MONDAY 20 MAY 2002



Campbell of Alloway, L. Jean Corston (Chairman)
Lester of Herne Hill, L. Vera Baird
Parekh, L. Mr Kevin McNamara
Perry of Southwark, B Mr Richard Shepherd
Prashar, B Mr Shaun Woodward

Whitaker, B


MRS BARBARA ROCHE, a Member of the House of Commons, Minister of State, Cabinet Office, examined.


  1. If we may start. Minister, welcome to this meeting of the Joint Committee on Human Rights. You will know that we are well on our way with the inquiry into whether there should be a human rights commission for the United Kingdom. We have taken evidence from the Lord Chancellor and started to look very much at evidence in respect of children's rights. It is a pleasure to welcome you here today, particularly in the light of recent statements you have made about rationalisation, if I may call it that, in the field of equality. We, as a Committee, could not help noticing in your consultation paper entitled Towards Equality and Diversity there was no mention made of human rights. Why not?
  2. (Mrs Roche) Thank you very much, Chairman. Thank you very much for your welcome. I very much hope to enjoy the session that we have today. I wonder if it would be helpful if I made just a few opening remarks to set the scene and in doing so if I can answer your first question as well. In my role as Minister for Women I also chair the Cabinet Sub-Committee DAEQ and that is responsible for looking at equality issues in a cross cutting way across Government. Our specific remit is to co-ordinate the Government's policies on equality issues and to report as necessary to the Committee on Domestic Affairs. It is a wide remit though, of course, it does not include leading on Government's policy on whether or not there should be a human rights commission, which of course is the subject of your inquiry at the moment. That said, and as the Lord Chancellor set out when he gave evidence to you on 22 April, there clearly is a relationship between the issue and the issues of whether or not there should be a single equality commission. You will know, I hope, from Mr Woodward and the clerk to your Committee, who attended the IPPR seminar on Equality and Diversity in the 21st Century last Wednesday, which I think is the statement you were referring to, that I have now announced the start of a project looking at the feasibility of a single equality commission in the longer term. The terms of reference for the project do state that we need to consider the relationship between possible new arrangements for promoting equality and those for promoting and protecting human rights more widely. Indeed, your Committee's work is very timely and I hope that we can learn much from each other's work over the coming months as well as from others outside Government who have a stake in this agenda. You asked me why there was no mention of human rights in this document, which is the document I published in December, Towards Equality and Diversity. Chairman, that document really solely dealt with the implementation of the Employment and Race Directives under Article 13 and, of course, under those new strands that are coming in there is no obligation on Member States to set up a body, so the question is really about that. In fact, the only reference that there is is on page 26 of that document, just three paragraphs, when we talk about we believe that in the longer term there are arguments in favour of a single statutory commission and then we go on. It is actually quite a brief reference because what we wanted to do was to see what the response was to our consultation on the implementation of the Directives before we had to take it forward. I wonder if it would also be helpful if I said a few words about the project that I have announced very generally and how I see the timetable unfolding over the coming months and beyond. As I say, we launched the document in December. The focus in that was on those Directives and their implementation and, as I say, we also said in there that we recognised the arguments for a single equality body. What I said last Wednesday was that it was no longer possible just to have a, if you like, do nothing approach. I also said nor did I believe that we can have six commissions dealing with six separate strands of discrimination legislation. So the project that I am leading within Government will consider in detail possible models for a single equality body. In looking at the feasibility of a single equality body we will involve those who work for and with the existing commissions. The aim is to complete the initial stage of the project within six months and to bring forward proposals in the autumn on the basic principles for a new body and how it might go about its work. This will tie in with the publication of the draft Regulations on implementing Article 13. I said right from the start that we will try to give as much notice as possible to people and that is why I was very keen to publish the Regulations in draft and also our proposals for interim arrangements on advice and support for the new strands. Beyond the autumn we will need to work on and consult on the details of what any new body might do and how it would be set up. Just let me end by saying that this is a complex area and we certainly do not want to rush into anything, and that is what I said in the document in December and what I also said last week, therefore I would expect that any new body would not be operative in the lifetime of this Parliament. It is quite clear, given the response to the consultation document, that there is an appetite to take this project further and that is what I announced last week. Thank you very much for giving me the opportunity just to make a few opening remarks.

