Equality Bill

Public Bill Committee, 7 July 2009.

Ann Winterton (Conservative, Congleton)

I welcome hon. Members to the Committee. I am sure that they are feeling demob happy—as I am, but for different reasons. I call the Minister to move new clause 5 formally.

New Clause 5

New Clause 26

New Clause 1

Mark Harper (Conservative, Forest of Dean)

I beg to move, That the clause be read a Second time.

I ask for the Committee’s indulgence. The new clause concerns a local matter that affects the Forest of Dean, my constituency. I want to take some time to lay out what is involved. I say to those members of the Committee who find it interesting that I am pleased to have interested them; the rest will have to indulge me in my constituency interests, which I am sure they will understand.

The purpose of the new clause is straightforward. It falls squarely within the scope of the Bill. It would amend the Dean Forest (Mines) Act 1838. In section XIV, under the heading, “Who shall be deemed Free Miners”, the Act states that

“All male persons born or hereafter to be born and abiding within the said Hundred of Saint Briavels”

could be free miners. My new clause would leave out the word “male”. It would also amend section XV of the Act, headed “Quarrymen to be deemed Free Miners for certain purposes”, by leaving out the word “male”.

It is important to note that the new clause would not change the requirement under the Act that, to be become a free miner, the person must work for a year and a day in a coal or iron mine within the hundred of St. Briavels. It is important that a free miner should remain skilled in mining work and mining craft, and the aim of my new clause is to give women the same opportunity that is available to men.

John Mason (Scottish National Party, Glasgow East)

It strikes me that the legislation is slightly obscure and that the hon. Gentleman knows about it because he is from the area. Is it his opinion that there are hundreds of other similar pieces of legislation, which also need to be amended?

Mark Harper (Conservative, Forest of Dean)

The hon. Gentleman is right: the legislation might seem obscure to him, but it is certainly not obscure in the Forest of Dean. I will explain later why I came to the conclusion that, to solve a real problem, it was necessary to amend the Act and to say why the framework within the Bill does not solve the problem. Will he just bear with me? When I reach the relevant point, he is free to intervene if he thinks that I have not dealt with it adequately.

This place should legislate, whether to create new laws or change old ones, only when there is a real problem to solve rather than a theoretical principle to deliver. The older the law—hon. Members can see the date of the Act—the more hesitant I am about changing it, and when it relates to the valued traditions of my constituency, I am even more cautious. The Free Miners Association would probably not be particularly enthusiastic about the change. I have discussed the matter with its president, Eric Morris, who represents a conservative association, with a small “c” rather than a large “C”. I am trying to make the change because the problem is not theoretical, but real, affecting a real constituent today. That is why it is worth attempting to reform the law.

At the moment a free miner can only be a man, says the Dean Forest (Mines) Act 1838. I have a constituent, Elaine Morman, who wishes to become a free miner, following in the tradition of her family. She works at Clearwell Caves, which is an iron ore mine, and she has attempted to register as a free miner. She has been refused by the deputy gaveller, an office under the Crown—I shall explain how that all works in a moment. He made it clear in his letter of 8 January 2009, titled “Application for Freeminer Registration”, that

“the principle obstacle to your application is that of gender. As you are aware, only male persons are permitted to be registered and extensive research indicates that there are no grounds for allowing variations to this registration requirement. Regrettably therefore, your application to be registered is refused.”

That was signed by John Harvey, the deputy gaveller of Dean forest, and an officer of the Forestry Commission. That is the nub of the problem that I am trying to solve with my new clause: to give Elaine Morman the opportunity, which would be available to a man who was in exactly the same circumstances as her, to be registered as a free miner.

Given that most, if not all, Committee members will be unfamiliar with free miners, it might be helpful to share a little background information so that hon. Members, including the Minister, can make a proper assessment of the case for my new clause. I shall keep my eye on you, Lady Winterton, to make sure that I am not straying outside the scope of my new clause.

Ann Winterton (Conservative, Congleton)

Mr. Harper, you can be assured that I shall be keeping my eye on you too.

Mark Harper (Conservative, Forest of Dean)

I am grateful for that assurance, Lady Winterton.

There is an interesting and comprehensive description of free miners, available on the website of Clearwell Caves, the organisation that Mrs. Morman works for and on account of which she hopes to be registered as a free miner. That website makes it clear that, as the Act says:

“All male persons born or hereafter to be born and abiding within the said Hundred of St Briavels, of the age of twenty one years and upwards, who shall have worked a year and a day in a coal or iron mine within the said Hundred of St Briavels, shall be deemed and taken to be Free Miners.”

There is an official register of free miners, which is kept by the deputy gaveller, who is a Crown officer responsible for the administration of the free mining customs and for the collection of mineral royalties. Specific gales are granted to free miners, at their request, and the deputy gaveller keeps a record of the minerals and the particular areas in which they can work. In my constituency, ironworking was extensive by Roman times and has played an important part in the history of our country. In fact, the Forest of Dean was the most prominent iron-producing district in the British isles.

The free mining customs go back many years. The earliest known copy of the “Dean Miners’ Lawes and Privileges” is from 1610, but contains references to much earlier origins. There are 41 laws and privileges for the mining of iron and coal, and the rights for access and the method of staking a claim are outlined. The duties of the King’s representative, the gaveller, included the collection of royalties, as well as registering free miners. The exact date when those privileges began operating is not known, but in 1244 it was recorded that free miners already had the exclusive right to mine ore in the Forest of Dean—so they go back a considerable distance.

For those Scottish Members on the Committee, whose interest may be waning at this point, it is worth mentioning that there are many references to mediaeval free miners being instrumental in recapturing Berwick-upon-Tweed several times—in 1296, 1305 and 1315—as it passed between Scottish and English hands. Legend tells us that it was for their indispensable services during Edward I’s Scottish campaigns that he granted the Dean miners a royal charter, as he had with other mining districts such as Derbyshire. I hope that Scottish Committee members do not hold that against my new clause.

John Howell (Conservative, Henley)

My hon. Friend is making an interesting and widely historical point. Does he recall, although I know that he was not around at the time, that Edward I’s campaigns against the Scots—I do not want to dwell on that point—also involved the miners of Derbyshire? Is he aware of whether the free mining tradition is alive and well in other parts of the country? I know that the 1838 Act was specific to his constituency, but does he envisage the same problem occurring in other parts of the UK?

Ann Winterton (Conservative, Congleton)

Order. Before Mr. Harper attempts to respond to that interesting point, may I suggest we return to the subject under discussion?

Mark Harper (Conservative, Forest of Dean)

I am grateful to my hon. Friend the Member for Henley and to you, Lady Winterton, for those interventions. As has been rightly pointed out, my new clause amends only the 1838 Act, which applies only to the Forest of Dean. Following your injunction, Lady Winterton, I ought to focus purely on that. To cheer you up and give every member of the Committee something with which they can agree, let me say that free miners were also requested to fight in France, and fought a number of famous battles, including at Agincourt. They were an essential part of the King’s armoury and were excellent archers—expert with the longbow as well as renowned for their mining skills.

Towards the end of the 18thcentury, conflicting mining interests began to arise in the Forest of Dean, particularly with the increased demand for iron and coal created by the industrial revolution. Powerful outside interests began to look to the untapped coal and iron reserves in the Forest of Dean. They saw that it was reserved solely for the free miners and looked for a way in. The free miners mine law court, which had successfully regulated free mining for centuries, became bogged down in disputes and embroiled in the pressures to allow outside interests into the operation and ownership of the mines. Towards the end of the 18thcentury, the mine court records were stolen by Crown officials and the court ceased to operate.

The Crown saw its opportunity and decided to rationalise the system to suit all interests. A royal commission was appointed in 1831—we are just getting to when the 1838 Act was passed—to inquire into the nature of the mineral interests and free mining customs in the Forest of Dean. Five reports followed, culminating in the passage of the 1838 Act, which we are now discussing and which my new clause would amend. This public Act confirmed the free miners’ exclusive right to the minerals of the Forest of Dean. The Act made few changes to the customs, but one important change was that the free miner would now be allowed to sell his gale to a non-free miner, which broke open the system and allowed other people to mine.

The Act otherwise clarified the rules of working, which effectively put the customs that had been in place for hundreds of years into parliamentary statute. The 1838 Act is still the basis for free mining today. The schedules to the Act have strict rules for working gales in the hundred of St. Briavels and, as I have said, free mining is administered by the deputy gaveller, John Harvey MBE, whose offices are at Bank house in Coleford.

I come to the requirements to become a free miner, which goes to the nub of the matter. According to the Act, one has to be a man born or living within the hundred of St. Briavels, be over the age of 21 and work for a year and a day in a mine within the hundred. For members of the Committee who might be wondering what a hundred is, its origins are fairly obscure but a hundred became a sub-division of a county that had its own court. It has been suggested that it was an area where a mediaeval king could demand the services of 100 fighting men. In the case of the St. Briavels hundred, the King would demand the services of skilled miners. The area covered by the hundred of St. Briavels consists of the statutory Forest of Dean and each parish touching the forest boundary—a considerable portion of my constituency.

David Drew (Labour, Stroud)

I understand a little about this. I wonder what the repercussions would be for other interesting groups in the forest, including the verderers and the burghers. Do they have similar unequal rights regarding gender or are they already socially libertarian in their attitudes?

Mark Harper (Conservative, Forest of Dean)

The hon. Gentleman—my neighbour across the River Severn—raises an interesting point. To my knowledge, the statutory prohibition on women becoming free miners does not apply to those other historical offices, so I do not think that the same arises. If he is trying to tempt me into meddling with other ancient traditions, one at a time is probably more than enough for anyone.

Once registered as a free miner by the deputy gaveller, a man—it can be only a man at the moment—may claim up to three gales from the Crown if they are not already being worked. He may make applications for any gale that he believes may become vacant. Once granted to him, he becomes the owner of the underground area and can work the minerals defined in the gale.

Originally, the King had the right to put in his own man to work with the free miner and share the profit. However, since the 1838 Act was passed, in lieu of the right to put in the King’s man, a share of the mineral produced from the gale is agreed at the outset and the royalty becomes payable to the Crown for each tonne of mineral raised. The taxman—the Treasury—still gets his take.

There was also a complication when coal was nationalised. The Forest of Dean was exempted due to its unique form of ownership and history. Because of that, the Coal Industry Nationalisation Act 1946 recognised the existence of free miners and a royalty continued to be paid to the National Coal Board—to the free miners—as a share of the minerals extracted until the last of the deep-coal mines closed in 1965.

There are about 150 free miners alive today. Only a handful of small collieries still operate. There is one iron mine, Clearwell Caves, and also five small stone quarries within the statutory forest. Free mining has a long and proud history and it is one of the things that makes my constituency unique.

