Lords Amendment35: Clause 56, page 54, line 40, leave out paragraph (a)
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 35 for the following Reason-
35A: Because it is appropriate for section 3 of the Equality Act 2006 to be repealed.
Moved by Baroness Stowell of Beeston
That this House do not insist on its Amendment 35, to which the Commons have disagreed for their Reason 35A.
My Lords, in moving Motion A I will speak also to Motion B. We are now discussing the provisions in the Enterprise and Regulatory Reform Bill, which seek to reform the remit of the Equality and Human Rights Commission. I will turn in a moment to the specifics of the Motion and the amendments before us. First, let me remind the House why we are discussing the EHRC, or what we often more commonly refer to as the commission, Britain's designated equality body and "A-rated" national human rights institution.
In May last year, we set out our plans to support the commission to become the valued and respected national institution that we all want it to be. Even the commission's many supporters in this House have acknowledged that the first few years of its existence were anything but trouble free. I am not going to go into the detail of these problems again today, but I do want to be clear that the Government's motive in making changes was and is to secure a successful future for the commission so it is in the strongest position possible to do its vital work.
We are already making progress. In the past three months alone we have agreed with the commission a new governance framework document and budget, both of which ensure that the commission is able properly to fulfil its important duties and protect its operational independence. The new chair, the noble Baroness, Lady O'Neill, and other members of the new board have now been in post for several months and are building on the work of their predecessors. We believe that the commission is going from strength to strength. Indeed, the working relationship between this Government and the commission is marked by a mutual respect and clear understanding of the distinct roles that each is there to fulfil and how we can work together towards a fairer society. I believe that this will be evident when we come to the next debate on caste discrimination.
Having given that introduction, let me move to the Motions in front of us. In the ERR Bill, the Government originally put forward two legislative changes that we believe will underpin the positive changes which our non-legislative reforms have already helped to bring about. This House rejected the Government's amendments on Report, but the other place has disagreed.
First, we are asking noble Lords not to insist on their Amendment 35, which would remove from the Bill the repeal of Section 3 of the Equality Act 2006, what is otherwise known as the commission's general duty. Section 3 imposes a general duty on the commission to perform its functions with a view to "encouraging and supporting the development" of a fairer society and it sets out five ways in which it should do this. As I have made clear during all of our debates, the statement included in that general duty is one we can all support because we all want a fairer and more equal society. However, it is this Government's view that making this a statutory duty for the Equality and Human Rights Commission, in addition to its specific responsibilities to promote and to protect equality, diversity and human rights, dilutes the clarity of purpose necessary for it to be effective and successful.
The Government are clear that the commission's core purpose is what I have just said-to promote and protect equality, diversity and human rights. That purpose is underpinned by the detailed duties contained in Sections 8 and 9 of the Equality Act 2006. The repeal of the general duty does nothing to affect the commission's ability to fulfil these duties. It is our view that its focus on them will enhance its performance.
As much as I understand many noble Lords' wish for Section 3 to remain, during the debates in both Houses we have not heard any example of how its repeal would prevent the commission carrying out the kind of work which has had real impact. Indeed, in its most recent briefing paper, circulated to all Peers, the commission explains that its programme of work is guided by the specific powers and duties in the Act. The work for which it is respected and which has had great effect, such as its inquiry into disability-related harassment-and there are many others-would not be affected by the removal of the general duty at Section 3. Again, the commission itself has confirmed this in its own briefing note.
In many ways, the general duty could be argued as nothing more than symbolic and should therefore be left in place, but that is not the case. The commission is required to monitor progress against the general duty and to provide a comprehensive report to Parliament. This brings me to Lords Amendment 36, in relation to the commission's monitoring duty at Section 12.
Section 12 sets out the commission's duty to monitor progress against the aims set out in Section 3. We are asking noble Lords not to insist on their Amendment 36 so that the commission reports instead on progress against its equality and human rights duties, those at Sections 8 and 9. This is a consequence of the repeal we are seeking of Section 3 but it also reflects our aim to focus the work of the commission. The present monitoring requirement is burdensome. Can we reasonably expect the commission to report meaningfully against the changes in society in relation to the aims in the general duty?
Enabling the commission to report against its equality, diversity and human rights duties will still allow it to monitor and report widely on changes in society relating to these duties, and thus hold a mirror up to society in these respects. It will also allow it to monitor and report on its own impact on the areas that it is uniquely placed to influence and change. However, to go further and ask it to assess how "fair" society is gives rise to ill-targeted and costly work. Having clearly focused monitoring and reporting will ensure that evidence directly feeds into the commission's plans, and enable Parliament and the Government to hold the commission to account as the reports will be able to show where the commission is having impact, and where work still needs to be done.
We have debated the Equality and Human Rights Commission in great depth on several occasions over the past few months. I thank again all noble Lords who have given up their precious time to do so with me in private as well as on the Floor of the House. One thing we all agree on is that we want the commission to be an effective national human rights institution and equality body, trusted and respected to promote and protect equality and human rights. It is because we care that we are making these reforms. We are confident that, with these changes, the commission will continue to go from strength to strength with new leadership, an agreed budget, and a new framework document that recognises the commission's continuing independence.
The other place has made clear its views. We therefore ask that noble Lords do not insist on their amendments. I beg to move.
Moved by Baroness Campbell of Surbiton
As an amendment to Motion A, leave out from "House" to end and insert "do insist on its Amendment 35".
My Lords, it is with great sorrow that I find myself here at ping pong, seeking to reinstate Section 3 of the Equality Act 2006. I really do not do this lightly. I know that a challenge to the Government at this stage should be made only when it is absolutely necessary and all other routes have been exhausted. I had hoped that the Government would listen to the many and exceptionally well considered arguments made by all but two noble Lords on Report. I expected something more than a blanket no. That is why, having explained my reasons to the Minister last week, I have retabled the amendments that were overturned in the other place.
We have yet to hear of a single example of how the commission's capacity to act as the guardian of equality and human rights in Britain will be improved by repealing the general duty in Section 3, a duty which gives a holistic direction to the commission based on principles of dignity, respect and fairness, and takes it to, but not beyond, legal enforcement in helping society change for the better. The Equality and Human Rights Commission itself has said that it now has sufficient focus and, in the absence of robust reasons for removing it, Section 3 should remain.
I ask your Lordships to recall where the duty came from and to consider where its repeal may take us in the future. Twenty years ago today, Stephen Lawrence was murdered by a group of young men for no reason other than the colour of his skin. The Metropolitan Police made a catalogue of errors in the investigation into his murder. Our criminal justice system failed Stephen Lawrence, and it failed his family in their quest for justice. It is a sad truth that it took this tragedy to create a moment of enlightenment. The inquiry, led by Sir William Macpherson, identified that racial discrimination could not be seen as the lone action of a few bad apples. It was part of the institutional culture of the Metropolitan Police.
That insight led to the sea-change in our approach to equality law and the structural support to promote and enforce it. The general duty embodies this shift in thinking. The role of the commission is not simply to seek compensation for those who experience discrimination. As Age UK has noted, it is to pursue cultural change to prevent such discrimination from occurring in the first place. This is not only about racial discrimination. It is about institutional discrimination and violations of human rights in all their guises and across society-for example, in parts of the NHS and our care system, as the EHRC demonstrated in its inquiry into older people's treatment at home. It is also widespread in the criminal justice system and local authority practice, as the disability hate crime inquiry revealed. It is rife in the exploitation of migrant workers, exposed by the inquiry into the meat processing industry.
Ministers have argued that the general duty is symbolic and aspirational, as if this were enough to dismiss it out of hand. The general duty symbolises our commitment to preventing the kind of injustice faced by the Lawrence family, or the routine abuse of disabled young people in institutions because of indifference and cruelty. It aspires to a society founded on dignity, respect and equality-notoriously absent in these cases. However, contrary to what Ministers claim, the general duty is not, in fact, merely symbolic. Its repeal could have major implications for the commission's role in monitoring equality and human rights. In the other place last week, the Minister told MPs:
"We are also changing the commission's monitoring duty to ensure that it reports on its core functions, rather than on the state of society generally".-[Hansard, Commons, 16/4/13; col. 217.]
At present the commission is required to monitor Britain's progress towards the aims of the general duty. In so doing it holds up a mirror to society, as it did in its seminal report, How fair is Britain?. As the Minister indicated, if the general duty is repealed, the monitoring duty will be fundamentally changed-it will be limited to holding up a mirror to itself and asking only, "How effective is the commission?". This is why Amendment 35 relating to Section 3 and Amendment 36 relating to Section 12 of the Equality Act 2006 are inseparable and must be must be considered as one.
The Minister went on to say that changing the monitoring duty,
"will also enable the EHRC to gain the respect hon. Members want it to have as our equality body and national human rights institution".-[Official Report, 16/4/13; Commons, col. 217.]
This suggests a dangerous misunderstanding by the Government of the requirements of European Union law and the United Nations standards on the status and mandate of national human rights institutions. The likely effect of these proposals would be to prevent the commission, and therefore the UK, from complying with the requirement for equality and human rights bodies independently to monitor the national situation.
This could have very serious consequences. In the light of the Government's package of reforms the international accreditation committee for national human rights institutions has announced that it will re-examine the commission's status next month. I do not need to spell out to my noble friends the impact on the UK's moral authority abroad if, as a direct consequence of these reforms, the commission were to lose its present A-accredited status. Such a development would no doubt be seized on by countries such as Zimbabwe and Iran. At a time when the UK is seeking a seat on the Human Rights Council that is not a risk we should be taking. I am sure noble Lords would agree that we must practise what we preach and lead by example.
The commission's role as an agent of change matters to millions of people in this country, whether they are an elderly person in hospital, a woman fleeing a violent partner or a black teenager and his friend waiting for a bus. In a civilised society such as ours people in these vulnerable situations should feel confident that our institutions will accord them dignified and fair treatment as equal citizens. Justice is poorly served if our commitment to equality and human rights extends only to offering compensation after an event. For many, it is simply too late.
Today, of all days, we should remember why we put these measures in place and not be so foolish as to believe that it could never happen again. That is why, for the second time, I feel we must send these urgent messages to the other place that the general duty and the duty to monitor its aims must be taken very seriously and must stay. I beg to move.
My Lords, I was sorry not to be here for Report stage of the Bill but I have read the debate carefully. It left no room for doubt as to the strength of support right across your Lordships' House for retaining Section 3. In addition to the powerful and principled advocacy of the noble Baroness, Lady Campbell, and others, I attach particular importance to the comprehensive demolition of the Government's case in legal terms by my noble and learned friend Lord Lloyd of Berwick.
Your Lordships will be pleased to hear that I do not propose to go over again all the substantive arguments again, which have been so comprehensively crawled over in Committee and on Report, about the value of duties that cannot be enforced in a court, for example, whether there is a place for the declaratory in legislation, the value of a unifying link between equality and other fundamental human rights-I was rather surprised that the Minister sought to deny that one in her wind-up-the fact that there is nothing in Section 3 that suggests or implies that the commission is to be solely or uniquely responsible for encouraging and supporting the goal of an equal society, the negative message sent by removing the general duty and so on. I think that these arguments have been comprehensively won.
However, I want to repeat one point I made in Committee that I do not think has been properly answered, or indeed answered at all. The Government argue that Section 3 does not add anything to the EHRC's core equality and human rights duties in Sections 8 and 9 but, as I explained in Committee, there are reasons for thinking that the repeal of Section 3 could make the commission's duties at Sections 8 and 9 more vulnerable to judicial review on the ground of challenges based on the proper statutory remit of the commission.
In the absence of Section 3 there is little by which to judge whether the duties at Sections 8 and 9 are sufficient, as they become freestanding and detached from any specified outcomes or overarching purpose. The Minister said that no examples have been given of how the removal of Section 3 could undermine the commission's ability to carry out its functions. I submit that it is a clear example if the removal of Section 3 would mean that the commission was more vulnerable to judicial review in carrying out its functions. I would be grateful if the Minister could deal with this point before she asks your Lordships to accept the Commons disagreement with your Lordships' amendment.
What we have to decide today is not on these substantive arguments but whether to ask the Commons to think again about this matter. I think we should do this for four reasons, which I will briefly state. First, the public have shown in their response to the Government's consultation that they are against repealing the commission's general duty by six to one. Secondly, a large number of civil society organisations including Age UK, the Equality Trust, the Fawcett Society, Justice, Mind and the Refugee Council have expressed their opposition to repeal, indicating that it would leave the EHRC a weaker body if Section 3 were no longer in place. Thirdly, there is the cursory nature of the Commons rejection of our amendment. It was rejected in the briefest of exchanges, which scarcely sought to answer the arguments advanced but simply reiterated the arguments that had already been answered. Fourthly, and this is perhaps the most important, the Minister said on Report,
"I shall be absolutely clear about what this Government seek to achieve via this Bill. We want a strong and independent Equality and Human Rights Commission which promotes and protects equality and human rights".-[Hansard, 4/3/13; col. 1289.]
This was echoed by the Minister in another place when she said,
"we want a strong, independent Equality and Human Rights Commission".-[Hansard, Commons, 16/4/13; col. 217.]
The Government's credibility is on the line here. If they want a strong and independent Equality and Human Rights Commission that promotes and protects equality and human rights, why should they not agree to this amendment? I know that they think that the general duty adds nothing to what is there in other sections of the Act, and they have an argument, even if one disagrees with it. The Minister in the other place reeled off a string of about 10 duties that would still be present in the Act even if one removed Section 3, albeit in a fragmentary and unintegrated fashion. However, if the general duty adds nothing, equally it does no harm. It is perhaps a question of balance.
I put it to the Minister that, even from the Government's point of view, it might be preferable, on balance, to accept the amendment. It is symbolic, and this has become a touchstone of the Government's commitment. I therefore put it to the Minister that they would be much better advised just to accept the amendment and spare themselves a lot of aggro and ill feeling on the part of that considerable body of opinion that regards the general duty as intrinsic to an Equality and Human Rights Commission worthy of the name.
My Lords, I will make some very short remarks because the noble Baroness, Lady Campbell, and the noble Lord, Lord Low, have more than adequately explained why we find ourselves in this rather unfortunate position-I agree with the noble Baroness, Lady Campbell-of asking the Government to look again and asking another place to take this back.
It is important also to say that one thing has changed since we discussed this in Committee and on Report. That is that the EHRC has given this matter some further reflection. I congratulate the noble Baroness, Lady O'Neill, because it is a sign of the maturity of the organisation that it has changed its view on this matter at least a small amount. I will read out a statement that was issued, and that is about the only thing I will say. The statement about the repeal of Section 3 on their website says,
"However, the debate in the Lords and commentary by parties have underlined the importance which is attached to the general duty. Many people clearly believe that, both in terms of the perceived mission and role of the Commission, and the coherence of the legislation, it is valuable to retain the general duty. Unless the government can provide additional robust reasons for removing the general duty in the current situation, our analysis suggests the case for removing the Lords' amendment in the Commons has not been made. The Commission therefore continues to support retention of the general duty and maintaining the position established by the Lords".
We know from the previous debates and from listening very carefully to what the Ministers in this place and in the other place have said that there is actually no robust case for the repeal of the general duty. Your Lordships' House took that view by a majority of over 50 when this was discussed on Report. I put it to your Lordships' House that the one thing that has changed is in favour of the retention of the general duty, and I hope that the Minister will now weigh this issue in the balance and agree to leave Section 3 in place. Indeed, if the Government wish to review Section 3 or any other part of the equalities legislation then that should be done with prior consultation and the involvement of the Joint Committee on Human Rights. We on these Benches do not believe that that is desirable or necessary, but if it were to be done it should be done in a proper way, not as part of a Bill that addresses regulatory burdens on business and enterprise.
