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Standing Committee A
The Committee consisted of the following Members:
Chairmen:
Mr. Roger Gale, †
Janet Anderson
†Baird, Vera (Redcar) (Lab)
†Barlow, Ms Celia (Hove) (Lab)
†Blackman, Liz (Erewash) (Lab)
†Brokenshire, James (Hornchurch) (Con)
†Brown, Lyn (West Ham) (Lab)
Campbell, Mr. Gregory (East Londonderry) (DUP)
†Dhanda, Mr. Parmjit (Gloucester) (Lab)
†Evennett, Mr. David (Bexleyheath and Crayford) (Con)
†Follett, Barbara (Stevenage) (Lab)
†Gidley, Sandra (Romsey) (LD)
Goggins, Paul (Parliamentary Under-Secretary of State for the Home Department)
Grieve, Mr. Dominic (Beaconsfield) (Con)
†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
†James, Mrs. Siân C. (Swansea, East) (Lab)
†Laing, Mrs. Eleanor (Epping Forest) (Con)
†McCarthy-Fry, Sarah (Portsmouth, North) (Lab)
Miller, Mrs. Maria (Basingstoke) (Con)
†Munn, Meg (Minister for Women and Equality)
†Seabeck, Alison (Plymouth, Devonport) (Lab)
†Ussher, Kitty (Burnley) (Lab)
†Williams, Hywel (Caernarfon) (PC)
Geoffrey Farrar, Emily Commander, Committee Clerks
† attended the Committee
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Tuesday 29 November 2005
(Afternoon)
[Janet Anderson in the Chair]
Clause 7
Scotland: human rights
4.11 pm
The Minister for Women and Equality (Meg Munn): I beg to move amendment No. 7, in clause 7, page 3, line 36, leave out ‘body’ and insert ‘person’.
The Chairman: With this it will be convenient to take Government amendments Nos. 8 to 11.
Meg Munn: Welcome to the Chair, Mrs. Anderson. It is always a pleasure to see you there.
This is a minor drafting amendment. Clause 7 limits the role of the Commission for Equality and Human Rights in Scotland, allowing the commission to take human rights action on devolved matters only with the consent of a “body” established by an Act of the Scottish Parliament. When the clause was drafted, it was anticipated that that body would be a Scottish human rights commission. However, a Bill introduced in the Scottish Parliament on 7 October will create a Scottish commissioner for human rights. The amendment merely updates the drafting to reflect the fact that the Scottish Parliament will create a post, not a body. It in no way changes the policy set out in the clause.
One effect of clause 7 will be that the Commission for Equality and Human Rights will not be able to institute or intervene in legal proceedings that relate to a matter that falls within the devolved competence of the Scottish Parliament without the proposed Scottish commissioner’s consent. To ensure that that works correctly, we expect there to be a memorandum of understanding between the CEHR and the Scottish commissioner. Where the CEHR obtains the Scottish commissioner’s consent to institute or intervene in proceedings or judicial review on a devolved matter, clause 30(3) will enable the commission to rely on convention rights in the proceedings without having to obtain a separate consent from the Scottish commissioner.
Mrs. Eleanor Laing (Epping Forest) (Con): I echo the Minister’s words in welcoming you to the chair, Mrs. Anderson. I am sure that the entire Committee will enjoy working under your chairmanship.
We discussed the effect of devolution this morning. I see why the amendment is necessary. Not as shadow Minister for Women and Equality but in my other capacity as shadow Secretary of State for Scotland, I frequently deal with regulations in Committee that, as a result of consideration of Acts of the Scottish
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Parliament, amend primary legislation. Once again, it is good to see that the Government are up to speed with what the Scottish Parliament has done, and the amendments should be made before the Bill becomes law. That makes for much better and neater legislation. I would much rather deal with the amendment now than under a separate statutory instrument in Committee. I support the Government’s amendment.
Amendment agreed to.
Mrs. Laing: I beg to move amendment No. 66, in clause 7, page 3, line 37, at end insert
‘unless the matter is one of a general principle, which applies to the whole of the United Kingdom.’.