The hon. Member for Glasgow, East touched on why it is necessary to amend the 1838 Act and why this cannot be done any other way. When my constituent Mrs. Morman first contacted me, I contacted the Library to see what the legal position was and whether there were any other remedies. Those at the Library went back to the original Act and read it out to me. They stepped through the other legislation that we have been discussing while debating the Bill to see whether they provided a remedy. They looked at the Sex Discrimination Act 1975, asked whether the denial to a woman of the right to be a free miner contravened that Act and came to this conclusion:

“Given the peculiarity of the right to be a free miner”,

the answer was not clear cut and my constituent needed to seek professional legal advice.

Those at the Library ran through the EU gender directive and the Sex Discrimination Act and looked at the provision of goods and services. They asked whether

“access to the natural resources in the mines could be considered access to a ‘good’, or whether access to being a free miner could be seen as the provision a ‘service’.”

They explained, by looking at the textbooks on discrimination law, whether that would be captured. They looked at whether being a free miner was akin to being a member of a private club and suggested that it might well be, which might give some difficulties as well. They then ran through the changes being proposed in the Bill and again suggested that it was rather complicated and that my constituent might want to seek professional legal advice, thereby making work for lawyers.

Those at the Library finally turned to looking at sex discrimination in employment. They made the point that the Sex Discrimination Act

“makes it unlawful for a prospective employer to discriminate on basis of sex in the arrangements they make ‘for the purpose of determining who should be offered that employment’. However the definition of the word ‘employment’ may mean that this provision is not relevant to the application to be a free miner.”

They quoted a legal case that made it clear that if there was not the obligation to do work, it would be “fatal” to proclaim employment discrimination. They came to the conclusion that that did not work either.

The Library then looked at the existing gender equality duty in the Sex Discrimination Act. That is superseded by the public sector equality duty, which applies to public authorities. Those at the Library noted that the deputy gaveller, who administrates the free miner system and registers the claim, is a Crown Officer of the Forestry Commission, which is a public authority. They then noted that there were some exceptions in section 21(4) of the Sex Discrimination Act, which had carried forward into the Bill—where the prohibition on discrimination does not apply to things in the table of exceptions.

One of the actions in the table of exceptions is if a public authority is complying with an Act of Parliament. If the deputy gaveller working for the Forestry Commission was complying with an Act of Parliament—the 1838 Act, for example—that would override or provide an exception to the gender equality duty and the public sector equality duty. We have kept that exception compliant with the statute in the Bill, so again, it would not provide a remedy for my constituent. After that comprehensive briefing from the Library, I came to the conclusion that the existing legislation and its translation into the Bill would not provide a remedy for Mrs. Morman. That is why I concluded that I needed to try to amend the 1838 Act.

There are a couple of other relevant points. I have been contacted by other constituents who are concerned that the tradition of free mining is dying out, which provides another reason to support the new clause. One of the requirements to be a free miner is to be born within the hundred of St. Briavels. In the Forest of Dean, we used to have a maternity unit at Dilke Memorial hospital, which is within the hundred of St. Briavels. Anyone born there was a true forester and, if male, could qualify as a free miner. That unit was closed some years ago, and most babies born to families who live in the Forest of Dean are now born at Gloucestershire Royal hospital in Gloucester, which is well outside the hundred of St. Briavels. It is worth noting that the rate of home births in my constituency is significantly higher than the national average, and I suspect that that is to keep the tradition alive.

There are concerns about the tradition of free mining dying out completely. A local lady, Dr. Charlotte Jones, is not a constituent of mine but lives in the neighbouring constituency of Monmouth. She used to work as a GP in the maternity unit at Dilke Memorial hospital, and she wants a law passed to designate Gloucestershire Royal hospital as being inside the hundred of St. Briavels, if that is where the family involved normally resides. Unless I am very lucky with the private Member’s Bill ballot, that change is beyond my control.

My new clause, however, would double the number of people who could qualify as free miners by including women as well as men. One concern that has been raised is about whether women are allowed to fulfil the other criterion in the Act, which is to work in a mine for a year and a day. I checked the Mines and Quarries Act 1954, and section 124(1) prohibits women and young people from working below ground in a mine. Fortunately for these purposes, however, the Employment Act 1989 repealed those restrictions, so there is no legislative prohibition on women working in a mine.

In the 1838 Act, one of the two requirements that someone has to fulfil to become a free miner is working in a coal or iron mine for a year and a day, and it is perfectly possible for a woman to comply with that. The only thing that she cannot comply with is the requirement to be a man.

The Bill has equality at its heart. My new clause would do nothing more than give women the same opportunity as men to become free miners, and it would fix a real injustice that affects not only Elaine Morman, but others like her who wish to follow in their family tradition. I commend the new clause to the Committee.

Tim Boswell (Conservative, Daventry)

All members of the Committee owe a debt of gratitude to my hon. Friend for the charming way in which he moved his interesting new clause. I promise that I do not wish to speak at length, but I wish at least to support the spirit of what he is saying. I can adduce three reasons for doing that. First, I happen to be chair of the all-party parliamentary group on archives, and it is remarkable how often archives have a way of coming to light.

In relation to my own land holdings, which I have declared on other occasions to the Committee and in the register, I have riparian ownership of land adjoining the opposite canal. When it was necessary for works to be carried out, I politely asked whether I could be given the legal authority for doing so, and I was sent a photostat of the Coventry to Oxford Canal Act 1769, dealing with Oxford canal companies, which I found of absorbing interest.

If hon. Members can spare time from the Committee shortly to have a look at the exhibition in Westminster Hall on archives in the community, they will see how these matters return. I will go to say in a moment that I think that this is an important and perhaps wider issue than my hon. Friend suggested.

My second point is that at one stage I had ministerial responsibility for the Forestry Commission’s work in England, and therefore some responsibility for the royal forests the New Forest and the Forest of Dean, which I enjoyed visiting. One realised, at one’s peril, the complexity of the ancient governance and how important it was not to interrupt it wherever possible, and to allow the ancient traditions to continue, albeit adapted for modern conditions.

The third point of interest to the Committee is that I have occasionally referred to my having a Romany name. There is an argument in the family as to whether there is a derivative from Scotland, and if so whether it comes through the Forest of Dean, where we appear to have fled for a period after the battle of Worcester in 1651. I cannot verify that, although possibly my cousin could.

To conclude the historical references, the same cousin assisted the Government in developing or working up the Evesham custom for market gardening land into the agricultural holdings legislation. That is all by way of preface, but it makes the point that even if some provisions look like the pursuit of narrow antiquarianism, they are important, especially locally, and are still alive and active—God bless them.

We come to the material question. My hon. Friend is entirely right to say that there is a real ill that should be addressed, and I am sympathetic to him and admire his efforts. I have something I do not know, which undoubtedly the Solicitor-General will wish to respond on—she can probably give us a lecture on hybridity for one thing, which I have never fully understood, but it is a good stick to beat people with when they are confused about legislation.

Perhaps I can put it this way: if one reviews legislation of such a kind that has general impact, however good a job the parliamentary draftsperson has done in picking up old legislation for appeal or modification, they do not necessarily cover the whole field, in all that they can claim to have done so.

I noticed with interest schedule 27, the schedule of repeals and revocations, which I am sure the Committee is familiar with. We start, in comparison with modern times, with the Equal Pay Act 1970, which was repealed in whole, along with the other cardinal legislation on sex discrimination and race relations—it is now embraced by the Bill. So, we have never trawled back, although I conceive that many of the old provisions—I am not familiar with the text of the 1970 Act in detail—were picked up at that time.

What I am saying to the Committee—I hope the Solicitor-General will think about this—is that there must be a raft of ancient provisions governing the conduct of guilds, which have existed since the middle ages, that may have codified customs like the ones in the 1838 Act. They have never caught up with modern social and economic conditions, and probably still have some gender-based, or other indefensible—in modern terms—restrictions on employment or activities. If that is the case, my hon. Friend, who is a modest person, is perhaps being too modest in his new clause.

Although I hate Henry VIII clauses in general, I suspect that we need some power to enable the rules to be changed, possibly by statutory instrument, where legislation is creating a real, not hypothetical, ill so that the particular remedy may be addressed.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend refers to historical customs and practices, whether in statute or not. The problem in this case is that if it involved just historical custom and practice, the way it is used would probably fall within the purview of existing discrimination legislation, and if not within that, certainly within the purview of the Bill. The problem is that because the provision concerning the Forest of Dean is an Act of Parliament, it triggers one of the statutory exceptions. Due to the legislation being an Act of Parliament, we need to amend that Act to fix the ill.

Tim Boswell (Conservative, Daventry)

I am grateful to my hon. Friend for elucidating that explanation. I think he is exactly right. All I need to say to the Solicitor-General—we should not spend all day on the matter—is that there will be cases, which I doubt very much will be confined to the Forest of Dean and its distinct and proud tradition of free mining, in which things will be adrift from the spirit and intention of the Equality Act, as the Bill will become. There might be scope for some mechanism that will enable those matters to be redressed as and when an ill is discovered, and to be remedied appropriately. I hope that she will consider whether that approach could commend itself to the Government and to the Committee.

David Drew (Labour, Stroud)

I accept what the hon. Member for Daventry said. I shall be brief, but I rise to support my neighbour, the hon. Member for Forest of Dean. I was born in Gloucestershire, but would never pretend to have any connection to the Forest of Dean. However, the issue is worthy of proper debate and of some settlement.

There are, as the hon. Member for Daventry said, many examples in statute in which particular groups have been and remain disadvantaged because of how, at that time, it was appropriate to form laws such that those who were able to take advantage of them could do so. That is clearly not the case nowadays and, if the Bill means anything, it should override some of those quirks of history and, indeed, of nature. I hope that that can be rectified, even if only one person is discriminated against, although I suspect that it would be many more.

If the legislation is to mean anything, we need to update other bits of legislation and make it clear that we believe in people being given an equal chance and not being prevented from taking on positions that may be somewhat historic and more to do with terminology than actions, but that are nevertheless important to people. I know how much people guard and still respect the title of free miner in the forest. It is held in great respect. If someone is not allowed the title, when they have met the other criteria, that is simply wrong.

Vera Baird (Labour, Redcar)

I was pleased but not surprised that the hon. Member for Daventry is the chair of the all-party group on archives. Archives are important tools and I am pleased that there is an all-party group.

A tremendous British Steel archive in Redcar is very extensive and still being catalogued. It offers an important educational tool. For instance, there are the plans for the Sydney Harbour bridge, which was made from Redcar steel and put together by the Cleveland Bridge company. A young person from school can go to look at the archive and see how those plans developed, knowing that that was at the other end of the world, and at the same time can also see in the same archive his own grandfather’s clock card, so he can understand that he is part of a proud heritage in our steel-oriented area.

Tim Boswell (Conservative, Daventry)

I respond warmly to what the Solicitor-General has said. I confirm to the Committee that the group does not merely concern itself with what one might call antiquarian archives. We are very much and actively interested in the prosecution and dissemination of good practice in modern business and government archives as well.