My Lords, the Minister has not advanced this evening any of the arguments that she advanced at the beginning of January for repealing Section 3 of the 2006 Act. I will therefore leave those arguments on one side.
Instead I will turn to the arguments advanced by the Minister in the other place. He asserted boldly that Section 3 of the 2006 Act should be repealed because it was not a core purpose of that Act. With great respect, that is exactly what it was. Section 3 was in a sense the core purpose of the 2006 Act, that purpose being to bring together for the first time in legislation equality rights with other fundamental human rights. The specific duties under Sections 8 and 9 were to be the means of bringing about that core purpose. That was the very point made by Professor Sir Bob Hepple in his report. He said that Section 3 is important because it states for the first time what he called the "unifying principle". It is most unfortunate that the Minister in the other place, when he came to his reply, did not reply to that argument or to any of the arguments advanced in the other place; sound arguments and convincing arguments, they were all, unfortunately, left aside because there was no time to deal with them.
There is a hint, elsewhere in what the Minister said, that Section 3 is undesirable because it would, as it were, take the commission's eye off the ball to the exclusion of the important duties under Sections 8 and 9. There was never much danger of that. In any event, the commission has now made it clear, if I am right, that it would now welcome the retention of Section 3. If that be so, surely we should leave it at that.
It is not often on these occasions that we should resist the view of the House of Commons at this stage of ping-pong. However, the Government have not given one single solid reason why we should repeal a provision that both Houses were in agreement on as recently as 2006. As I have said, the Minister did not deal with any of these arguments in his reply. We should give him another opportunity of doing so, and another opportunity to the other place to see if they agree with those arguments or not. For that reason, I will vote for the amendment in the name of the noble Baroness, Lady Campbell.
My Lords, I pay tribute to the work and the steely determination of the noble Baroness, Lady Campbell. She has been inspirational in her continuing support for what she believes to be an important principle and issue. Many of us share her passion and determination.
It is very poignant that today we are again debating the general duty of the Equality and Human Rights Commission and its principle on the 20th anniversary of the terrible racist murder of 18 year-old Stephen Lawrence, and on the day of the memorial service that was held this afternoon in his memory, which I understand was attended by the Prime Minister and others.
Last month at an event to launch a book about the Macpherson inquiry, Doreen Lawrence said that, as a mother, for 20 years she had not been able to grieve and find closure because she had been forced to fight for justice, year after year. There are still individuals out there today who were involved in this murder and who have not been brought to justice. She wrote to the Prime Minister last November asking that he does not row back or seek to water down hard fought equalities legislation that all political parties came together to put on the statute book so recently to protect those who need protecting.
Huge progress has been made over many decades, particularly since, for example, my own family came to the United Kingdom, when racism and discrimination was rife. However, there is still much to do to ensure that our society becomes more equal, and that we maintain and build on such positive work, particularly since the Macpherson inquiry and its findings. It is irrefutable that more than a decade later, the Macpherson inquiry can rightly claim to have led to an overhaul of Britain's race relations legislation which created much stronger anti-discrimination powers that can be found anywhere in Western Europe. Attitudes towards racism and policing have now changed as a result. However, there are still very many people and communities who need to be protected and encouraged to achieve their potential and not be limited by prejudice or discrimination. We need the commission to have the tools, the ability and the duty to monitor the progress in our society.
For these reasons I profoundly disagree with the Government's reasoning that they wish to repeal the general duty that originated as part of their Red Tape Challenge. That is why it has been included in this Bill, on the basis that it is a,
This is not red tape, and it costs business nothing. Where is the evidence of that? It is about vision and about the mission, principles that matter and are important. We cannot risk sliding back if we become complacent on these defining principles.
We have also been told that the commission's duties are too broad and wide-ranging and therefore cannot focus on its work. The Minister repeated that today, and I am sure that she will say it again in the summing up. Is the Minister aware that the general duty has considerable symbolic importance and, like any major organisation, it encapsulates what it is there for and what it is meant to do and its responsibilities? Do we really want to dilute the work and the remit of the EHRC after it has already faced cuts of around 60%?
The Minister has said that the general duty dilutes its purpose; there is no evidence of this. I argue that we should not remove it, as others have done. We must still do all we can to ensure that there is respect and protection for each individual's rights and dignity, as well as an equal opportunity to participate in society. There is no evidence, and none has been forthcoming, that by abolishing the general duty the commission will somehow be able to work more efficiently. It would risk the commission losing all credibility as the well respected and trusted human rights organisation that we have repeatedly heard the Government want it to become.
As has already been said in the arguments on this matter in both Houses and outside Parliament, the commission itself has now concluded that unless the Government can provide additional robust reasons for removing the general duty, which so far they have not done, the case for removing it has not been made. Surely we should be promoting good relations and mutual respect between able and disabled people, and between people of differing races and faiths. It is therefore appropriate and welcome that the board has now come to a collective view on this matter.
Campaigning for greater equality is at the heart of my own political beliefs and is why I became engaged in politics and in public life. I strongly believe that it would be extremely damaging for us as a country and society if we are seen to be rolling back on equality. Transparency, scrutiny and accountability remain the watchwords. Retaining the general duty is one key element of these, where we strive to become a society that values social justice and promotes greater equality. I therefore ask noble Lords to support the amendment in the name of the noble Baroness, Lady Campbell, and send a strong message to the other place that the general duty does matter.
My Lords, whether it is a runner wearing a black ribbon in a marathon or a coffin draped in the Union flag, there is a real and proper place for symbolism. If this is all that we are debating, why on earth are we removing this particular symbol? In our last debate at Report, I abstained, feeling slightly guilty, I have to admit. One reason I abstained was that the commission had not come out with a clear, unequivocal statement such as has been quoted by the noble Baroness from the opposition Front Bench this evening. If the commission believes that having this symbolic duty does not retard its work or its progress, and if it believes that it is a declaration-and there is room for the declaratory as well as the symbolic-and that this is helpful to its work, with all the respect that I have for the noble Baroness, Lady O'Neill, and all the belief that I have in her capacity and competence, I can think only that she and her colleagues can be helped.
I wish we had no need for such a commission; I am sure we all wish that. It is one body that we would like to see work itself out of a job. Unfortunately, society as it is means that there is a need. If there is a need, there is a need to define. If there is a need to define, there is a need to say, in broad and simple terms, what the commission should be for and what it should be doing.
I admire greatly the noble Baroness, Lady Campbell. We know it is not easy for her to address this House. She does so with courage and most articulately. The case that she made this evening and that was so ably backed by the noble Lord, Lord Low of Dalston-we are pleased to see him back from his recent operation-was frankly an unanswerable case. I have to say to my noble friend who will respond to this debate: why? What is the point? What is the purpose? There are occasions when a Government have to fight for something that may be unpopular. I have gone into the Lobbies supporting Governments fighting for things that have been unpopular for over 40 years. Nevertheless, this is asked for by those bodies with which the commission has regular dealings. It is not going to add to the sum from the public purse. It is not going to obstruct the commission in the specific duties which it has to follow. So what is the point and what is the purpose of doing this?
In following up a point made by the noble Lord, Lord Low of Dalston, I have also to say that the other place, of which I was proud to be a Member for 40 years, has not exactly examined this matter with critical care and scrutiny. It has given it a quick turnover and sent it back. Well, at the end of the day, the view of the Commons, as the elected House, prevails; that is my constitutional view. However, I think we have to say to it again, "Look, you have got this wrong. Including this section is not going to impede the Government in their work. It is not going to do any damage to your economic strategy. It is not going to do any damage to your social strategy. What it is going to do is to give the commission what it believes to be helpful and necessary on what those bodies which deal with the commission believe the commission should have".
I did abstain last time; I shall not abstain tonight. I hope that we can send a clear signal to the other place that it should back down, come off it and do something sensible.
My Lords, I am grateful for all contributions to this debate, and I mean that quite sincerely. As I respond, I am very conscious of the strength of opinion that has been expressed in your Lordships' House this evening.
I will start by responding to a point raised by the noble Baroness, Lady Campbell of Surbiton, in response to my remark about us all wanting the commission to be as effective as it can be so that it is respected by everyone. I want to clarify what I mean by that because I think there are two separate issues here. One concerns the ICC's status, or the commission's A status being conferred on it by the ICC, and any suggestion that that is at risk. I reassure the House that the Government have had ongoing discussions with the ICC. I know that the chairman of the commission-the noble Baroness, Lady O'Neill-is continuing her dialogue with the ICC. The non-legislative changes that we have made around the budget and the framework document all strengthen the situation with regard to its status. I do not think that that is at risk. In talking about respect, I was trying to get at a slightly different point in that I want the Equality and Human Rights Commission to be respected not just by those of us who automatically take very seriously equality and human rights but also by those who do not. In order for us to create the kind of society that we are talking about in this context, we need the commission to be supported by everyone.
That takes me to another point that the noble Baroness, Lady Campbell, raised, and was echoed by my noble friend Lady Hussein-Ece, on the origins of Section 3 and the general duty. Today marks 20 years since the tragic murder of Stephen Lawrence. I cannot express to the House how much respect I have for Doreen Lawrence, who had to suffer the murder of her son for progress to be made in this country on some equality issues. That is beyond words. I pay tribute to everything that she has achieved and wish that she had not had to suffer in the way that she did in order to achieve what she has. However, I say with the greatest respect to the noble Baroness, Lady Campbell, and others who referred to the death of Stephen Lawrence in the context of the general duty, that that tragedy resulted in the introduction of the public sector equality duties in the Equality Act 2010. That terrible event did not result specifically in Section 3 and it is important to be clear on that point.
The noble Baroness, Lady Campbell, referred to reporting and monitoring. It is clear that the general duty then becomes a practical issue because the Act states that the commission is required to monitor that general duty and report on it. The noble Baroness suggested that by changing the monitoring requirements the commission would no longer be able to hold up a mirror to society and would be able only to hold up a mirror to itself in terms of what was happening when it produced its reports. I absolutely disagree with that. In my opening remarks, I made it clear that the new monitoring requirements would allow the commission to continue to hold up a mirror to society. It is our view that the new monitoring requirements will lead to a much more focused report, which we hope will have greater value for Parliament and other bodies that may want to refer to it.
The noble Lord, Lord Low, asked whether, in the absence of Section 3, the commission might be more open to judicial review as regards its work under Sections 8 and 9. The commission has never raised this concern in its briefings on the duty. We have no reason to think that the detailed and clear duties in Sections 8 and 9 would be made any more vulnerable by the removal of the general duty.
The noble and learned Lord, Lord Lloyd of Berwick, mentioned the advice given by Sir Bob Hepple and the Government's response to his view. I say two things to the noble and learned Lord. First, at earlier stages of the Bill, we heard from the noble Lord, Lord Lester, a contrary view to that expressed by Sir Bob Hepple about the role of Section 3. Further, in our view, there is no indication that Section 3 has any interpretative value in relation to any other legislation, including the Equality Act 2010 and the Human Rights Act 1998.
The noble Baroness, Lady Thornton, and others pointed to the commission's recent briefing and its statement that it supports maintaining the position established by the Lords for retaining its general duty. In response, I acknowledge that that is what the commission has said publicly and I understand and respect that view. However, in the same briefing paper it has also made it clear that removing the general duty would not affect the commission's ability to do its work. On those matters, it is worth making clear again that by removing the general duty we are not preventing the commission doing any of its very important and good work. It will not lose any of its vital powers of promoting equality, tackling discrimination and promoting human rights. As I have already said, when it comes to monitoring, producing quinquennial reviews in future should lead to it provide something more analytical and of greater value to those who want to use it as reference.
As I said when I first stood up, I am very aware of the strength of views expressed around this House. This is an issue where the noble Baroness, Lady Campbell, supported by all those who spoke tonight, feels differently from the Government. I have tried to set out again why the Government feel that this change will lead to a stronger Equality and Human Rights Commission, which is what we really want. When we come on to the next discussion about caste discrimination I will be able to reflect how important the role of the Equality and Human Rights Commission is. I ask your Lordships to agree with the Commons in their disagreement of the Lords amendment and the noble Baroness to withdraw her Motion
My Lords, I would like to thank the Minister for her reply and to thank noble Lords who have contributed to this debate, the last debate, the one before it and the one before that. I have never worked so hard to protect a piece of legislation which the majority of people want and about which so many noble Lords from all sides of the House have spoken in favour. I find it quite incredible that something so symbolic and so important to the proper functioning of the Equality and Human Rights Commission has been such hard work.
I do understand that there has been improved mutual respect between the Government and the commission and the quality of the work has been enhanced. That is to be celebrated, but I still believe it is critical to retain the general duty and the monitoring duty for all the reasons that we have given in these debates since last year. I would like to thank the noble Lord, Lord Low, and the noble and learned Lord, Lord Lloyd, for helping me tonight to expand the arguments for the general duty. It would be wrong to rehearse them again now: we have exhausted them. I was particularly pleased to hear the noble Lord, Lord Cormack, express his passion and his very clear understanding of why the general duty is necessary to the work of the Equality and Human Rights Commission and also to the messages that we send out to the Lawrence family, to disabled people who are undergoing considerable difficulties in situations where, without a culture change, they will continue to be abused in institutions, and to others that we have mentioned throughout these debates. For them, I ask your Lordships to agree with my amendment tonight and to send it back to the Commons saying, "Please consider these arguments", because they were only looked at in a very cursory way during the Commons debate. In fact, I believe the debate suffered a guillotine in the winding-up speech only three minutes after the Minister stood up. I ask the House to send this amendment back so that a proper debate can be had and the arguments examined properly. I ask your Lordships to agree to this Motion. I wish to test the opinion of the House.
Lords Amendment 36: Clause 56, page55, line 8, leave out subsection (6).
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 36 for the following Reason-
36A: Because it is more appropriate for the Commission for Equality and Human Rights to monitor progress by reference to its duties under sections 8 and 9 of the Equality Act 2006.
Moved by Baroness Stowell of Beeston
That this House do not insist on its Amendment 36, to which the Commons have disagreed for their Reason 36A.
Moved by Baroness Campbell of Surbiton
As an amendment to Motion B, leave out from "House" to end and insert "do insist on its Amendment 36".
Motion B1 agreed.
Lords Amendment37: After Clause 56, insert the following new Clause-
"Equality Act 2010: caste discrimination
(1) The Equality Act 2010 is amended as follows.
(2) After section 9(1)(c) (race) insert-
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 37 for the following Reason-
37A: Because it is inappropriate to provide for caste to be an aspect of race for the purposes of the Equality Act 2010 without further consultation.
Moved by Baroness Stowell of Beeston
That this House do not insist on its Amendment 37, to which the Commons have disagreed for their Reason 37A.
My Lords, we come now to the issue of caste and whether it should be made an aspect of race and thus a protected characteristic under equality law.
The whole House agrees that prejudice and discrimination based on caste is wrong. It is unfair and unacceptable in a modern society and is certainly unacceptable in Britain. There is no place for it and we need to take the right action to ensure that there is no place for it. It was your Lordships' view when we last debated this that caste should be directly and immediately included in the Equality Act as an aspect of race. The other place has taken a different view and said we should not legislate at all without further consultation. There has, as yet, never been a full public consultation on this issue.