  3. Thank you very much. It is right obviously that there was no reference made to human rights in your Towards Equality and Diversity and you have given us the reason for that. There was also no reference to it at the seminar to which you referred just now, the one that was held on 15 May. Does this mean that human rights and equality are in separate boxes?
  4. A. No, I do not think they are. There was not an express reference in the speech that I made, which was in some ways, although I was announcing something on behalf of the Government, very much a personal view as to what I saw to be the key drivers in the past and the future as far as equalities were concerned. It was very much a personal view but putting it in terms of some of the mainstreaming that needs to be done, building on some of the excellent past work of the commissions that has been undertaken, but also looking at it in terms of economic engagement and empowerment which was the theme very much in the speech. There was certainly reference, and there is certainly reference, to human rights and the connections with equality in the terms of reference. I also announced in my speech that I was publishing the terms of reference and, indeed, I answered a Parliamentary Question the day before which referred to those and they have an express reference. I did a fairly extensive question and answer session throughout the morning and certainly there were questions about human rights. I do not think I see them in separate boxes but I think this is a complex area as to how they relate. It is also quite clear to me that there are very many different opinions on this, first of all whether one should have a commission at all, if one does should there be one single equality body if that were to be the model for equalities and then a separate commission on human rights. Clearly we will want to be mindful of what has happened elsewhere: Northern Ireland is one example and there are many other experiences of what has happened in other countries and I know that your Committee is going to investigate that.

    Lord Campbell of Alloway

  5. I agree with you that they are not in totally separate boxes but is this the right concept, and it is certainly mine, that when you are applying discrimination, equality, whatever it is, as a matter of law, as a matter of administration, the court has regard, or whoever is doing it, to the ECHR but that is it? The principles established may be referred to in the legal process but it is assumed in the legal proces, is that what you are saying?
  6. A. I think that is probably the case, Lord Campbell. I suppose the view the courts will take is that now we have incorporation of the Convention that of course in anything that comes before the courts they would be mindful, indeed they would have to be mindful, of the Convention. I suppose, to be absolutely frank with the Committee, my focus over the last few months since I have taken on this brief since the end of last year has been on the equality agenda and the focus of my speech last week was very much perhaps, I think it is fair to say, on that agenda alone which was very much looking at the experience of the three commissions, starting off with the CRE obviously in its earlier form, then the EOC and then recently the DRC but also looking at some of the new strands that are coming on board. That has really been my focus.


  7. You talked just now about mainstreaming equality and I am sure that is an objective with which we all agree. As a Committee I think we are keen also to see the mainstreaming of human rights because I know some of us do not think that is happening. You referred to your terms of reference and we were grateful to receive that, but in the terms of reference it talks about "considering the relationship between possible new arrangements for promoting equality and those for promoting and protecting human rights more widely". Can you tell us what we are to understand by that?
  8. A. What I want to do and what I said on Wednesday is I am very, very conscious this is an area where very many people will have a view and very many of the views will be very different. Therefore, in announcing the work I wanted the scope to be reasonably open and wide so that people would feel that the Government had not come to this with an absolutely set view. The work on this is work that we are doing in-house being co-ordinated by the Cabinet Office but obviously looking across Government and in doing that we will be going out and we will be speaking to the commissions, we will be speaking to the new strands, we will be speaking with people who have an interest in the work of the commissions but we will also want to take on board any recommendations you may say to us as a result of the inquiry. In a sense, the form of words are really I suppose to indicate that we are open to discussion on this.

    Baroness Perry of Southwark

  9. Minister, in your own way of thinking about human rights do you think that it is just about civil and political rights or do you see the culture of rights and responsibilities, to coin a phrase, which was supposed to follow from the Act as being about economic and social rights as well?
  10. A. That is interesting. I suppose for me, as I say, my focus has been on equality issues. If I can just draw some sort of parallel. I think it is right that if you enact legislation, the establishment of the Race Relations Act that we have had here, the establishment and the work of the CRE, of the EOC and more recently of the Disability Rights Commission, I suppose I am certainly a firm believer that of course the legislative approach is important and you need a bedrock of legislation. Then on the bedrock of that legislation you also hope as well that you will engender cultural and social and economic change. I suppose what I mean by that is I think what is interesting with some of the new strands, for example if I take age as a good example, is that you have got very many employers way before the legislation comes in, and it will not come in until 2006, who already have very positive policies as regards older workers. I think that is cultural change in advance of that. I suppose that is very similar, a parallel with human rights legislation, that having the incorporation makes people think more widely of what can spring from the legislation itself.

