As one gets to a higher level of seniority or abstraction, such as the Law Lords, where I have heard one or two judgments, there is an amazing ability to integrate arguments and come to the heart of the matter, and not simply to get cast down in the small print.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I am intrigued, because the hon. Gentleman seems to be making the same points as the hon. Lady. How would he answer the question put by the hon. Member for Forest of Dean that the new clauses do not go beyond the letter of the law, but just have more letters of more law?

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

Such things will always have a point. We all know what Dickens said about the law. He is not always right, but sadly he is not always wrong. We have to find a balance.

Before I miss the point and appear churlish, which would be wrong—and I think I know the stable from which the drafting of some of these multiple and interesting new clauses on the equality guarantee have come—I want to say that I respect the new clauses. I also respect the effort that the hon. Lady has made in developing them and her attempts to embellish my new clause. I have no objection to that; I only wonder whether the new clause adds value, which brings us to the general debate on the whole business of purposes clauses. Do they add value or merely clutter up the page, and could they possibly cause confusion?

Although I want to deploy my arguments—I hope not at inordinate length, but it is worth getting them out to the Committee—I say from the outset that I do not want to oversell the idea of the new clause. The Bill is good taken as a whole. We may have reservations about individual bits, but that is essentially a matter for our political and personal judgment. However, I do not want to get to the stage where we say, “If there’s no purposes clause, the Bill is useless and I’m going to take my toys away.” That is not at all what we want to say. The question is whether having a purposes clause would add value to the text, and whether there might be any compensating costs, on which basis I suspect the Solicitor-General has been briefed not to adopt it.

Over the years, and one need not go back down memory lane as it is not that long ago, I have grown to like the concept of purposes clauses, or principles clauses—the modern terminology is the purposes clause—which set out the principles behind a piece of legislation. I have referred once or twice to my own experience of the Mental Capacity Act 2005, but I also draw the Committee’s attention to the early use of the purposes clause in the Children Act 1989, which is Conservative legislation. Section 1 of that Act explicitly establishes the paramountcy of the child’s welfare as the central principle in determining the situation in relation to children.

The Crime and Disorder Act 1998, introduced under Labour, provides an unusual instance of a purposes clause. Even the civil procedure rules of that year refer and define, to some extent, how to deal with each case justly. There is a test, which is, “This is what we are trying to do to deal with each case justly.”

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am listening carefully to my hon. Friend’s argument in favour of his new clause. Perhaps it is just me, but will he set out the difference between his approach and the approach of the hon. Lady, with her range of new clauses? I have read the EHRC briefing, which supports what the hon. Lady is trying to achieve with her equality guarantee and what my hon. Friend is trying to achieve with his purposes clause. I am not sure whether we need either, or both, and of the extent to which they interact. If the hon. Lady will forgive me for saying so, my hon. Friend’s new clause is more elegant simply because it is shorter. If it could achieve what hers would achieve, and we could do that in one clause, then it would be preferable. Perhaps he can help me on that.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

My flippant answer, while I collect my thoughts on my hon. Friend’s difficult conundrum, is that heightism is not one of the protected characteristics under the Bill, and therefore the length, or otherwise, of the new clause in question is not determined, as I think lawyers would say.

I am inclined to the view that it would be rather nice to have the two, because the pursuit of equality is of interest. I also appreciate the point about having a definition of purposes that is, in my view, crisper and more succinct. My hon. Friend will not be surprised that if I am forced to make a decision between the two, I will be inclined towards my version, but that is in no sense to subvert the other one.

We are trying to put a little bit of flesh and blood on to what might otherwise seem to be a rather lifeless structure and to encourage judges and people involved in tribunals to take the wider picture, rather than the purely narrow one. This has already been said—I hope there is no bitterness in these remarks—but from time to time, people fall foul of lawyers and think that they are taking the narrow view. Up to a point, that is what they are there for. If the statute, as drafted, is too narrow, we should not have allowed it through in its present form. The question is whether the proposal could provide a motor for interpretation.

I have already mentioned that there are a number of precedents of purposes clauses in British jurisdiction. The Equality Act 2006 sets out the EHRC’s duties in terms that are analogous to a purposes clause. The commission certainly feels that that has been essential in assisting it to embody in court proceedings a positive, proactive or forward-gear approach to securing equalities—those are my words rather than the commission’s.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 11:30, 7 Gorffennaf 2009

My hon. Friend mentions the EHRC. He has drawn attention to the fact that the courts might interpret legislation more narrowly than was intended by Parliament. If we have a purposes clause, to what extent does he think there is a risk that we may get the opposite problem, whereby more activist judges interpret the law more widely than Parliament intended? We have spent a lot of time in Committee arguing over what is the right balance and what are the right things to have in the Bill. I wonder whether he can help the Committee to understand how those Acts that he mentioned, which effectively had a purposes clause, have worked in practice.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

I am beginning to think that I would not enjoy being cross-examined by my hon. Friend, but he is raising serious issues about the balance going the other way and producing something of such a nature. I cannot claim expertise in this, but my own view is that people are often faced with a choice of either judicial activism that will not go beyond the limits and parameters set out by the purposes clause—I do not think that anyone will argue with the purposes that are set out—or judicial activism that dislikes an over-narrow statute and goes off on its own trip, which is not regulated by a purposes clause or some general understanding. I am not sure that my hon. Friend is making an entirely fair distinction, but it is a reservation that we must have in mind. The issue is not what is perfect or what is required universally, but what will make things better.

Perhaps the Solicitor-General will disabuse me of this if I am wrong, but I can demonstrate no harm that has been done to justice or the underlying detailed provisions of any of the British Acts that I have cited or the rules arising from the existence of purposes  clauses, where learned judges have had to deliberate the purposes clause and the detailed provisions of the statute.

Of course, there is an underlying difficulty. We perhaps should not, particularly at this stage, open issues about attitudes to Europe, although I do not foam at the mouth when that word is mentioned. But a number of people say that a purposes clause is the kind of thing that we see in continental jurisdictions and Roman law and that it is not British. It is quite important to remind the Committee that a number of other common law jurisdictions and some Commonwealth countries have employed purposes clauses specifically for equalities legislation. I cite South Africa, Australia and Canada. The Canadians reviewed the effect of the purposes clause in their review committee in 2000. The human rights panel there, which was established to review the operation of the their Act, suggested that the approach adopted by the courts had been so influenced towards the positive that the purposes clause had been invaluable in achieving a more outcomes-based interpretation of the law. That is, after all, what the EHRC and I suspect some others are anxious to achieve.