I will be absolutely clear. The Government have listened to what your Lordships' House has said. We acknowledge the widespread support among noble Lords for legislation and the strength of opinion that has already been expressed. Today, I will explain the additional steps the Government are taking in response to the strength of that opinion. Since we last debated this matter, significant concerns have also been expressed about the implications of legislation. These concerns have not come only from those we would expect to be against legislation. Her Majesty's Opposition also raised legitimate and serious questions during the debate in the other place. As I said during our earlier debates, this Government are not against legislation as a way of tackling caste discrimination. However, we do not have all the information that we believe is necessary to decide that the power in the Equality Act 2010 should be exercised. We think a responsible Government should consider all relevant issues and the implications of legislation before going down that route.
During our previous debate, my noble and learned friend Lord Mackay of Clashfern suggested that having the provision for caste in the Equality Act had given the courts reason, which they might not otherwise have had, to doubt whether the existing legislation protects people against caste discrimination. This helps to illustrate a very important point. We must ensure that whatever we do next does not create new, unintended consequences which could make it harder for people to seek redress. However, at the same time, we must of course be conscious of the need to bring what we do next to a conclusion as quickly as possible.
If we are able, shortly, to reassure ourselves on these points and decide, after consultation, to exercise the power that already exists in the Equality Act, then an advantage of this power is that we can do so via secondary legislation. In other words, I want to reassure your Lordships that there need not be a requirement for new primary legislation and therefore any unnecessary delay. I should note, however, that the amendment brought before the House today would not permit any meaningful public consultation or allow any flexibility through secondary legislation in the way that the Opposition, among others, have been arguing. Caste would simply join colour, nationality and ethnic origin as an aspect of race in the Act, and that would be that.
In a moment I will explain what additional information and steps we think are necessary before the Government will decide, and what the timescale is for that decision. First, I shall summarise some of the concerns that have been raised. First, there are concerns about whether we are actually legislating on the right ground. Some organisations have suggested that descent is more appropriate than caste, and this is an issue that the Opposition have also raised in debates in the other place. I am aware that there are differing and strong views on the question of descent, which we cannot go into today. However, the fact that there is genuine uncertainty over the definition of what we are legislating about clearly suggests that we should not be adding further to the law before carrying out the sort of consultative process proposed by both the Government and the Opposition, although I acknowledge that the Opposition have a different proposal in terms of consultation.
There are also concerns about individuals having to indicate their caste in any monitoring. The NIESR report is clear that some people would not want to do this or indeed admit to caste existing at all. We all have to consider what business would need to do to comply sensibly with such a provision and, if so, what costs this would entail. Would there need to be a code of practice, and if so, would it be reliable in such sensitive matters? To take one important stakeholder in this area, the CBI has stated that,
At the moment, I believe it is not clear that we have all the information that we need on these and other questions. A significant number of Hindu and Sikh organisations, including some representing people from the perceived lower castes, have expressed concerns that they have not had a chance to provide considered views and would be strongly opposed to immediate legislation on this. For example, the GAKM UK which represents the Mochi community, which is deemed one of the lower castes, believes that by enacting the clause in law, the Government could undo all the work done by our communities over the past 20 years to try to remove the differentiation by caste in all aspects of life.
I am, of course, aware that some noble Lords may say that this is the sort of argument that could have been used to delay the advent of race or indeed of any other discrimination law. However, there is a fundamental difference with caste in that not only do we wish to get rid of caste prejudice from British society, we actually see no useful value in caste itself, or of anyone defining themselves by their caste. In that sense it is not like colour or ethnic origin, or any of the other protected characteristics. We need to ensure that the action we take, particularly if in legislation, sets us towards this aim and not in the opposite direction of embedding caste as a concept in domestic law.
As your Lordships will be aware, on
I should like to give your Lordships more detail about this consultation. The Government intend to start the consultation before the Summer Recess and finish it before the end of this year. In the same timescale, as I have already mentioned, the Equality and Human Rights Commission will investigate independently the right way of tackling the problem we see in the evidence presented by NIESR and other studies. We have always accepted that the NIESR report identified a small number of cases where the evidence suggested that caste discrimination or harassment had probably occurred. I should therefore explain that the initiatives we are proposing are specifically intended to supplement the NIESR report by dealing with two key aspects which that report did not fully address. The EHRC will look, in the light of the evidence from existing studies, at what is the right way-legislative or otherwise-of tackling caste prejudice and discrimination. We are pleased that the commission, as our country's designated equality body and human rights institution, chaired by the noble Baroness, Lady O'Neill of Bengarve, will be playing a key role in the work on this very difficult and controversial problem in modern British society.
The consultation will seek views widely from all individuals and groups with an interest in caste and the problems it creates. It can of course raise those issues, and others that I have just mentioned as causing particular concern to Hindu and Sikh groups, with businesses and other interests which have not previously been involved in this debate. Apart from the Government's own assessment of the consultation responses, we are certainly happy to share that material with the EHRC once the consultation closes. The EHRC can then reach its own conclusions and recommendations in full awareness of what respondents to the consultation have been telling us.
We should have the outcome of the consultation and the commission's own conclusions and any recommendations it may have for Government by the end of the year and we will publish the Government's response early next year. If it is clear from this assessment that legislating is necessary, the Government will then take steps to do that. No Government can give away their legislative responsibilities. However, if the report from the Equality and Human Rights Commission-a body uniquely qualified to take a view on anti-discrimination law-makes a firm recommendation to legislate, that would be a key element in forming the Government's decision.
I am grateful to noble Lords for allowing me the time to spell out what the Government are planning in response to the very strong feelings expressed by this House in previous debates on this matter. I trust that in doing so the House will agree that we should agree with the other place on this issue. I beg to move.
Moved by Lord Harries of Pentregarth
As an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment 37".
My Lords, I very much respect the fact that the Government are taking caste discrimination very seriously. I particularly thank the Minister for her personal concern and the moves that she has suggested this evening.
There is, however, a fundamental difference of approach between the Government's present policy and that represented by supporters of this amendment. We believe that the time is already overdue for it to be clearly stated in law that discrimination on the grounds of caste in the public sphere, like any other form of discrimination, is totally unacceptable. It is quite contrary to the culture and values of our society and should be illegal-and seen to be illegal.
We are not talking about acts of personal prejudice in the social sphere, which may indeed be dealt with best by an educational process, but about what happens in the public sphere: the areas of education, employment and the provision of public goods and services. In the public sphere, it is the presence or absence of a law that makes all the difference.
The Government and Opposition have, rightly, been talking to people who are disquieted by the prospect of legislation. One point needs to be made quite clear: caste is primarily a social and cultural phenomenon and its presence is not confined to any one religion or indeed to a religious view at all. It can even infiltrate religions that are in principle totally opposed to all forms of caste discrimination. A few years ago, for example, the Pope had to warn Christian communities about the way in which the caste system had taken hold in certain congregations in the Indian subcontinent. It is in essence a social and cultural phenomenon, and this amendment should not in any way be taken as a criticism of any one religion.
I do not see how the Government's Talk for a Change policy, in which they are investing £20,000, can possibly help present or future victims of discrimination. Basically, victims will continue to have no possibility of recourse to the law if they believe that they are being discriminated against not on the grounds of their religion but on the basis of their caste. The Minister in the other place said:
"Some discrimination cases can already be brought under employment law".-[Hansard, Commons, 16/4/13; col. 220.]
The painful experience of those who have already tried to bring a case before an employment tribunal on the grounds of caste has shown that this is not possible, because at the moment there is no relevant legislation.
The Minister mentioned that a group describing itself as low-caste has written to her to express unhappiness about the prospects of legislation. Being a member of a lower caste within a hierarchy is different from being a Dalit, the former untouchables regarded as outside the hierarchy altogether and of whom there are many thousands in this country. They are the ones who are experiencing discrimination at the moment and in greatest need of protection by the law.
The Minister also suggested that it might be possible to use "descent" rather than "caste" in any possible legislation. That would be totally unacceptable to the communities most affected by discrimination; they have made that quite clear. The word "descent" is not clear and could, for example, be used by descendants of one Scottish clan to claim discrimination by members of another. If one looks into it, "caste" has a clarity about it.
All attempts to bring in equality legislation have met with initial opposition. For example, Fenner Brockway brought forward nine Private Members' Bills to make racial discrimination illegal in the 1950s, and it took years for that and similar legislation on disability, religion and sexual orientation to make it to the statue book. Pressure for anti-caste discrimination legislation has been going on for many years and surely now is the time for it to become law.
The Minister has said that the Government are going to initiate a process of consultation but, with due respect, they have been considering this for more than two years and the previous Government had been considering it for two or three years before that. It is difficult to see what could be achieved by the consultation that the Minister has in mind, though there is a need for some kind of consultation, as I will mention. The Minister also said that she thought that there was a distinction in the legislation on race and caste, because the Government wanted to get rid of caste altogether. Like race, caste can be a form of acceptable identity. People call themselves black, brown, white or whatever they are, and I see no reason why people should not describe themselves as belonging to a particular caste, provided that in the public sphere it does not become the basis of discrimination against other people. I cannot accept that there is a fundamental difference there.
The Minister also mentioned the Equality and Human Rights Commission and the work that it is going to do, and I greatly respect the noble Baroness, Lady O'Neill, and the kind of mind that she can bring to this. It is already on record that the Equality and Human Rights Commission supports legislation, so it seems that nothing is really to be gained by putting the issue to the commission again.
I mentioned that it may be necessary for further consultation to take place with affected communities before the clause is enacted. The purpose of this would be to help dispel fears based on misunderstanding, of which there is a lot at the moment; make it crystal clear what counts as caste discrimination; and ensure that employers and public bodies will not seek information about caste identification, and that there will be no requirement on individuals to disclose their caste. The appropriate place for this, though, is in guidance or secondary legislation. At this stage we need a clear statement in law, even if a time is put on its enactment, in order to allow for that kind of specific and carefully defined consultation.
The Minister in the other place said:
"It is important to put it on the record that the Government recognise that cast prejudice remains in the UK, not least as outlined in the 2010 National Institute of Economic and Social Research report".-[Hansard, Commons, 16/4/13; col. 219.]
She stated unequivocally that the Government are against caste discrimination of any kind and want to do something about it. If there is discrimination in the areas covered by the Equality Act, and the Government recognise that, it should not be countenanced but made illegal. I beg to move.
My Lords, I, too, welcome the forthright statement by the Minister that caste discrimination is unacceptable, unfair and must be eliminated. However, I disagree with the diagnosis that she offered, which involves a delay at least until the end of the year before anything positive is done. I think that your Lordships will agree with the noble and right reverend Lord, Lord Harries of Pentregarth, that, having spent three years since the Equality Act waiting for the Government to declare their intentions on Section 9(5)(a), which they could have invoked at any time during that period, it is now time for your Lordships to make a decision on how we deal with this matter in law.
The basis of the argument about this proposal has shifted radically since your Lordships agreed to give the Government the power to extend by order the protected characteristic of race to include caste. At that time, the Government were not satisfied that discrimination on the grounds of caste existed in employment, education or the delivery of services. Now, three years later, from the Prime Minister downwards the Government accept that people in the United Kingdom do suffer discrimination on the grounds of caste, and that action needs to be taken against it.
They believe, however, that, unlike with discrimination on the grounds of any of the protected characteristics that are already dealt with in the Equality Act-age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation-caste is unique in being susceptible to treatment merely by education and conciliation. This is clearly a vain hope, as we see from the history of racial discrimination. The noble and right reverend Lord, Lord Harries, mentioned the repeated efforts of Fenner Brockway in the 1950s and 1960s, which, as I remember very well, fell on stony ground. Before the 1976 Act, introduced by my late friend Lord Jenkins of Hillhead, provided legal remedies for victims of racial discrimination in employment, education and the delivery of services, the Race Relations Board provided education and conciliation but those remedies were ineffective.
The Government say that there is no consensus for this amendment. I remember that the Conservative Opposition in the Commons, led by Mr Quintin Hogg as he then was, were against the 1968 Race Relations Bill on the grounds that it was unfair to private employers. As your Lordships know, many employers today would like to be able to discriminate on grounds of sexual orientation. There is no consensus there, but it did not stop us from legislating.
There is a consensus in favour of legislation among all the organisations in this country that represent the Dalits and other groups that are on the receiving end of caste discrimination, as we saw from the BBC "Newsnight" programme last week. Those bodies that have expressed concern draw their members from the higher castes. I challenge the Minister to produce a single Dalit who belongs to any of them.
We have considered the memorandum circulated by the Hindu Forum on behalf of a number of these organisations that speak for the higher castes. The members of the forum still believe that there is no caste discrimination in this country. If that is so, why are they concerned? According to them, it is because the Hindu community feels deeply insulted by the very idea that caste prejudice, still endemic in south Asia, has accompanied some migrants from the subcontinent on their journey to the UK. However, as the noble Lord, Lord Harries, has said, caste is not peculiar to the Hindus; it is a cultural phenomenon that affects Sikhs, Jains and Buddhists as well, and it would be extraordinary if it were the only aspect of the culture of the Dharmic communities that was left behind when people came here from Gujarat or West Bengal.
Hindus did not feel insulted when, as a result of pressure from great men like Mahatma Gandhi and Ambedkar, caste discrimination was prohibited under the Indian constitution in 1950. It was recognised that the law was not directed against Hindus as such, or indeed any other religion. There is no reason why, if this amendment is passed, it should be seen as a slur on whole communities that contribute significantly to our national society.
Recently, the Government started claiming that caste is a complex matter and that this amendment would impose an expensive burden on industry. If an employer does not have staff from the Indian subcontinent there would be no burden at all, but where there are such workers, as caste is an aspect of race, the bosses would already have to be familiar with their duties towards those workers.
The Talk for a Change programme mentioned by the noble Lord, Lord Harries, touted as an alternative to legislation, does not involve employers at all but is said to involve a dialogue between organisations that are pro-legislation and anti-legislation. That is a pointless exercise, providing no remedy for the victims of discrimination.
My honourable friend the Minister in another place, Jo Swinson, for whom I have a great deal of respect, trotted out the original argument from 2010 that we have no clear evidence on the extent of caste discrimination. She may be right in thinking that the number of cases that would potentially be covered is quite small, as the Hindu Forum believes. The same is probably true of gender reassignment cases but it was never suggested, as far as I know, that victims of discrimination on those grounds should be entitled only to an inferior degree of protection or to none at all. I hope that we are all agreed that discrimination against any person on grounds of any innate personal characteristic is wrong in principle and that all should receive the same protection.
Late in the day the Government woke up to the fact that it was going to be difficult to fend off the challenge posed by your Lordships on this issue, and started looking for a compromise. Would you compromise with racism, misogyny or homophobia? Of course not. Nor would you go back to the days when their victims had no legal redress. This is a unique opportunity to deal effectively with a problem that blights the lives of its victims because, if we accept the Government's invitation to try out the remedies that failed with every other protected characteristic, we, and the Dalits, may never get another chance.
My Lords, I oppose the amendment not because I disagree with its principle or disapprove of it, but because I believe that it is trying to go about achieving it in the wrong way.
The basic premise is that there is still a small amount of the practice of untouchability in Indian society in Britain and that it must be countered. I agree entirely. However, by using caste as a general category, you are going to catch too much at one end and too little at the other. The fact that there is untouchability is not only corroborated by some of the reports that have recently come out, but I myself discovered it in 1986 when I was deputy chair of the Commission for Racial Equality. I received a letter, sent from Birmingham, written by an Indian gentleman who said that his doctor had refused to examine him physically when he came to his home because he was an untouchable. In those days we used to have domiciliary visits, which sadly have stopped now. We wrote to the doctor and it turned out to be true. The doctor was reprimanded and I would like to hope that the practice had stopped. Of course, it does not stop just like that but a warning had gone out to the medical fraternity. This was in 1985 or 1986, and even after that there have been many cases of untouchability and therefore discrimination does occur. It needs to stop.
