Examination of Witness (Questions 220
MONDAY 20 MAY 2002
220. 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 . . ."
A. What was it, 42 per cent?
221. ". . . 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
222. 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?
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.
223. 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?
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
224. The Government has promised that positive
duty will be extended to gender and disability.
A. It has when parliamentary time allows.
225. When parliamentary time allows.
A. Yes, it has.
226. 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 in Northern Ireland 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?
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.
227. 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
228. Do you think these are all possible or
practical models? Do you favour one or the other?
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.
229. Which is more desirable, in your view?
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.
230. 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.
231. 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?
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.
232. If you did end up with a loose federation,
how would you ensure it is properly funded?
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
233. Minister, I guess you will agree with us
that 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?
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
into use your phrase, Lord Lestera 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
234. 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 view, 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.
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.
235. But only by subordinate legislation and
only in employment.
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 complexI
know that you would agree with that, Lord Lesterwhat 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
236. Minister, we have referred several times
to the two Commissions in Northern Ireland.
237. 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
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.
238. Even though the Northern Ireland Equality
Commission is not as extensive as you are proposing here for the
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.
239. I do not know the answer to that. Thank
A. I think I am correct.