  11. I am thinking as well of the wider and perhaps slightly more non-legal issues. For example, there is huge concern, which I very much share, that when we look at the statistics of children who are excluded from school that they are predominantly children from ethnic minorities, children who have some kind of disability and so on, and we know that last Friday the observations of the UN Committee on Economic, Social and Cultural Rights did say that the Committee urges the state to take more effective steps to combat de facto discrimination in particular against ethnic minorities and people with disabilities, particularly in relation to employment, housing and education. We do not at the moment do terribly well in this country on the education issue, do we, and that seems to me to be a very fundamental human right.
  12. A. I would absolutely agree with you that these things are extremely important, Lady Perry. In fact, the issue that you mention there, which is truancy and school exclusions, is something that I am quite involved with as a Minister because working to the Deputy Prime Minister I have some responsibility for the Social Exclusion Unit. Of course, you will be aware, and this Committee will be aware, of the work that we did on truancy and exclusion and this is a very topical issue at the moment, and it is also quite right to talk about disproportionate numbers of young black pupils who have been excluded. I think when we look at the reasons for the exclusions there are sometimes a very complicated mix of measures as to why that comes about. You are absolutely right to say it needs our attention, just as has the educational achievement of young black and ethnic minority pupils in school. It might be of interest to the Committee to refer to a Performance and Innovation Unit report, for which I am the sponsor Minister, and that interim report very much deals with some of the educational achievements in this area. Yes, I agree with you. I suppose the question is in what sort of formal framework do you put it. I think what I would say to you is that it is not just legislation that we need here but it is also practice, role models in schools, mentoring, a whole series of other things that we also need to put in place but these are very important issues.


  13. Are you expecting then that the model, and is it objective, that you will end up with will be better able to deal with these multi-faceted forms of discrimination?
  14. A. I suppose what I would say is there is never actually one model. There is the previous report that we have done on truancy and exclusion where there have been some successes but I would not say that there are still not some issues that are not there to deal with. If I look, for example, at the interim report that we did on ethnic minorities in the labour market, which is where we looked at education skills, what is demonstrated to me is there are often different solutions to this problem. If I may give you an example. When we looked at the interim stages of this we found that what was important to recognise was something that people have recognised for years but perhaps had not been put together in the same place for some time, that different ethnic minority groups have different outcomes in the labour market. So for some ethnic minority groups it will be access to the labour market. For other ethnic minority groups who have high achievements in school or at university it will be progression in the labour market in the professions or in managerial roles. The reason I mention this is to point out the complexity of it and you will need different solutions, some of which might be the legislative route, others may well be changing practice or having a different focus or looking at existing schemes and thinking of different answers.

    Baroness Perry of Southwark

  15. If I can press you on this, Minister. The problem with exclusion from school is a very complex one, as you very rightly say, and we do not know who starts the cycle, whether it is the behaviour of children themselves or an unconscious discrimination perhaps on the part of teachers who assume that exclusion is the only answer for certain categories of children. It is not the kind of thing that can be easily solved by the courts, is it? You have obviously thought a great deal about this and I wonder whether in your mind you think this is the kind of thing that a discrimination commission can deal with or is it the kind of thing for which a human rights commission would be needed?
  16. A. The answer I give to you is you may always have a case where by its very nature there may be direct discrimination involved which would mean there would need to be individual redress for that individual, or there may be a practice in a particular school, but on the whole when you are thinking of this there may be a wider social issue that you would need to take into consideration. I am not in this instance talking about, say, black and ethnic and minority children but there is always a balancing of rights, is there not? If you look at exclusions across the board what some schools will say to you is "if I do not exclude X that is going to have a detrimental effect on the vast numbers of other children in the class". One of the things that I think my colleagues in education would probably say, and I must be careful not to go into their remit, is when we started all this work on exclusions and truancy, certainly as far as exclusions were concerned, there were not the numbers in pupil referral units, there were not the pupil referral units, so sometimes people were being excluded to nothing, and as a local constituency Member of Parliament I know that to be the case. I suppose what I am saying is that it will depend inevitably on the individual case. I am not sure you can say in these things "this is for legislation, this is for practice, this comes into equalities or this is human rights", this can be quite a complex area.