However, untouchability is only the egregious, extreme form of the caste system, because the system covers everybody. Although caste does not mean anything to me personally, you cannot be a Hindu without belonging to a particular caste, full stop. Talking about abolishing the caste system is extremely problematic because it could mean getting rid of the category, getting rid of the hierarchy among the categories or getting rid of the principle of heredity which determines the caste. Where do you start? I suggest that caste as a category of discrimination is therefore not in the same league as race, religion or any of the other protected categories. If we were to introduce this, there would be four major difficulties and I want to alert the House to them.
First, there will be frivolous complaints based on caste. I do not know how many of your Lordships are students of sociology or have Indian friends. However, let us say that I belong to a caste-whatever that may mean, since I have married outside my caste and my children have married outside their caste, race and religion. Nevertheless, technically I was born in the caste of goldsmiths because my father used to make gold and silver ornaments, so I am a goldsmith. Supposing that someone were to apply for a job in the university where I am a professor who happens to be a blacksmith, a shoe smith, a Brahmin or God knows what, and I do not appoint him because he is not terribly good. Supposing that he were go to the court and say, because I would be doing this not as a Lord but as a Professor, "Professor Parekh refused to appoint me on the grounds that I belong to a different caste". We would belong to different castes, although he is not an untouchable. Since every Indian who is Hindu carries the caste mark with him, every action that he does with respect to another can be subsumed under one or another form of caste discrimination, so the first difficulty is that you will have an enormous range of frivolous complaints with no way of arguing for or against.
Secondly, once you take away the untouchability bit, there is no evidence of any kind to show that caste discrimination takes place. With respect to the untouchables, they do not have horns or carry any distinct mark of being untouchables. Sometimes, their surnames are a giveaway if you know Indian society but a large number of them-I have worked with them and I greatly admire them-have changed their surname so that it is not a giveaway. When somebody applies for a job, how would you therefore recognise that he is an ex-untouchable? That would be the second problem.
The third difficulty that one would have is that, as the Minister rightly said, we will be introducing the category of caste in our domestic legislation and once you do that, problems begin to arise. How do you define caste? Sociologists have tried for 200 years, ever since the Portuguese invented the word caste. It is not an English but a Portuguese word; when they came to India, they found that we were classified in a certain way and called it caste. In India, caste is very much in flux thanks to globalisation, urbanisation and so on, and in Britain it is even more so. Castes are therefore difficult not only to define but to distinguish. Once one introduces this kind of indeterminate, inherently nebulous category in law, one invites difficulties. One could easily pave the way so that in 10, 15 or 20 years' time there might even be a pressure of the exact kind we have now, where people might be saying, "Let's have a question on caste in the census".
If my grandchild were to ask me today or 10 years from now, "Grandpa, what caste do I belong to?", I would not know what to say. A category as indeterminate as that does not deserve to be enshrined in domestic legislation. For these and other reasons I would be opposed to the amendment, while making it absolutely clear-so that I am understood outside this House-that untouchability exists. It is an abominable practice; people are sometimes discriminated against and the noble and right reverend Lord, Lord Harries, at a meeting he organised, produced people who were able to give evidence.
Take for instance a bus driver who happens to be a Brahmin or whatever, and there is a person who works on the buses who he would not want to team up with because the guy is supposed to have a surname that indicates he may be an untouchable. It exists in small pockets in those places where people are recognisable. It is not a pervasive phenomenon, but even if it is not pervasive, it is still not acceptable. The point is that it is only one extreme form of caste. By introducing caste as a general category in this way one is trying to catch too much and will end up catching too little.
My Lords, I speak in favour of this amendment. I am particularly concerned about the level of misinformation and ignorance used in the other place to argue against legislation. The Minister in the other place made a statement, which was repeated today, that caste is a problem in the Sikh community as well as among Hindus. It is not only inaccurate, but frankly insulting to the Sikh faith. Guru Nanak, the founder of Sikhism, totally condemned the whole system of caste. Opposition to discrimination based on caste, birth, gender, race or religion or social status is an essential pillar of Sikh teachings. Sikhism emphasised equality of respect and opportunity for all members of our one human family centuries before these concepts were accepted in the West.
The Sikh gurus repeatedly taught the absurdity of caste, in which the shadow of a person of lower caste was said to pollute the food of a higher caste. Guru Nanak urged them to forsake all notions of caste and ritual purity and look to the inner worth of individuals. That tireless campaigner for human rights, the noble Lord, Lord Avebury, from whom we have just heard, commenting on the egalitarian teachings of Sikhism at the time of my maiden speech, rightly emphasised Sikh opposition to caste, quoting Guru Nanak's observation that in his mother's womb no man knows of caste. Let us get it right. The concept of caste is a hierarchical division of Hindu society into the Brahmins, the top or priestly caste, with Khatris or warriors below, followed by those in commerce and then at the bottom Sudras, cleaners or scavengers. Caste has two essential components: a hierarchy of importance and a notion of ritual purity. Both are rejected in Sikh teachings. When a person converts to Sikhism he or she is required to renounce any former allegiance to caste. By definition one cannot be a Sikh and have a caste.
Guru Nanak warned us about the negative cultural practices that over the years attach themselves to our different religions and distort underlying ethical teachings. It is true for all faiths and it is certainly applies to caste which has little to do with the ethical imperatives of Hinduism. As far back as the 1930s many leading Hindus condemned the iniquity of caste. While Gandhi felt education was the answer, Dr Ambedkar felt education was not enough and legislative action was also necessary. Later, as author of the Indian constitution, Dr Ambedkar successfully included prohibiting discrimination on grounds of caste.
Coming back to this country, we too find ourselves in a debate over combating the evil of caste by education or by legislation. In this debate we have had some widely improbable figures on the number of Dalits in the UK. No such playing with figures is necessary. Whatever the numbers, that which is evil remains evil and Dalits are fully entitled to protection against discrimination, whatever their number.
Many-most-Hindus reject caste discrimination, but without firm action its negative influence could continue for years. It has no place in our more enlightened 21st century, and those who suffer its worse effects should, like those who suffer racial discrimination, be protected by law. Here it is necessary to add that, contrary to misinformation being circulated, legislation will not require people to associate themselves with a particular caste, just as protection against religious discrimination does not require anyone to affiliate themselves to a particular religion.
In conclusion, I should like to emphasise my comment made when we previously discussed this issue. I firmly believe that without the debilitating influence of caste the uplifting ethical teachings of Hinduism will be much more to the fore. It is for these reasons that I support the retention of our amendment.
My Lords, first, I am sure that the whole House has very much been touched by the words of the noble Lord, Lord Singh, which have clearly put this issue into a proper context.
I say to the noble Lord, Lord Parekh, something which I hope he will not find difficult. I am old enough to have been through all the discussions about discrimination against homosexuals and against people on the grounds of class, race and gender. I fear that the four reasons that the noble Lord presents are always presented in these cases. That does not take away from his own belief in it, but that is what people always say. They say that there are not very many. They say that it is very difficult to draw the distinctions. They say that the matter is being healed anyway because there is a great movement to ensure that it does not happen. They say that people will become more discriminatory if the law intervenes. That is what they always say. It may be more true about caste than about other things. I merely say that those are the same arguments, and I find it difficult to take those arguments in this case when I did not take them in all the other cases.
Secondly, the Government have rightly said, and I am proud that they have done so, that discrimination on the grounds of caste is unacceptable in any circumstance. We do now at least start this discussion from the same basis. That is not how it has been in the past, because there have been arguments that caste is somehow different, and that you should not say this because there are cultural and religious reasons why you may not make that statement. I think that we are now as one on that. I thank my noble friend Lady Stowell for speaking so clearly about that.
The Government have, however, put forward two arguments in the discussions that seem mutually contradictory. On the one hand, they have said that their legal advice is that the present law clearly covers caste. They have then gone on to say that they do not want to include caste because it would be expensive to employers. You cannot have it both ways. If the present law covers caste, that is a cost to employers anyway. If putting "caste" in merely clarifies matters, you do not increase the cost at all. You can increase the cost only if by adding "caste" you have a different category that was otherwise not covered.
I hope we will accept that the cost argument cannot be true or the Government's whole case falls down. I really hope we will hear no more about the cost argument. If we do, we should not be saying that people cannot be discriminated against unfairly, wrongly and wickedly but that because it is expensive to deal with it we are not going to deal with it. I am sorry, but that is not the politics I entered into and I am not prepared to take that. Let us just get rid of the idea that, somehow or other, we can argue this case on the basis of finance. That is a totally different issue and nothing to do with the moral issue with which we are concerned this evening.
I turn now to the point raised by my noble and learned friend Lord Mackay. He will no doubt make the point himself, but it fits into my argument at this point so I hope he will not mind me referring to it. He said he believed that the legal advice that caste was already included in the law was right but that because the previous Government-and this is no criticism of them-had put into the law a triggerable mechanism that could say that caste specifically was referred to, the courts might find it suggested that caste was not covered by the present legislation. The Government therefore have a real responsibility to ensure that their opposition to caste is not befuddled or mixed up because of an odd circumstance that was meant to be helpful but that has this downside in the legal judgment.
That leads to this House accepting that we are now on all fours. We now all say that caste is unacceptable and that people who are discriminated against on grounds of their caste should have a legal remedy. We are also, I hope, saying that the reason for a legal remedy is not just to help the individuals concerned but to lay down a quality of our society that says that this is not acceptable. It is after all a quality of Indian society that it is not acceptable. It is a quality of Nepalese society that it is not acceptable, and the Bangladeshis are presently seeking to have exactly the same quality. The idea that passing this law would in some way be insulting to Hindus seems to me to be absolutely outwith sense, and we have to make that absolutely clear. All we are saying is that we would do in this country what other countries have already done. It has not been seen as an insult to religion there, so that is not a reasonable argument.
We have to distinguish, in what the Government have placed before us this evening, between our common view that this has to be done and the precise view as to how. The issue before us is therefore not whether it is reasonable to take action but the best way to do it. The noble and right reverend Lord, Lord Harries, made a powerful argument to say that we should take this decision now, that we have been arguing about it for too long and that if we take this decision now we can subsequently sort out the problems that may arise around it.
The Government say, "We accept that caste is totally unacceptable, but we have a problem because we think it is reasonable that some people who manifestly have something to say about this do not feel that they have had a proper time for consultation". They also say that they are not sure that they are clear on a number of points. I disagree with the Government on both these issues, because first of all there has been as much consultation as was necessary. It is also quite clear how you deal with caste. That happens to be my view. However, this House has to take seriously the Government's role in this. This is a very difficult thing for me to say because I have been thinking and fighting about it for some time. I try to think back to the time when I was a Minister.
The Government have to think about something that the noble Baroness has not mentioned: that you do not start a new policy-because making this a legal matter is a new policy, even though we have been talking about it for so long-in the best possible way if a significant number of people, with some justification, feel that they have not been properly consulted. I say to my noble friend that I am pretty suspicious of some of the people who asked for consultation, because they do not seem to me to be overwhelmingly representative. They seem to be pretty clearly directed by those whose own interests are not those of the Dalits, so one has to be very careful about this.
On the other hand, I believe that in a democracy we ought to make sure that everybody feels that their voice has been properly heard. Therefore the noble and right reverend Lord, Lord Harries, says, "That's all very well; we can sort that out afterwards. We ought to pass the law now". I would have agreed with him if I had not understood what I now understand: that you need only secondary legislation of an affirmative nature. It is not very difficult to pass such legislation.
I now have to say something pretty tough to the Government. My noble friend Lady Stowell has been absolutely exemplary in these discussions. I know of no one who has gone to such trouble to try to sort this through, and I do not say that in the usual House of Lords manner to be polite to everybody. I am not like that. I want to be polite to her because I believe it and I want to say that. However, I have to say something very tough to her, which is this. She is asking us to believe that the Government will go through consultation, that the noble Baroness, Lady O'Neill, and her team will investigate this, and that if they have a clear recommendation we have to believe and have faith in the Government that they will then legislate in this way. She cannot tell me that they will certainly do that, because that would be to put governmental power into commission, and I rather agree with her that you cannot do that in advance. I wish I could not agree, but having been a Minister I have to admit that.
If we accept the Government's statement here-and we come to a time just after the end of this year and the Government have been presented, before the end of the year, with a clear indication from the equalities commission that legislation is necessary-I hope the Government will understand that we will never trust them again if they do not then legislate. I do not think the Minister is giving us weasel words, but let us just realise that this is not the moment to pass something through to get it out of the system and then come back and say "Well, we didn't really mean that".
What this House has to decide is whether it is prepared to accept the Government's undertakings, which have been very clearly stated by my noble friend Lady Stowell. The undertakings are that after proper consultation-that consultation going to the EHRC, not done separately and not done so that you can balance the one against the other-if the EHRC announces that after all the work it has done we should then legislate, the Government are saying in effect that we can trust them to do that. I am prepared to trust them. But let them not think, if they let us down on this, that any other attempt to do this in the forthcoming years will meet support.
This is a real issue, a moral issue of very considerable importance. The noble Baroness will ask me later on-not, I fear, at Second Reading because I will be unavoidably in the United States, but thereafter-to support the concept of allowing gay people to get married. I happen to believe that is right. My view is that there is a difference between Christian marriage, which I uphold entirely, the Catholic teaching on that, which I accept utterly, and the way in which state marriage works. The reason I come to that view is that I believe society ought to protect anybody in a way which is necessary for their own fulfilment. I do not care how many Dalits there are. I do not care how many cases of discrimination there are. If there is only one case of discrimination-I do not want to burden the House by referring to the gospel story-where one person is discriminated against, I do not want to live in a society that does not enable that person to claim that that discrimination is unacceptable and unlawful and to uphold that in the courts. That is not a society that we ought to be prepared to accept.
Let us have no argument about there not being very many, so it will be all right. Indeed, I thought the noble Lord, Lord Parekh, made the case for the Opposition when he told us the story of that doctor. What kind of society allows doctors to say that they will not examine a patient because they are of a lower caste? What kind of society has no recompense? He said, "We talked about it, and in the end we think that is all right"; but it may not be all right. He does not know whether it is all right. I want to be in a society in which, when a patient is treated like that, he could perfectly properly claim for such discrimination. So let us not allow this to go.
In a sense, I am being both helpful and extremely difficult; helpful because I will support the Government but very difficult in the sense that I tell the Government that if they disappoint me, there will be many other occasions in which support they might want they will not get.
My Lords, do I sense that the House would like to move on? I think that is probably the right thing to do.
My Lords, I indicated that earlier, but I gave way to the noble Lord, Lord Deben, because I thought he made a very important contribution.
I am delighted to contribute on this amendment and I support the point of view that has been expressed by the noble Lord, Lord Parekh. I served on the former Commission for Racial Equality and its predecessor bodies from its inception in 1965 until 1994, a period of nearly 30 years. Almost all Race Relations Acts made provision for the Commission for Racial Equality, the Community Relations Commission and all those bodies to review the legislation and, if it was inappropriate or lacking, to make recommendations so that the Government had the opportunity to amend it. As we saw in the Race Relations (Amendment) Act, this exercise was carried out by the previous Government.
I owe a special debt of gratitude to my noble friend Lord Avebury. He was elected in Orpington in the same year that I was elected to a county council in Sussex. He has been my mentor all these years, but sometimes friends disagree. My experience is based, like that of many people I meet on a regular basis, on the impact of one's culture and faith, which to an extent shapes lives both here and abroad.