Again, we are speaking about humans rights in Scotland. I want to ensure that the Bill is consistent in all that it enables and puts into effect. If we are talking about equality and everyone having the same rights, as indeed they should, matters dealt with in Scotland should be dealt with in the same way as in the rest of the United Kingdom. Conversely, matters dealt with in the rest of the United Kingdom should be dealt with in the same way as they are dealt with in Scotland.
The commission may not have the right to take action in relation to a matter because the Scottish Parliament has legislative competence to enable a body to take such action. The matter could be an issue of principle. Some matters that will arise under the Bill are likely to be issues of principle. The sort of action that we envisage will be class actions where a general matter has gone wrong in discriminatory ways. The matter that might be brought forward for consideration might be used as an example in order that there should be a legal decision to create a precedent, which would then be informative for everyone else who might bring a similar action.
If an issue arose in Scotland, it should still be dealt with in a United Kingdom context if it is a matter of principle that relates to the whole of the UK, as is perfectly likely. We can all envisage that happening. I do not want to see separate bodies of law or separate conventions building out of the Bill that distinguish between Scotland and the rest of the UK, or indeed between Wales and England, or in any other way. If the intent of the Bill is to achieve equality, it should be at every strata. While I have every respect for the Scottish Parliament and all its Acts and enactments, and while there is nothing wrong with the Scottish Parliament having legislative competence where appropriate, it would be quite wrong if clause 7(1) limited the Bill’s ability to achieve what it otherwise might have achieved by restricting what it could do.
Meg Munn: Human rights as a subject are neither reserved nor devolved. As they touch on almost every area of Government, it is necessary instead to consider whether the context in which they are operating is reserved or devolved. It is that split, awkward though it is, that clause 7 seeks to respect. The establishment of both the CEHR and a Scottish commissioner for human rights provides an unparalleled opportunity for the promotion of human rights. However, it is important that nothing gets lost between our
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commission and the Scottish commissioner and that the two bodies work together to ensure that they fulfil their respective remits as efficiently as possible.
To that end, clause 9(4) provides that, where it would be advantageous to consider a matter relating to England, Wales and Scotland in one place, the CEHR will be able to do so with the consent of the Scottish commissioner in relation to any devolved matters. That provides a sensible practical mechanism to allow the CEHR to consider devolved human rights issues in Scotland alongside similar issues in England and Wales, while minimising the risk of friction or of confusing differences of approach arising between the CEHR and the Scottish commissioner. We expect that the CEHR will conclude a memorandum of understanding with the Scottish commissioner, to ensure that that arrangement works effectively.
Clause 18 provides the CEHR with a wide power to
“co-operate with persons interested in human rights within the United Kingdom or elsewhere”
in fulfilling its human rights duties. That will, for example, allow the CEHR to work with the proposed Scottish commissioner and the Northern Ireland Human Rights Commission on a matter relating to the whole of the United Kingdom. It is important that all the bodies in the UK tasked with promoting the protection of human rights work together effectively, and I am confident that the Bill provides a sensible and effective means of allowing them to do so. I hope that that reassures the hon. Lady and that she is willing to withdraw the amendment.
James Brokenshire (Hornchurch) (Con): I, too, welcome you to the Chair, Mrs. Anderson. I hear what the Minister has said in connection with devolved powers. She referred to clause 9(4).
Meg Munn: I have had it clarified that there was an error in my brief. It should have referred to clause 7(4). I hope that that helps.
James Brokenshire: I am grateful to the Minister for that clarification, because I could not quite see the relevance of clause 9(4). She has now referred to clause 7(4). In other words, the prior consent of the Scottish commissioner would be needed as regards taking the action described. I suppose that the issue is clarification, which is why the amendment was tabled. There may well be a requirement for general principles to be adopted in terms of common standards on human rights, as my hon. Friend the Member for Epping Forest (Mrs. Laing) highlighted. The issue boils down to whether it is better to construct that by means of a formal concordat between the Scottish commissioner and the CEHR with regard to common ground and common issues and ensuring that we have a clear view and clear standards in relation to human rights and the approach that will be taken.