I now come to the British position and to new clause 22. Other members of the Committee might disagree, particularly after my revelations on Europe, but I do not like to pass myself off as a kind of Dave Spart radical. Mercifully, there are not too many of them on the Committee. I can see the hon. Member for Hackney, North and Stoke Newington smiling. We quite often agree on human rights matters—we tend to stick together generically and across parties on such issues. Anyway, I do not think that that new clause is meant to be radical or subversive.

I will not claim legal expertise, but I have some indirect or second-hand knowledge of judicial review and certainly some knowledge of the difficulties that I experienced as a Minister in the past, when I tried to decide the right thing without falling into the pitfall of judicial review, and on the whole I think that—modestly on the record—I succeeded in doing so.

The Government are calling for clarity, and in persistently resisting the EHRC’s wish for the purposes clause. In debates and various consultation exercises, they have suggested that it might obfuscate and create judicial difficulty. At that point, I become a little suspicious. At any rate, I do not think that the drafting could be faulted on the grounds of unclarity, although the Solicitor-General is welcome to try. It is meant to reflect all the different concepts enshrined in the rather testing concept of equality. We have equality of treatment, opportunity, participation, dignity and outcome, with balancing measures aimed at eliminating disadvantage and achieving remedies for the individual or groups. That is what we are trying to set out in new clause 22.

It might be convenient at this point to refer to the specific provisions. Sub-section (1) of new clause 22 begins by setting out the objective of preventing discrimination, harassment and victimisation on any of the equality grounds, and it refers to the fact that that can take place on more than one count. It also links to the need to provide appropriate remedies, to which I have referred, and sanctions for multiple discrimination.  It indicates that the Bill is intended to ensure equality of opportunity, which is an element of all the appointed duties and of the EHRC itself. That is in section 8(1)(c) of the 2006 Act, and it also makes the point that there will be occasions when it is appropriate to involve differences of treatment—for example, on pregnancy leave or reasonable adjustment. It then goes on to make it clear that the Bill not only seeks to provide redress for individuals but has a group and social dimension. However we want to interpret or enact it, there is clear reference to the tackling of disadvantage, social inclusion and systematic discrimination, to try to stamp out abuses of individual rights alone.

We then go to a linked provision: the social dimensions of equality and the ability of both public and private bodies to use public action or other measures to reduce disadvantage. We then come, because of my human rights interest, to the major underlying purpose of anti-discrimination legislation, which is to protect human dignity and treat people properly and with respect. That links equality legislation with the human rights principles of equality, as recognised in most of the international conventions that I will mention.

Finally, we move on to the effective remedies in subsection (1)(f), and we need to remember that they are already enshrined, for example, in the EU equality directives. Subsection (2) is an interpretative provision, although I am on less strong ground here because of my lack of legal qualification. It suggests that the Act must be interpreted in furtherance of the different purposes set out in subsection (1), which fairly closely mirrors the South African legislation, for example.

The clarity of what we seek to achieve has nothing wrong with it, but we may be at issue with the Government in the interaction with the detailed provisions. The Government position may be scarred by legal conservatism and fears of judicial review, or they may be genuinely concerned about legal muddle, interpretation or the difficulty for practitioners—all those things—but, essentially, I think that they feel that a number of lawyers may try to use a purposes clause to subject Ministers, public authorities or private individuals to some kind of double jeopardy or to play on the very interesting issue of potential anomalies between two different duties.

I have occasionally mentioned that I tend to carry around a copy of the Human Rights Act 1998 and the European convention, but when one reads the convention, it is amazingly prescient. It understands that rights can conflict and that things have to be resolved. That is not a new invention. We have not suddenly found that one right can trump another; we must have a basis for doing that. I am quite sensitive—I mentioned ministerial experience—to the worries of such double jeopardy. However, that must be balanced against the advantages of having a clear rubric for deciding in the court or tribunal of first instance.

The EHRC is rightly worried about the dangers of narrow and technical interpretations of equality legislation, some of which have been mentioned in Committee, notably the Malcolm judgment. I add the Amin judgment, which is earlier, from 1983, and excluded many public functions altogether, unless they mirrored a private function. There is also the interesting case of Redfearn, who was dismissed for being a member of the British National party.

In my layman’s language, what we are trying to do with the purposes clause is to provide a rubric. When a 50:50 issue is in court, it would be decided on the wider and more generous interpretation, rather than on the narrower and more limited interpretation. We hope that the underlying purposes clause would provide a ready opportunity to decide in the broader sense at first instance.

I begin to draw my remarks to a close. However, in my view, an even more important advantage is inherent in the idea of a purposes clause. In a way, that is where non-governmental organisations, such as the National Union of Students, have chimed in with their support. The Bill is intended to give effect to the principle of the right to equality. The hon. Member for Hornsey and Wood Green dealt with exactly the same issue in relation to the equality guarantee. We are looking at underpinning those rights.

Those principles are not confined to the United Kingdom, but are enshrined in international conventions to which the United Kingdom is a party, such as the United Nations convention on the rights of persons with disabilities, about which my hon. Friend the Member for Forest of Dean knows a great deal and which is one of the other equality strands. As I have mentioned, the European Union equality directives are already in place, particularly those on race and employment, and there is a growing body of jurisprudence, as well as legislation, to which we shall need to respond.

I am sure that the Solicitor-General is familiar with—it is her bedside reading—the case involving North Rhine-Westphalia and an individual before the European Court of Human Rights. The court not only adjudicated in the case but said that national Administrations must reflect the provisions of those directives in their national legislation and its interpretation. I hope that is a brief summary of that case. That has been the law, from recollection, since 1984.

We cannot get away from the fact that we have substantial international obligations that are likely to require a flexible and purpose-based approach, and nor should we want to. That is the point of what we want to do. In a way, we set out—the hon. Lady set it out differently—to state the right to equality and the concomitant human right to respect.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families) 11:45, 7 Gorffennaf 2009

This is not precisely on that point, but before the hon. Gentleman concludes his remarks, I wondered whether he would be likely to accept amendment (a), which uses the usual language?

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

I need to reflect on that, and I shall do so in the light of the Solicitor-General’s recommendation. At the moment, I would be in favour of accepting it. We must remember that, mercifully, another place will look at this legislation, and we want to get it right. Given the genesis on mental capacity and the interest in another place in the idea of a purposes or principles clause, I hope that it will have a fair hearing. I was searching for a reference for the Committee, and I will now give it to the Solicitor-General. It was von Colson and Kamann v. Land Nordrhein-Westfalen, which reported in 1984. That is reaching out.