The first point I wish to make is that, like the noble Lord, Lord Parekh, and almost every one who has spoken, I abhor racial discrimination on any ground of treating people differently. Colleagues in your Lordships' House will remember that I have in the past 15 to 16 years succeeded in moving amendments to secure equality in a number of legislative measures. Over the past two years, I have chaired a substantial number of consultations with communities and individuals on matters of caste discrimination. Let me make their point of view clear in case there is any doubt: they fully appreciate the need for equality legislation. Indeed, ethnic communities would not have a voice without such legislation. They are adamant that they would not want to deny any disadvantaged group the right to have recourse against discrimination on any grounds. Almost every one of them has made that position very clear.
Caste plays the least significant part in the lives of third and fourth generation youngsters from ethnic communities growing up in this country. We have moved away from the old days and old values of compartmentalising communities based on caste. A generation has grown up seeing no obstacle to crossing the caste divide.
The second point I wish to make is that race relations in this country have always been based on sound research. The work of the former organisation that some may remember, which campaigned against racial discrimination and was headed in its early days by the famous Lord Pitt who sat in the House of Lords, produced evidence which resulted in the first Race Relations Act outlawing discrimination in public places. The substantial evidence produced by the Street report in 1967 identified discrimination in employment, housing and general services and resulted in the introduction of the Race Relations Act 1968. Similar evidence on institutional racism resulted in the introduction of the 1976 race relations legislation. However, in essence, there is a lack of evidence on caste matters. The report produced by the national institute clearly acknowledges that there is no evidence to suggest the existence of large-scale discrimination in this country based on caste.
Communities feel let down that during the passage of the Equality Bill through Parliament, having acknowledged that the available evidence did not indicate that caste discrimination was a significant problem in Britain in the areas covered by discrimination legislation, Parliament proceeded to accept an amendment to the Equality Bill to include caste as an aspect of race by a ministerial decision. By doing so, the Act which was supposedly designed to simplify and streamline discrimination law in Britain seems to have defeated this very objective by including the concept of caste that has eluded clear definition in common parlance, let alone in legal terms-the point made by the noble Lord, Lord Parekh.
However, it would be a big mistake to extend the scope of the act to include caste in Britain without substantial evidence. Laws should be based on sound evidential research. The research by NIESR clearly acknowledges that there is no large scale caste discrimination in Britain. The sample was far too small to reach a fair conclusion. Therefore, to yield to pressure groups and include caste within the scope of the Act will only rekindle the dying issue of caste.
I fear that we are still studying something that may be on the surface. A generation of people born here have broken the links with caste patterns and they find themselves engulfed in a practice that was prevalent in the early history of the subcontinent. I accept that there may be discriminatory practices-rightly described by the noble Lord, Lord Parekh-where caste may have played some role but there are ways of dealing with this subject. I had discussions with my colleague, Lynne Featherstone, when she was looking at the issue as government Equality Minister and I explained that there are other ways we can tackle this matter in the short term. I welcome the statement issued by Helen Grant, Minister for Women and Equalities in the other place, that education is the right step to take in this matter. I also welcome the contribution on this issue of the EHRC and the Government's equality officers in examining the nature of caste prejudice and harassment as evidenced by existing studies. This will indicate if the matter should be addressed in future years either by legislation or by another solution. I am happy to assist those who have participated in consultation to set up their own formal structure which could be the basis for eradicating discrimination practices. A conciliation process must be at the forefront of such a strategy. The community can and must provide that. Since the EHRC is now involved, it is right that we reject the amendment until we are better informed.
My Lords, I seem to be the last speaker and I will take this opportunity to say what has been in my mind. It is very interesting that we have two Hindus speaking today against this amendment. On the previous occasion one of them was here but did not speak up, yet that was the time to make his points about why we should not have voted in favour of a caste discrimination amendment.
I have found that all Governments in this country have a great belief in so-called "community leaders". Ever since immigrants first came to this country they have created this myth of community leaders: community leaders know everything about the community; they will tell us what the community wants; they are the important ones. They are not the ones to speak for all communities: they are the ones who shout the loudest. It has always been a big mistake to listen to people who say, "We are the community leaders". Have you ever seen a woman as a community leader? Have you ever seen any women in any consultation? Have you seen any women among all these men who have been shouting outside the House of Lords about the caste amendment? The Hindus have come together for the first time ever, to my knowledge, to shout about the caste amendment because they feel that this dishonours them in some way. They dishonour themselves: caste is a fact. It is not created by us or in the minds of the British or other people; it is a fact that people discriminate on the basis of caste. It is endemic in social issues like marriage. As far as public things like employment and education are concerned, we have to watch out: we have to say, "No discrimination on the basis of caste". It is no good our saying, "Leave it for next time"; that happens all the time. There will be more consultation and more evidence, but there is already plenty of evidence of discrimination. As someone has said, if there are six people being discriminated against, we should do something about it. We do not know how many people are discriminated against.
We have been told about the untouchables. Caste is not about untouchability but about someone of a particular caste not being accepted by a person of a higher or different caste. It is about not giving them the same treatment as you give to people of your own caste. In my parents' house, we were from the merchant caste and had to have a Brahman cook, otherwise people in our house did not eat. None of us were allowed in the kitchen because we would pollute it. I have lived with caste all my life, from childhood.
Of course people say, "It's bad in India but it's nothing like that here". That may be the case, but it should not be here at all, and we know that it is-we have the evidence and people have brought us cases. I am sure that your Lordships have had a chance to talk to people and to understand. If there is a consultation, the Hindus who made such a fuss last week are going to say, "There is no discrimination", while those from the lower castes are going to say, "There is discrimination". How do you bring those two together? I do not understand. There is no meeting point between them; if that were the case, things would have been sorted out in India. They have not been and the situation has become worse.
Noble Lords must not shilly-shally or put their heads in the sand. Just do it. It deserves to be done. I am sorry that the noble Lord, Lord Deben, took so long to tell us that he would not support the amendment to the Motion, and he should have told us a little earlier that he would not do so.
I am always interested in points one, two, three and four made by the noble Lord, Lord Parekh; he has always done that, and by the time he gets to part 1(2) of point four I get lost. However, he talked only about the untouchables. This is not about only the untouchables but about the person who is not of as high a caste as you. It can be a person who is not an untouchable at all. There is no need for untouchability here. That would be beyond belief, but there is discrimination and I saw it in schools when I was a teacher when lower-caste children were mistreated by higher-caste children. Discrimination is there and is built into the psyche, and the sooner we put an end to it the better.
The Minister asked, "How are we going to declare what a caste is?". Every declaration is voluntary. We do not have to say whether we are Indians, Pakistanis, Muslims or Hindus. We do not have to say anything. It is not a matter that is enforced. Lower-caste people do not have to say anything if they do not want to. All the arguments against the amendment are just trying to put us off doing this. There is no complication. If there is discrimination in a place of work and the person says, "It's because of my caste", someone will investigate it. As to frivolous complaints, there are plenty of those now in all sorts of discrimination cases.
Last year I became a pariah among Muslims because of my stated wish that there should be a reduction in benefits for people with more than two children. Today I have become a pariah among Hindus-the noble Lord, Lord Popat, has already declared that he will not be my friend-because I support the amendment to the Motion, totally and utterly.
My Lords, I thank the noble Baroness, Lady Flather, for her remarks and I would not for a moment dare to have stopped her contribution to this debate.
The principle that we are discussing remains as simple as and straightforward as it was when it was debated in 2010, in Committee on the Bill and on Report. The question is: how do we give legal protection to the victims of caste discrimination? That was reflected throughout the debates in the Commons and this House. It is the case that there is a lacuna in our equality legislation, and surely it is our responsibility to ensure that this form of discrimination, however few the cases are-even if there were only one-has redress under UK law. We do not need any more research to tell us that there is caste discrimination and that it needs a legal remedy.
On these Benches we have been doing what the Government until very recently had signally failed to do over the past two to three years. We have discussed and made ourselves available to all the groups that have an interest, including those who have reservations and are opposed. I remind the House that it is only because the noble and right reverend Lord, Lord Harries, raised this matter in Committee that the Minister agreed to meet the anti-caste-discrimination groups after refusing to do so for more than two years.
We accept that the Government have some ground to catch up on in the implementation of this legislation and, in the spirit of the cross-party support for this cause, we would like to help them to do so. I am particularly grateful for the constructive dialogue that I and my colleagues in the House of Commons have had with the Alliance of Hindu Organisations, the ACLC, the Sikh Council and the British Sikh Consultative Forum, among others, as well as the Anti Caste Discrimination Alliance and the Dalit Solidarity Network.
I know the House will agree that it is important to put on the record that this is not about vilifying an entire community. Caste discrimination is not specific to any one religion but to residual social and cultural practice, and I hope that the Minister will agree with that. We believe that it is vital that this amendment is carried today and sent back to the House of Commons, because if we do so I am sure that the next stage will be one of negotiation about how, not whether, we deal with caste discrimination.
There are two reasons for that. First, only if we pass this amendment again will the Government realise that the serious matter of caste discrimination has strong cross-party support led by distinguished parliamentarians from all parts of this House and the Commons. Secondly, there is evidence, as the Minister's remarks revealed, that the Government are considering their position again. We believe that the House of Lords reaffirming its view on this matter will help in that process and permit a discussion on how to move forward. This is the invaluable role that the Lords can play in such matters.
Since the House last discussed this matter, we in the Labour Party have been addressing the matter of implementation with the wide range of different groups that I have already mentioned. We wrote to the Minister over the weekend with our views and offered support, help and co-operation in the implementation of this legislation.
Coming from Bradford, I know that the south Asian communities are among the most enterprising and fair-minded in the UK, and that those community leaders who first arrived in Britain in the 1960s and 1970s do not need any lectures from us on the evils of discrimination. Yet, just because discrimination is perpetrated by a very small number of individuals, that is no reason not to have legislation.
Although I start from a different position in relation to legislation from some of the organisations that I have mentioned, I believe that we are all united in the view that if legislation goes ahead, and we hope it does, we must ensure that the process of implementation is right so as to prevent the entrenchment, rather than the eradication, of caste distinctions in British society.
As soon as this legislation is passed, we think that before the clause is enacted the Government need to commit to conduct a consultation on the interpretation of the term "caste", which should be set out in guidance or secondary legislation. This would allow time and space to deal with the genuine concerns that have been raised, such as ensuring that this is not interpreted as religion-specific.
The Government should commit to setting out guidance or secondary legislation that employers or public bodies should not seek information about caste identification, nor must there be any requirement on individuals to disclose their caste. We know that this is possible with sexual orientation and we suggest that that holds the way forward. The goal must be to eliminate, not increase, the number of people being identified by caste. Therefore, if the legislation proceeds, we ask that Ministers seek to underpin the guidance with that principle.
This consultation detail and guidance need to be in place before the new law is enacted. We are therefore happy to support community suggestions that there should be a delay in the implementation of the new clause for perhaps one year, possibly two, after the Bill receives Royal Assent.
We have suggested that the Government should consider a timetable for a statutory review of the clause. There is a clear consensus and commitment across all communities to work to eliminate caste divisions in the UK and ensure that the UK remains, as one individual put it, "the great leveller that it is". If it comes to a point where caste distinction has become a non-issue in the UK, we should recognise that legislation may not be needed any more, so perhaps there should be a review in 10 to 15 years from commencement.
I think the Government have not thought through their Talk for a Change education programme. It must not be a project that aims to better inform individuals about caste in a way that increases the awareness and use of caste as an identifier and divider. Will the noble Baroness clarify that the Government's purpose is to facilitate initiatives within communities to address existing residual discriminatory practices?
The Minister will argue that the Government want to consult first on whether to provide legal protection, which I think is the point of her remarks. The Government have come a long way in thinking about this, but we part company from them because we believe that we need to pass this amendment now, to get the legislation on the statute book, and then to resolve the issues that flow from that. That is why we again support the noble and right reverend Lord, Lord Harries, from these Benches.
I regret that the noble Lord, Lord Deben, has, as it were, decided to cave on this matter, although I accept that he has made great threats to the Government, which I am sure they are taking on board. He is right that this is a question of trust. The Government have had two years, almost three, to deal with this issue and have done nothing at all until this moment. I wonder what guarantee can be given by the Minister, other than legal protection, about taking this issue forward; her remarks leave it open to doubt whether the Government are prepared to do so. If this House does not keep the Government's feet to the flame on caste discrimination, we must fear that it will be kicked into the long grass again and that nothing will happen. I hope that the Minister will agree this amendment today. If not, I hope that the House will again support the noble and right reverend Lord, Lord Harries, and a move to discuss implementation in a way that achieves the goal of eliminating caste-based discrimination.
My Lords, I am very grateful to all noble Lords who have contributed to this debate. There have been some important and powerful speeches tonight, as there have been at all stages of the passage of this Bill. I will do my best to respond to most of the points that have been raised but will try not to take too much time, so forgive me if I do not go into great detail.
First, in response to the noble and right reverend Lord, Lord Harries, I will just clarify something that I said which he picked up on. The Government are not suggesting that we should replace the word "caste" with the word "descent". That is not something that we are proposing; I raised it purely to highlight that it that had been raised by others in the course of this debate.
Several views have been expressed in the Chamber this evening. The noble and right reverend Lord, Lord Harries, questioned a comment I made that some people do not want to be defined by caste. He argued that that should not lead to a decision that we should not recognise caste in law in order to protect against discrimination. I will make a couple of points in response to that. First, over the past couple of weeks in the discussions that the Government have had with different bodies, it has been made very clear to me while attending those meetings that some people do not want to be defined by caste and are worried that caste legislation would allow that. In response to the noble Baroness, Lady Flather, the person who made that point most forcefully to me was a woman from the Hindu community.
It was interesting and illustrative that the noble Lord, Lord Singh, made the point that caste is absolutely not a feature at all in the Sikh religion. The noble Lord, Lord Parekh, said that caste is something that can be recognised across a wide range of different faiths. Indeed, the noble and right reverend Lord, Lord Harries, talked about this being something that can be found in the Christian faith. There are clearly, just in the debate that we have had this evening, several views being expressed in this regard.
That leads me on to the point about consultation and the need, in our view, for this consultation to take place before we decide what action is necessary. The noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Thornton, suggested that it might be possible to decide and then consult afterwards. I think, by definition, that if we were to do that, we would narrow the terms of the consultation. Some of the issues that have been raised by noble Lords this evening would not be given the opportunity to be properly considered and reflected upon.
I would also make another important point about the consultation that picks up on a point made by the noble Baroness, Lady Flather, about who the Government are listening to on this matter. Our consultation proposals are not simply intended as a platform for community leaders, they also reflect the fact that there has never been a public consultation on this important and emotive issue. So far, the debate both for and against legislation has been led by a very small number of individuals and groups. What we want to do is to give the very people who the noble Baroness talked about the opportunity to make their views and their voices heard.
I should respond to a couple of specific points. The noble and right reverend Lord, Lord Harries, and others suggested that by putting forward their proposal to consult after deciding to legislate, this should reflect on whether employers should consider caste in terms of their work. Somebody made the point that actually, as for any kind of characteristic, caste is not something that one is legally required to disclose. However, it would seem odd to decide to legislate and then consult or issue guidance on whether an employer should be asking somebody to disclose their caste. This is just another illustration of the complexity.
To clarify the remarks that my honourable friend in the other place made about employment law remedies already existing, what the Minister meant was that people can bring claims for constructive dismissal or unfair dismissal, but the claim of caste cannot be successfully brought. I think that that is a point of clarification.