One issue that the measure obviously touches on is human rights. Without my wishing to pre-empt a debate on clause 9, there is some scope with regard to what is meant by human rights, given that the definition to which we are referring talks about the convention rights and “other human rights”. There may be different views as to what “other human
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rights” are in Scotland, as compared with the body of law that might be relevant in the rest of the United Kingdom.
The amendment is designed to prescribe a particular way of dealing with matters to make it clear that, if there are issues of general principle for the whole UK, they should be reserved for the CEHR rather than being devolved. I hope that such a measure would be limited in its use and scope. The emphasis on matters of general principle highlights the approach that we take in tabling the amendment. Because of the uncertainty about the definition of human rights, it seems sensible to prescribe how to deal with issues of principle in respect of which a general approach is required for the whole UK. That is best done by means of a specific requirement rather than by a concordat or an arrangement under which an agreement would have to be reached between the Scottish commissioner and the commission, as stipulated in clause 7(4). It is important to be clear where rights, duties and responsibilities lie. Fundamental issues of general importance should be addressed by the commission, which can take a broad view of their impact on the UK as a whole, rather than, necessarily, by the Scottish commissioner.
Meg Munn: I hope to give more explanation and clarification. It is important to remember that nothing in this Bill can change the devolution settlement. As the hon. Member for Epping Forest, who has a great deal more experience in that area than I do, has said, we have undertaken a great deal of negotiation and looked at much legislation to ensure that that does not happen.
We are trying to ensure that the CEHR and the proposed Scottish commissioner will be able to work together when appropriate. I would not want anything to appear in the Bill that enabled any matter, whether devolved or arising in the rest of Britain, to be undertaken or investigated by the commission without appropriate consultation. It could be that matters of principle relating to devolved matters have wider implications for England and Wales. However, it is appropriate for the Scottish commissioner to consider them and to share the information subsequently.
We believe that the proposed consent mechanism and memorandum of understanding are the right way to achieve that, as we have set out in clause 7(4). Therefore, we wish to proceed that way, rather than allowing a situation to arise in which the commission could do something that affected a devolved matter without having obtained the consent of the Scottish commissioner.
Mrs. Laing: I accept the Minister’s explanation and am pleased to have had the chance to air the argument, because I continue to be concerned that devolution issues should be taken into consideration and that we should have the necessary continuity of effect throughout the whole UK. The Minister has explained the situation very well and has answered the points
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made by my hon. Friend the Member for Hornchurch (James Brokenshire). Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 8, in clause 7, page 4, line 6, leave out ‘body’ and insert ‘person’.
No. 9, in clause 7, page 4, line 8, leave out ‘body’ and insert ‘person’.
No. 10, in clause 7, page 4, line 9, leave out ‘body’ and insert ‘person’.
No. 11, in clause 7, page 4, line 10, leave out ‘body’s’ and insert ‘person’s’.—[Meg Munn.]
4.30 pm
Question proposed, That the clause, as amended, stand part of the Bill.
Mrs. Laing: On a general point in relation to the way in which the Bill will work in Scotland. I have discovered that the Government have today tabled a motion to be dealt with in the other place, amending the Scotland Act 1998 quite rightly to include the Commission for Equality and Human Rights under the definition of reserved bodies, as opposed to devolved bodies.
My question relates to the timing of the secondary legislation’s introduction in the House of Lords. I do not understand how it can happen today, when the secondary legislation becomes necessary as a consequence of the passage of this Bill. We have not passed this Bill. Since the other place has already dealt with the Bill, it could be that the other place has to deal with the consequential issues arising from its passing of the Bill.
However, the Bill is not an Act of Parliament, it is not law and it is hard to understand how the other place can consider secondary legislation to amend the Scotland Act 1998 as a consequence of the Equality Act, when the Equality Act is not an Act but a Bill.
Meg Munn: I shall make a few general comments about the clause and then respond to the hon. Lady.
