My Lords, I apologise to the mover of the amendment that I was not present when she spoke. I shall be extremely brief, because I explained at Second Reading that nothing in this clause would remove any of the commission’s powers or functions and why I regarded what was being deleted as not harming, but improving, the performance of the commission.
The general duty arose not in the 2010 Act but in the 2006 Act, and the 2006 Act unfortunately put the cart before the horse, as some will remember. Instead of doing what was done in the 2010 Act, which was to
reform the underlying discrimination law and bring it all together, the then Government instead put the cart before the horse by setting up a commission without having reformed the underlying law. They put into the 2006 Act this general duty, which is unenforceable and purely aspirational—for those who pull faces when I say that, I remind them of the aspirational language, which is very fine but not capable of being enforced in any court of law. What they did in addition to that, and which is unaffected by the Bill now before the Committee, was to put in Section 8:
“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of equality and diversity … encourage good practice in relation to equality and diversity … promote equality of opportunity … promote awareness and understanding of rights under the equality enactments … enforce the equality enactments … work towards the elimination of unlawful discrimination, and … work towards the elimination of unlawful harassment”.
That is in Section 8 and is unaffected by anything in this present Bill. They then went on in Section 9, also unaffected by this Bill, to provide that:
“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of human rights … encourage good practice in relation to human rights … promote awareness, understanding and protection of human rights, and … encourage public authorities to comply with section 6 of the Human Rights Act 1998”.
Those are completely intact, as are all the enforcement powers given to the commission under the 2010 Act. Rather like the socio-economic disadvantage rhetoric that the Government have rightly not sought to rely on, all that has been taken away in the general duty is the following:
“The Commission shall exercise its functions under this Part with a view to encouraging and supporting the development of a society in which … people’s ability to achieve their potential is not limited by prejudice or discrimination ... there is respect for and protection of each individual’s human rights … there is respect for the dignity and worth of each individual … each individual has an equal opportunity to participate in society, and there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights”.
Everybody in the Committee would agree with those sentiments, but the point that I make as a lawyer, for which I do not apologise, is that none of that is capable of being enforceable in any way. A duty that is written in water—it is clearly aspirational—may make us all feel joyful but it is not sensible to have it in legislation for a commission that in the past, as many in this Room will know, has been distracted by an overbroad and vague mandate. It is time that the new commission, as it were, concentrated on what it is meant to do, which is strategic law enforcement and everything else associated with that. I know that I am in a minority in this Committee but I for one consider that it is perfectly legitimate to get rid of Section 3, while retaining intact all the commission’s powers and statutory functions.
5 pm