Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 200 - 219)

MONDAY 20 MAY 2002


  200. Just one final supplementary. Does the Women's National Commission have any powers of investigation or powers to send for people?

  A. It makes recommendations. It will make recommendations to Government.

Vera Baird

  201. Could I just follow that example up. I am sorry that you have been slightly bombarded with where you would put these particular examples but they are nonetheless capable of probing your thinking. If for domestic violence you consider the issue of rape and the issue of a complainant's right to a private life, which is thought by many campaigners to be frequently broken by cross-examination about previous sexual history, she, if it is a she, is not going to be entitled to have a lawyer in court to protect her, of course it is not an issue that the Government can conceivably intervene in across any departments or not, it is not an equalities issue because men are raped and sustain the same kind of cross-examination. It seems to me that sort of issue is going to fall right through if there is not a human rights commission there which could take up such a thing and run with it.

  A. You could certainly make that argument. On the other hand, you could also say that is an issue as to how we treat victims in the criminal justice system and also to say that perhaps it is an area where you want to think, as indeed my colleagues in the Home Office have and in the Lord Chancellor's Department, about strengthening the rights of victims or the limits that you may want to place on where and when a victim can be cross-examined. You could also say it could also go on whether a defendant can represent himself in person. I say "himself" because that usually is the case. It is certainly an example, I think you can pursue that one. I do see the point. I suppose what I would also say is you could also deal with that as a separate cross cutting Government issue in its own right as well as thinking that could be an issue for an independent body, but certainly I understand the example.

Mr Woodward

  202. Minister, I do find myself in listening to your response, as we progress through this, increasingly interested in terms of this idea of whether or not you can sustain a separate equality commission and a separate human rights commission because in just three examples so far, the issue of rape, domestic violence and bullying, we constantly find ourselves overlapping. I wish to draw attention to another area where there is overlap or in some cases some might even say non recognition and that is the area of children and the protection of children and children's rights. At the beginning of your remarks this afternoon you drew attention to your document, a very good document, Towards Equality and Diversity. In that document there is no mention of children and their rights. As a matter of interest, why was that?

  A. As I said because the document is focused on the Employment and Race Directives which are important but actually deal with those things in the field of race which for us, here, we have implemented largely now with the Race Relations Amendment Act and employment with mainly, but not exclusively, the new strands coming in but they are in a very small area so it is based on that. That is why the children aspect would not come into it.

  203. In which case, as you say, you have a very tight timescale on the consultation you refer now to towards the idea of a single equality commission. What steps are you taking to involve children's organisations and charities in your consultations to ensure that what some might regard as a voice that is little heard in these deliberations is recognised in the process of thinking about a single equality commission?

  A. I am sure that in some of the representations that—

  204. Are you seeking them from children's charities?

  A. We have not expressly gone, as I say, because the first bit of the consultation which ended in September dealt with the Race and Employment Directives. The body of work that I announced last Wednesday was to look at the scoping of a feasibility study for a single equality commission. In that, although that is not a formal process—there were some questions on this, as you will recall last Wednesday—I am sure we will get some representations about this. Of course, certainly I know there has been interest in this in the devolved administrations who have looked at this. I suppose what I would say to you, because this is not expressly my area of expertise, is that what we have tried to do as a Government—and my apologies, once again, Mrs Corston, for using so much jargon—is to have perhaps more of a cross cutting approach to this on children's issues and realising at the very least that they are not a matter for one Government department, that they span several. I am sure representations will be made to us but I would not say it was the focus of our project, no.

  205. I am going to push you a bit further because some of the children's charities would say it has precisely been this belief in the idea of a cross governmental department approach which has resulted in some of the chaos and problems they might describe as a legacy from successive governments and despite a major piece of progress in the area of protecting children in the last five years, still with the absence of a Minister for Children, which some believe we should have.

  A. We do have a Minister for Young People, John Denham.

  206. We are still without the Minister for Children which the major charities—NSPCC, Barnados, ChildLine, all of them—have been advocating, the fact that in England we still do not have a Children's Commissioner which other parts of the United Kingdom do have but actually at the moment the problem is that you are relying on this cross departmental approach and the problem is that actually cross departmental is exactly that, it is not independent, it is not a body that can, for example, as the CRE or the EOC might do about other issues, say "Look, bullying is such a major problem in our schools that this has to be something the Government has to address". It depends at the moment on the Government deciding it has to address this issue. You have spoken this afternoon about relying on this cross governmental approach, and I take up the issue of children because it is a very good area, I think, where you have a body of people who because they cannot vote have absolutely no part in the democratic process.