These are not loyalty issues, and nor should they be. They are issues for all of us in getting it right. It is worth repeating Dame Nuala O’Loan’s remark that such matters are the day job, and we have to get them right. The law must never be interpreted in such a way as to diverge from that. When looking at a purposes clause, I feel that the important parallel is with the European convention on human rights—that is a purposes or principles clause. That is set out very clearly, and the legislation is now incorporated, rightly or wrongly, into our statute.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I have a question on how things might interact. My hon. Friend mentioned the European convention on human rights, which has been incorporated into British law by the Human Rights Act. That involves some of these issues. How does his purposes clause interact with that particular obligation, which is both international and in UK statute? It seems that some of the things that the hon. Lady has in her new clauses are similar to provisions in the Human Rights Act. How will the two pieces of legislation interact?

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

I think that at the moment, if the Committee or Parliament saw fit to embody either the big group of new clauses that the hon. Lady has produced, or my smaller and more perfectly formed new clause 22, some general principles would be set out. In adjudicating, judges would have to have regard to those principles as well as to existing jurisprudence and the Human Rights Act.

I do not want to fall into the trap of being thought of as unable to see a distinction, but as we have debated in the Committee, there is a distinction between rights to equality—whatever that means—and the various kinds of rights, and human rights themselves. I do not seek to conflate the two, but it would be helpful to us and reassuring to the general public, who tend to see human rights as involving pettifogging lawyers helping terrorists to get let off, to start seeing that we need to embody much wider concerns. This has been a modest attempt to set out the principles with which we could go forward.

We are in a world where we need to establish those principles against the predominance of the state and the public authorities, We are also in a world where we have entered into several significant international commitments. That is no accident. The universal principles of decency and equality, which are certainly embodied by the Bill and are not confined to this country—and nor should they be—go wider than the law asserts. The new clause is an attempt to say that such things matter even more than the detailed provisions of all the clauses of the Bill. We need to say that that is where we start from and from where we operate all the time, and that that continues for the full life of the legislation in full force because such things really matter to us. It is for that reason that I tabled the new clause and I was pleased to do so. It is important that the Committee considers whether it is appropriate to add to the detailed provisions that will be set out in statute.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I listened carefully to the hon. Lady and to my hon. Friend. A few questions arose from both their arguments, the first of which is general and which I touched on in my intervention. It concerns the debate about judicial activism and the extent to which having a purposes clause or an equality guarantee is likely to promote it or restrain it. I do not hold the view that the  life of judges is activist in nature. They should interpret the law as Parliament intended and, if there is a doubt about it, they should consider it more narrowly. This is the place in which law should be made and, if we want to make wide-sweeping laws, we should decide that, not unelected judges.

However, I listened to my hon. Friend when he made the powerful point that, if we had an equality guarantee or a purposes clause, we might still get judicial activism, but it would be within defined boundaries and that those boundaries would be the ones that we define, rather than have judges who, if they decide that they do not like the legislation, can interpret it as widely as they want. There is a check on such action of judges in a lower court because obviously a judge in a higher court can restrain them and interpret the legislation more narrowly. I will consider what my hon. Friend said about such matters.

Turning to the new clauses tabled by the hon. Lady, I note that they are supported by the EHRC, which we should bear in mind. Subsection (3) of new clause 11 states:

“A public authority may not discriminate against anyone on any ground or combination of grounds”, which is similar language to that used by my hon. Friend in the first part of subsection (1)(a) of his new clause 22, which states that

“The purposes of this Act are to promote equality by—

(a) preventing discrimination, harassment and victimisation on any of the grounds set out in this Act whether singly or in any combination”.

I mentioned that because it raises the issue of multiple discrimination that we discussed at considerable length last week. The purposes clauses highlight the clash between what we have decided to do and what a judge might decide. When we debated that, we discussed whether we could have multiple grounds of discrimination and whether there was a real wrong that we were trying to right.

The Solicitor-General said that the consultation carried out by the Government on multiple discrimination had demonstrated evidence of some real issues. She said that the consultation responses would be published this summer, so we could study them with care before the Bill was discussed on Report.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

The hon. Gentleman raises an interesting and valid point. There might on the surface seem to be a contradiction between two types of discrimination and the plurality with no actual limit. However, the Solicitor-General accepted the view that, although no evidence has come to light to date, there might be some in the future—as yet unforeseen. The new clauses allow for that possibility in times to come. They would not set up a conflict because the intention is still clear in terms of the allowance of two claims of multiple discrimination as opposed to multiples thereof. Ultimately, they will allow for a judge to look back and see what the evidence has been thus far.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Lady makes an interesting point, but it does not help her case if she has the same view, which I suspect she does not, about judicial activism.  If we had either of the new clauses in the Bill, it would enable a judge to widen its scope. We spent quite a long time listening to the Minister carefully, and debating whether it was proportionate to allow discrimination cases to be brought on more than one ground. I put on the record some of the concerns that were expressed in the consultation by the business community—including the British Chambers of Commerce—about the size of the wrong that was trying to be righted, and whether having dual discrimination was a proportionate response.

We spent quite a long time debating that matter, and the Committee came to a view—the House will be asked to do the same on Report before it goes to the other place. We made a decision, but both new clauses could change that decision by allowing a combination of grounds. Even if one argues that they would not change it now, they would allow a judge to come to a view different from the one decided by this House. That is certainly not something that I want to do. I want to ensure that it is Parliament that decides the proper scope of the matter, and weighs up the costs that we are imposing on businesses and other organisations against the wrong that we are trying to right.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

Leaving aside the separate issue about what I might call creeping jurisprudence and whether things stay the same in the future—I am not necessarily talking about judge-made laws here or in Europe—does my hon. Friend accept that, if one has a clear statement of purposes, at least a judge is entitled to look at whether or not it functionally happened? While he is quite right to express some entirely proper concerns about the role of Parliament in the matter and the concerns that businesses may have expressed, which again are legitimate, being able to say, “The outcome was fair enough” may be, in itself, a defence against some procedural issue, which only too often characterises the work of employment tribunals. In other words, if the answer is fair, the route to get it is not necessarily disreputable.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My hon. Friend makes a good point. Both of the approaches would at least mean that a court would not be frustrated in a case where it thought the right thing to do was to allow something, but it was being constrained by the narrowness of the law. Although everyone else agreed with them, it would say, “This would be the right thing to do, but our hands are tied.” I can see the argument in that case, but having debated some of the detail—we had to balance those issues when we debated a number of clauses, recognising that some of the rights conflict—it seems that the beginning of both new clauses would immediately set out a general power, which could be used to override some of that careful balancing of interest that we have weighed up. That is one of my concerns, which I am a little nervous about.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I wonder whether the hon. Gentleman is slightly overstating his concern. New clause 11 states