Let me be clear about the Government's position. We accept that the NIESR report identified some, albeit limited, evidence that caste discrimination has occurred in this country. We are committed to taking action to support those affected by it. We are not against such action including legislation, but at this time we do not have all the information that we believe is necessary to reach a decision on whether legislation is the right action.
My noble friend Lord Deben made a very strong and powerful speech, as is his custom, and made it clear to me what kind of reassurance he is looking for this evening from the Minister speaking on behalf of the Government. I would like to say to him and to other noble Lords, particularly those who are in favour of the amendment, that I recognise the scepticism that has been expressed by them and their concern as to whether the Government will act. I see that this issue has been around for a certain length of time and I agree with the point made by the noble Baroness, Lady Thornton, that it is because the Government have listened very hard to the points that have been made by noble Lords in this House that we have actually taken additional steps since this was first raised in the context of the ERR Bill at the end of last year. So this House has had real influence.
We have reconsidered what additional work is necessary so that we can reach a decision. The Government have committed themselves to carrying out a full public consultation. I have made clear-and am happy to do so again-that we will make the findings of the consultation available to the Equality and Human Rights Commission before it reaches its own conclusions and makes recommendations to the Government. I have said today that if the commission makes a firm recommendation to legislate, that recommendation would be a key element informing the Government's decision. I cannot go any further than that, as my noble friend Lord Deben has said, but I very much take on board that by making that clear and asking noble Lords to accept my reassurance, and the noble and right reverend Lord, Lord Harries, to withdraw his amendment, I am asking the House to have great confidence and faith in what I am saying.
This issue is incredibly important. My noble friend Lord Deben queried a point that I made in my opening remarks, about what he called the cost argument. I think he is right: there are bound to be some issues to do with cost and I am not saying that the Government should not be aware of them. That is not important. What is important is recognising that this problem is real, that there needs to be action to address it and that the Government are prepared to act, but we need to ensure that we do this in the right way and that we consider all the issues before we act, not afterwards. For that reason, I hope very much that the noble and right reverend Lord, Lord Harries, is able to withdraw his amendment and the House accepts the Motion that the Government have put forward.
I thank the Minister again for the great care, thought and seriousness with which she has addressed this issue this evening and on other occasions, and the way in which the Government have clearly moved quite a long way in the direction of the supporters of the amendment. I thank all noble Lords for what they have contributed. I also pay tribute to those outside this House who believe that they are discriminated against, who have ensured that we have had this serious debate this evening.
In his thoughtful speech, the noble Lord, Lord Parekh, said that the issue of caste was so wide that ill founded complaints of discrimination would arise. He gave the example of himself from a goldsmith background perhaps not employing somebody from a blacksmith background and this being the subject of a complaint. But I cannot see that this would be essentially different from other areas of discrimination; for instance, a woman might complain that she is discriminated against because she is a woman and a tribunal would have to make up its mind whether it was because she was a woman or she simply was not up to the job. The situation is absolutely no different. The noble Lord then said that caste is such a wide concept that it really cannot be included in legislation at all. What about the example of India, which includes in its constitution the fact that caste discrimination is totally contrary to the legal system?
The noble Lord, Lord Dholakia, suggested that people in the third and fourth generations are not aware of their caste and, as it were, have outgrown it. I have to point out that that is not the evidence that the NIESR found. It found that there was bullying going on in school playgrounds on the basis of caste. The noble Baroness, Lady Flather, also mentioned coming across it when she was a teacher-sadly, it has not gone.
The noble Lord, Lord Gummer, rightly pointed out that even if there were only a few cases of discrimination, those people must be protected by law. What the noble Lord, Lord Gummer, said highlights the fundamental issue tonight.
I am sorry-we are old friends; we know each other from previous incarnations and go back to 1958, when I remember him this high. I apologise: what the noble Lord, Lord Deben, said highlights the fundamental issue of the kind of consultation that people have in mind.
The Government have in mind a wide-ranging consultation to decide whether legislation is necessary. Many of us are convinced that it is and that the consultation needed should be more sharply focused to ensure that the actual regulation that goes with it reflects what the communities most affected by it believe will be clear and workable in law. There is a clear difference between the kind of consultation that we have in mind and that the Government have in mind. We believe that it is important at this date to make it quite clear that legislation is necessary to protect people.
We have had such a serious debate tonight and the issues have been so thoroughly debated that I feel that it is right that the opinion of this House should be tested.
Lords Amendment 38: Clause 61, page 58, line 25, leave out subsection (3).
Commons disagreement and amendments to words so restored to the Bill.
The Commons disagree to Lords Amendment No. 38, and propose Amendments 38A and B to the words so restored to the Bill-
38A: Page 58, line 34, leave out from beginning to end of line 2 on page 59
38B: Page 59, line 5, leave out " , (2A) or (2B)" and insert "or (2A)"
Moved by Viscount Younger of Leckie
That this House do not insist on its Amendment 38 and do agree with the Commons in their Amendments 38A and 38B to words so restored to the Bill.
My Lords, this is an issue that has already been debated in some detail. Noble Lords will recall that the Government were nearly successful in persuading the House to accept the vote on Report, losing by the smallest of margins-indeed, by just two votes. Nevertheless I reassure noble Lords that the Government have listened to and carefully considered both the extensive arguments made, and the heartfelt concerns expressed, about the possible effects of this change. However, the Government feel strongly that a measure to reassure business is necessary, and the other place clearly endorsed that view by a majority of 75 when it voted on this issue last week.
This measure is one of a number of reforms designed to address the much wider issue of the perception of a compensation culture and the fear of being sued that this generates. It is a fear that drives employers to overimplement the law, incurring unnecessary costs, and that undermines their confidence to grow and develop their businesses. It is a problem that I believe we all recognise needs to be tackled, and one that we have not only considered in relation to this clause but, as many noble Lords will recall, debated in some detail in relation to my noble friend Lord Young of Graffham's report Common Sense, Common Safety. It is because of this wider context and its detrimental effect that the Government remain of the view that it is not reasonable or fair that employers should be held liable to pay compensation when they have done nothing wrong and taken all reasonable steps to protect their employees.
We acknowledge that this reform will involve changes in the way that health and safety-related claims for compensation are brought and run before the courts. However, to be clear and to avoid any misunderstanding that may have arisen, this measure does not undermine core health and safety standards. The Government are committed to maintaining and building on the UK's strong health and safety record. The codified framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged, and will remain relevant as evidence of the standards expected of employees in future civil claims for negligence.
As I set out on Report, the clause provides for a power to make exceptions. It is already planned to make such an exception in respect of pregnant workers in order to comply with the terms of the relevant EU directive. We have thought carefully about whether there are more exceptions that should be made at this stage, but have not identified any other examples. However, I assure the House that we will seriously consider any further exceptions that are suggested.
To be successful in providing the reassurance that businesses need to overcome their fear of being sued, we need to take decisive action that will send a clear and effective message. The Government believe that the proposed single amendment to the Health and Safety at Work etc. Act achieves this by providing a consistent approach to civil litigation across all health and safety legislation, which will be simple for both employers and employees to understand.
To clarify a point of detail, I should also explain that amendments regarding the words "so restored to the Bill" have the effect of reinstating government amendments agreed without objection in Grand Committee. These amendments were made to comply with the Delegated Powers and Regulatory Reform Committee recommendation to remove a new regulation-making power that had been inserted as proposed new Section 47(2B) of the Health and Safety at Work etc. Act. The Government reflected on the committee's comments and accepted that it was not necessary to take such a power, as there are no current plans to extend the policy to other legislation.
For the reasons that I have set out, I ask that noble Lords do not insist, as the noble and learned Lord, Lord Hardie, asks, on their Amendment 38. I beg to move.
Moved by Lord Hardie
As an amendment to Motion D, leave out from "House" to end and insert "do insist on its Amendment 38".
My Lords, before addressing the main issue I should indicate that I have no objection to the amendments that the Commons introduced to reinstate the amendments that were agreed in Grand Committee, if the decision of the House is to refuse this amendment.
The main issue relates to Clause 61, which amends the existing law by removing a right of action that has existed for almost 150 years, permitting employees and their dependants to claim damages for injuries caused by an employer's breach of statutory duties, which is designed to protect employees from serious injury or death. It is a separate common-law right of action and is distinct from the common-law action based upon negligence.
On Report, noble Lords expressed concerns in support of deleting the part of the clause that removed this right of action. In short, these reasons or concerns were, first, that the current law is settled and well understood; secondly, that the law achieves a fair balance between the respect of the rights of employers and employees; thirdly, that no rights should be removed from citizens unless there are sound and justifiable reasons for doing so; and, finally, the consequences of this change for employees and their families would result in injustice and were unacceptable. These concerns were clear from the Official Report.
I seek your support for the amendment in my name for three principal reasons. The first is that, despite the obvious concerns of noble Lords, the Minister in the other place failed to address those concerns and the reasons for Amendment 38. Moreover, the Commons has given no reasons for rejecting Amendment 38. I appreciate that the procedure in the Commons may have contributed to that difficulty, but this House is entitled to a consideration of its reasons and to know what the House of Commons's reasons are for disagreeing with it.
The second reason is that it is the undisputed effect of Clause 61 that it will deprive some people of any remedy for injury caused to them or their deceased relatives. On
The third reason in support of this amendment is that we should not deprive citizens of existing rights unless there are overwhelming reasons for doing so. The removal of established rights should not be done lightly. The Government's justification for Clause 61 was explained by the Minister in the following words, which he has repeated tonight. He said that this proposal,
"is about establishing the principle that an employer who has done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions".-[Official Report, 14/1/13; col. GC176.]
There are two fundamental errors in that explanation. The first is that it is not correct to categorise a breach of a statutory duty as "doing nothing wrong". The second is that the explanation fails to recognise that many, if not the majority, of health and safety regulations specifically provide the employer with such an opportunity. They contain qualifying words such as,
"so far as is reasonably practicable".
Where words to that effect appear in a regulation, the employer has available to him a defence of showing that he took all reasonably practicable steps, or all reasonable precautions, to comply with the regulations. If he succeeds in his defence, he will avoid liability for damages.
Clause 61 is indiscriminate in its language. It extends to those regulations that comply with the principle that the Government seek to establish. Why should breach of those regulations not be actionable? The explanation given for Clause 61 does not justify the wholesale removal of a right of action for a breach of statutory duty that causes injury.
The Minister repeated tonight that there was a perception of a compensation culture exposing employers to unjustified claims. As the noble Lord, Lord Browne of Ladyton, observed on
The case for this radical provision has not been made out. Without such justification, we should not sanction the removal of long-established rights of action by injured employees or the families of deceased employees. For these reasons, I beg to move.
My Lords, the Government introduced at a late stage in the Commons proceedings, and with very little consultation, a clause to remove civil liability from health and safety offences. This would mean, as has already been explained, that a worker who is injured because their employer broke the law by failing to carry out a statutory obligation would find it much more difficult to claim compensation for the injury. It would also make the law much more complex. As a result, many workers or their dependents will lose out on compensation, causing further injustice.
The Government have claimed that they introduced this amendment to implement a recommendation from the recent Löfstedt report into health and safety regulations. However, Professor Löfstedt has since made it clear that this is not what he proposed and the government amendment went well beyond what he recommended.
We voted to remove the clause in a move that was welcomed by victims' groups, the legal profession and health and safety professionals. The Commons, however, has voted to disagree with our amendment. I do not know why. We should maintain the position that we took up before; it is reasonable and fair. We have to remember that there are many industries anyway where there are inherent dangers to workers. Where there are statutory regulations, those should be applied and the workers should be able to claim if those statutory regulations are not complied with, which is what the present law provides for. We have been advised by lawyers concerned with these employment issues that if the amendment we are proposing is not carried and the Government's position is maintained, we would be taking the law and the employment right consequent upon it way back beyond the beginning of the previous century. That really is quite unacceptable, and I hope therefore that your Lordships will agree to maintain the position that we took before as far as this clause is concerned.
My Lords, I was unable to attend previous debates on this clause but I have had an opportunity of reading what was said in your Lordships' House and in the most recent debate on the amendment in the other place last week. I declare an interest as a practising barrister with experience in this area of the law and as a former special adviser to the last Government on an inquiry into the compensation culture.
Noble Lords, and particularly the noble Lord, Lord McKenzie, in a number of thoughtful contributions to the debate, suggested that to legislate on the mere perception of a compensation culture was to do so based on a "flimsy structure". He accepted that there had been a problem of overcompliance with health and safety but he said that there was now a problem with undercompliance. I am unsure of the basis for this last assertion and it is not reflected by the report of Professor Löfstedt or by the report two years ago by my noble friend Lord Young of Graffham. Both identified a perception of a compensation culture, as did the report produced by Parliament when I was a special adviser. This cannot be dismissed on the basis that to respond to it is simply to pander to myths. There is a strongly negative effect on employers and indeed on schools and local authorities which feel the need to set up elaborate systems to combat largely hypothetical risks. Overcompliance costs time and money and makes it more expensive and less attractive to employ anyone, particularly for small- and medium-sized enterprises.
The aim should surely be to ensure that all reasonable steps are taken to protect the health and safety of employees, but at the same time employers should not be overburdened with unnecessary and elaborate bureaucracy which can be the enemy of enterprise. I accept that this is a very difficult target to hit and I confess to being a little nervous about how much is left to regulation. However, I feel much more confident in saying that the debate, principally in the other place, was positively riddled with hyperbole. Both there and in your Lordships' House the Opposition Front Bench used the expression "a near impossible burden" when describing the prospects of a claimant bringing a successful action for injuries at work. I simply do not accept that. A breach of a regulation will be regarded as strong prima facie evidence of negligence. Judges will need some persuasion that the departure from a specific and well-targeted regulation does not give rise to a claim in negligence.
Many regulations are sensible, comprehensible and can be effectively interpreted both by employers and the courts but this is not always the case. For example, the Management of Health and Safety at Work Regulations 1992 were revoked and re-enacted by similar regulations in 1999. Originally they did not give rise to a civil course of action-they now do. The regulations are extraordinarily wide and extraordinarily vague and seem to require extremely elaborate arrangements, ostensibly for health and safety purposes, in particular as to risk assessments. What a risk assessment is and how you prove you have done an appropriate one is problematic. It seems to require quite a number of employees simply to be devoted to compliance with the regulations rather than actually doing the underlying work.
It was said in the other place that this prospective change in the law was "not about compensation" but about "not being killed" and that the change was not simply a matter of red tape. I am afraid that I do not agree with the burden of those comments. Nor are the Government seeking to turn back the clock a hundred years. Rather, these provisions are a response to an overreaction to an entirely appropriate aim which is to ensure health and safety at work. The problem of overreaction is having a negative effect on enterprise. To borrow the title of the report of the noble Lord, Lord Young, the aim of this change in the law is to restore common sense and common safety. I support the Government's position.
My Lords, I supported the noble Baroness, Lady Turner of Camden, and the noble and learned Lord, Lord Hardie, on Report, and I continue to do so. The Minister said earlier in this debate that we are considering cases where the employer has done nothing wrong. With great respect, that is a fundamental misunderstanding. The employer is liable only if the claimant can prove a breach of health and safety legislation. The employer is liable only if the claimant can prove that the breach has caused the injury. To require the employee also to prove negligence would impose an unreasonable burden. I take the point made by the noble Lord, Lord Faulks, that it is not an impossible burden. However, I suggest that it is an unreasonable burden because the relevant information will normally be information in the knowledge of the employer, and the costs and delay of the litigation-a point which the noble Lord, Lord Faulks, did not mention-would surely be disproportionate in all these circumstances to any legitimate interest, especially when the reality is that the employer can, and normally does, have liability insurance. For those brief reasons I will support the noble and learned Lord, Lord Hardie, should he divide the House this evening.