  A. No.

  207. They cannot change the Government as older people or women can.

  A. No.

  208. Again some of these children's charities, I think if they were speaking to you this afternoon would say "Here we go again, children's charities views not being specifically solicited and we are, as it were, at the bottom of the pile".

  A. Sure. I understand completely. Just for the interest of the Committee, Mrs Corston, just to look at the mechanisms where we are the moment with this. We have got the Children and Young People's Unit, we have got a Cabinet Committee for Children and Young People's Services, we have also got a National Director of Children's Health Care Services. As I understand the matter we are looking at ways currently of strengthening the provision for children and young people and we are actively looking at how if we were to have a Commissioner how that could add to that. Let me say to you, Mr Woodward, I do not dismiss this and certainly I understand the points you make. Just an additional word perhaps of reassurance on this, although I know it will not go quite the whole way, the Social Exclusion Unit currently has two ongoing projects. One, which I regard as an extremely important one, which looks at the educational achievements of children in care because the record is a shocking one in terms of there are something like 60 per cent of children who leave care who do so without gaining any educational qualifications at all and something like, it has just gone up from five to six per cent, only six per cent get five A-Cs. Given that these are looked after children with the state in loco parentis, that is a pretty shameful record that we have to bear. There is another one, of course, which is about young runaways. With both of those projects what is absolutely clear is that there is a focus across Government that needs to be placed there. I would draw your remarks, certainly, Mr Woodward, to my colleagues who deal with this.

  209. Finally, to close this area of children, would you see, therefore, children's issues falling within an equality commission or a human rights commission?

  A. I am not sure I would see the focus in an equality commission. What I do not want to do is to set anything in stone because the reason I am being so careful at this stage is having announced the establishment of all this, I do not want to do this. I suppose I come back again—and my apologies for being so boringly narrow about this—given the work we have to do with the three existing commissions and the new strands, I have got to put all my energies on that. That does not mean to say that we will not have in the next six months representations on those things and, of course, as with everything else that we have, we will have to consider it carefully.

  210. So children's charities should take note of the fact that we do not quite put enough emphasis on children in that group that might form the equality commission, would that be right?

  A. It is more that I think if you look at where we need to go to get these measures implemented on the Race and Employment Directive, and also if we were to do so, to move to a single equality body, we have to recognise, I think, the limitation. I come back to the reply I gave to Lord Lester. You could have a body that really dealt with everything, and it could have in its remit all the issues that we would all like to deal with, but whether it would be sensible to put them in all one big pot on every single issue I rather doubt.

  211. The problem is they are not anywhere at the moment.

  A. I appreciate that. Again, sometimes I think it is a mistake to say they are not anywhere, and then we see this new body coming down the road "Well, let us put it here" but let us not forget there is an equality focus and there is a history where we have come from on the equality legislation but I would be very loath to dilute. That does not mean I do not think these issues are absolutely vital. The fact I am paying so much personal attention to the projects we are doing on the education of children and children in care and young runaways means I am, whether it is the right place or not, probably not but again I am sure representations could be made to us.

Lord Lester of Herne Hill

  212. Can I just say surely it is not quite right to say children are not being dealt with by the equality agenda at the moment. If there is race discrimination, gender discrimination, disability discrimination—

  A. Of course they will be there.

  213.—then they must be dealt with and are dealt with. The problem is there will be other kinds of unfair treatment of children which are only dealt with by well meaning ministers in Government and not by an independent body. That is what we are asking you to concentrate on.

  A. Can I take that point. Of course, you are right. The earlier example you put to me on exclusions of black and ethnic minority pupils, of course this has been quite rightly so a concern and passion of the CRE and an issue that it has wanted to tackle. I think the question which was put to me though, Lord Lester, was a much wider one from Mr Woodward. If I understand him properly, it was about the whole question of where you put children as a whole and that is not just as it comes into a particular equality strand but goes across the whole spectrum.