    Mr Woodward

  17. Minister, I would just like to press you a bit more on this issue of depending on the individual case because as you were talking the issue of bullying occurred to me, for example, and in the conference we had last week you talked about the TUC's report on bullying in the workplace and the very high incidence of bullying in the workplace. I am also mindful, touching on the issue of schools, of bullying in schools. If you were to proceed with one equality commission and either with no human rights commission alongside it or a separate human rights commission, where would you see the responsibility sitting for dealing with an issue like bullying? Whilst you rightly say it does depend on the individual case, there is so much bullying no human rights commission or commission is going to have time to look at every single case. As you speak what it poses in my mind is the beginnings of an argument that says if you do not include a human rights commission in your idea of one equality commission this dilemma is going to be there and it is going to apply to many more than just the odd individual case. Secondly, it leads to some quite big confusion because whether it is bullying in the workplace or bullying in schools, where does that sit? Does it sit in the context of the right not to be bullied or is it about discrimination or is it about equality?
  18. A. That is an interesting one. I suppose what I would say is I would sound a note of caution. I would say that in going forward with this work we would have to be careful, and I would have to be careful, if there were to be a new body, and we are looking at scoping the feasibility at the moment, that it is not going to take on everything, all the world, or that would be the way of ruin. Also what I would say to you is I would be very keen that one does not lose what for me would be the central focus of the new equality body which is about equalities and fairly hard fought for and fairly hard won equalities as well. Therefore, you need to get its role straight because historically what the commissions have been dealing with is disadvantage. What I said in the speech was if you look at what the commissions have done in the past it was very much about protecting minority rights. It is difficult to argue that about the EOC, of course, because it is more about women but very much historically it has been that role and I think that is a very important role of the commissions. The interesting thing about if there was a new equality body where that could go, and again I signalled it in what I said last week, is it is much wider than that because we are all going to get older so we will all come under the new age strand of the legislation and, indeed, although our responses so far have concentrated on older workers they are also about young workers as well. What I would say to you, Mr Woodward, is for me obviously my focus is to make sure that I want to hear what this Committee has to say and very much to listen to the conclusions that you come to. Also, what was interesting from last week was there were very many people there who had different opinions. There were some people who thought perhaps one body but there were other people in the equalities world, if I can put it this way, who felt that you would lose its focus if you put human rights in with equalities. I have an open mind about this because I want to listen to what you say. From my own point of view there are two things I would say. One, I do not minimise the difficulties of what I have to do already in scoping this feasibility study and, if we do so, in bringing everything together, let alone the new strands, but I am also being very mindful not to lose its focus. To come back to your example, I suppose I have given you a long, rounded politician's way of saying I really do not know where that bullying would fall. Clearly, of course, if you had evidence, and there is bullying at work and there is harassment at work, and one of the good things about the new Directives is that we will have a definition of harassment that hopefully goes across the strands if we decide to move that way, that certainly will be an issue for the new Employment Directive.

    Lord Lester of Herne Hill

  19. Minister, before I ask my question can I just say as one of the architects of the Race Relations and Sex Discrimination Acts and godfather to the equality commissioners I personally entirely applaud your decision, and your colleagues' decision, that there should be a single equality commission, leaving aside the broader question, provided you are given enough resources and do not blunt its cutting edge, its focus and all that. Leaving that to one side, as it were, and building on the question that Shaun Woodward put to you, if you decide, as you seem to have decided as a Government, to legislate in stages so far as the Equality Directives are concerned, there are going to be gaps even within the narrow compass of the non-discrimination guarantees in the European Human Rights Convention but there will be a much wider gap with our obligations under the International Covenant on Civil and Political Rights in the equality field because what you and Parliament will have done is to legislate only for age discrimination, sexual orientation discrimination and liberty discrimination in addition to the existing law in the employment field, so there will continue to be this wider gap for those kinds of discrimination, for example, in the provision of facilities for education and so on, and there will be other kinds of discrimination covered by the Covenant but not covered by our equality legislation. Taking the questions that have been put to you already, would you envisage that those kinds of discriminations that under your narrow focus will not be made unlawful in the short run will be within the mandate of the equality commission or a human rights commission or a human rights and equality commission or nowhere at all in terms of a statutory body? You will appreciate our Committee looks at those wider questions because we are a parliamentary body. How are you going to fill the gap which will inevitably occur however you legislate in the equality field? If you can deal with that question about the gap I will then ask my second question.
  20. A. Thank you, Lord Lester, for those remarks, they are appreciated. I suppose the way I would answer you is by saying I think it is going to be a fairly tough job already in what I have got to do if we do go down this route of a single equality body and certainly we indicated in December that we thought there were very good arguments for it. I do not think one should under-estimate just what needs to be done if we were to have this new body that would not only be dealing with the work of the three existing commissions but also for the new strands that are coming through. The timetable is already very, very tight. My apologies for being rather boringly administrative about it.

    The Committee suspended from 4.58 pm to 5.05 pm for a division in the House.

  21. I think you were in the middle of your answer, Minister.
  22. A. I am sorry to be so boringly administrative about it but I was just going to say that the timetable is quite a tight one. In the autumn, as I was saying earlier, I will have to publish in draft - not have to but we want to so we can give people as much notice to comment and get back to us - the draft Regulations that will bring in the new strands on belief and sexual orientation. I believe I will also have to give some indication of how we intend to move on the interim arrangements and also, of course, I will want to take this project forward then. The timetable is really quite tight because by the end of 2003 we will have to implement quite rightly the new strands on sexual orientation and on belief and then we have got until 2006 to bring in the strands on age. The strand on age is particularly complicated, there are a number of difficult things that we will have to deal with to bring that in on time, which is why more time was given for it. I suppose my answer, Lord Lester, is I have probably at the moment got enough on my hands with the current timetable and that really is my focus at the moment.