My Lords, we remain steadfast in our opposition to the Government's position, and fully support the case led by the noble and learned Lord, Lord Hardie, and spoken to in support by my noble friend Lady Turner and the noble Lord, Lord Pannick. We are dismayed that parliamentary process has allowed so little time for consideration of this matter in the House of Commons and that more than a century-in fact, nearly 150 years-of settled law is being overturned on the basis of such brief deliberation.
The arguments to remove Clause 61 from this Bill have not of course changed in the few weeks since we last debated the matter. Nor have the serious consequences which will ensue should we not carry the day. Removal of the existing right of an employee to rely on a breach of health and safety legislation represents a fundamental shift, and one which is to the detriment of employees.
We heard before, and again today, that having to prove negligence will provide a more difficult route to getting redress. The burden of proof will shift to employees, or to the family in the case of a fatality at work, there will be a requirement for more evidence-gathering and investigation, and the incurring of greater costs. In that respect there will be no lessening of the regulatory burden on employers. This change goes well beyond the issue of strict liability which the Government's own impact assessment accepts is likely to give rise to only a small number of claims.
The issue of a near impossible burden referred to by the noble Lord, Lord Faulks, I think in our previous debate, was not applied generally but specifically to those circumstances where strict liability has hitherto been in force.
I am grateful to the noble Lord for giving way. The point is that there is always a claim, as I am sure he will agree, in negligence. Whether there is a breach of a regulation will be strong evidence of a departure from an appropriate standard of care. All that is changing is simply that it is not actionable per se. I would like the noble Lord to say why he adheres to his suggestion that there is a near impossible burden.
The point I sought to make is that in some circumstances it has been accepted, I believe, that there is a near-impossible burden. That is not necessarily the case, but even the route to proving negligence is a greater burden than the route to proving breach of statutory duty, which is what operates generally at the moment. The "near-impossible burden" description was particularly applied to those areas where strict liability applies in circumstances related to the provision of equipment, where purchased, maintained and sourced by the employer, and the employee is in a disadvantaged position in seeking to prove negligence.
The impact assessment recites the belief in a compensation culture which is having an impact on the behaviour of business. However, even if true, why on earth should it be a justification for reducing access to justice for employees injured or made ill by their work? This cannot be a rational basis for acting. Why should employees bear the strain of tackling these perceptions? Where is the evidence that unreasonable claims are being made and indeed settled? If there are fewer claims, the beneficiaries, as we have heard, will be the insurance companies, the providers of employer liability insurance. Where the Government are particularly remiss is in failing to see this from the perspective of the individuals who are injured at work, because one way or another they and their families will bear an increased burden. They may be forced to place greater reliance on the health, caring and benefits system. What does the Minister say to those families whose circumstances may have been eased by receiving compensation but who face a life on benefits in the future? Health and safety impacts on the lives of millions of individual employees every day of the week. It is not some distant concept related to red tape.
There is undoubtedly some overcompliance with health and safety requirements, but there are ways that this can and is being tackled. The register for consultants is one route that the HSE is seeking to apply. However, there is also undercompliance. The noble Lord, Lord Faulks, asks what my evidence is for that. Let us look at the data. People are still being killed at work and hundreds of thousands of people are injured every year. I spent three and a half years as Minister for health and safety. We know those sectors where there is a struggle to get compliance. It does not operate across the board. There are some very good employers who try to do the decent thing, but there are some who do not. This undercompliance has been made worse by restrictions on funding, by limiting the regulator's role in proactive workplace inspections, and by the portrayal of health and safety as red tape and its undermining by myths that bear no relation to reality. Promoting the changes in Clause 61 will also send the wrong message to those employers who would undervalue health and safety and cut corners, safe in the knowledge that their chances of being held to account are diminished. This is to the detriment not only of employees but of those many employers who do the right thing.
The Government's position is untenable. It is changing the settled legal position of over a century on the basis of anecdote and perceptions. It is making it harder, sometimes impossible, for employees to access justice when they are injured at work. It is undermining the cause of health and safety. The Government have failed to consult properly on this or make reference to the EU. They offer an inappropriate remedy to any perceived compensation culture which can and should be addressed by other means. Most of all, they are careless of the personal cost to those who are damaged by their work. That is why we support the amendment of the noble and learned Lord.
My Lords, I have again listened with interest to the arguments made and thank noble Lords for their careful consideration of this very important issue. I start by challenging the noble and learned Lord, Lord Hardie, and the noble Lord, Lord McKenzie, on whether there is a compensation culture. The noble and learned Lord raised that point. I clarify again that my noble friend Lord Young and Professor Löfstedt underlined that health and safety regulations, more than any other area of regulation, suffer from misinformation and overcomplication in the media and elsewhere. I was grateful for the intervention by my noble friend Lord Faulks on this issue.
As Professor Löfstedt found in his independent review, these myths lead to confusion about what the law requires and a fear of being sued which drives employers to overimplement the law in an effort to protect themselves. This does not lead to better protection for employees but means that employers are spending significant time and resources on activities and services which are not necessary or far in excess of what the law requires. Concern about "getting it wrong" discourages employers from looking at ways to develop and grow their business and consequently from taking on new employees. I reiterate to the House that this is a real issue and that there is a perception in this regard. We believe as a Government that we should be tackling it.
The noble and learned Lord, Lord Hardie, referred to certain cases which were raised in the other place by the honourable Member for Middlesbrough. We have been able to check the facts of two of those cases. In both of them there is prima facie evidence of negligence on the part of the employer. We would expect that such cases would still be brought as negligence claims if brought after this amendment to the Health and Safety at Work etc. Act. It is important to clarify that point.
The noble and learned Lord, Lord Hardie, mentioned removing the right to compensation and depriving families of it in the event of an employer's breach of statutory duties. The Government's view is that it is fair and reasonable that this burden should be removed from an employer who has done nothing wrong. The fact that someone has been injured at work does not mean that they are automatically entitled to compensation. Ours is not a no-fault system. Many health and safety duties require the injured employee to show fault on the part of their employer. It is interesting to note that currently claimants do not recover compensation in about 30% of claims.
There can be cases of misfortune to which I alluded on Report, which cannot and should not be laid at the employer's door. In order effectively to tackle the fear of being sued and of unjustified reputational damage, and the costly burdens on business this brings, employers need to know that they have a fair opportunity to defend themselves.
The noble Lord, Lord Pannick, spoke of the burden of proof shifting to the employee, as he put it, being unreasonable. However, the cases that will be most significantly affected by this change are those which would have previously relied on an absolute or strict liability duty. Under the existing system, employees have to prove that their employer breached the standard required in the regulations and that the breach caused the injury. In practice, the issues and evidence that will need to be examined in relation to a claim for negligence will be similar to those currently examined in relation to a claim for breach of a duty which is not a strict one and qualified by, for example, the wording,
"so far as is reasonably practicable".
That point was raised earlier. Indeed, most cases are currently brought for both breach of statutory duty and negligence, so it is anticipated that most claims will still be able to be brought.
The noble Baroness, Lady Turner of Camden, said that a different approach had been taken to Professor Löfstedt's recommendation. The Government agreed with Professor Löfstedt's recommendation in principle, recognising the unfairness which results where employers are liable to pay compensation regardless of having taken all reasonable steps, and agreed to look at ways to redress the balance. Excluding civil liability only in relation to specific strict liability offences would mean making a large number of amendments to more than 200 regulations and could result in different approaches to civil liability being applied within a single set of regulations and across the regulatory framework. This would add a layer of complexity to the current system leading to greater uncertainty for both employers and employees about the duties that apply in respect of compensation claims. Making a single amendment to the Health and Safety at Work etc. Act has the significant advantage of delivering a consistent approach across all health and safety legislation.
I reiterate that this reform is not about reducing the number of claims made, but about establishing the important principle that employers should always have the opportunity to defend themselves against a compensation claim when they have done nothing wrong and have taken all reasonable precautions to protect their employees. By providing the reassurance that they will not be liable if an accident happens which is totally outside their control, this change will support responsible employers who take care to protect their employees by giving them the confidence not only to take sensible steps to manage health and safety risks but also to expand their businesses into new areas and activities and to take on new employees to achieve this. The Government believe this to be a fair and proportionate response to the impact that strict liability duties currently have in the civil litigation system.
Business is fully behind the need for action in relation to the perception of the compensation culture. More specifically, it is supportive of the approach that the Government want to take in relation to the issue of strict liability duties. I am most grateful to my noble friend Lord Faulks for his succinct intervention, backed by his experience in the field. This support was also reaffirmed by both the British Chambers of Commerce and the Federation of Small Businesses in correspondence received in the last few days. I therefore ask again that noble Lords do not insist on their amendment on this issue.
Before the Minister sits down, can he just help us with one issue? If it is the Government's position that the problem to be addressed is the perception of a compensation culture, why should that be addressed by making the reality of accessing compensation claims more difficult?
I reiterate that the balance is not right. We have been much helped by the report from my noble friend Lord Young and Professor Löfstedt who have provided this perception and provided the evidence to allow us to act. This is the right approach for the Government to take.
The noble and learned Lord makes a fair point. Employers will continue to need to have to defend themselves. The issue depends entirely on the particular case in hand but this government action redresses a balance that is long overdue.
Before the Minister sits down, I am sure he will agree that, while some of the regulations have the defence referred to by the noble and learned Lord, quite a few of them do not provide this defence at all and there can be automatic liability without any fault. Does he agree that one of the problems of the perception of a compensation culture-there was perhaps an inadvertent hint of this-is the fact that these changes are not welcomed by safety consultants or those who are concerned to gold-plate some of these regulations?
Can the Minister give us some examples of where there is gold-plating of regulations under health and safety provisions?
I am grateful to noble Lords for their contributions to this short debate. I note that the Minister and the noble Lord, Lord Faulks, accept that there are a number of regulations which have the qualification of reasonable practicability. Those regulations afford the employer the opportunity of defending his actions by saying, "I complied with these regulations so far as was reasonably practical". If he proves that to the satisfaction of the court then he will avoid liability.
That brings me back to a point that I sought to make earlier. Why should a right of action be excluded from those regulations? If the intention of the Government is that employers should not be blamed for something that they have not done and should have an opportunity to defend themselves, then the qualified regulations do precisely that. There is no justification in law or in logic for removing the right of action in those regulations, which, as I have said, comprise the majority of the regulations.
I am grateful to the noble Viscount for researching the cases mentioned in the other place by Mr McDonald. I accept what the Minister said-that two of the cases would have succeeded at common law, contrary to what Mr McDonald said. However, according to the Official Report, there was a specific finding by the court that there was no common-law liability in the case of the roofer and slater, Mr Hill, who,
"fell from scaffolding during the course of his work and suffered very serious injuries resulting in incomplete tetraplegia. The accident occurred as he came down the scaffolding on a portable ladder that was not fixed or in any way secured; he fell to the ground, causing the injury. His injuries were so severe that damages were agreed at just under £2 million. The court held that there was no liability at common law, but there was liability under the Work at Height Regulations".-[Hansard, Commons, 16/4/13; col. 236.]
That is a specific example of a case where common-law liability was unsuccessful but the plaintiff managed to secure damages because the employer had failed to comply with regulations designed for the safety of his employees and that failure was the cause of the accident. If Clause 61 had been in force, Mr Hill would have received no damages because he would have failed to have established his common-law claim for negligence.
The issues have been well canvassed and I feel strongly that this clause interferes with a fundamental right. No justification has been put forward for it and the Commons has not really considered the Lords' discussions on this matter and has given no reasons for disagreeing with Amendment 38. I would welcome the opinion of the House.
Lords Amendment 40: After Clause 61, insert the following new Clause-
"Letting agents etc.
(1) Section 1 of the Estate Agents Act 1979 (estate agency work) is amended as follows.
(2) In subsection (1) for the words "to which this Act applies" substitute "and in subsection (1A) below to which this Act applies.
(1A) This Act also applies, subject to subsections (2) to (4) below, to-
(a) things done by any person in the course of a business (including a business in which he is employed) pursuant to instructions received from another person (in this section referred to as "the client") who wishes to let or have the letting of an interest in land managed (for example, the collection of rents on his behalf)-
(i) for the purpose of, or with a view to, effecting the introduction to the client of a third person who wishes to let an interest in land; or (ii) after such introduction has been effected in the course of that business, for the purpose of securing the letting of the interest in land; or
(iii) for the purpose of, or with a view to, managing the letting of the interest in land on behalf of the client; or
(iv) for the purpose of, or with a view to, block management of interests in land; and
(b) management activities undertaken by any person in the course of a business (including a business in which he is employed) in connection with land or interests in land.""
Commons disagreement and amendments in lieu
The Commons disagree to Lords Amendment No. 40, but propose Amendments 40A to H in lieu-
40A: Page 73, line 2, at end insert-
"Redress schemes: lettings agency work
(1) The Secretary of State may by order require persons who engage in lettings agency work to be members of a redress scheme for dealing with complaints in connection with that work which is either-
(a) a redress scheme approved by the Secretary of State, or
(b) a government administered redress scheme.
(2) A "redress scheme" is a scheme which provides for complaints against members of the scheme to be investigated and determined by an independent person.
(3) A "government administered redress scheme" means a redress scheme which is-
(a) administered by or on behalf of the Secretary of State, and
(b) designated for the purposes of the order by the Secretary of State.
(4) The order may provide for the duty mentioned in subsection (1) to apply-
(a) only to specified descriptions of persons who engage in lettings agency work;
(b) only in relation to specified descriptions of such work.
(5) The order may also provide for the duty not to apply in relation to complaints of any specified description (which may be framed by reference to a description of person making a complaint).
(6) Before making the order, the Secretary of State must be satisfied that all persons who are to be subject to the duty will be eligible to join a redress scheme before the duty applies to them.
(7) In this section, "lettings agency work" means things done by any person in the course of a business in response to instructions received from-
(a) a person seeking to find another person wishing to rent a dwellinghouse in England under a domestic tenancy and, having found such a person, to grant such a tenancy ("a prospective landlord");
(b) a person seeking to find a dwelling-house in England to rent under a domestic tenancy and, having found such a dwelling-house, to obtain such a tenancy of it ("a prospective tenant").
(8) However, "lettings agency work" does not include any of the following things when done by a person who does no other things falling within subsection (7)-
(a) publishing advertisements or disseminating information;
(b) providing a means by which-
(i) a prospective landlord or a prospective tenant can, in response to an advertisement or dissemination of information, make direct contact with a prospective tenant or (as the case may be) prospective landlord;
(ii) a prospective landlord and a prospective tenant can continue to communicate directly with each other.
(9) "Lettings agency work" also does not include -
(a) things done by a local authority;
(b) things of a description, or things done by a person of a description, specified for the purposes of this section in an order made by the Secretary of State.
(10) In subsection (7), "domestic tenancy" means-
(a) a tenancy which is an assured tenancy for the purposes of the Housing Act 1988 except where-
(i) the landlord is a private registered provider of social housing (as to which see section 80 of the Housing and Regeneration Act 2008), or
(ii) the tenancy is a long lease within the meaning given by section (Redress schemes: property management work)(10);
(b) a tenancy under which a dwelling-house is let as a sequotete dwelling and which is of a description specified for the purposes of this section in an order made by the Secretary of State.