“any ground or combination of grounds”, which can be interpreted as two or whatever—it seems to me that it can be interpreted as two, which is what the Bill specifically states, but I stand to be corrected on that point. When we discussed the issue, a lot of the discussion was around the practical issues of bringing  three, four or more protected characteristics in one case. It is still a desire of this Committee, and hopefully, of Parliament, that all the elements of discrimination are looked at. Does he accept that it is a good balance to have the two in place, which do not contradict each other?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I listened to the hon. Gentleman carefully. I heard, from a sedentary position, from the array of legal talent facing me, that the problem with what he said arose when he said “two or whatever”. The problem is “whatever” can mean lots of them. If we are going to give organisations and businesses some certainty about what we have passed and put into law, saying “two or whatever” is the problem. Both the new clauses allow any number of grounds of discrimination to be put together. We discussed that in Committee in detail. The Minister set out powerfully that if we allowed all the protected characteristics to be used together there would be a huge number of potential combinations and complexities.

The point of the Bill is to simplify, bring together and treat consistently all the different pieces of discrimination legislation, and to try to make them simpler and more straightforward. As soon as we put one of these new clauses in and allow the interpretation of judges to be a lot wider and more flexible, the Bill will start to look more complicated. The problem is that the complexity militates against the Bill’s effectiveness.

Photo of John Mason John Mason Scottish National Party, Glasgow East 12:00, 7 Gorffennaf 2009

I used the words “two or whatever”. The new clause does not go into that detail, but in the rest of the Bill we are clearly talking about two protected characteristics. The new clause would not in any way overrule the “two” that has been decided. Again, we will hear what the Solicitor-General has to say.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman makes a point. He is saying that the whole point of including a purpose clause, or an equality guarantee, as we heard from the hon. Member for Hornsey and Wood Green and my hon. Friend the Member for Daventry, is to give a judge a set of ways to interpret the Bill. That is supposed to trump some of the narrowness in the detail.

If a clause was set up at the beginning—new clause 11 or new clause 22—stating that any combination of the grounds could be used and a more specific clause was then introduced, such as the Minister’s new clause 26 on dual discrimination, stating that only two could be used, there would be two incompatible clauses in the same Act of Parliament.

If I were a judge trying to interpret those provisions, would I look at the specific new clause 26, where Parliament had set out its view clearly, or should I look at new clause 22 or new clause 11 and say, “No, I can look at all the grounds”? That is not helpful; it is confusing, it would put judges in a difficult position and ultimately it would let them second-guess decisions of the House.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I do not want to keep intervening, but I appreciate the hon. Gentleman giving way again. Using the word “trump” was a little unfair, because I do not think that either the hon. Member for Daventry or the  hon. Member for Hornsey and Wood Green used it or were even suggesting that concept. The concept that they were painting was much more that there might be cracks and that the new clause would help to fill in those cracks and prevent people from falling into them. The word “trump” was not the concept.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I take the hon. Gentleman’s point, but there may well be people who feel that they have been discriminated against, harassed or victimised because of a combination of three protected characteristics. We debated last week the fact that people will not be able to bring a claim on three grounds together. If they were looking at purposes, they could bring such a claim and it would be up to a judge to decide in each particular case. It may be desirable to do that. From what I have said about judicial activism, I would rather that judges were a little more constrained and had to stick more closely to what Parliament decided, rather than to what they felt was appropriate in the case.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I am not sure that new clause 11 says that. It says

“or combination of grounds such as”, and gives a whole list. It does not say that there could be more and does not quantify in any way. If the Bill is quantifying this at two, the judge will look to that as being the determination. The new clause is offering any combination of grounds and giving an example of all the grounds that might be combined within the number of two.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I thank the hon. Lady for that point, but the fact that the new clause is not clear is a problem. On my reading of the new clause, it would at least open up the possibility of having that argument. An organisation looking at this might think it entirely likely that someone will bring a claim and people will start practising defensive behaviours to avoid having the claim. That is my only point; I did not want to spend quite so long on this.

Photo of John Howell John Howell Ceidwadwyr, Henley

Does my hon. Friend accept a distinction that is beginning to emerge in my mind over this? One might get the purpose clause right and it might reflect what is already in the Bill. That is possible, but it contrasts considerably with an equality guarantee, which seems to go much wider than the Bill. The EHRC briefing, which he will have seen, says that other legislation would also need to be interpreted by courts compatibly with the equality guarantee. If the equality guarantee is so important, it should be in separate legislation, not tacked on to the Bill.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My hon. Friend makes a good point. I will come on to the comparisons between the way the hon. Member for Hornsey and Wood Green has gone about this and the way the Human Rights Act 1998 works. My hon. Friend touches on an important point.

When my hon. Friend the Member for Daventry was running through his new clause 22, he made the point that it was designed to help judges to interpret the rest of the Bill and ensure that they were not constrained narrowly, and perhaps be made by the Bill’s drafting to do something that they did not think would have the right outcomes for the purposes of justice. To the extent  that the new clause is about making clear the purposes of the Act to ensure that the Act, as stated, would be read in that way, I am a little more content with it. I think that my hon. Friend the Member for Henley is right to say that the equality guarantee goes wider, and I think that it is akin to the Human Rights Act. He has pointed out a valuable distinction.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

May I say, as it were, tripartitely, that I again have considerable sympathy with the comments made by our hon. Friend the Member for Henley? In relation to the judicial process, perhaps I should admit to the Committee—he might be interested to know—that in my brief and very inglorious time as a member of a tribunal, as a lay empanelled flanker to the legal chairman, I always tried to operate on the basis of what was the right thing to do and whether we could make the law fit with it.

When I have had discussions with other, more distinguished persons, including judges, there has been a tendency for them to agree with that approach. They would really like to do the right thing and do not want to feel that the statute is unduly restrictive in pursuing that. That is perhaps an underlying motive in my purpose new clause.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to my hon. Friend for that intervention. What he has just outlined, if I think back to the brief legal training that I did as part of my professional training, sounds like the Denning doctrine of trying to do justice and fluxing the law to enable that to be done. I would not want to put myself up against a historical legal mind such as that.

Let me move away from new clause 11 to new clause 12, on interpretation of legislation. Looking at the next few new clauses, I was struck by—I think the hon. Member for Hornsey and Wood Green referred to this—the similarities to and the differences from the Human Rights Act. I want to probe her on something and she can either intervene or come back to me when she winds up the debate.