Vera Baird (Labour, Redcar)

I was reminded at some points during the contribution of the hon. Member for Forest of Dean of a quiz programme that used to be on TV when I was at school, and, for all I know, still survives, called “What’s My Line?” A panel had to guess from a mime done by the person coming in and through 10 questions what that person did for a living. The deputy gaveller would probably have baffled even Gilbert Harding, who I am just old enough to remember being on when I was at school, and would have won some special prize on “What’s My Line?”.

Another thought that I had while the hon. Gentleman was setting out his good, clear case for change was that it is a shame that under the legislation women are also excluded from mining humour. I do not imagine that the Forest of Dean miners are any less funny than the coal miners in County Durham used to be. I remember being told of one frequent practice, which was that when an apprentice went underground for the first time in the coal mine he was given a pound and told by his principal to stand there, because at 10 o’clock on a Monday morning the window cleaner would want paying. So it would be good if women could join in all of that fun, as well as digging for minerals in the Forest of Dean.

The 1838 Act is the basis for free mining today, but it made few changes to the pre-existing custom, simply clarifying the rules of the working of mines and quarries in the hundred of Saint Briavels and the Forest of Dean in Gloucester, putting the custom straight into parliamentary statute. As the hon. Gentleman said, only men aged over 21, who were born there—but there are no hospitals, so I assume, as the hon. Gentleman said, that the qualifying status is more difficult to attain—who live in the area of the Forest of Dean and who have worked for a year and a day in coal mining can be free miners; quarrymen can do so too, so long as they satisfy the same qualifications and have worked a year and a day in a stone quarry. At the moment, women cannot be free miners. It is a birthright to be a free miner; my hon. Friend the Member for Stroud has said that it is a proud birthright, and one would imagine that that is so. It is derived from the 13th century, from King Edward I; the people who advise me suggested that that is the origin.

Sections 14 and 15 of the Act set out the conditions, and one of them is being a man. I acknowledge freely—especially now that we know that there is a woman who is interested in the status—that there is implicit ancient sexism in that Act. We would like to help, as much as we can, to stamp it out. The difficulty is what the hon. Member for Daventry invited me to lecture about, which is the issue of hybridity. This is a short lecture: where a Bill affects the private interests of some members of the group in a different way from others, it is a hybrid Bill. If it is going to be such, it must go through a different, more complex procedure than a public Bill, among other things, to allow those affected to make representations—presumably in this case, the woman, and perhaps the men, about whose attitudes we are not clear. The difficulty with including the new clause is that we would tumble the Bill into a hybrid, and we would have wasted all the time we have spent here in the Public Bill Committee, and require it, if it was to survive at all, to go through a different procedure. Clearly, that is not a practical option, and it is not one that is being recommended by the hon. Member for Forest of Dean.

We have looked at going the extra mile. All we have to do is look at how we can get the Bill through. But how can we help with the problem? It is not, we hope, the case that there are a large number of similar provisions. There has been a fairly deliberate attempt to change other legislation. The hon. Member for Daventry pointed out that the repeals in the back of the Bill are mostly from modern times. But, for instance, the Employment Act 1989 repealed a section of the 1975 Act, which did not allow females to work underground in a mine, to comply with a 1976 equal treatment directive on employment. There has been a distinct effort, particularly because of the pressures of European equal treatment directives, to identify any legislation that contains provisions that would not be compatible with those directives. We are confident that we are doing this on an ongoing basis, but if there are any lying doggo that we have not seen, we will be glad to have our attention drawn to them.

The hon. Member for Daventry talked about some sort of Henry VIII power. Section 2(2) of the European Communities Act 1972 allows changes by regulation to make our legislation compatible with European Communities legislation. It is adequate for all the provisions that I have referred to that have already been repealed, but it is difficult to know what application it would have here. I suggest that the best way forward for the hon. Gentleman would be to come top in the private Members’ ballot. However, his Bill would have to go through the hybrid procedure. We do not plan to include the provision in the Bill, as that would spoil it completely, but we would be happy to go away and see whether we can use our combined resources to advise the hon. Gentleman on whether there is any other way forward.

Mark Harper (Conservative, Forest of Dean)

I am grateful to the Solicitor-General for the way that she has outlined the Government’s position. Without wishing to tempt her into the full-blown lecture on hybridity that my hon. Friend the Member for Daventry alluded to, for my benefit, if not that of the rest of the Committee, I would like to tempt her into a slightly more detailed explanation than the one she gave.

I have considered the issue of hybridity and two things struck me. First—this may not be correct—when I was reading a description of the relevant history using a local website, it referred to the 1838 Act as being a public Act as opposed to a hybrid or private Act. I do not know whether that is an issue of historical time or whether that aspect existed in 1838. Secondly, I am not entirely clear about the definition of hybridity. The entitlement applies to anyone born within the hundred of St. Briavels, and I am not clear whether widening that class of people to include women would take away or affect the interests of the men. People are not fighting over a limited pool of resources where giving one group of people more resources would damage the interests of another group. I agree that we do not want the Bill to become hybrid, but perhaps the Solicitor-General could give us a little more detail about hybridity, and explain why she thinks that the new clause would trigger that.

Vera Baird (Labour, Redcar)

I do not think that the issue is about whether the original Bill that gave rise to the 1838 statute was hybrid. I am told that a hybrid Act is a kind of public Act anyway. Its reference to being a public Act does not take away the fact that it could be hybrid. I cannot say what its status was at the time or what it is now, but it is not necessarily that status that is determinative. Putting this provision in the Bill would affect the interests of a specific group of Forest of Dean miners only, and it would turn the Bill into a hybrid Bill.

Although I can see the point that a man does not have to be knocked off in order to allow a woman in, none the less there could be arguments that the status of being a Forest of Dean miner, which is a specific interest, would be altered if women were allowed in—a terrifying prospect to some, I am sure. Whether or not that be so, I am sure that the hon. Gentleman understands that there would be a change of status by widening the ambit of people who can come in. Although, according to my hon. Friend the Member for Stroud, it is a proud status now, and would be prouder if it had women in it, it is still an alteration. That is the best I can do to help the hon. Gentleman. I am glad that the hon. Gentleman’s lady constituent is working in the field that she wants to work in at the moment, and I am sorry that we cannot stamp out this ancient sexism, but it would put the whole Bill in jeopardy. However, we will do our best to help her in any other way.

Mark Harper (Conservative, Forest of Dean)

I am grateful for the serious way that the Solicitor-General has approached this. Having investigated the issue of hybridity when I first came across it in the House, I recognise the complexities that it brings with it. I understand why the Solicitor-General would not want to put the Bill at peril by including the new clause, and I am grateful to her for saying that she will go away and think about whether there is some other way of achieving the goal. No doubt she and I can correspond on this issue and see whether there are any other options. I beg to ask leave to withdraw the motion.

New Clause 11

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move, That the clause be read a Second time.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following: new clause 12—Interpretation of legislation—

‘(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the right to equality.

(2) This section—

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.’.

New clause 13—Declaration of incompatibility—

‘(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with the right to equality.

(2) If the court is satisfied that the provision is incompatible with the right to equality, it may make a declaration of that incompatibility.

(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with the right to equality.

(4) If the court is satisfied—

(a) that the provision is incompatible with the right to equality, and

(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,

it may make a declaration of that incompatibility.

(5) In this section “court” shall have the same meaning as the meaning given in section 4 of the Human Rights Act 1998.

(6) A declaration under this section (“a declaration of incompatibility”)—

(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b) is not binding on the parties to the proceedings in which it is made.’.

New clause 14—Public authorities—

‘(1) It is unlawful for a public authority to act in a way which is incompatible with the right to equality.

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the right to equality, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4) In this Act the factors which may be taken into account in determining whether a function is a public function include—

(a) the extent to which the state has assumed responsibility for the function in question;

(b) the role and responsibility of the state in relation to the subject matter in question;

(c) the nature and extent of the public interest in the function in question;

(d) the nature and extent of any statutory power or duty in relation to the function in question;

(e) the extent to which the state, directly or indirectly, regulates, supervises and inspects the performance of the function in question;

(f) the extent to which the state make payment for the function in question;

(g) whether the function involves or may involve the use of statutory coercive powers;

(h) the extent of the risk that improper performance of the function might violate the right to equality.

(5) In subsection (3) “Parliament” does not include the House of Lords in its judicial capacity.

(6) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(7) “An act” includes a failure to act but does not include a failure to—

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order.’.

New clause 15—Statements of compatibility—

‘(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before the second reading of the Bill—

(a) make a written statement to the effect that in his or her view the provisions of the Bill are compatible with the right to equality (“a statement of compatibility”); or

(b) make a statement to the effect that although he or she is unable to make a statement of compatibility the Government nevertheless wishes the House to proceed with the Bill.

(2) The statement must be published.’.

New clause 16—Proceedings—

‘Sections 7, 8 and 9 of the Human Rights Act 1998 shall have effect in relation to acts made unlawful by section [Public authorities] (1) of this Act as if the act complained of were made unlawful by section 6(1) of the Human Rights Act 1998.’.

New clause 17—Power to take remedial action—

‘Sections 10 of the Human Rights Act 1998 shall have effect in relation provisions of legislation declared under section [Declaration of incompatibility] of this Act to be incompatible with the right to equality as if the provisions had been declared incompatible with a Convention right under section 4 of the Human Rights Act 1998.’.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

New clause 11 presents the commission with what we Liberal Democrats feel is perhaps an underpinning and a guarantee of equality, thus it is called the equality guarantee. There has been an undercurrent of mild concern from some quarters—certainly from ours—about whether we have ensured that everyone will be protected from discrimination and treated fairly and equally. While the Bill addresses the harms that might be done by discriminating against specific groups or individuals belonging to those groups—the so-called protected characteristics—it does not give an overarching guarantee to every individual to have freedom from discrimination, which is ironic, given that the Government have tried so hard to prescribe the detail of protected characteristics. In the very specific and precise description there is a danger that what is not described is not counted in, as though non-mention or non-inclusion in specific terms means that something might not be covered.

New clause 11 and its consequential clauses would deliver an equality guarantee to ensure that the right to equality has the same status as other human rights. The amendments would codify that principle. The Government have thus far rejected that idea because they do not believe it necessary and are sure that their legislation is crystal clear, making the guarantee that we are proposing unnecessary. With the best will in the world, I do not share their confidence. I am sure that when the Disability Discrimination Act 1995 was drafted, its authors believed that they had dotted every i and crossed every t, and that it would be infallible, and yet a decade later we had the Malcolm case, which in one fell swoop undid a lot of what that Act sought to achieve.

I have no doubt that the Government and the legions of lawyers that aid them have done their utmost to ensure that the legislation is tight and that the intentions of the Bill are given proper form in law, but few lawyers are a match for the Law Lords, and in our view equality rights are too important to allow them to be subject to the Law Lords. Parliament must be as explicit as it can be about its intentions so that judges are in no doubt at any point—ever—about the Bill’s intentions.