(11) An order under subsection (10)(b) may not provide for any of the following to be a domestic tenancy-
(a) a tenancy where the landlord is a registered provider of social housing (as to which see section 80 of the Housing and Regeneration Act 2008);
(b) a long lease within the meaning given by section (Redress schemes: property management work)(10)."
40B: Page 73, line 2, at end insert-
"Redress schemes: property management work
(1) The Secretary of State may by order require persons who engage in property management work to be members of a redress scheme for dealing with complaints in connection with that work which is either-
(a) a redress scheme approved by the Secretary of State, or
(b) a government administered redress scheme.
(2) "Redress scheme" and "government administered redress scheme" have the same meanings as in section (Redress schemes: lettings agency work).
(3) The order may provide for the duty mentioned in subsection (1) to apply-
(a) only to specified descriptions of persons who engage in property management work;
(b) only in relation to specified descriptions of such work.
(4) The order may also provide for the duty not to apply in relation to complaints of any specified description (which may be framed by reference to a description of person making a complaint).
(5) Before making the order, the Secretary of State must be satisfied that all persons who are to be subject to the duty will be eligible to join a redress scheme before the duty applies to them.
(6) In this section, "property management work" means things done by any person ("A") in the course of a business in response to instructions received from another person ("C") where-
(a) C wishes A to arrange services, repairs, maintenance, improvements or insurance or to deal with any other aspect of the management of premises in England on C's behalf, and
(b) the premises consist of or include a dwelling-house let under a relevant tenancy.
(7) However, "property management work" does not include-
(a) things done by a person who is a social landlord for the purposes of Schedule 2 to the Housing Act 1996;
(b) things of a description, or things done by a person of a description, specified for the purposes of this section in an order made by the Secretary of State.
(8) In subsection (6), "relevant tenancy" means-
(a) a tenancy which is an assured tenancy for the purposes of the Housing Act 1988;
(b) a tenancy which is a regulated tenancy for the purposes of the Rent Act 1977;
(c) a long lease other than one to which Part 2 of the Landlord and Tenant Act 1954 applies;
(d) a tenancy of a description specified for the purposes of this section in an order made by the Secretary of State.
(9) An order under subsection (8)(d) may not provide for a tenancy to which Part 2 of the Landlord and Tenant Act 1954 applies to be a relevant tenancy.
(10) In subsection (8)(c), "long lease" means a lease which is a long lease for the purposes of Chapter 1 of Part 1 of the Leasehold Reform, Housing and
Urban Development Act 1993 or which, in the case of a shared ownership lease (within the meaning given by section 7(7) of that Act), would be such a lease if the tenant's total share (within the meaning given by that section) were 100 per cent."
40C: Page 73, line 2, at end insert-
"Orders under section (Redress schemes: lettings agency work) or (Redress schemes: property management work): enforcement
(1) An order under section (Redress schemes: lettings agency work)(1) or (Redress schemes: property management work)(1) may make provision -
(a) for sanctions to be imposed in respect of a breach of a requirement imposed by the order;
(b) for the investigation of suspected breaches of such a requirement.
(2) The sanctions for which provision may be made in the order are-
(a) the imposition of civil penalties;
(b) the making of orders prohibiting a person from engaging in lettings agency work or (as the case may be) property management work or from engaging in a particular description of such work;
(c) the creation of criminal offences in respect of breaches of orders mentioned in quotegraph (b).
(3) Provision made for the imposition of a sanction by virtue of subsection
(1)(a) must include-
(a) provision for appeals to a court or tribunal against the imposition of the sanction, and
(b) such other provision as the Secretary of State considers appropriate for safeguarding the interests of persons on whom the sanction may be imposed.
(4) Provision made by virtue of this section may confer functions on a person that exercises functions of a public nature.
(5) The Secretary of State may make payments out of money provided by Parliament to a person on whom functions are conferred by virtue of this section."
40D: Page 73, line 2, at end insert-
"Sections (Redress schemes: lettings agency work) to (Orders under section (Redress schemes: lettings agency work) or (Redress schemes: property management work): enforcement): minor definitions
(1) This section applies for the purposes of sections (Redress schemes: lettings agency work) to (Orders under section (Redress schemes: lettings agency work) or (Redress schemes: property management work): enforcement).
(2) References to persons who engage in lettings agency work or property management work do not include references to persons who engage in that work in the course of their employment under a contract of employment.
(3) A "dwelling house" may be a house or part of a house.
(4) "Local authority" means-
(a) a county or district council;
(b) a London borough council;
(c) the Common Council of the City of London in its capacity as a local authority;
(d) the Council of the Isles of Scilly."
40E: Page 73, line 2, at end insert-
"Approval of redress schemes for the purposes of section (Redress schemes: lettings agency work) or (Redress schemes: property management work)
(1) The Secretary of State may by order make provision about the approval of redress schemes for the purposes of section (Redress schemes: lettings agency work) or (Redress schemes: property management work), including provision as to-
(a) the making of applications for approval;
(b) conditions which must be satisfied before approval may be given; (c) conditions which must be complied with by administrators of approved redress schemes;
(d) the withdrawal of approval.
(2) The order may make provision about the conditions which must be satisfied before a scheme administered by or on behalf of the Secretary of State may be designated for the purposes of section (Redress schemes: lettings agency work) or (Redress schemes: property management work)."
40F: Page 73, line 2, at end insert-
'Orders under sections (Redress schemes: lettings agency work) to (Approval of redress schemes for the purposes of section (Redress schemes: lettings agency work) or (Redress schemes: property management work)): supplemental
(1) The power to make an order under section (Redress schemes: lettings agency work), (Redress schemes: property management work) or (Approval of redress schemes for the purposes of section (Redress schemes: lettings agency work) or (Redress schemes: property management work)) includes power to make incidental, supplementary, consequential, transitional or saving provision, including doing so by amending any provision made by or under an Act.
(2) An order under any of those sections must be made by statutory instrument.
(3) A statutory instrument containing (whether alone or with other provision)-
(a) an order under section (Redress schemes: lettings agency work) or (Redress schemes: property management work) which includes-
(i) provision by virtue of section (Orders under section (Redress schemes: lettings agency work) or (Redress schemes: property management work): enforcement), or
(ii) provision by virtue of subsection (1) of this section that amends an Act, or
(b) an order under section (Approval of redress schemes for the purposes of section (Redress schemes: lettings agency work) or (Redress schemes: property management work)), may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(4) A statutory instrument containing an order under section (Redress schemes: lettings agency work) or (Redress schemes: property management work), other than one to which subsection (3) applies, is subject to annulment in pursuance of a resolution of either House of Parliament.
(5) Nothing in sections (Redress schemes: lettings agency work) to (Approval of redress schemes for the purposes of section (Redress schemes: lettings agency work) or (Redress schemes: property management work)) prevents a redress scheme from providing-
(a) for membership to be open to persons who are not subject to the duty to be a member of the scheme;
(b) for the investigation and determination of any complaints in relation to which the duty does not apply, where the members concerned have voluntarily accepted the jurisdiction of the scheme over those complaints;
(c) for the exclusion from investigation and determination under the scheme of any complaint in such cases or circumstances as may be specified in or determined under the scheme.'.
40G: Page 76, line 2, at end insert-
"( ) sections (Redress schemes: lettings agency work) to (Orders under sections (Redress schemes: lettings agency work) to (Approval of redress schemes for the purposes of section (Redress schemes: lettings agency work) or (Redress schemes: property management work)): supplemental) extend only to England and Wales;"
40H: Title, line 7, after "directors" insert "to make provision about redress schemes relating to lettings agency work and property management work;"
Moved by Viscount Younger of Leckie
That this House do not insist on its Amendment 40 and do agree with the Commons in their Amendments 40A to 40H.
My Lords, on Report we debated the amendment in the name of the noble Baroness, Lady Hayter, on letting and managing agents. I made it clear then that the Government could not accept her amendment but that we were giving most serious consideration to the issue of redress. The noble Baroness confirmed that it was a redress mechanism that she was seeking in her amendment.
The Government have given serious consideration to these issues. We have considered reports by the Office of Fair Trading, Which?, the Royal Institution of Chartered Surveyors and others, and we have listened carefully to the debate here and indeed in the other place. The Government recognise that the fact that not all agents belong to a redress scheme has been an issue of growing concern. We are satisfied that making this a requirement would provide both the means of addressing complaints when things go wrong, and a means to improve service quality across these important parts of the housing sector.
Providing access to redress would deal with many of the failings that people are concerned about in their day to day dealings with letting managing agents. At the same time, the existing consumer protection and leasehold legislation remains in place and is already available, and is indeed used for the more serious matters.
Having listened to the concerns raised most specifically in this House by the noble Baroness, Lady Hayter, and others, including my noble friend Lady Gardner, the Government have introduced in the other place an amendment in lieu of the amendment tabled by the noble Baroness, Lady Hayter. The government amendment gives powers to require letting and managing agents of privately rented and residential leasehold homes to belong to a redress scheme. It gets to the heart of what the noble Baroness, Lady Hayter, was seeking, but without subjecting letting and managing agents to the additional layers of regulation that are in the Estate Agents Act and on which her amendment was based.
I am pleased to say that, while clearly some would have like the Government to have gone further than redress, this amendment has been warmly welcomed and was approved without Division in the other place. Indeed, the honourable Member for Streatham, shadow Business Secretary Chuka Umunna, described it as,
"a victory for tenants and landlords"".-[Hansard, Commons, 16/4/13; col. 229.]
The Government's approach has also been welcomed by key organisations. For example, the National Approved Letting Scheme welcomed it as a common-sense approach to improving the consumer experience of renting and letting, and a sensible alternative to the heavy handed bureaucracy of a formal regulatory regime. Similarly, the National Landlords Association has endorsed the Government's approach of meeting the challenge of regulating agents head on, rather than simply the standards of estate agency to a distinct sector with its own significant risks.
If these clauses are enacted, the next steps will be for the Department for Communities and Local Government to consult on the details of the measures and to go through the formal scrutiny processes so that the necessary orders can be brought forward for approval in both Houses. We would expect consultation to be under way, certainly by the summer.
In their consultations, the Government will wish to take account of a number of the points that have been raised in the other place, for example on how existing codes of practice will be reflected in the redress schemes. There were also questions in the other place about the residential leasehold sector, generally echoing concerns that have been raised by my noble friend Lady Gardner of Parkes. The Department for Communities and Local Government is taking forward work on these issues, following its recent round table meeting, which my noble friend attended. I know that it will continue to involve my noble friend and a broad range of other interested parties on these matters.
My honourable friend in the other place, the Housing Minister, Mark Prisk, has spoken to the honourable Member for Worthing West about the points that he raised on the leasehold advisory service and has now written to him.
The Government consider that this amendment can make a real improvement to the operation of letting and property management agents, for a very modest and proportionate regulatory burden. I am grateful to bodies such as the Office of Fair Trading and Which? for rightly bringing attention to these issues, and to noble Lords who have worked hard to bring these measures within the current Bill, in particular the noble Baroness, Lady Hayter, and my noble friend Lady Gardner. I also acknowledge my honourable friend in the other place, the Housing Minister Mark Prisk, who has a long-standing interest in this issue and has worked hard to deliver a workable redress mechanism within the current Bill.
I therefore ask that noble Lords do not insist on their amendment and instead agree with the other place on its amendments in lieu. I beg to move.
My Lords, I welcome and support Motion E. I pay tribute to a number of key players who have brought us to this happy position. First, there is the coalition of those interested in the well-being of tenants and landlords, as the Minister has mentioned, such as Which?, Shelter and RICS, which have given me a lot of help not only in drafting but in the persuasion, if I may say, of this House and then the Government, who perhaps were a little reluctant to start with but have made a very large step forward. The coalition that came together included representatives of tenants and landlords, as has been mentioned, but also the British Property Federation, the Mayor of London and various London councils, as well as the professional organisations to which some of these bodies belong.
The amendments in lieu are not exactly the whole of what the House asked for in passing my original amendment, in that they do not include a role for the OFT in debarring agents who go seriously astray. However, I am confident that with the build-up of intelligence by the various redress schemes, evidence will come to light on which the OFT or Trading Standards will be able to take action.
Furthermore, as happened with estate agents and as has been suggested in the consultation, ombudsmen will develop codes of conduct for letting and managing agents-based, no doubt, on the professional codes that they have in place now-to give member agents guidance as to how an ombudsman will decide a case. That is perhaps a backdoor way to the adoption of a code, but is very welcome for all that.
In due course, I and consumer groups will no doubt be asking for further regulation of letting and management agents if this measure proves insufficient to protect landlords and tenants, and I have a feeling that the noble Baroness, Lady Gardner, is not about to let this wider issue drop.
For the moment, I conclude by thanking our Lords PLP staff, Beth Gardiner-Smith, Sophie Davis and Ian Parker, for their help, and saying a very genuine thank you to both the Ministers who are with us this evening. They took a lot of trouble to listen to our concerns very carefully and-I am sure at some personal risk to themselves-battled with their colleagues at the other end to win through. This House has brought some good home sense to an issue that is of great importance to thousands of our fellow citizens.
My Lords, I want to say two things. First, I congratulate the noble Baroness, Lady Hayter, on her determination and persistence in pursuing the case for a redress system for letting and managing agents, and I thank the Government for agreeing to act.
Secondly, I want to ask the Government about timing. The Minister knows that the amendments are couched in terms of "may" rather than "must", but I am sure that in this case that means "will". The question really is: when do the Government expect to be able to bring forward the appropriate orders? As we have all said in discussions on this issue, the matter is urgent; people are suffering now. Can the Minister give some indication at least of the expecting timing of the orders?
If it were not getting on for midnight, I would also ask what on earth Commons Amendment 40A(6) actually means. But it is getting on for midnight, so I will not.
My Lords, I congratulate the noble Baroness, Lady Hayter. This is a great personal success on her part. She has been persuasive. She has managed to encourage us all by winning that important amendment, and without that we would never have got to this point where people have really looked at things and decided that something can be done.
As the noble Baroness said, this is not something that we are going to let die, or lie, because there is still so much more to be done. Another hopeful thing has been the new Minister for Housing. With experience and work in the field as a surveyor, he knows what we are talking about, and this has made a big difference, particularly when we have had various round-table meetings. People have adopted the attitude that they want to look into things further. We have been given hopes that that they will look into everything much further later in the year, and I will be pressing that in my questions. As you know, I am particularly interested in reducing the percentage of people required to have commonhold instead of leasehold, because that would solve a lot of problems, but everyone agrees that 100% is an impossible requirement.
I pay tribute to the two Ministers. My noble friend Lord Younger has done a great deal, and it is marvellous that he has allowed housing to come into this, which was such a BIS affair. I cannot speak too highly of my noble friend Lady Hanham, who knows the housing issue so well. It is due to her persuasiveness that we have managed to get things to this point and have received notice today of these amendments. As has been said, perhaps they do not deal with everything, but they go a long way and are a huge first step. That is what we need, and again I am delighted to welcome these changes.
My Lords, I am grateful for the contributions to this short debate. We have heard a small number of contributions today on the amendment on the letting and managing agents. As we know, this is a practical measure that can be taken forward rapidly to make a real difference to the experiences of landlords, tenants, freeholders and leaseholders.
In an attempt to answer my noble friend Lord Sharkey's question, although the timetable is unclear at the moment I am not out of step to say that we fully expect orders to be brought forward by the end of the summer. It might be earlier.
In conclusion, I commend this Motion to the House.
Motion E agreed.