Lord Parekh

  214. Minister, on this question of a single equality commission, may I begin by saying that I entirely agree with you, I think it is a brilliant idea. In the Commission which I was privileged to chair we consulted a lot of people, including Members of Parliament, and we came to the conclusion that this was the way to go. Listening to your evidence so far and your speech at the IPPR I am beginning to wonder about your reasons. Historically we have gone in the direction of equality in terms of race and then gender and then disability. Now the Government comes along and says "Let us have a single equality commission". I want to understand what the rationale is. Is it simply that European Directive 13 requires us to deal with discrimination based on religion and sexual orientation and age and so on and that a single equality commission would be an administratively tidy way of handling this rather than multiplying the number of commissions? Is it purely an administrative thing or is it the case that this is the only way we can achieve effective comprehensive equality and deal with the kinds of issues that my colleague was raising? Are your reasons purely administrative or do they have something to do with the experience you have gained in achieving equality and your belief that this is the way we have to go, not the way we have been taken since 1976?

  A. That is a very good question, Lord Parekh. I suppose the answer is no, it is not just for administrative convenience because we are not required by Article 13 to set these bodies up necessarily for the strands. Certainly, given the way that we have dealt with race and gender and disability of course we have had bodies for them. The choice that we do have, do we have six, I think most people say "That just makes sense". You are right in a sense when you say if you are looking administratively, having a single equality body could be the solution. If that was just the reason for it I would not have made the speech casting it in the terms in which I did. Rather what I would say, although I think there are good arguments for saying "yes it does make administrative good sense", I think there is rather more to it than that. Because I cast the speech in the context of, if you like, economic engagement, I think if we look at today's labour market it is really quite a complex labour market, a competitive labour market, a tight labour market, a mobile labour market. Also, I think today sometimes it is quite difficult for us to determine why it is somebody is suffering discrimination. Why is it? If you are, say, a black disabled woman is it because you are black or is it because you have a disability that you are dealing with? If you are an employer who wants to do the right thing who, for example, decides that your business, your company, wants to have a diverse workforce and embrace diversity, of course we do have Equality Direct which can give information across the board, but are you thinking about going to one commission rather than having a single point which can do everything? I think rather more than that, I think a new equality body could actually embrace the changes that there are in the labour market and to realise also that it could do things in a different way, if that is what the outcome was. In its short life the DRC has done things in some ways in a similar way to the CRE and SSC but also because it is a body it has done things differently with regard to employers, as I say it has embraced changed management. I think that is one of the things that a new body could do and when it does it, it will be dealing with it through the equalities as a whole. It is not just for administrative reasons, I think, also, personally, that it is about also mainstreaming very many of these issues. I think if you look at the history of what happened in the anti-discrimination field, the first time it was about equality, quite rightly, the second stage, if you like, one could argue was about positive action or positive measures, still very much needed, but building on those two things I think we have got to think about mainstreaming some of these things. I think one of the things I say in the speech is that very often all sorts of bodies use diversity as a sort of fashion accessory, you know "let us have a good diversity policy". Somebody said to me at the conference last week they almost have a sort of tick box compliance approach. What I would want a new body to do if we decide to go that way is to say that these things lie at the very heart of the way a modern organisation or company ought to operate. I do see it is about being a new agenda, certainly not just administrative convenience.

  215. Can I probe you just a little further on this. I take you to be saying that the idea and the rationale of a single equality commission would be not just administratively tidying things up, nor to deal with issues which might fall through the cracks by virtue of not being either gender or race or whatever, but to achieve equality much more effectively than is the case under separate commissions. When you talk about achieving equality, there must be ways of measuring equality. In this country when we talk about equality, we have three things in mind. Initially we thought about eliminating discrimination, then we moved a little further and said it is concerned with removing disadvantage not just discrimination, and now we think in terms of diversity, not just disadvantage but also a positively diverse workforce and institutions.

  A. Yes.

  216. My question is about the kind of single equality commission you have in mind. Would it be able to deal with these three Ds, if you like, discrimination, disadvantage and diversity, much more effectively than the existing commission? Your critics would say—I think they did say at the IPPR conference that the existing commissions at least have two big advantages. Take the Commission for Racial Equality, of which I was Deputy Chair for five years. It has built up a case law. We found, also, that in relation to race, it has built procedures for investigation, ways of collecting evidence and valuable expertise. If you had a single commission, how would it accommodate the different kinds of expertise of these various commissions or is it likely to lose them? If you can reassure us that it will not lose this expertise but put it to advantage then I think your critics might be more easily satisfied.