Subsection (2)(b) is obviously comforting, because if a judge decided that legislation was incompatible with the equality guarantee that would not affect the validity of the primary legislation. A declaration of incompatibility could be made, as can be done with the Human Rights Act, but it would still fall to Parliament to change that primary legislation. I think that that is right.

I want to probe subsection (2)(c), which says that the provision

“does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if... primary legislation prevents removal of the incompatibility.”

I want to check whether that is exactly the same as the provision in the Human Rights Act or slightly different. I looked at the chart on page 8 of the guide to the Human Rights Act. There is a useful little flow chart on how it works and it makes the point that subordinate legislation could be disapplied or quashed unless it was inevitably incompatible. I was not sure whether that was the same as what we are discussing.

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

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I cannot give the hon. Gentleman an answer off the top of my head because I do not have the comparator here, but it is meant to operate in a similar way. Perhaps I can come back to him on that.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the hon. Lady for that intervention. I am not clear about the matter, but I will wait until the end of the debate to give her a chance to explain. Perhaps the Solicitor-General, with the legal resources at her disposal, will fill the Committee in when she runs through her analysis of the new clauses and tell us whether the Government are minded to accept them.

I would like to raise one issue in relation to new clause 14, which refers to public authorities. Again, I wonder whether the hon. Member for Hornsey and Wood Green has covered this. I hope that the Committee will forgive me for not having the provisions of the Human Rights Act in front of me. The hon. Lady knows that there is real issue with the definition of public authorities in the Act and that that matter has taxed the Joint Committee on Human Rights in this Parliament. Last Friday, the hon. Member for Hendon (Mr. Dismore) was debating the issue on Second Reading of his private Member’s Bill. He considered the definition of public authorities, and specifically whether private care homes fall within the definition of public authorities.

I have one question for the hon. Member for Hornsey and Wood Green. Will she say whether the definition of public authorities in her new clause 14 is the same as the one in the Human Rights Act? If it is, will it not fall foul of the same problem? By that I mean that there may be things that the House intended to cover, but did not. Moreover, would her equality guarantee in new clause 11, or the purpose clause tabled by my hon. Friend the Member for Daventry, mean that if a court was reading that definition of public authorities, it would change how it was interpreted—perhaps to avoid the problem that has exercised the hon. Member for Hendon and his Committee, which I know has been concerned about those subjects?

My final point concerns new clauses 16 and 17 on proceedings and the power to take remedial action. I wonder why the hon. Member for Hornsey and Wood Green has used provisions from the Human Rights Act, particularly on the power to take remedial action, when the legislation is declared incompatible with that Act. I think that I am right in saying that it gives Ministers the power to make orders to bring secondary legislation into line with the Act. Why would the hon. Lady effectively allow those provisions in the Human Rights Act to take effect, rather than defining new provisions? Is there some clever legal reason for doing that and for not going for a new power?

Given my party’s view on replacing the Human Rights Act and doing things differently, I am concerned that if the Committee tied those two together and decided to  support the hon. Lady’s new clauses things would start to go horribly wrong if we then changed the Human Rights Act.

My hon. Friend the Member for Daventry made a stronger case. Picking up the point made by my hon. Friend the Member for Henley, I am more comfortable about a purpose clause, which effectively would give judges some extra rules or some guidance on how to read the Bill. My hon. Friend the Member for Daventry put his finger on the point when he talked about the new clauses tabled by the hon. Member for Hornsey and Wood Green. I am much less convinced by an equality guarantee because it goes much further and is the sort of thing that one would expect to see in an Act of its own. Moreover, it could override the detail in the rest of the Bill.

We have spent a considerable time in debate and are now in the home strait of consideration of this considerable Bill, but it seems that popping these innocuous-sounding new clauses in at the end means that we need not have bothered to debate the Bill because we could have passed these very broad guarantees and handed the matter over to the judges.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families) 12:15, 7 Gorffennaf 2009

That is really egging it. The new clause would give an equality in terms of the Human Rights Act. There is an overarching equality guarantee, exactly as it says, but it would not remove any of the power of the Bill. The Bill dispenses the equality measures in that Act and the new clause would simply add to it in an overarching sense, and that is its importance.

The hon. Member for Forest of Dean is right to say that the new clause provides a different and broader equality guarantee than the purpose clause, which is more directly and narrowly focused on the functions of the Bill. However, the Equality and Human Rights Commission feels that the new clause would be a necessary addition to the Bill, and obviously on the Liberal Democrat Benches we agree.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful for the hon. Lady’s intervention. I obviously did not make myself clear. I was not suggesting that her guarantee negated what was in the Bill, or struck down some of the provisions that we have discussed. My concern is actually the opposite. We have gone through the Bill at length, and there has been careful balancing by the Government when they introduced provisions and by members of the Committee when we disagreed with some of them. We have been arguing about the effectiveness of what has been proposed, and also the balance. The hon. Member for Oxford, West and Abingdon spoke at length about the clash between different kinds of rights, and we listened at great length to that debate. Members on both sides have participated in it and have weighed up the arguments.

After that careful analysis and debate whereby Parliament works out where the balance should lie, and after all that careful weighing up and setting out of what we think the right answers are and where the balance lies, putting in that broad equality guarantee at the beginning would, in effect, say to a judge, actually, there is an overarching equality guarantee—the hon. Lady’s very words. If a judge were so minded, he could put to one side all the careful debate and argument that we have  had, insert his or her interpretation and override the clauses as drafted. That gives too much power to judges and takes power away from the House, which is where it should properly stay.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I do not know whether the hon. Lady wants to intervene on me at this point. I intend to be helpful.

New clauses 11 to 17 and the equality guarantee model derive a good deal from the Human Rights Act, as the hon. Gentleman said. Indeed, it appears that all of them are drawn to some extent from the Act, save perhaps subsection (2) of new clause 11, which may come from the South African constitution. Let me first go through how the clauses fit together to demonstrate how difficult it would be to get an equality guarantee that has the right effect and avoids unintended consequences.

New clause 11 in subsection (1) refers to

“the fundamental rights and freedoms set out in subsections (2) to (4)”, but subsection (4) is the power of a public authority to ignore subsections (2) and (3) about the purpose of ameliorating disadvantage. Subsection (4) is most certainly not a right or freedom, and nor is subsection (3).

