My Lords, I am not sure that I can give the same assurance to the Minister about withdrawing my amendment because, as I will try to explain, even the offer he may make—that the Equality and Human Rights Commission will be excluded from future statutory instruments—will not relieve the commission from the sword of Damocles that is hanging over it, as a future Government could bring it within the ambit of this legislation.
Perhaps I may explain to the House the position and why I think it should take this as an exceptional case and put the commission into this primary legislation. First, I should like to make clear the commission’s current position:
“The Commission supports the principle and intention behind the growth duty. We do, and will continue to, exercise our regulatory functions fairly and proportionately, taking all relevant considerations into account—including the impact on businesses and economic growth. However, applying the growth duty to the Commission risks our status as an NHRI”—
national human rights institution—
“and a National Equality Body and introduces legal uncertainty into the exercise of our functions. We therefore consider that the Commission should be excluded from the scope of the growth duty, as proposed by”—
Amendment 44. It continues:
“The Commission has the highest possible UN accreditation (‘A status’) as an NHRI rated against the UN ‘Paris Principles’, which clearly and unequivocally require NHRIs to be independent of government”.
I made sure that I had that clear statement of where the commission itself is in terms of its attitude to this legislation.
I should give the House a little background. When the coalition came into office in 2010, there were many criticisms of the EHRC, some justified. Since then the organisation has been refocused, restructured, given a new board and a new leadership in the person of the noble Baroness, Lady O’Neill, who I am pleased to see in her place. During my time as a Minister at the Ministry of Justice I became involved with the EHRC on two fronts: first, in attempting to regain A-list status at the UN, which we had lost; and secondly, regaining Britain’s place on the UN Human Rights Committee. With the help of the FCO and the DCMS, particularly the then Minister Maria Miller, we were able to achieve both. We were able to do that, however, by stressing the independence from government and the integrity of the Equality and Human Rights Commission.
As noble Lords will be aware, Clause 88 places a legal duty on regulators to have regard to the desirability of promoting economic growth when exercising regulatory functions. The EHRC, as I said, supports that principle. However, when the Joint Committee on Human Rights looked at the matter, it opined that the Bill,
“raises serious questions about the EHRC’s independence from the executive”.
It concluded that the matter could easily be dealt with,
“if the proposed new duty did not apply to the EHRC”.
The committee went on to ask that the EHRC and the Government should continue to negotiate to see whether such a settlement could be reached. As I indicated, no such settlement has been reached. The noble Baroness, Lady O’Neill, has gone on record to express her concern about this matter, particularly the threat to our hard-won A status.
5 pm
I now come to the reason for my amendment. In a letter to the noble Baroness, Lady O’Neill, on 19 November, my right honourable friend Vince Cable, the Secretary of State for Business, Innovation and Skills, wrote:
“I would like to take this opportunity to state that the Government has taken the decision to fully exclude the EHRC from the growth duty. This decision was taken to ensure that the Government mitigated the risk of this policy unintentionally triggering a review of the important ‘A’ status that EHRC holds as a National Human Rights Institution”.
The Government accept that the threat to the EHRC status and reputation exists—so far, so good. However, the commission fears that leaving the Bill as it is would leave it open to future Administrations to apply the growth duty to regulatory functions of the commission through secondary legislation. I agree entirely with the noble Lord, Lord Hunt, that the idea that secondary legislation offers protection from further inclusion is not sustainable. It is to avoid that threat that I have put down my amendment.
In opposing my amendment in Committee, my noble friend Lord Wallace said that,
“listing inclusions and exemptions in a Bill is not generally regarded as appropriate because primary legislation would then need to be amended each time a regulatory function were changed or created”.—[Official Report, 20/11/14; col. GC231.]
QED—that is exactly why I am putting this amendment forward. I am putting it forward as a narrow, focused
amendment to turn the Government’s good intentions into a copper-bottomed guarantee—or as the EHRC has said,
“the risks to the Commission’s independence, and the consequences of impinging on it, are of such importance that this matter should be”,
put beyond doubt in primary legislation.
Let me emphasise, particularly to my colleagues on these Benches, that my amendment does not change the Bill in any way other than to remove beyond peradventure what the Secretary of State himself describes as the risks of unintentionally jeopardising our A status as a UN organisation. I beg to move.