The idea of an equality guarantee has wide support beyond the House, most notably from the Equality and Human Rights Commission. I am sure that many hon. Members will have received its briefings, and it is important that we debate them. It is a key issue, and the EHRC feels that a constitutional promise is necessary and would provide a philosophical basis for judicial adjudication. I also welcome the new clause tabled by the hon. Member for Daventry, which is another form of the same idea. We support it because it addresses the underlying concern that perhaps not everything is covered, and that should there be any doubt about the wording or the nuance, a judge would be left in no doubt should there be a challenge in times to come.

John Mason (Scottish National Party, Glasgow East)

The hon. Lady makes an extremely good point. The public and many of us think that when the courts look at legislation, they sometimes become so bogged down in the individual words that they lose sight of the bigger picture. The new clause is a good attempt to create the bigger picture and get the courts to consider it.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the hon. Gentleman for putting his finger on the point. I do not wish to criticise judges, but they can reach a different conclusion from what was intended in the original legislation. The Liberal Democrat new clauses and that tabled by the hon. Member for Daventry try to ensure that such harm cannot destroy the intention of legislation, because clever lawyers can argue the finer points that might not have been the exactitude of the words.

The equality guarantee would put the intention of the Bill beyond doubt. It would give an overarching protection to the right to equality and it would also be consistent with EU legislation. It is important because it would help to mainstream equality considerations into all state functions. I hope that the Solicitor-General hears the concern expressed about whether the Bill’s protections will be challenged in an unforeseen way and accepts that new clause 11, and the consequential provisions, would enshrine in law the right to equal protection, and therefore ensure that everyone has that right.

Mark Harper (Conservative, Forest of Dean)

I am following the hon. Lady’s argument about new clause 11 and the other new clauses, but given that the Bill does not have a particular status—this country does not have the concept of constitutional Bills that have a status over and above others—what is it about the new clause and the consequential provisions that would provide the barrier to clever lawyers going through the wording? The new clauses would be mere wording in Bills and would be just as susceptible to people arguing about them. As we do not have Acts that are constitutional in nature, the new clauses would not give us any more protection than the Bill that we have been discussing at great length. I am not against what the hon. Lady is saying, but I am not sure that the new clauses would achieve her objective.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Gentleman and I will have to disagree slightly. The new clauses would be an overarching guide to future legislative arguments in a court of law. They would ensure that everyone has the right to equal protection and the benefit of the law, and that its interpretation would also be guaranteed. We would literally be guaranteeing real equality.

Tim Boswell (Conservative, Daventry)

I rise to speak to new clause 22, and to acknowledge and respond to the new clauses tabled by the hon. Lady, which are, as she said, very much in the same genre, with the same intention.

I have been encouraged by the general tone of the Committee. We have had our moments of levity—or our diversion to particular interests, as we saw this morning—but at all times there has been an attempt to produce a constructive dialogue about what we are trying to do, and to advance the cause of equality and the parallel, although not wholly distinct, issue of human rights. That has encouraged me because it is an advance if they are becoming fairly universal throughout this place, possibly in contradistinction to the sort of tabloid chatter to which I referred in a previous debate on the idea of a public equality duty for human rights.

We have been grateful throughout our time in Committee for the support and briefing of the EHRC, as I am to it for formulating the purposes clause that I tabled—new clause 22—and for its consistent briefing and support to generic as well as specific matters. I am entirely at one with the hon. Lady in feeling that there is a need for an overarching and positive gear on everything that goes beyond the mere letter of the law.

The only point I would make on that—I am not hired by the Solicitor-General or anyone else to say it—is that not all lawyers are pettifoggers, although they obviously have to defend their clients’ briefs. As one gets to a higher level of seniority or abstraction, such as the Law Lords, where I have heard one or two judgments, there is an amazing ability to integrate arguments and come to the heart of the matter, and not simply to get cast down in the small print.

John Mason (Scottish National Party, Glasgow East)

I am intrigued, because the hon. Gentleman seems to be making the same points as the hon. Lady. How would he answer the question put by the hon. Member for Forest of Dean that the new clauses do not go beyond the letter of the law, but just have more letters of more law?

Tim Boswell (Conservative, Daventry)

Such things will always have a point. We all know what Dickens said about the law. He is not always right, but sadly he is not always wrong. We have to find a balance.

Before I miss the point and appear churlish, which would be wrong—and I think I know the stable from which the drafting of some of these multiple and interesting new clauses on the equality guarantee have come—I want to say that I respect the new clauses. I also respect the effort that the hon. Lady has made in developing them and her attempts to embellish my new clause. I have no objection to that; I only wonder whether the new clause adds value, which brings us to the general debate on the whole business of purposes clauses. Do they add value or merely clutter up the page, and could they possibly cause confusion?

Although I want to deploy my arguments—I hope not at inordinate length, but it is worth getting them out to the Committee—I say from the outset that I do not want to oversell the idea of the new clause. The Bill is good taken as a whole. We may have reservations about individual bits, but that is essentially a matter for our political and personal judgment. However, I do not want to get to the stage where we say, “If there’s no purposes clause, the Bill is useless and I’m going to take my toys away.” That is not at all what we want to say. The question is whether having a purposes clause would add value to the text, and whether there might be any compensating costs, on which basis I suspect the Solicitor-General has been briefed not to adopt it.

Over the years, and one need not go back down memory lane as it is not that long ago, I have grown to like the concept of purposes clauses, or principles clauses—the modern terminology is the purposes clause—which set out the principles behind a piece of legislation. I have referred once or twice to my own experience of the Mental Capacity Act 2005, but I also draw the Committee’s attention to the early use of the purposes clause in the Children Act 1989, which is Conservative legislation. Section 1 of that Act explicitly establishes the paramountcy of the child’s welfare as the central principle in determining the situation in relation to children.

The Crime and Disorder Act 1998, introduced under Labour, provides an unusual instance of a purposes clause. Even the civil procedure rules of that year refer and define, to some extent, how to deal with each case justly. There is a test, which is, “This is what we are trying to do to deal with each case justly.”

Mark Harper (Conservative, Forest of Dean)

I am listening carefully to my hon. Friend’s argument in favour of his new clause. Perhaps it is just me, but will he set out the difference between his approach and the approach of the hon. Lady, with her range of new clauses? I have read the EHRC briefing, which supports what the hon. Lady is trying to achieve with her equality guarantee and what my hon. Friend is trying to achieve with his purposes clause. I am not sure whether we need either, or both, and of the extent to which they interact. If the hon. Lady will forgive me for saying so, my hon. Friend’s new clause is more elegant simply because it is shorter. If it could achieve what hers would achieve, and we could do that in one clause, then it would be preferable. Perhaps he can help me on that.

Tim Boswell (Conservative, Daventry)

My flippant answer, while I collect my thoughts on my hon. Friend’s difficult conundrum, is that heightism is not one of the protected characteristics under the Bill, and therefore the length, or otherwise, of the new clause in question is not determined, as I think lawyers would say.

I am inclined to the view that it would be rather nice to have the two, because the pursuit of equality is of interest. I also appreciate the point about having a definition of purposes that is, in my view, crisper and more succinct. My hon. Friend will not be surprised that if I am forced to make a decision between the two, I will be inclined towards my version, but that is in no sense to subvert the other one.

We are trying to put a little bit of flesh and blood on to what might otherwise seem to be a rather lifeless structure and to encourage judges and people involved in tribunals to take the wider picture, rather than the purely narrow one. This has already been said—I hope there is no bitterness in these remarks—but from time to time, people fall foul of lawyers and think that they are taking the narrow view. Up to a point, that is what they are there for. If the statute, as drafted, is too narrow, we should not have allowed it through in its present form. The question is whether the proposal could provide a motor for interpretation.

I have already mentioned that there are a number of precedents of purposes clauses in British jurisdiction. The Equality Act 2006 sets out the EHRC’s duties in terms that are analogous to a purposes clause. The commission certainly feels that that has been essential in assisting it to embody in court proceedings a positive, proactive or forward-gear approach to securing equalities—those are my words rather than the commission’s.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend mentions the EHRC. He has drawn attention to the fact that the courts might interpret legislation more narrowly than was intended by Parliament. If we have a purposes clause, to what extent does he think there is a risk that we may get the opposite problem, whereby more activist judges interpret the law more widely than Parliament intended? We have spent a lot of time in Committee arguing over what is the right balance and what are the right things to have in the Bill. I wonder whether he can help the Committee to understand how those Acts that he mentioned, which effectively had a purposes clause, have worked in practice.

Tim Boswell (Conservative, Daventry)

I am beginning to think that I would not enjoy being cross-examined by my hon. Friend, but he is raising serious issues about the balance going the other way and producing something of such a nature. I cannot claim expertise in this, but my own view is that people are often faced with a choice of either judicial activism that will not go beyond the limits and parameters set out by the purposes clause—I do not think that anyone will argue with the purposes that are set out—or judicial activism that dislikes an over-narrow statute and goes off on its own trip, which is not regulated by a purposes clause or some general understanding. I am not sure that my hon. Friend is making an entirely fair distinction, but it is a reservation that we must have in mind. The issue is not what is perfect or what is required universally, but what will make things better.

Perhaps the Solicitor-General will disabuse me of this if I am wrong, but I can demonstrate no harm that has been done to justice or the underlying detailed provisions of any of the British Acts that I have cited or the rules arising from the existence of purposes clauses, where learned judges have had to deliberate the purposes clause and the detailed provisions of the statute.

Of course, there is an underlying difficulty. We perhaps should not, particularly at this stage, open issues about attitudes to Europe, although I do not foam at the mouth when that word is mentioned. But a number of people say that a purposes clause is the kind of thing that we see in continental jurisdictions and Roman law and that it is not British. It is quite important to remind the Committee that a number of other common law jurisdictions and some Commonwealth countries have employed purposes clauses specifically for equalities legislation. I cite South Africa, Australia and Canada. The Canadians reviewed the effect of the purposes clause in their review committee in 2000. The human rights panel there, which was established to review the operation of the their Act, suggested that the approach adopted by the courts had been so influenced towards the positive that the purposes clause had been invaluable in achieving a more outcomes-based interpretation of the law. That is, after all, what the EHRC and I suspect some others are anxious to achieve.

I now come to the British position and to new clause 22. Other members of the Committee might disagree, particularly after my revelations on Europe, but I do not like to pass myself off as a kind of Dave Spart radical. Mercifully, there are not too many of them on the Committee. I can see the hon. Member for Hackney, North and Stoke Newington smiling. We quite often agree on human rights matters—we tend to stick together generically and across parties on such issues. Anyway, I do not think that that new clause is meant to be radical or subversive.

I will not claim legal expertise, but I have some indirect or second-hand knowledge of judicial review and certainly some knowledge of the difficulties that I experienced as a Minister in the past, when I tried to decide the right thing without falling into the pitfall of judicial review, and on the whole I think that—modestly on the record—I succeeded in doing so.