Looking speedily at how the new clauses are composed, they do not work at all. Subsection (3) would prohibit public authorities from discriminating on a broad range of grounds. This point may have been made while I was briefly out of the Committee: the range of grounds goes way beyond the protected characteristics set out in the Bill.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

For the avoidance of doubt, I made the argument that there could be many more than two, and that the new clause therefore ran counter to our discussion last week about multi-discrimination, but I did not get to the fact that it contains a much wider list of characteristics, which the Solicitor-General highlighted.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I heard the hon. Gentleman, and I thought he made an effective argument about the contrast between what we defined as appropriate for going forward and some general view about filling in the gaps that people might fall through, and how the concepts might clash.

However, I did not hear anyone make the point that, of course, all new clause 11(3) says is:

“A public authority may not discriminate against anyone on any ground or combination of grounds such as”.

I will mention a few hair-raising examples of what might apply if that is agreed to. Interestingly, subsection (4) would wipe out the duty not to discriminate if the public authority is about the purpose of ameliorating disadvantage. Presumably that is a licence—is it?—to discriminate on the basis of colour to alleviate the disadvantage of a different-coloured group. Although the proposal is no doubt well-intentioned, its unintended consequences are likely to be significant.

In respect of new clause 11(3), which mentions any combination of grounds, what are we talking about? The words,

“such as colour, race, nationality, ethnic or national origin, language, gender identity, sex, sexual orientation, disability, religion or belief, and age”, will not confine any grounds significantly, because they are interpretable themselves, of course, in a wide range of ways. For instance, in respect of “colour”, which is an aspect of personal appearance, why would it not be possible to find that there was a ground against which people could not be discriminated against for having a particular hair colour, which is another aspect of personal appearance, or for being bald? If one goes along with the words

“such as...religion or belief”, why could there not be discrimination wrapped up in that in respect of political affiliation? What if somebody had a criminal conviction, say, or what if height or weight were at issue? The list that tries to confine the ambit of subsection (3) is non-exhaustive and does not confine it at all.

Committee members can just imagine—this is the best I could come up with quickly—a question arising about whether there was indirect discrimination on the basis of a provision criterion or practice that not necessarily deliberately, but inadvertently, discriminated against someone on the ground that they were bald. We really are getting into deep, extraordinary and obscure water, and we have only reached new clause 11 so far. What about discrimination on the ground that somebody is very tedious? That is probably another ground that we could examine with interest.

New clause 12, like section 3 of the Human Rights Act, would require primary and secondary legislation to be interpreted by the courts in a way that is compatible with the right to equality, but that right, as I have just said, is a wide one and includes equality on any old basis whatever that links in any way to any of the strands set out in new clause 11.

New clause 14 would make it unlawful for public authorities, including courts and tribunals and any person certain of whose functions are of a public nature, to act in a way incompatible with this massive and broad-ranging right to equality. The proposed new clause differs from the approach in the Human Rights Act because it contains a non-exhaustive list of factors to be taken into account when determining whether a function is a function of a public nature. We would have two different definitions of what a public function was: one in the Human Rights Act and this one, even though, as the hon. Member for Henley has said, the proposed new clause is an equality guarantee that goes way beyond the four corners of the Bill. So the Human Rights Act test of a public function and a public body would be applicable to all the Bills in the country and a different definition of such a function would be applicable to all those Bills, too. I cannot see that that will help anyone.

New clause 15 would require a Minister to make a written statement that the Bill is compatible with the right to equality. I would find that extremely difficult to do, for the reasons that I have set out.

As the hon. Member for Forest of Dean said, new clause 16 would, unlike the rest of the proposed new clauses, apply particular sections of the Human Rights Act. Under new clause 14 a completely different test would be set up from that in the HRA, but under new clause 16 that Act would be applied.

The Government understand the thinking behind the proposal and believe that securing equality’s place at the highest level of political principle is an aim worth pursuing. As I told the Joint Committee on Human Rights a couple of weeks ago, the Government are considering a statement of equality as part of the consultation on the Green Paper “Rights and responsibilities: developing our constitutional framework”, which was published in March. The Green Paper proposes that any such statement of equality would be accessible and straightforward, and should embody a central place in UK society. It would be constitutional provision, though “accessible and straightforward” would be its watchwords. This specific, strand-based, discrimination-oriented Bill is not the place to deal with constitutional principles of that kind.

Careful thought is necessary about whether such a statement could be justiciable in the way that the equality guarantee is clearly intended to be. We would have to work out carefully what impact anything with legal effect would have on the obligations imposed and rights given by discrimination law. Otherwise, we would just create levels of uncertainty.

It is not clear what the equality guarantee would add, although I know what the hon. Lady intends it to add. Domestic anti-discrimination legislation has been operating reasonably adequately, if not perfectly, for 40 years. As we have gone along, we have built in new strands and new areas of coverage, such as the public sector duty, for instance. The evolution of anti-discrimination law has been positive, and the Bill builds on it. It is difficult to see what the new clauses would add.

There is a wider question about the basis on which equality or anti-discrimination legislation ought to rest. I do not deny for a moment that the framework for the basis of human rights and equality can still be discussed. Usually, people who want equality guarantees are interested in widening the basis of equality legislation so that it is closer to human rights law. We would have to work out how widening that basis would interact with EU legislation, which is strand-based like our own. Indeed, as recently as the discrimination law review, the Government asked the public and considered the question. We found no point in changing the current basis, and a danger of consequential burdens and unintended outcomes. We have recently considered a different basis publicly and have concluded that the right way forward for the purposes of the Bill is the Bill.

The basic proposition in clause 11 is in clause 11(2):

“Everyone is equal before the law”.

That requires us to know what equality means. It is not defined anywhere. One might say that it is self-evident, but it is not. As John Schaar said in “Equality of Opportunity, and Beyond”, it is

“one of that genre of words that...have both a vague conceptual meaning and a rich emotive meaning”, with the conceptual meaning “subject to constant redefinition”.

Many jurisdictions with written constitutions have equality, but in no two jurisdictions that we have looked at are the meaning or effect of a constitutional provision precisely the same.

Concepts of equality are usually thought of as being on a continuum between formal equality, which is the idea that like situations should be treated alike, and substantive equality, which means that far from being blind to differences, the law focuses on them, thereby requiring, or at least allowing, treatment that runs directly contrary to the formal notion of equality by driving positive action forward. A good example of substantive equality is found in South Africa, from which part of the new clause seems to be derived. In that jurisdiction, positive discrimination, for understandable reasons, is actively required in certain circumstances.

One of the key areas of debate on an equality provision in the context of the bill of rights will no doubt concern what we mean by equality and where on the continuum any British statement of equality should lie. Our position is fundamentally different from South Africa’s. Would we want equality to be defined in the same way? It is not defined at all in the guarantee, so we would not know its reach, as I said, into baldness or having red hair—or indeed, false red hair—or where it would go.