  23. I wonder if you would mind if I just come back to it in a slightly different way then. What I was trying to ask was this. The United Kingdom has not given direct effect to the wide equality guarantee in the UN International Covenant on Civil and Political Rights, it has only given effect to the much narrower ones in the European Convention on Human Rights and European Union law. There is inevitably a gap with no statutory body having the mandate to fill the gap even by way of mere recommendations. There are two ways in which the gap could be filled. One way would be at least to give a human rights and equality commission, or human rights commission or an equality commission, just say a commission, the wider mandate to tackle soft law, that is to say the international legal obligations that are not being given direct effect. Another way of doing it would be for the UK to sign up to the 12th Protocol to the European Convention on Human Rights, the one on hard law in the international plane. The third possibility is to do nothing at all but simply to leave it to, for example, this Parliamentary Committee to rabbit on about these issues but with no statutory mandate and no further international commitment. This is a long-winded way of asking you whether you will take account of this problem of the inevitable gap in looking at the architecture of these commissions? However you legislate there will be some kinds of unfair discrimination that are not unlawful and yet are in breach of the international codes by which we are bound, or should be bound.
  24. A. I would be very interested to hear what the Committee concludes on this. As you rightly say, Lord Lester, those matters in Article 26, which we are signed up to but which are not incorporated, are very wide ranging. I think it includes birth, property rights, it is very wide ranging. I suppose it is difficult to see on the face of it how you perhaps get a body that could legislate on all of that. I suppose what I would say is in a sense it is probably up to individual political policies to deal with some of those things that we as a country are signed up with. As far as Protocol 12 is concerned, I think there have been some issues with that that other Member States have had, partly because of the way it has been drafted at the moment. I suppose my gut reaction to much of that is of course it would be theoretically possible to design a body which could make recommendations at the very least on all of those things, on all of the international conventions or protocols that the United Kingdom has signed up to but not yet incorporated. The real issue is what could such a body achieve. For the work that I am undertaking now what I would be slightly apprehensive of, and I put it no more than that because I would want to look reasonably at any suggestion that came forward, I would not want it to dilute any of the equality measures or issues that we have now or are about very shortly to take on.

  25. I agree with the non-dilution but are you aware of the fact that all the rest of the European countries, all of them, have general equality guarantees written into their constitutions. We are the only Member State either of the European Union or the Council of Europe with no general guarantee of equality that goes beyond specific statutes.
  26. A. Yes.

  27. Therefore, if we do not support Protocol 12 or a wide mandate for a commission we are giving less protection to vulnerable victims of discrimination, in theory at any rate, than other countries.
  28. A. Yes, although, as I say, I think only one other Member State has actually gone along that course so far. From what I understand one of the problems that we have, and a number of other countries, also liberal democracies, have had is some problems with the drafting at the moment. The Committee will be aware, Lord Lester, that the preamble to the Protocol lets us have measures like positive action but not the actual text. I think there are some other countries that have had difficulties and that clearly does need to be resolved. On the other question, and I hesitate to take issue or to say this, my view would be that if you look at some of the very general, if you like, anti-discrimination clauses that other countries have it sometimes comes about because they have a written constitution or a written bill of rights, secondly because they do not have our system. I would also argue that it is very, very general and I certainly would not compare their, if you like, very general words to our quite well developed law on racial discrimination which now goes back decades. What lies behind that difference is a different political and legal tradition. I am not sure that our tradition is any worse for that and certainly in the area of race relations legislation is considerably better.

    Mr Woodward

  29. In the context of equality one broad gap that some might define could be called representations of equality by which I mean the way the press report certain groups. Some groups might say, particularly on the ground of sexual orientation, which is an area that has minded you to look at the idea of a single commission, a very big gap is the way that certain sexual orientations are discriminated against in the press. What is your view on the importance of a single equality commission and what steps are you taking in your consultations to ensure that what might be determined as a gap at the moment in the representations of equality would be covered by this single commission?
  30. A. If we take sexual orientation, what the new strand brings in is it outlaws discrimination on the grounds of employment and vocational training alone. Although it is just in that area I would regard it as being symbolically of huge importance in progressing the agenda. For example, if you look at Stonewall, which campaigns around rights for gay men and lesbians and bisexuals, the way in which that organisation campaigns, I am very struck that by various models it has used it has driven forward the agenda. Their employment champions in employment of business have, if you like, upped the agenda. I think it is another demonstration that you can have something which just relates to employment and vocational training but the very nature of having that law means you get added value. I think some of those gaps, some of the ways in which people are represented, will mean you get different ways in which people are represented hopefully in the press because, of course, it will change the very climate of the way people are treated at work and that is where we spend the majority of our waking time.

  31. So you would want to engage a single equality commission to look at that area?
  32. A. I am sure that there will be all sorts of things that people will urge and want a single equality commission to do and I will want to listen on that. There are some people who will say, for example, that a single equality commission should do what the other commissions have always done, we always ought to be looking at the work they have done on land mark cases, taking test cases, for example, and I certainly do not dismiss that, I think that has been an important part of their work. This is a personal view at the moment and one that I expressed in the speech. I think an increasingly important part of what commissions can do, and the DRC has been an important example of this, is the way in which they can encourage changed management in companies. Do not wait for something to get to a tribunal case, see how you can actually change the whole way in which a business operates with the co-operation of the business so that you can get diversity. What I think I would say to you is by changing that culture at work I think you can also change the way in which all sorts of groups are perceived more widely in society.