The Government are calling for clarity, and in persistently resisting the EHRC’s wish for the purposes clause. In debates and various consultation exercises, they have suggested that it might obfuscate and create judicial difficulty. At that point, I become a little suspicious. At any rate, I do not think that the drafting could be faulted on the grounds of unclarity, although the Solicitor-General is welcome to try. It is meant to reflect all the different concepts enshrined in the rather testing concept of equality. We have equality of treatment, opportunity, participation, dignity and outcome, with balancing measures aimed at eliminating disadvantage and achieving remedies for the individual or groups. That is what we are trying to set out in new clause 22.

It might be convenient at this point to refer to the specific provisions. Sub-section (1) of new clause 22 begins by setting out the objective of preventing discrimination, harassment and victimisation on any of the equality grounds, and it refers to the fact that that can take place on more than one count. It also links to the need to provide appropriate remedies, to which I have referred, and sanctions for multiple discrimination. It indicates that the Bill is intended to ensure equality of opportunity, which is an element of all the appointed duties and of the EHRC itself. That is in section 8(1)(c) of the 2006 Act, and it also makes the point that there will be occasions when it is appropriate to involve differences of treatment—for example, on pregnancy leave or reasonable adjustment. It then goes on to make it clear that the Bill not only seeks to provide redress for individuals but has a group and social dimension. However we want to interpret or enact it, there is clear reference to the tackling of disadvantage, social inclusion and systematic discrimination, to try to stamp out abuses of individual rights alone.

We then go to a linked provision: the social dimensions of equality and the ability of both public and private bodies to use public action or other measures to reduce disadvantage. We then come, because of my human rights interest, to the major underlying purpose of anti-discrimination legislation, which is to protect human dignity and treat people properly and with respect. That links equality legislation with the human rights principles of equality, as recognised in most of the international conventions that I will mention.

Finally, we move on to the effective remedies in subsection (1)(f), and we need to remember that they are already enshrined, for example, in the EU equality directives. Subsection (2) is an interpretative provision, although I am on less strong ground here because of my lack of legal qualification. It suggests that the Act must be interpreted in furtherance of the different purposes set out in subsection (1), which fairly closely mirrors the South African legislation, for example.

The clarity of what we seek to achieve has nothing wrong with it, but we may be at issue with the Government in the interaction with the detailed provisions. The Government position may be scarred by legal conservatism and fears of judicial review, or they may be genuinely concerned about legal muddle, interpretation or the difficulty for practitioners—all those things—but, essentially, I think that they feel that a number of lawyers may try to use a purposes clause to subject Ministers, public authorities or private individuals to some kind of double jeopardy or to play on the very interesting issue of potential anomalies between two different duties.

I have occasionally mentioned that I tend to carry around a copy of the Human Rights Act 1998 and the European convention, but when one reads the convention, it is amazingly prescient. It understands that rights can conflict and that things have to be resolved. That is not a new invention. We have not suddenly found that one right can trump another; we must have a basis for doing that. I am quite sensitive—I mentioned ministerial experience—to the worries of such double jeopardy. However, that must be balanced against the advantages of having a clear rubric for deciding in the court or tribunal of first instance.

The EHRC is rightly worried about the dangers of narrow and technical interpretations of equality legislation, some of which have been mentioned in Committee, notably the Malcolm judgment. I add the Amin judgment, which is earlier, from 1983, and excluded many public functions altogether, unless they mirrored a private function. There is also the interesting case of Redfearn, who was dismissed for being a member of the British National party.

In my layman’s language, what we are trying to do with the purposes clause is to provide a rubric. When a 50:50 issue is in court, it would be decided on the wider and more generous interpretation, rather than on the narrower and more limited interpretation. We hope that the underlying purposes clause would provide a ready opportunity to decide in the broader sense at first instance.

I begin to draw my remarks to a close. However, in my view, an even more important advantage is inherent in the idea of a purposes clause. In a way, that is where non-governmental organisations, such as the National Union of Students, have chimed in with their support. The Bill is intended to give effect to the principle of the right to equality. The hon. Member for Hornsey and Wood Green dealt with exactly the same issue in relation to the equality guarantee. We are looking at underpinning those rights.

Those principles are not confined to the United Kingdom, but are enshrined in international conventions to which the United Kingdom is a party, such as the United Nations convention on the rights of persons with disabilities, about which my hon. Friend the Member for Forest of Dean knows a great deal and which is one of the other equality strands. As I have mentioned, the European Union equality directives are already in place, particularly those on race and employment, and there is a growing body of jurisprudence, as well as legislation, to which we shall need to respond.

I am sure that the Solicitor-General is familiar with—it is her bedside reading—the case involving North Rhine-Westphalia and an individual before the European Court of Human Rights. The court not only adjudicated in the case but said that national Administrations must reflect the provisions of those directives in their national legislation and its interpretation. I hope that is a brief summary of that case. That has been the law, from recollection, since 1984.

We cannot get away from the fact that we have substantial international obligations that are likely to require a flexible and purpose-based approach, and nor should we want to. That is the point of what we want to do. In a way, we set out—the hon. Lady set it out differently—to state the right to equality and the concomitant human right to respect.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

This is not precisely on that point, but before the hon. Gentleman concludes his remarks, I wondered whether he would be likely to accept amendment (a), which uses the usual language?

Tim Boswell (Conservative, Daventry)

I need to reflect on that, and I shall do so in the light of the Solicitor-General’s recommendation. At the moment, I would be in favour of accepting it. We must remember that, mercifully, another place will look at this legislation, and we want to get it right. Given the genesis on mental capacity and the interest in another place in the idea of a purposes or principles clause, I hope that it will have a fair hearing. I was searching for a reference for the Committee, and I will now give it to the Solicitor-General. It was von Colson and Kamann v. Land Nordrhein-Westfalen, which reported in 1984. That is reaching out.

These are not loyalty issues, and nor should they be. They are issues for all of us in getting it right. It is worth repeating Dame Nuala O’Loan’s remark that such matters are the day job, and we have to get them right. The law must never be interpreted in such a way as to diverge from that. When looking at a purposes clause, I feel that the important parallel is with the European convention on human rights—that is a purposes or principles clause. That is set out very clearly, and the legislation is now incorporated, rightly or wrongly, into our statute.

Mark Harper (Conservative, Forest of Dean)

I have a question on how things might interact. My hon. Friend mentioned the European convention on human rights, which has been incorporated into British law by the Human Rights Act. That involves some of these issues. How does his purposes clause interact with that particular obligation, which is both international and in UK statute? It seems that some of the things that the hon. Lady has in her new clauses are similar to provisions in the Human Rights Act. How will the two pieces of legislation interact?

Tim Boswell (Conservative, Daventry)

I think that at the moment, if the Committee or Parliament saw fit to embody either the big group of new clauses that the hon. Lady has produced, or my smaller and more perfectly formed new clause 22, some general principles would be set out. In adjudicating, judges would have to have regard to those principles as well as to existing jurisprudence and the Human Rights Act.

I do not want to fall into the trap of being thought of as unable to see a distinction, but as we have debated in the Committee, there is a distinction between rights to equality—whatever that means—and the various kinds of rights, and human rights themselves. I do not seek to conflate the two, but it would be helpful to us and reassuring to the general public, who tend to see human rights as involving pettifogging lawyers helping terrorists to get let off, to start seeing that we need to embody much wider concerns. This has been a modest attempt to set out the principles with which we could go forward.

We are in a world where we need to establish those principles against the predominance of the state and the public authorities, We are also in a world where we have entered into several significant international commitments. That is no accident. The universal principles of decency and equality, which are certainly embodied by the Bill and are not confined to this country—and nor should they be—go wider than the law asserts. The new clause is an attempt to say that such things matter even more than the detailed provisions of all the clauses of the Bill. We need to say that that is where we start from and from where we operate all the time, and that that continues for the full life of the legislation in full force because such things really matter to us. It is for that reason that I tabled the new clause and I was pleased to do so. It is important that the Committee considers whether it is appropriate to add to the detailed provisions that will be set out in statute.

Mark Harper (Conservative, Forest of Dean)

I listened carefully to the hon. Lady and to my hon. Friend. A few questions arose from both their arguments, the first of which is general and which I touched on in my intervention. It concerns the debate about judicial activism and the extent to which having a purposes clause or an equality guarantee is likely to promote it or restrain it. I do not hold the view that the life of judges is activist in nature. They should interpret the law as Parliament intended and, if there is a doubt about it, they should consider it more narrowly. This is the place in which law should be made and, if we want to make wide-sweeping laws, we should decide that, not unelected judges.

However, I listened to my hon. Friend when he made the powerful point that, if we had an equality guarantee or a purposes clause, we might still get judicial activism, but it would be within defined boundaries and that those boundaries would be the ones that we define, rather than have judges who, if they decide that they do not like the legislation, can interpret it as widely as they want. There is a check on such action of judges in a lower court because obviously a judge in a higher court can restrain them and interpret the legislation more narrowly. I will consider what my hon. Friend said about such matters.

Turning to the new clauses tabled by the hon. Lady, I note that they are supported by the EHRC, which we should bear in mind. Subsection (3) of new clause 11 states:

“A public authority may not discriminate against anyone on any ground or combination of grounds”,

which is similar language to that used by my hon. Friend in the first part of subsection (1)(a) of his new clause 22, which states that

“The purposes of this Act are to promote equality by—

(a) preventing discrimination, harassment and victimisation on any of the grounds set out in this Act whether singly or in any combination”.

I mentioned that because it raises the issue of multiple discrimination that we discussed at considerable length last week. The purposes clauses highlight the clash between what we have decided to do and what a judge might decide. When we debated that, we discussed whether we could have multiple grounds of discrimination and whether there was a real wrong that we were trying to right.

The Solicitor-General said that the consultation carried out by the Government on multiple discrimination had demonstrated evidence of some real issues. She said that the consultation responses would be published this summer, so we could study them with care before the Bill was discussed on Report.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Gentleman raises an interesting and valid point. There might on the surface seem to be a contradiction between two types of discrimination and the plurality with no actual limit. However, the Solicitor-General accepted the view that, although no evidence has come to light to date, there might be some in the future—as yet unforeseen. The new clauses allow for that possibility in times to come. They would not set up a conflict because the intention is still clear in terms of the allowance of two claims of multiple discrimination as opposed to multiples thereof. Ultimately, they will allow for a judge to look back and see what the evidence has been thus far.

Mark Harper (Conservative, Forest of Dean)

The hon. Lady makes an interesting point, but it does not help her case if she has the same view, which I suspect she does not, about judicial activism. If we had either of the new clauses in the Bill, it would enable a judge to widen its scope. We spent quite a long time listening to the Minister carefully, and debating whether it was proportionate to allow discrimination cases to be brought on more than one ground. I put on the record some of the concerns that were expressed in the consultation by the business community—including the British Chambers of Commerce—about the size of the wrong that was trying to be righted, and whether having dual discrimination was a proportionate response.

We spent quite a long time debating that matter, and the Committee came to a view—the House will be asked to do the same on Report before it goes to the other place. We made a decision, but both new clauses could change that decision by allowing a combination of grounds. Even if one argues that they would not change it now, they would allow a judge to come to a view different from the one decided by this House. That is certainly not something that I want to do. I want to ensure that it is Parliament that decides the proper scope of the matter, and weighs up the costs that we are imposing on businesses and other organisations against the wrong that we are trying to right.