There is also the important point, which I do not need to set out extensively as the hon. Member for Forest of Dean put his finger on it, that we would have to be careful to ensure that the equality right did not cut across specific provisions in discrimination legislation. We have spent a good deal of time on the Government’s attempts to strike a balance, which we believe we have got in the right place, between sensitive matters such as the rights of people with a religion or belief, and the rights of gay, transsexual and lesbian people. How would those delicate balances be affected by the superimposition of this undefined concept of equality?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 12:30, 7 Gorffennaf 2009

It is not just a case of how the balance would be struck. As I said, the important point is who does the balancing. I would rather that this place weighed up the issues that the Committee has discussed at length and strike that balance for the public. The problem with the new clause is that it effectively throws that balance over to a judge and, with the greatest respect to our judges, I do not think that they are in the best position to make that judgment. It is for Parliament to make those difficult decisions, as we have done in our debates on the Bill.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I completely agree, and I would have gone on briefly to say the same thing. It is not only about filling in the cracks in some undefined way, but about who defines where the cracks are and who decides how to fill them.

Suppose we get a situation in which we have said that multiple discrimination is best called dual discrimination and it is confined to two characteristics, and a judge perceives that there is a crack through which somebody with four characteristics has fallen in terms of discrimination and uses the right to equality across the board to put that right. The whole of business and the whole Government would be running on the basis that we had legislated for two sorts of discrimination, when suddenly the courts  say, “Actually, ha ha, you are wrong; there are now four sorts.” They would have seen a crack that needed to be filled in with this polyfilla equality guarantee.

Then, of course, there would have to be the equality guarantee versus European law, as the directives are also based on equality strands. A tribunal would have to interpret our legislation, including any equality right, in the light of those directives. An equality right of the kind in South Africa, which allows or requires positive discrimination, would run up against several requirements of European law that effectively prohibit positive discrimination in relation to the majority of protected characteristics. We might find that strand-based European law would cover some of those things and block positive discrimination, but it might not cover baldness, so that people could positively discriminate happily in favour of the bald or the red-haired.

I hope that, not in an unkind way, I have pointed out the difficulties. We do not think that anything would be gained by the provision except for uncertainty and complexity. I remind the Committee that it took the Canadian courts about a decade and a half to get to grips with their constitution equality provision, and they did not have to make it work in line with the European law framework or with convention rights.

The hon. Member for Forest of Dean made the powerful point that there would be a further ceding of power and the right to make such decisions away from Parliament in the direction of the courts. The whole procedure of a declaration of incompatibility makes a justifiable move in that direction. However, a further significant shift of decision-making power away from Parliament would have to be addressed in the context of a constitutional debate—if it is to be addressed at all—and not in the four corners of what is basically a strand-based Bill against discrimination. We should be using the Bill to advance practical equality as we have given effect to it in the Committee, building on the draftsmen’s work before us.

On the purpose clause tabled by the hon. Member for Daventry, we share a common objective of clarity and certainty. However, we do not think that a purpose clause will have that effect. In 2004, the then First Parliamentary Counsel, Sir Geoffrey Bowman, set out before the House of Lords Select Committee on the Constitution three key reasons why purpose clauses are extremely rare.

First, it is not easy to express a purpose in a few words without turning it into mere pious incantation. Secondly, and crucially, the general purpose provisions risk conflicting with the specific provisions of the Bill. Often, the intention is to state essentially the same thing in different words, but a court may potentially view it as meaning something different, otherwise why have such a provision in the Bill in the first place? Thirdly, even if there is no direct conflict, the relationship between the specific provisions and the general purpose is not clear.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

I am grateful to the Solicitor-General for reminding the Committee of those interesting and authoritative strictures. However, have there been any cases in practice where, whether in a fit of inadvertence or otherwise, we have strayed into accepting a purpose clause? Has such a clause ever done any judicial harm or created difficulty in practice?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I will come to that, but such clauses would have been accepted on a different basis from that on which the hon. Gentleman put forward certain statutory provisions, none of which we accept are purpose clauses.

Sir Geoffrey cited an example from one of our tax statutes, which states:

“This section is enacted to prevent the avoidance of tax.”

That sounds straightforward and is a good purpose for a piece of tax legislation to offer. Sir Geoffrey noted that, despite judicial expressions of opinion on that, nobody is clear about what those words do. Some people and judges say that they do nothing, while others say that they do something, but they are not quite sure what. That is not a position that we want to get into on an issue as complex and multifaceted as equality. Sir Geoffrey’s points make clear that the overall effect of a purpose clause would be to add uncertainty, which would lead to practical difficulties for individuals, employers and service providers, and to litigation.

The provision in the Children Act 1989 is not a purpose clause. It imposes a duty on the court to make the welfare of the child paramount, but it does not offer an interpretative tool through which the rest of the statute must be seen. Likewise, section 3 of the Equality Act 2006 imposes a general duty on the Equality and Human Rights Commission, which has found it useful. It is not, however, a recipe for interpreting the rest of the Act; its sole purpose is to impose the nature of the duty on the commission. The provision in the Crime and Disorder Act 1998 is also often cited, but it adds nothing of substance. We do not therefore acknowledge that there is a trouble-free zone around purpose clauses. It is significant that there are no purpose clauses, which are a recipe for potential problems.

I dealt with much of the concept of equality when I talked about the equality guarantee suggested by the hon. Member for Hornsey and Wood Green, but it would be worth, by way of headlines, citing specific problems with the purpose clause.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The expressed reason for the purpose clause is to help with judicial interpretation. The short interpretation section in clause 199 is similar to that in other Bills in that it defines certain expressions and words. Is there any merit in focusing on, and making improvements to, a Bill’s interpretation section, or are certainty, consistency and scope to be made clear to judges by the way in which a Bill’s individual clauses are drafted?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I think that it is the latter and that the interpretation section is about particular terminology in the Bill. It is not an attempt to offer a distant prism through which to view the whole legislation. The concepts are different, and I am not aware of any shortcomings in the interpretation sections, or whether anyone believes that there should be more, better or different interpretation sections. No amendments have been tabled, but we remain open to suggestions.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

To follow on from the point made by my hon. Friend the Member for Forest of Dean, I sense how the Solicitor-General’s argument is going. Will she accept that, if nothing else, it is important that she gives some thought—I suspect that she will do so anyway—to  the training and comparative studies of judges in this area? There is no doubt that we have a commonality of purpose in trying to move the matter forward. There may be some difference between us on whether the Bill is the appropriate vehicle to do so, but the Government should address the wider picture in forming their judgment.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I am sure that there is bound to be Judicial Studies Board training on the impact of the new legislation and its purpose, and what we have said about its inclusive nature and intention are bound to resonate in that training. None the less, it will be necessary to interpret particular provisions according to the words in the legislation. That is our tradition, and it is a system that works well by and large.

