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.
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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”.—[Official Report, 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”.—[Official Report, 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.