Tim Boswell (Conservative, Daventry)

Leaving aside the separate issue about what I might call creeping jurisprudence and whether things stay the same in the future—I am not necessarily talking about judge-made laws here or in Europe—does my hon. Friend accept that, if one has a clear statement of purposes, at least a judge is entitled to look at whether or not it functionally happened? While he is quite right to express some entirely proper concerns about the role of Parliament in the matter and the concerns that businesses may have expressed, which again are legitimate, being able to say, “The outcome was fair enough” may be, in itself, a defence against some procedural issue, which only too often characterises the work of employment tribunals. In other words, if the answer is fair, the route to get it is not necessarily disreputable.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend makes a good point. Both of the approaches would at least mean that a court would not be frustrated in a case where it thought the right thing to do was to allow something, but it was being constrained by the narrowness of the law. Although everyone else agreed with them, it would say, “This would be the right thing to do, but our hands are tied.” I can see the argument in that case, but having debated some of the detail—we had to balance those issues when we debated a number of clauses, recognising that some of the rights conflict—it seems that the beginning of both new clauses would immediately set out a general power, which could be used to override some of that careful balancing of interest that we have weighed up. That is one of my concerns, which I am a little nervous about.

John Mason (Scottish National Party, Glasgow East)

I wonder whether the hon. Gentleman is slightly overstating his concern. New clause 11 states

“any ground or combination of grounds”,

which can be interpreted as two or whatever—it seems to me that it can be interpreted as two, which is what the Bill specifically states, but I stand to be corrected on that point. When we discussed the issue, a lot of the discussion was around the practical issues of bringing three, four or more protected characteristics in one case. It is still a desire of this Committee, and hopefully, of Parliament, that all the elements of discrimination are looked at. Does he accept that it is a good balance to have the two in place, which do not contradict each other?

Mark Harper (Conservative, Forest of Dean)

I listened to the hon. Gentleman carefully. I heard, from a sedentary position, from the array of legal talent facing me, that the problem with what he said arose when he said “two or whatever”. The problem is “whatever” can mean lots of them. If we are going to give organisations and businesses some certainty about what we have passed and put into law, saying “two or whatever” is the problem. Both the new clauses allow any number of grounds of discrimination to be put together. We discussed that in Committee in detail. The Minister set out powerfully that if we allowed all the protected characteristics to be used together there would be a huge number of potential combinations and complexities.

The point of the Bill is to simplify, bring together and treat consistently all the different pieces of discrimination legislation, and to try to make them simpler and more straightforward. As soon as we put one of these new clauses in and allow the interpretation of judges to be a lot wider and more flexible, the Bill will start to look more complicated. The problem is that the complexity militates against the Bill’s effectiveness.

John Mason (Scottish National Party, Glasgow East)

I used the words “two or whatever”. The new clause does not go into that detail, but in the rest of the Bill we are clearly talking about two protected characteristics. The new clause would not in any way overrule the “two” that has been decided. Again, we will hear what the Solicitor-General has to say.

Mark Harper (Conservative, Forest of Dean)

The hon. Gentleman makes a point. He is saying that the whole point of including a purpose clause, or an equality guarantee, as we heard from the hon. Member for Hornsey and Wood Green and my hon. Friend the Member for Daventry, is to give a judge a set of ways to interpret the Bill. That is supposed to trump some of the narrowness in the detail.

If a clause was set up at the beginning—new clause 11 or new clause 22—stating that any combination of the grounds could be used and a more specific clause was then introduced, such as the Minister’s new clause 26 on dual discrimination, stating that only two could be used, there would be two incompatible clauses in the same Act of Parliament.

If I were a judge trying to interpret those provisions, would I look at the specific new clause 26, where Parliament had set out its view clearly, or should I look at new clause 22 or new clause 11 and say, “No, I can look at all the grounds”? That is not helpful; it is confusing, it would put judges in a difficult position and ultimately it would let them second-guess decisions of the House.

John Mason (Scottish National Party, Glasgow East)

I do not want to keep intervening, but I appreciate the hon. Gentleman giving way again. Using the word “trump” was a little unfair, because I do not think that either the hon. Member for Daventry or the hon. Member for Hornsey and Wood Green used it or were even suggesting that concept. The concept that they were painting was much more that there might be cracks and that the new clause would help to fill in those cracks and prevent people from falling into them. The word “trump” was not the concept.

Mark Harper (Conservative, Forest of Dean)

I take the hon. Gentleman’s point, but there may well be people who feel that they have been discriminated against, harassed or victimised because of a combination of three protected characteristics. We debated last week the fact that people will not be able to bring a claim on three grounds together. If they were looking at purposes, they could bring such a claim and it would be up to a judge to decide in each particular case. It may be desirable to do that. From what I have said about judicial activism, I would rather that judges were a little more constrained and had to stick more closely to what Parliament decided, rather than to what they felt was appropriate in the case.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am not sure that new clause 11 says that. It says

“or combination of grounds such as”,

and gives a whole list. It does not say that there could be more and does not quantify in any way. If the Bill is quantifying this at two, the judge will look to that as being the determination. The new clause is offering any combination of grounds and giving an example of all the grounds that might be combined within the number of two.

Mark Harper (Conservative, Forest of Dean)

I thank the hon. Lady for that point, but the fact that the new clause is not clear is a problem. On my reading of the new clause, it would at least open up the possibility of having that argument. An organisation looking at this might think it entirely likely that someone will bring a claim and people will start practising defensive behaviours to avoid having the claim. That is my only point; I did not want to spend quite so long on this.

John Howell (Conservative, Henley)

Does my hon. Friend accept a distinction that is beginning to emerge in my mind over this? One might get the purpose clause right and it might reflect what is already in the Bill. That is possible, but it contrasts considerably with an equality guarantee, which seems to go much wider than the Bill. The EHRC briefing, which he will have seen, says that other legislation would also need to be interpreted by courts compatibly with the equality guarantee. If the equality guarantee is so important, it should be in separate legislation, not tacked on to the Bill.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend makes a good point. I will come on to the comparisons between the way the hon. Member for Hornsey and Wood Green has gone about this and the way the Human Rights Act 1998 works. My hon. Friend touches on an important point.

When my hon. Friend the Member for Daventry was running through his new clause 22, he made the point that it was designed to help judges to interpret the rest of the Bill and ensure that they were not constrained narrowly, and perhaps be made by the Bill’s drafting to do something that they did not think would have the right outcomes for the purposes of justice. To the extent that the new clause is about making clear the purposes of the Act to ensure that the Act, as stated, would be read in that way, I am a little more content with it. I think that my hon. Friend the Member for Henley is right to say that the equality guarantee goes wider, and I think that it is akin to the Human Rights Act. He has pointed out a valuable distinction.

Tim Boswell (Conservative, Daventry)

May I say, as it were, tripartitely, that I again have considerable sympathy with the comments made by our hon. Friend the Member for Henley? In relation to the judicial process, perhaps I should admit to the Committee—he might be interested to know—that in my brief and very inglorious time as a member of a tribunal, as a lay empanelled flanker to the legal chairman, I always tried to operate on the basis of what was the right thing to do and whether we could make the law fit with it.

When I have had discussions with other, more distinguished persons, including judges, there has been a tendency for them to agree with that approach. They would really like to do the right thing and do not want to feel that the statute is unduly restrictive in pursuing that. That is perhaps an underlying motive in my purpose new clause.

Mark Harper (Conservative, Forest of Dean)

I am grateful to my hon. Friend for that intervention. What he has just outlined, if I think back to the brief legal training that I did as part of my professional training, sounds like the Denning doctrine of trying to do justice and fluxing the law to enable that to be done. I would not want to put myself up against a historical legal mind such as that.

Let me move away from new clause 11 to new clause 12, on interpretation of legislation. Looking at the next few new clauses, I was struck by—I think the hon. Member for Hornsey and Wood Green referred to this—the similarities to and the differences from the Human Rights Act. I want to probe her on something and she can either intervene or come back to me when she winds up the debate.

Subsection (2)(b) is obviously comforting, because if a judge decided that legislation was incompatible with the equality guarantee that would not affect the validity of the primary legislation. A declaration of incompatibility could be made, as can be done with the Human Rights Act, but it would still fall to Parliament to change that primary legislation. I think that that is right.

I want to probe subsection (2)(c), which says that the provision

“does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if... primary legislation prevents removal of the incompatibility.”

I want to check whether that is exactly the same as the provision in the Human Rights Act or slightly different. I looked at the chart on page 8 of the guide to the Human Rights Act. There is a useful little flow chart on how it works and it makes the point that subordinate legislation could be disapplied or quashed unless it was inevitably incompatible. I was not sure whether that was the same as what we are discussing.

The hon. Member for Hornsey and Wood Green will know that my party wants to repeal the Human Rights Act and replace it with a different formulation that we think would work better. However, I do not want to get into that now and I am sure that you, Lady Winterton, would not let me. When the hon. Member for Hornsey and Wood Green makes her winding-up speech or intervenes on me, will she say whether new clause 12 would operate in the same way as the Human Rights Act?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I cannot give the hon. Gentleman an answer off the top of my head because I do not have the comparator here, but it is meant to operate in a similar way. Perhaps I can come back to him on that.

Mark Harper (Conservative, Forest of Dean)

I am grateful to the hon. Lady for that intervention. I am not clear about the matter, but I will wait until the end of the debate to give her a chance to explain. Perhaps the Solicitor-General, with the legal resources at her disposal, will fill the Committee in when she runs through her analysis of the new clauses and tell us whether the Government are minded to accept them.

I would like to raise one issue in relation to new clause 14, which refers to public authorities. Again, I wonder whether the hon. Member for Hornsey and Wood Green has covered this. I hope that the Committee will forgive me for not having the provisions of the Human Rights Act in front of me. The hon. Lady knows that there is real issue with the definition of public authorities in the Act and that that matter has taxed the Joint Committee on Human Rights in this Parliament. Last Friday, the hon. Member for Hendon (Mr. Dismore) was debating the issue on Second Reading of his private Member’s Bill. He considered the definition of public authorities, and specifically whether private care homes fall within the definition of public authorities.

I have one question for the hon. Member for Hornsey and Wood Green. Will she say whether the definition of public authorities in her new clause 14 is the same as the one in the Human Rights Act? If it is, will it not fall foul of the same problem? By that I mean that there may be things that the House intended to cover, but did not. Moreover, would her equality guarantee in new clause 11, or the purpose clause tabled by my hon. Friend the Member for Daventry, mean that if a court was reading that definition of public authorities, it would change how it was interpreted—perhaps to avoid the problem that has exercised the hon. Member for Hendon and his Committee, which I know has been concerned about those subjects?