Clause 7 limits the role of the Commission for Equality and Human Rights in relation to human rights issues in Scotland in order to ensure a workable division of functions between the commission and the Scottish commissioner for human rights. The Bill to establish the post of the Scottish commissioner is before the Scottish Parliament, and there is no direct reference to the Scottish commissioner, as it does not exist yet. That is perhaps an interesting point, given the hon. Lady’s question.
Under the Scotland Act 1998, human rights as a subject is neither devolved nor reserved; instead, whether a particular human rights issue is devolved or reserved depends upon the nature of the service giving rise to it. We take it as axiomatic that the commission should not create anomalies in the devolution settlement. However, we are aware that there may be occasions when the interface between the two bodies
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might be a little untidy. The essential point is that the commission will not normally be able to take action under its human rights duties in a devolved matter without first gaining the consent of the Scottish commissioner.
In relation to the point made by the hon. Lady, my understanding is that once the Bill has received its Second Reading in this place, it is possible for the change that she mentioned to be made. However, I shall obtain greater clarity about that point, and write to her to ensure that we are clear about the situation.
The policy underlying the clause has been discussed with the Scottish Executive and the Scottish Ministers, and it should, we hope, result in good and effective working relationships.
Mrs. Laing: I thank the Minister for her explanation. In retrospect, I am sure that she is right: once the Bill has received its Second Reading, it is in principle likely to become law. Understandably, the other place will have to start enacting secondary legislation as a result of the Bill. We all hope that it becomes law. The secondary legislation that is about to go through the House of Lords seems eminently sensible and, indeed, inevitable. I thank the Minister for that explanation.
Question put and agreed to.
Clause 7, as amended, ordered to stand part of the Bill.
Clause 8
Equality and diversity
Question proposed, That the clause stand part of the Bill.
Meg Munn: The clause sets out the first of the core duties of the new commission. The aim is to ensure that the Commission for Equality and Human Rights is fit for purpose for modern Britain and to provide the commission with flexibility and responsiveness, while making clear its unique duties under the equality enactments. One of the key reasons for establishing the commission was the need to deliver institutional arrangements capable of responding to the challenges of future years. Already, our existing system has reached the limits of what it can achieve. We have three commissions for three areas of equality law: disability, gender and race. However, there is nothing for other areas of equality law: sexual orientation, age—when that is enacted—and religion or belief.
We have a more sophisticated understanding of concepts such as equality and diversity today. By equality, we mean equal treatment or opportunity for two people who can be compared on grounds of, say, race or gender. Diversity, on the other hand, borrows from human rights principles. It recognises the sometimes unique needs of individuals and when fair opportunity or treatment cannot be determined through comparison with another individual. We
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believe that both equality and diversity have a legitimate place in the range of duties of the Commission for Equality and Human Rights.
In requiring the new commission to promote equality and diversity, in subsection (1)(a), and to
“encourage good practice in relation to equality and diversity”,
in subsection (1)(b), we have provided it with the scope to address and respond to new or emerging equality or diversity issues. Equality and diversity, in that respect, are not defined with reference to existing discrimination statutes, but can include areas not yet regulated by statute.
The commission is also required to promote equality of opportunity. The duty in subsection (1)(c) reflects the provisions in existing anti-discrimination legislation and particularly the public sector duties. It is not limited to the six equality strands and, together with the equality and diversity elements of the clause, it will enable the commission to encourage good practice in specific areas where legislation does not render practices unlawful. For example, it may promote equal treatment for all, regardless of sexual orientation, in the provision of goods, facilities and services.
Subsection (1)(d) places a duty on the commission to raise awareness and promote understanding of the provisions of the equality enactments and, in particular, of the rights available to individuals under them. In that way, the commission will be able to provide information and advice through a variety of media to individuals and organisations.
Subsection (1)(e) places a duty on the CEHR to use its unique enforcement mechanisms to encourage the equality enactments. Elsewhere in the Bill, we have provided the commission with a more flexible range of powers than are available to the existing commissions in order to enable it to carry out its enforcement duties. The commission is required to work towards eliminating unlawful discrimination, under subsection (1)(f), and unlawful harassment, under subsection (1)(g), as defined in the equality enactments.