  A. Actually last week what was interesting was I think there was an openness about a single equality commission. For many people there, they recognised it as a natural progression. I do see, Lord Parekh, the points you make. The three Ds is a good way of looking at it. Of course I think a new body will have to incorporate those strands. Certainly what you could not lose is the body of expertise nor would you want to because, as I say, I think very valuable case work has been built up. To give you one good example, in the Sex Discrimination Act, harassment was not there as a concept, now that has come about because of landmark legislation and the result of that has been in the Equal Treatment Directive, which has now gone through its conciliation phase with the European Parliament, we will have a definition of that and we will want to look at that when we come to our definition for the new strands coming in. On that side of it, if you like, that discrimination expertise, of course you would want it to be there. It is right, also, that there have been significant investigations that the commissions have carried out, the CRE, although, to put this into perspective, have been limited in number because, of course, the CRE works in a number of different ways and certainly everything that I would want to come out of this scoping work, we will want to work very closely with the commissions because I see it very much as building on the body of work. In saying that there is also recognition that when you look to the future in these areas we do not have to do everything in the same way as we have always done before because, even with all the valuable work that the commissions have done, there is still disadvantage out there. We still have a large pay gap, gender pay gap which is still there, it has narrowed but it has not narrowed sufficiently. If you look at the PIU Report that I mentioned before in terms of disadvantage to ethnic minorities and the labour market, we still have it there and we have to ask ourselves what other things are there which a new body could do in a way which could be built on what has gone before. Certainly I would not want to lose the strength of expertise that we have garnered over the years.

  217. Have you given thought to the accountability of the single equality commission? What Minister would be responsible for it? Where will it be located or do you regard it as the responsibility of Parliament?

  A. We are not there. That is part, obviously, of discussions that we will have to have, not just in the next six months but if we decide to go down the route of the single equality body we will have to think about the accountability.

Vera Baird

  218. Looking at the presumed to come single equality body less from a point of view of those who are familiar with the multiple diverse equality bodies there are now, looking at it from the human rights perspective, I am just wondering whether considerations of promoting and protecting human rights are now part of your mainstream work, bearing in mind that this new equality body or commission is going to be a public body in itself with very positive duties, I would have thought, under the Human Rights Act?

  A. Yes. You could argue that could you not, about any single body that is set up by Parliament ultimately because obviously if we do go down the road of a new single equality body then presumably there will have to be primary legislation. Any body that Parliament sets up, not just this but of whatever nature it sets up, will have to be mindful of that, now we have incorporated the Convention of that, so yes. It is also right to say, of course, that in the present work that the Commission carries out there may well inevitably be a human rights aspect to it. In that sense, Ms Baird, yes, you cannot say where one finishes and where one ends.

  219. The Committee visited Belfast during the course of this inquiry and it drew our attention to the differences between the positive statutory duty that there is in Section 75 of the Northern Ireland Act which says "A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity . . ." and we contrasted that, I guess, with Section 6 of the Human Rights Act which says "It is unlawful for a public authority to act in a way which is incompatible with a Convention right . . ." Do you think public authorities regard the Human Rights Act as imposing a positive statutory duty on them to promote human rights and a culture of human rights and responsibilities?

  A. You are slightly ahead of me, actually, because I have not been to Northern Ireland yet but I do hope to visit soon to have some of the similar discussions that you have had, certainly about the single equality body. Obviously one is a positive duty, the other is, I suppose, something where people would be mindful of it. It is difficult to put oneself in the mind of public bodies almost. I would say, I suppose, in answer to that, the answer that I gave to a similar question that was posed. It seems to me sometimes the strength of legislation is not always so much the legislation itself but the culture change that builds on top of it. I think that the importance of the incorporation is that because you now have incorporation, though, of course, we have had the rights ever since the Convention, the difference is that we can now do them in our domestic courts rather than having to go to Strasbourg but one ought not to under-estimate the change that is made in bodies is that people are much more aware of what the Convention has to say. Whether they actually go out and promote that will differ from public body to public body I think. I think the climate is different and the climate is different, quite surprisingly, in quite a short period of time.

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