My final point concerns new clauses 16 and 17 on proceedings and the power to take remedial action. I wonder why the hon. Member for Hornsey and Wood Green has used provisions from the Human Rights Act, particularly on the power to take remedial action, when the legislation is declared incompatible with that Act. I think that I am right in saying that it gives Ministers the power to make orders to bring secondary legislation into line with the Act. Why would the hon. Lady effectively allow those provisions in the Human Rights Act to take effect, rather than defining new provisions? Is there some clever legal reason for doing that and for not going for a new power?

Given my party’s view on replacing the Human Rights Act and doing things differently, I am concerned that if the Committee tied those two together and decided to support the hon. Lady’s new clauses things would start to go horribly wrong if we then changed the Human Rights Act.

My hon. Friend the Member for Daventry made a stronger case. Picking up the point made by my hon. Friend the Member for Henley, I am more comfortable about a purpose clause, which effectively would give judges some extra rules or some guidance on how to read the Bill. My hon. Friend the Member for Daventry put his finger on the point when he talked about the new clauses tabled by the hon. Member for Hornsey and Wood Green. I am much less convinced by an equality guarantee because it goes much further and is the sort of thing that one would expect to see in an Act of its own. Moreover, it could override the detail in the rest of the Bill.

We have spent a considerable time in debate and are now in the home strait of consideration of this considerable Bill, but it seems that popping these innocuous-sounding new clauses in at the end means that we need not have bothered to debate the Bill because we could have passed these very broad guarantees and handed the matter over to the judges.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That is really egging it. The new clause would give an equality in terms of the Human Rights Act. There is an overarching equality guarantee, exactly as it says, but it would not remove any of the power of the Bill. The Bill dispenses the equality measures in that Act and the new clause would simply add to it in an overarching sense, and that is its importance.

The hon. Member for Forest of Dean is right to say that the new clause provides a different and broader equality guarantee than the purpose clause, which is more directly and narrowly focused on the functions of the Bill. However, the Equality and Human Rights Commission feels that the new clause would be a necessary addition to the Bill, and obviously on the Liberal Democrat Benches we agree.

Mark Harper (Conservative, Forest of Dean)

I am grateful for the hon. Lady’s intervention. I obviously did not make myself clear. I was not suggesting that her guarantee negated what was in the Bill, or struck down some of the provisions that we have discussed. My concern is actually the opposite. We have gone through the Bill at length, and there has been careful balancing by the Government when they introduced provisions and by members of the Committee when we disagreed with some of them. We have been arguing about the effectiveness of what has been proposed, and also the balance. The hon. Member for Oxford, West and Abingdon spoke at length about the clash between different kinds of rights, and we listened at great length to that debate. Members on both sides have participated in it and have weighed up the arguments.

After that careful analysis and debate whereby Parliament works out where the balance should lie, and after all that careful weighing up and setting out of what we think the right answers are and where the balance lies, putting in that broad equality guarantee at the beginning would, in effect, say to a judge, actually, there is an overarching equality guarantee—the hon. Lady’s very words. If a judge were so minded, he could put to one side all the careful debate and argument that we have had, insert his or her interpretation and override the clauses as drafted. That gives too much power to judges and takes power away from the House, which is where it should properly stay.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I want to intervene.

Mark Harper (Conservative, Forest of Dean)

I have sat down.

Vera Baird (Labour, Redcar)

I do not know whether the hon. Lady wants to intervene on me at this point. I intend to be helpful.

New clauses 11 to 17 and the equality guarantee model derive a good deal from the Human Rights Act, as the hon. Gentleman said. Indeed, it appears that all of them are drawn to some extent from the Act, save perhaps subsection (2) of new clause 11, which may come from the South African constitution. Let me first go through how the clauses fit together to demonstrate how difficult it would be to get an equality guarantee that has the right effect and avoids unintended consequences.

New clause 11 in subsection (1) refers to

“the fundamental rights and freedoms set out in subsections (2) to (4)”,

but subsection (4) is the power of a public authority to ignore subsections (2) and (3) about the purpose of ameliorating disadvantage. Subsection (4) is most certainly not a right or freedom, and nor is subsection (3).

Looking speedily at how the new clauses are composed, they do not work at all. Subsection (3) would prohibit public authorities from discriminating on a broad range of grounds. This point may have been made while I was briefly out of the Committee: the range of grounds goes way beyond the protected characteristics set out in the Bill.

Mark Harper (Conservative, Forest of Dean)

For the avoidance of doubt, I made the argument that there could be many more than two, and that the new clause therefore ran counter to our discussion last week about multi-discrimination, but I did not get to the fact that it contains a much wider list of characteristics, which the Solicitor-General highlighted.

Vera Baird (Labour, Redcar)

I heard the hon. Gentleman, and I thought he made an effective argument about the contrast between what we defined as appropriate for going forward and some general view about filling in the gaps that people might fall through, and how the concepts might clash.

However, I did not hear anyone make the point that, of course, all new clause 11(3) says is:

“A public authority may not discriminate against anyone on any ground or combination of grounds such as”.

I will mention a few hair-raising examples of what might apply if that is agreed to. Interestingly, subsection (4) would wipe out the duty not to discriminate if the public authority is about the purpose of ameliorating disadvantage. Presumably that is a licence—is it?—to discriminate on the basis of colour to alleviate the disadvantage of a different-coloured group. Although the proposal is no doubt well-intentioned, its unintended consequences are likely to be significant.

In respect of new clause 11(3), which mentions any combination of grounds, what are we talking about? The words,

“such as colour, race, nationality, ethnic or national origin, language, gender identity, sex, sexual orientation, disability, religion or belief, and age”,

will not confine any grounds significantly, because they are interpretable themselves, of course, in a wide range of ways. For instance, in respect of “colour”, which is an aspect of personal appearance, why would it not be possible to find that there was a ground against which people could not be discriminated against for having a particular hair colour, which is another aspect of personal appearance, or for being bald? If one goes along with the words

“such as...religion or belief”,

why could there not be discrimination wrapped up in that in respect of political affiliation? What if somebody had a criminal conviction, say, or what if height or weight were at issue? The list that tries to confine the ambit of subsection (3) is non-exhaustive and does not confine it at all.

Committee members can just imagine—this is the best I could come up with quickly—a question arising about whether there was indirect discrimination on the basis of a provision criterion or practice that not necessarily deliberately, but inadvertently, discriminated against someone on the ground that they were bald. We really are getting into deep, extraordinary and obscure water, and we have only reached new clause 11 so far. What about discrimination on the ground that somebody is very tedious? That is probably another ground that we could examine with interest.

New clause 12, like section 3 of the Human Rights Act, would require primary and secondary legislation to be interpreted by the courts in a way that is compatible with the right to equality, but that right, as I have just said, is a wide one and includes equality on any old basis whatever that links in any way to any of the strands set out in new clause 11.

New clause 14 would make it unlawful for public authorities, including courts and tribunals and any person certain of whose functions are of a public nature, to act in a way incompatible with this massive and broad-ranging right to equality. The proposed new clause differs from the approach in the Human Rights Act because it contains a non-exhaustive list of factors to be taken into account when determining whether a function is a function of a public nature. We would have two different definitions of what a public function was: one in the Human Rights Act and this one, even though, as the hon. Member for Henley has said, the proposed new clause is an equality guarantee that goes way beyond the four corners of the Bill. So the Human Rights Act test of a public function and a public body would be applicable to all the Bills in the country and a different definition of such a function would be applicable to all those Bills, too. I cannot see that that will help anyone.

New clause 15 would require a Minister to make a written statement that the Bill is compatible with the right to equality. I would find that extremely difficult to do, for the reasons that I have set out.

As the hon. Member for Forest of Dean said, new clause 16 would, unlike the rest of the proposed new clauses, apply particular sections of the Human Rights Act. Under new clause 14 a completely different test would be set up from that in the HRA, but under new clause 16 that Act would be applied.

The Government understand the thinking behind the proposal and believe that securing equality’s place at the highest level of political principle is an aim worth pursuing. As I told the Joint Committee on Human Rights a couple of weeks ago, the Government are considering a statement of equality as part of the consultation on the Green Paper “Rights and responsibilities: developing our constitutional framework”, which was published in March. The Green Paper proposes that any such statement of equality would be accessible and straightforward, and should embody a central place in UK society. It would be constitutional provision, though “accessible and straightforward” would be its watchwords. This specific, strand-based, discrimination-oriented Bill is not the place to deal with constitutional principles of that kind.

Careful thought is necessary about whether such a statement could be justiciable in the way that the equality guarantee is clearly intended to be. We would have to work out carefully what impact anything with legal effect would have on the obligations imposed and rights given by discrimination law. Otherwise, we would just create levels of uncertainty.

It is not clear what the equality guarantee would add, although I know what the hon. Lady intends it to add. Domestic anti-discrimination legislation has been operating reasonably adequately, if not perfectly, for 40 years. As we have gone along, we have built in new strands and new areas of coverage, such as the public sector duty, for instance. The evolution of anti-discrimination law has been positive, and the Bill builds on it. It is difficult to see what the new clauses would add.

There is a wider question about the basis on which equality or anti-discrimination legislation ought to rest. I do not deny for a moment that the framework for the basis of human rights and equality can still be discussed. Usually, people who want equality guarantees are interested in widening the basis of equality legislation so that it is closer to human rights law. We would have to work out how widening that basis would interact with EU legislation, which is strand-based like our own. Indeed, as recently as the discrimination law review, the Government asked the public and considered the question. We found no point in changing the current basis, and a danger of consequential burdens and unintended outcomes. We have recently considered a different basis publicly and have concluded that the right way forward for the purposes of the Bill is the Bill.

The basic proposition in clause 11 is in clause 11(2):

“Everyone is equal before the law”.

That requires us to know what equality means. It is not defined anywhere. One might say that it is self-evident, but it is not. As John Schaar said in “Equality of Opportunity, and Beyond”, it is

“one of that genre of words that...have both a vague conceptual meaning and a rich emotive meaning”, with the conceptual meaning “subject to constant redefinition”.

Many jurisdictions with written constitutions have equality, but in no two jurisdictions that we have looked at are the meaning or effect of a constitutional provision precisely the same.

Concepts of equality are usually thought of as being on a continuum between formal equality, which is the idea that like situations should be treated alike, and substantive equality, which means that far from being blind to differences, the law focuses on them, thereby requiring, or at least allowing, treatment that runs directly contrary to the formal notion of equality by driving positive action forward. A good example of substantive equality is found in South Africa, from which part of the new clause seems to be derived. In that jurisdiction, positive discrimination, for understandable reasons, is actively required in certain circumstances.

One of the key areas of debate on an equality provision in the context of the bill of rights will no doubt concern what we mean by equality and where on the continuum any British statement of equality should lie. Our position is fundamentally different from South Africa’s. Would we want equality to be defined in the same way? It is not defined at all in the guarantee, so we would not know its reach, as I said, into baldness or having red hair—or indeed, false red hair—or where it would go.