Subsection (2) defines terms used in the clause. Of particular note are the definitions of diversity and equality. Diversity means recognising that each individual is different and that specific action may be required to achieve equality. Equality, on the other hand, means recognising that groups of individuals may experience different treatment when compared with other individuals because of particular attributes that they have and that this comparison may define the action necessary to achieve equality.
Subsection (3) provides that the commission may
“promote the favourable treatment of disabled persons.”
That recognises that the Disability Discrimination Act 1995 is alone among our anti-discrimination laws in that it requires action to be taken for disabled people in order to tackle inequality. It requires bodies to make reasonable adjustments. Subsection (4) defines the term “disabled person” for the purposes of part 1 of the Bill by referring to the definition of disability in part 1 of the Disability Discrimination Act.
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Taken together, the provisions of the clause set out one of the core duties of the Commission for Equality and Human Rights: to drive efforts to ensure equality and diversity are embedded in the fabric of our workplaces, our economy and our communities.
Mrs. Laing: I thank the Minister for explaining the purpose of the clause. I have some questions that go to the crux of the matter, as the commission’s duties regarding equality and diversity are what the Bill is all about. There are some nuances that might simply be a matter of interpretation, but which might highlight the difference between the Government and the Opposition on the basic purpose of the Bill. Before we give the clause our full support, I want to ensure that any difference is of nuance only, rather than of principle.
Will the Minister give more explanation about subsection (1), particularly in relation to paragraph (b), which provides that:
“The Commission shall, by exercising the powers conferred by this Part . . . encourage good practice in relation to equality and diversity”.
What does “encourage good practice” mean? It is rather a vague term, and I do not want the Bill to pass into law in a vague form. We are charged with the duty of passing legislation, and I firmly believe that legislation should never be vague but should be precise, so that it can be interpreted with ease. Encouraging good practice could include a range of activities from running an advertising campaign to going around the country giving talks to relevant bodies or providing education in schools.
The commission is likewise charged, in subsection (1)(a), with promoting
“understanding of the importance of equality and diversity,”
but how can it promote understanding? To what extent is it required to do so? A duty under the law should not be just a vague idea that the commissioners might decide to go along a particular route or take up a particular case and talk about it; it should be much more than that: it should be a positive duty. Therefore, we need to know a little more about what is expected regarding the promotion of understanding.
Subsection (1) also provides that the commission shall
“promote equality of opportunity”.
To what extent is the commission expected to be proactive—I do not like that word; indeed, I do not think it is a real word, but it is probably the right one—rather than passively saying, “Yes, we are in favour of equality”? Is it to be active in promoting equality of opportunity?
There is no doubt that we all want to promote equality of opportunity in principle—I reiterate that we want the Bill to succeed because it promotes equality of opportunity—but to what extent does the commission have a duty to promote equality of opportunity? How much does it have to do? Does it have to publish pamphlets or take an active role? Does it have to put someone on “Richard and Judy” to talk about equality of opportunity? Apparently that is how to get the message over to most people.
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Meg Munn: That is a good idea.
Mrs. Laing: It probably is, actually. Perhaps we could interest Richard and Judy in our campaign for equality of opportunity.
How far is the commission expected to go? We must settle these points because it is important to be precise about what it will do. Having said that, the three existing commissions already do a tremendous job of promoting the particular equalities for which they are responsible. The Equal Opportunities Commission, for example, funds meetings and seminars throughout the country, as do similar bodies.
Alison Seabeck (Plymouth, Devonport) (Lab): The hon. Lady is talking about general duties and the exact meaning of the clause. Perhaps the Minister can clarify this matter for me because I am new to all this, but clause 13 mentions information and advice and refers to disseminating information, undertaking research and providing education or training. It seems that there is a direct linkage between the hon. Lady’s concerns and what is, at least partially, set out in clause 13.
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