    Baroness Whitaker

  33. Still staying with gaps, Minister. You referred to different solutions for various very disproportion outcomes and I would like to press you on some current gaps but would like to look at the kind of institutional framework that we could have to house these issues. For instance, there is a gap currently which is quite close to your responsibilities. The EOC told us that it does not deal with domestic violence issues. How is your thinking developing on how we should address the system problems that are associated with domestic violence, such as access to housing? Do you see that as a human rights issue? Do you think an equality commission might be best able to deal with it? Should it stretch to cover that kind of issue? How should we deal with it? It is a big problem.
  34. A. It is a big problem. It is an issue dear to my heart. When I was first elected in 1992 I was on the Home Affairs Select Committee and that was our very first report. I know when I first qualified as a barrister in those days I did lots of injunction and ouster cases. I know that there is a lot of experience around this table from Ms Baird and other people on this important subject. We are doing a lot of work on this. I suppose I would not quite put it in that category of is this human rights or is this an equality issue, I would say it is a cross Government issue that needs tackling by a range of Government departments. If I can just give you a very practical example. What it needs on housing is for the programme that we have in Supporting People it responds to domestic violence cases. My colleague, Harriet Harman, the Solicitor-General and Attorney-General have just published new guidelines for the Crown Prosecution Service and I am undertaking some work which looks at the economic effect of domestic violence as a way of highlighting attention. My reason for giving you those examples is what I would say to you is I do not suppose I have thought where does domestic violence sit or where would it sit in an institutional framework of human rights or equalities. I am absolutely certain as the Minister for Women that I have an added role to play but I am absolutely certain that it is not just for me alone, it is for my colleagues in the Home Office, it is for my colleagues who are law officers and it is for colleagues such as Rosie Winterton in the Lord Chancellor's Department. I do not suppose I have thought very much as to where it sits in that sort of institutional framework but what I am absolutely certain is no longer would we perhaps put it in one particular department.

  35. I can see that a lot of work is going on and of course it is extremely good finding there is joined up Government in all this but would you not see it as possibly something which could more easily be dealt with if it were the responsibility of an institution slightly removed from Government?
  36. A. I suppose you could argue that there is that framework already. We have got the Women's National Commission which has done excellent work which is arms' length from Government and has looked at some of these issues. To give you another example, before coming to this Committee I came from a seminar that we held in Greenwich which was on trying to get more women and black and ethnic minority women into public appointments. That has not just been a focus of work for us, it has also been work for the Women's National Commission. One could argue what sort of issue is that, is that an equalities issue or is it a representational issue in terms of participation, what is the human rights element of that? Again, that is something that is being handled in partnership with WNC. In a sense I would say that is already there.

  37. Just one final supplementary. Does the Women's National Commission have any powers of investigation or powers to send for people?
  38. A. It makes recommendations. It will make recommendations to Government.

    Vera Baird

  39. 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.
  40. 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

  41. 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?
  42. 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.

  43. 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?
  44. A. I am sure that in some of the representations that ---

  45. Are you seeking them from children's charities?
  46. 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.

  47. 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.
  48. A. We do have a Minister for Young People, John Denham.

  49. 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.
  50. A. No.

  51. They cannot change the Government as older people or women can.
  52. A. No.

  53. 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".
  54. 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.

  55. Finally, to close this area of children, would you see, therefore, children's issues falling within an equality commission or a human rights commission?
  56. 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.

  57. 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?
  58. 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.

  59. The problem is they are not anywhere at the moment.
  60. 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

  61. 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 ---
  62. A. Of course they will be there.

  63. --- 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.
  64. 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

  65. Minister, on this question of a single equality commission, may I begin by saying I entirely agree with you, I think it is a brilliant idea. In the Commission which I was privileged to chair we helped 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 the point. 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 think of 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 the reason 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 so this is the way we have gone, not the way we have been taken since 1976?
  66. 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.

  67. 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 disadvantage, not just discrimination, and now we think in terms of diversity, not just disadvantage but also a positively diverse workforce and institutions.
  68. A. Yes.

  69. The question would be 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 - the existing commissions at least have two big advantages. Take the Commission for Racial Equality, of which I was chair for five years, we found there was a case for case law. We found, also, that in relation to race, for example, we had built procedures for investigation, ways of collecting evidence and we had expertise. If you had a single commission of this kind, how would it accommodate these different kinds of expertise of these various commissions or is it likely to lose it? If you can reassure us it will not lose this expertise but it can put it to advantage then I think your critics might be more easily satisfied.
  70. 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.