I understood the concerns about Amin, the recent concern about Malcolm, over-narrow interpretations, the YL case and the Leonard Cheshire case about public authorities. Do we throw over to the courts—that is what the hon. Gentleman wants to do—for the sake of trying to remove what I would consider to be over-narrow rather than legalistic interpretations, the massive ability to have some sort of overarching prism through which to look at the Bill? It will be an individualised prism, according to how the judge looks through it. Do we leave the cracks to be filled by the judiciary? The balance could produce unfortunate results. We do not foresee real difficulties with such cases. If over-narrow interpretation undermined the purpose of any clauses, legislation would be required.

I sense that the hon. Gentleman is a little more content, and that he will perhaps not press his case to the bitter end because he appreciates the two options and puts them together coherently with the suggestion of training for judges. I will not trouble the Committee with all the examples that I was going to give of where the new clause would cause difficulty, except one, which makes the point for all of them. Sub-section (1)(e) of new clause 22 refers to human dignity, which is obviously part of the philosophical basis on which equality is founded, but what does that concept add? The Canadian academic, Reaume, said:

“Dignity is said to be vague to the point of vacuousness and, therefore too easily useable to dress up decisions based on nothing more than conservative gut reaction or excessive deference to Parliament. Recent cases”— that is, Canadian ones—

“might be thought to bear out this criticism”— as might some of our recent cases. Dignity

“can be used as an empty place-holder for...less presentable reasons for finding for or refusing to find a violation of equality.”

That is a telling quote, but my worry about the provision is that in seeking to bring a formalised, dignity-based approach to equality by the back door, there would be a loss of clarity. Those who favour a dignity-based approach to discrimination run the danger of seeking to fill a gap with a concept of dubious merit or additional value. Would human dignity, for example, be undercut by measures aimed at preventing systemic discrimination in the context of positive action? That might need to be qualified with a view to it fostering good relations—another aspect of the Bill—and the need not to discriminate. If we have those loose concepts thrown into the mix, it does not add anything. It makes for a very complicated attempt to balance and we are balancing generalities; the Bill is really about specifics.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry 12:45, 7 Gorffennaf 2009

While not having finally taken my tanks off the lawn yet, will the Minister at least—having dangled before us the prospect of a full revelatory account of all the concerns she has about the purpose of the new clause—indicate that that concern about the human dignity, described by her as a somewhat vacuous concept, is perhaps the greatest of her objections to it? I am trying to get an idea of the hierarchy of concerns that she has established on the various points.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I think that that is where it descends—I say this without the slightest disrespect—into the apotheosis of the hon. Gentleman’s vagueness. That is the worst aspect of it, but it is really intended less to demonstrate that and more to exemplify the difficulties to which lots and lots of those concepts, which the new clause would require to interact, would give rise. It would just give an extra layer of foggy concept over the top of provisions that the judiciary are perfectly capable, in my view, of interpreting in a positive way and have been fairly successful in doing so over the past few years, with the few exceptions that the hon. Gentleman quoted. However, they are not enough in my summation to justify that kind of thing.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

I mentioned a number of things about the international aspects, compliance with international conventions and, possibly, developing jurisprudence. Does the Minister see any merit for at least being able to accommodate those things where they go beyond the immediate statute of the Equality Bill? How are we going to cope with them in future?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I might have missed the essence of the hon. Gentleman’s point, but as far as moving legislation in the UK forward to match European jurisprudence, there is the clause 2(2) provision that we have already discussed, and on which we, with the hon. Gentleman’s support, will rely. If I have missed a further point about that, I apologise and will write to him. However, I took no more from what he said than that.

I hope that I have convinced the hon. Gentleman and the hon. Lady that the new clauses will not help us to have a positive interpretation. They are capable of being counterproductive and they do not significantly add anything to the Bill except the opportunity for confusion. I invite them not press the new clauses to a Division.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I am left in no doubt that the Minister is not keen on including the equality guarantee in the Bill. I will reflect on what she says. Clearly, I need to have another look at the wording and compatibility to see where it is the same as the European convention on human rights and where it differs. That might be a valid point. However, the Minister has not really addressed the harm that was done by the Malcolm case. I think that whether it is by purpose clause or the equality guarantee, it is a real and live issue.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I was listening to the Minister carefully. I think that she did deal with that issue. If there are cases—there have not been many—where judges interpret that provision very narrowly, as they did in the Malcolm case, the solution is for this Parliament to legislate  specifically to deal with it, as we have done in the Bill. That is the better solution than allowing judges to roam more widely and make law more widely than this Parliament intends.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I am not sure that I was trying to allow them the leeway to roam more widely. I was trying to narrow their guidance within a defined framework. We will just have to disagree on that. What has been given voice to is a genuine underlying concern about such issues and also the fact that the Bill may miss a unique opportunity to engage with equality in the wider sense. Perhaps the overarching comment about the Bill is that it is confined to the specifics and the precise. How often does an Equality Bill come along? The equality guarantee is an attempt to reach for a wider and higher definition, and to give people the security to feel that they will be protected, whether or not the specifics have in any way omitted or misinterpreted that policy.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

What about the baldness point and the idea that the hon. Lady would extend the reach of equality law way beyond the specifics, to any characteristic under subsection (2) of new clause 11?

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

When the hon. Member for Forest of Dean intervened, he spoke about grounds or combinations of grounds, such as colour and race. My reading of that is that it could still be interpreted as such and would not contradict the idea of two being the number of the multiple discrimination, and any combination thereof. However, I will reflect on what the Solicitor-General said. I do not deny that the new clause might broaden the law. Indeed, that is part of the purpose of the equality guarantee. It would greatly strengthen people if they were covered by it and equal before the law. I shall reflect on the new clause because something is still missing from the Bill, which could be provided by a similar provision.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

On a point of order, Lady Winterton. Before we consider this specific new clause, I spoke earlier of my intention to press new clause 22 to a Division. I am not entirely convinced by the Solicitor-General’s deployment of her arguments, although she did it very clearly. I remain something of a sceptic, but at a somewhat higher level. There will be other opportunities in the consideration of the Bill, so I am not minded to press my new clause to a Division at this stage.

Clause, by leave, withdrawn.