  71. Have you given thought to the accountability of the single equality commission? What Minister would be responsible for it? What about this new body, where will it be located or do you regard it as the responsibility of Parliament?
  72. 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

  73. 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?
  74. 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.

  75. 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?
  76. 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.

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

  79. "... 42 per cent of health bodies, and 14 per cent of councils, had taken no action to ensure that workers in areas such as social care and nursing were well-informed about the legislation." The response seemed to be "let us wait until the challenge comes and then we will defend the challenge".
  80. A. Yes.

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

  83. Do you think this time now there ought to be a positive duty on public bodies to promote human rights? That is going to feed, to some extent, is it now, how you consider the new equality body?
  84. A. I am sure you may well address those remarks to the Lord Chancellor. I do not think I had better exceed my brief and whatever opinion I have on that. What I would say to you, though, is that certainly I think that the positive duty, in terms of the Race Relations Act, that public bodies now have is extremely important. What I would say to you, also, is that as that duty unfolds more and more bodies now look to see what it is they have to do and what their obligations are, also as that feeds down, I expect that to have quite an effect.

    Lord Lester of Herne Hill

  85. The Government has promised that positive duty will be extended to gender and disability.
  86. A. It has when parliamentary time allows.

  87. When parliamentary time allows.
  88. A. Yes, it has.

  89. I must say can you not do better than that and give us some indication that at least in the equality field one would see the positive duty on Northern Ireland applying, applying not only to race but the other forms of discrimination within the lifetime of this parliament. If that is so important why can we not get parliamentary time?
  90. A. I think what I would say to that, Lord Lester, is this Committee, I always know it is going to be an interesting Committee to come to because obviously it is a Committee that has invited me already to risk life and limb, first of all by substituting my opinion in the Lord Chancellor's area that Ms Baird asked me to do and next to substitute my opinion for what might be in the next Queen's speech or in future Queen's speeches, so I think I had better stick to the formula of "as parliamentary time allows" but there is that commitment there.

    Baroness Prashar

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

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

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

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

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

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

    Lord Lester of Herne Hill

  103. Minister, I guess you will agree with us that the equality law ought to be capable of being understood by ordinary folk and ought to be based on consistent and coherent principles. As I understand the Government's position, it is deciding to adopt a kind of elastoplast approach to implementing the Article 13 Directives sticking bits of plaster on particular statutes or bringing in entirely by subordinate legislation bits and pieces of stuff in order to comply strictly with the Article 13 Directives rather than using primary legislation to clean up the forthcoming and past mess. In other words, as I understand the position, the Government has taken a firm decision to do the amending process in bits and pieces. Just to explain exactly what I mean, you have implemented the burden of proof Directive for sex discrimination in such a way that we now have the completely daft position that there is a different burden of proof in employment cases, an easier one for woman than there is in non employment cases. The only reason for that is that the burden of proof Directive applies only to employment. Similarly, to make it plain, if you do the same thing as you are going to for sexual orientation discrimination it will apply to employment not to non employment, if you do the same for race it will apply only to race discrimination in employment not non employment. By the end of this process you will finish up with the even more intractable problem of age discrimination, you will finish up with a yet further and probably inconsistent body of legislation. That is a long winded way of asking you the question: can you please think again about the idea that Baroness Prashar was putting forward of a single coherent intelligent principled piece of primary legislation that not only creates a single coherent commission but also makes the substantive law one which is going to be as good as what we already have in the race relations and sex discrimination acts but with these other kinds of discriminations added on or is that something you will only think about when, if I may say so, an unwholly mess has been created by the elastoplast approach and then a future Government has to clean it all up again in future legislation?
  104. A. Just let me say, it will not surprise you to know I would not accept the elastoplast analogy. Let me outline what the approach is. We have not actually, as far as implementation of the Article 13 Directives, taken an uncoordinated approach, in fact we have taken a co-ordinated approach in that we have got the new strands coming in, it would be entirely possible for them to have been done quite separately by separate departments in - to use your phrase, Lord Lester - a piecemeal way but we have not done that. What we decided right from the beginning was that they would be co-ordinated centrally by Government and that is why I am doing it in the Cabinet Office and there would be one consultation document which would come out. The consultation document not only deals with the three new strands but deals with some of the tidying up that we are required to do, not because our legislation is a mess, it is actually because in some cases our legislation has advanced, certainly as far as race is concerned, and some of the things that have happened because of disability, so we have done that. I absolutely agree with your opening remarks about it being done in a way that people understand in order to implement it. That is why it is done in that way. I do hope people will agree as a document we do try to make it reasonably accessible. Looking at the number of replies we have had, over about 850 responses, I think that shows people have found it accessible. I suppose what I am saying to you is that there are more differences between the strands, they do operate in different ways. If I look at something like a genuine occupational requirement, there are reasons why that is going to be done differently. For example, on the belief strand, in order to be a CofE priest presumably you have to be a believing Christian. There are going to be those genuine occupational requirements. In some other areas it is actually quite difficult always to think of what a genuine occupational requirement could be. You are quite right, Lord Lester, to talk about the complexity of the age strand which is why, although we have consulted initially on this document, we are going to consult again next year on age because there are some very complex issues. All of the strands are alike. I suppose my feeling is that one could spend an awfully long time dealing with these things and trying to get some harmony while taking one's eye off the ball which I think is how can you mainstream some of these issues so that you get a true modern equalities agenda.

  105. If I can just briefly follow that up. There is no principled reason, is there, for treating employment differently from non employment in this field of invidious discrimination? The only reason is, to take Lord Parekh's phrase, he believes that the Government does not want to lose parliamentary time on the primary legislation and has stuck with the European Community in that approach of subordinate legislation. It therefore cannot go beyond employment and obviously it is that approach which therefore produces an incoherence in the code.
  106. A. I am not sure it will. I do not think people have actually quite realised how soon some of these strands are coming in. We will be bringing in the new strands on sexual orientation and belief, by the end of 2003.

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

    Baroness perry of Southwark

  109. Minister, we have referred several times to the two Commissions in Northern Ireland.
  110. A. Yes.

  111. In your future planning for the equality agenda in the United Kingdom have you given any thought to the place of those two Commissions? Will your equalities commission exclude Northern Ireland? Will it be for Great Britain only or what?
  112. A. No. We are talking about Great Britain only. Great Britain only. Northern Ireland clearly has its own equality bodies so if we do decide to go down this route we are talking about Great Britain.

  113. Even though the Northern Ireland Equality Commission is not as extensive as you are proposing here for the United Kingdom?
  114. A. I am not sure that is the case. Certainly they deal, as far as I am aware, though I will write to the Committee if I am wrong with that, with the strands that we are considering at the moment.

  115. I do not know the answer to that. Thank you.
  116. A. I think I am correct.


  117. You will appreciate that our focus is whether there is a need for a human rights commission but it is happenstance that you have embarked on this endeavour at the same time. Do you think there is an opportunity for fruitful collaboration between this Committee and the Cabinet Office during our inquiry and your consultation process?
  118. A. Absolutely. Just to say, during the next six months, this is not a formal consultation on our part because the formal consultation, if you like, was the one which ended in March. This is, if you like, the feasability work but certainly we would be very grateful in the next six months for any views that this Committee has. Given the visits that you are going to make, views on that would be extremely helpful to the work.

  119. You referred to six months, if we can be precise, what time will the train be leaving?
  120. A. It is not necessarily leaving. What I have to do in the autumn, because the timetable is fairly rigorous, I have to publish the draft regulations on sexual orientation and belief. I will want to say something, also, about the interim arrangements for those strands because they come in at the end of 2003. Therefore, given that, I will want to say something about the long term future of a single equality body if we go down that road. Then there will have to be, certainly, a further period when we think about what the structures would look like and I am sure at some stage we will want to consult. I am not quite sure if the timetables are quite on the same track, to use the train analogy. I am sure in anything that we want to do in our timetable we would want to be mindful of any recommendations that you would want to put to us.

  121. Following on from what you just said to Baroness Perry in relation to your proposals probably being exclusively for Great Britain, I would just draw your attention to the difficulty which could arise in a situation where people in Northern Ireland and Scotland enjoy the protection of an equality commission and a human rights commission and the people in England and Wales do not.
  122. A. I hear what you say. As I understand it, the thing I have always said, the expression I always use, it is a sort of variable geometry that we always have in that as I understand it in Northern Ireland you have got the single equality body, the Commission that they have, which presumably comes under the devolved administration there but what you have also is you have the human rights body which I think comes under the Secretary of State so it operates in a variable way. As I understand it, the proposal in Scotland is to set up some sort of human rights body which deals with some of the devolved matters there. The one thing I would say - of course one always makes this but in a sense that is devolution - it would be done differently and that is what devolution is all about.

  123. Finally, Minister, running through the thread of the evidence you have given us today, you have been very patient and generous with your time, would you agree that it would be reasonable to conclude that your evident reticence about a human rights element in what you might propose arises from pragmatic considerations rather than any principle?

A. Yes. My pragmatic consideration is that, as I say - and apologies for repeating myself - well, one pragmatic and one policy one. The pragmatic recommendation is that this is a huge agenda if we are to have a single equality body. The policy caution that I have, although as I say I am open to this because I will be very interested to know what this Committee is saying and other people will say, is that from the equalities agenda I would just be very mindful of not diluting the history of what has been done already and if there was going to be a new body where that would take us. So, if you like, that would be my policy note of caution, that is how I would put it.

Chairman: Minister, thank you very much for your time. We have enjoyed having you with us today.