There is also the important point, which I do not need to set out extensively as the hon. Member for Forest of Dean put his finger on it, that we would have to be careful to ensure that the equality right did not cut across specific provisions in discrimination legislation. We have spent a good deal of time on the Government’s attempts to strike a balance, which we believe we have got in the right place, between sensitive matters such as the rights of people with a religion or belief, and the rights of gay, transsexual and lesbian people. How would those delicate balances be affected by the superimposition of this undefined concept of equality?

Mark Harper (Conservative, Forest of Dean)

It is not just a case of how the balance would be struck. As I said, the important point is who does the balancing. I would rather that this place weighed up the issues that the Committee has discussed at length and strike that balance for the public. The problem with the new clause is that it effectively throws that balance over to a judge and, with the greatest respect to our judges, I do not think that they are in the best position to make that judgment. It is for Parliament to make those difficult decisions, as we have done in our debates on the Bill.

Vera Baird (Labour, Redcar)

I completely agree, and I would have gone on briefly to say the same thing. It is not only about filling in the cracks in some undefined way, but about who defines where the cracks are and who decides how to fill them.

Suppose we get a situation in which we have said that multiple discrimination is best called dual discrimination and it is confined to two characteristics, and a judge perceives that there is a crack through which somebody with four characteristics has fallen in terms of discrimination and uses the right to equality across the board to put that right. The whole of business and the whole Government would be running on the basis that we had legislated for two sorts of discrimination, when suddenly the courts say, “Actually, ha ha, you are wrong; there are now four sorts.” They would have seen a crack that needed to be filled in with this polyfilla equality guarantee.

Then, of course, there would have to be the equality guarantee versus European law, as the directives are also based on equality strands. A tribunal would have to interpret our legislation, including any equality right, in the light of those directives. An equality right of the kind in South Africa, which allows or requires positive discrimination, would run up against several requirements of European law that effectively prohibit positive discrimination in relation to the majority of protected characteristics. We might find that strand-based European law would cover some of those things and block positive discrimination, but it might not cover baldness, so that people could positively discriminate happily in favour of the bald or the red-haired.

I hope that, not in an unkind way, I have pointed out the difficulties. We do not think that anything would be gained by the provision except for uncertainty and complexity. I remind the Committee that it took the Canadian courts about a decade and a half to get to grips with their constitution equality provision, and they did not have to make it work in line with the European law framework or with convention rights.

The hon. Member for Forest of Dean made the powerful point that there would be a further ceding of power and the right to make such decisions away from Parliament in the direction of the courts. The whole procedure of a declaration of incompatibility makes a justifiable move in that direction. However, a further significant shift of decision-making power away from Parliament would have to be addressed in the context of a constitutional debate—if it is to be addressed at all—and not in the four corners of what is basically a strand-based Bill against discrimination. We should be using the Bill to advance practical equality as we have given effect to it in the Committee, building on the draftsmen’s work before us.

On the purpose clause tabled by the hon. Member for Daventry, we share a common objective of clarity and certainty. However, we do not think that a purpose clause will have that effect. In 2004, the then First Parliamentary Counsel, Sir Geoffrey Bowman, set out before the House of Lords Select Committee on the Constitution three key reasons why purpose clauses are extremely rare.

First, it is not easy to express a purpose in a few words without turning it into mere pious incantation. Secondly, and crucially, the general purpose provisions risk conflicting with the specific provisions of the Bill. Often, the intention is to state essentially the same thing in different words, but a court may potentially view it as meaning something different, otherwise why have such a provision in the Bill in the first place? Thirdly, even if there is no direct conflict, the relationship between the specific provisions and the general purpose is not clear.

Tim Boswell (Conservative, Daventry)

I am grateful to the Solicitor-General for reminding the Committee of those interesting and authoritative strictures. However, have there been any cases in practice where, whether in a fit of inadvertence or otherwise, we have strayed into accepting a purpose clause? Has such a clause ever done any judicial harm or created difficulty in practice?

Vera Baird (Labour, Redcar)

I will come to that, but such clauses would have been accepted on a different basis from that on which the hon. Gentleman put forward certain statutory provisions, none of which we accept are purpose clauses.

Sir Geoffrey cited an example from one of our tax statutes, which states:

“This section is enacted to prevent the avoidance of tax.”

That sounds straightforward and is a good purpose for a piece of tax legislation to offer. Sir Geoffrey noted that, despite judicial expressions of opinion on that, nobody is clear about what those words do. Some people and judges say that they do nothing, while others say that they do something, but they are not quite sure what. That is not a position that we want to get into on an issue as complex and multifaceted as equality. Sir Geoffrey’s points make clear that the overall effect of a purpose clause would be to add uncertainty, which would lead to practical difficulties for individuals, employers and service providers, and to litigation.

The provision in the Children Act 1989 is not a purpose clause. It imposes a duty on the court to make the welfare of the child paramount, but it does not offer an interpretative tool through which the rest of the statute must be seen. Likewise, section 3 of the Equality Act 2006 imposes a general duty on the Equality and Human Rights Commission, which has found it useful. It is not, however, a recipe for interpreting the rest of the Act; its sole purpose is to impose the nature of the duty on the commission. The provision in the Crime and Disorder Act 1998 is also often cited, but it adds nothing of substance. We do not therefore acknowledge that there is a trouble-free zone around purpose clauses. It is significant that there are no purpose clauses, which are a recipe for potential problems.

I dealt with much of the concept of equality when I talked about the equality guarantee suggested by the hon. Member for Hornsey and Wood Green, but it would be worth, by way of headlines, citing specific problems with the purpose clause.

Mark Harper (Conservative, Forest of Dean)

The expressed reason for the purpose clause is to help with judicial interpretation. The short interpretation section in clause 199 is similar to that in other Bills in that it defines certain expressions and words. Is there any merit in focusing on, and making improvements to, a Bill’s interpretation section, or are certainty, consistency and scope to be made clear to judges by the way in which a Bill’s individual clauses are drafted?

Vera Baird (Labour, Redcar)

I think that it is the latter and that the interpretation section is about particular terminology in the Bill. It is not an attempt to offer a distant prism through which to view the whole legislation. The concepts are different, and I am not aware of any shortcomings in the interpretation sections, or whether anyone believes that there should be more, better or different interpretation sections. No amendments have been tabled, but we remain open to suggestions.

Tim Boswell (Conservative, Daventry)

To follow on from the point made by my hon. Friend the Member for Forest of Dean, I sense how the Solicitor-General’s argument is going. Will she accept that, if nothing else, it is important that she gives some thought—I suspect that she will do so anyway—to the training and comparative studies of judges in this area? There is no doubt that we have a commonality of purpose in trying to move the matter forward. There may be some difference between us on whether the Bill is the appropriate vehicle to do so, but the Government should address the wider picture in forming their judgment.

Vera Baird (Labour, Redcar)

I am sure that there is bound to be Judicial Studies Board training on the impact of the new legislation and its purpose, and what we have said about its inclusive nature and intention are bound to resonate in that training. None the less, it will be necessary to interpret particular provisions according to the words in the legislation. That is our tradition, and it is a system that works well by and large.

I understood the concerns about Amin, the recent concern about Malcolm, over-narrow interpretations, the YL case and the Leonard Cheshire case about public authorities. Do we throw over to the courts—that is what the hon. Gentleman wants to do—for the sake of trying to remove what I would consider to be over-narrow rather than legalistic interpretations, the massive ability to have some sort of overarching prism through which to look at the Bill? It will be an individualised prism, according to how the judge looks through it. Do we leave the cracks to be filled by the judiciary? The balance could produce unfortunate results. We do not foresee real difficulties with such cases. If over-narrow interpretation undermined the purpose of any clauses, legislation would be required.

I sense that the hon. Gentleman is a little more content, and that he will perhaps not press his case to the bitter end because he appreciates the two options and puts them together coherently with the suggestion of training for judges. I will not trouble the Committee with all the examples that I was going to give of where the new clause would cause difficulty, except one, which makes the point for all of them. Sub-section (1)(e) of new clause 22 refers to human dignity, which is obviously part of the philosophical basis on which equality is founded, but what does that concept add? The Canadian academic, Reaume, said:

“Dignity is said to be vague to the point of vacuousness and, therefore too easily useable to dress up decisions based on nothing more than conservative gut reaction or excessive deference to Parliament. Recent cases”—

that is, Canadian ones—

“might be thought to bear out this criticism”—

as might some of our recent cases. Dignity

“can be used as an empty place-holder for...less presentable reasons for finding for or refusing to find a violation of equality.”

That is a telling quote, but my worry about the provision is that in seeking to bring a formalised, dignity-based approach to equality by the back door, there would be a loss of clarity. Those who favour a dignity-based approach to discrimination run the danger of seeking to fill a gap with a concept of dubious merit or additional value. Would human dignity, for example, be undercut by measures aimed at preventing systemic discrimination in the context of positive action? That might need to be qualified with a view to it fostering good relations—another aspect of the Bill—and the need not to discriminate. If we have those loose concepts thrown into the mix, it does not add anything. It makes for a very complicated attempt to balance and we are balancing generalities; the Bill is really about specifics.

Tim Boswell (Conservative, Daventry)

While not having finally taken my tanks off the lawn yet, will the Minister at least—having dangled before us the prospect of a full revelatory account of all the concerns she has about the purpose of the new clause—indicate that that concern about the human dignity, described by her as a somewhat vacuous concept, is perhaps the greatest of her objections to it? I am trying to get an idea of the hierarchy of concerns that she has established on the various points.

Vera Baird (Labour, Redcar)

I think that that is where it descends—I say this without the slightest disrespect—into the apotheosis of the hon. Gentleman’s vagueness. That is the worst aspect of it, but it is really intended less to demonstrate that and more to exemplify the difficulties to which lots and lots of those concepts, which the new clause would require to interact, would give rise. It would just give an extra layer of foggy concept over the top of provisions that the judiciary are perfectly capable, in my view, of interpreting in a positive way and have been fairly successful in doing so over the past few years, with the few exceptions that the hon. Gentleman quoted. However, they are not enough in my summation to justify that kind of thing.

Tim Boswell (Conservative, Daventry)

I mentioned a number of things about the international aspects, compliance with international conventions and, possibly, developing jurisprudence. Does the Minister see any merit for at least being able to accommodate those things where they go beyond the immediate statute of the Equality Bill? How are we going to cope with them in future?

Vera Baird (Labour, Redcar)

I might have missed the essence of the hon. Gentleman’s point, but as far as moving legislation in the UK forward to match European jurisprudence, there is the clause 2(2) provision that we have already discussed, and on which we, with the hon. Gentleman’s support, will rely. If I have missed a further point about that, I apologise and will write to him. However, I took no more from what he said than that.

I hope that I have convinced the hon. Gentleman and the hon. Lady that the new clauses will not help us to have a positive interpretation. They are capable of being counterproductive and they do not significantly add anything to the Bill except the opportunity for confusion. I invite them not press the new clauses to a Division.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am left in no doubt that the Minister is not keen on including the equality guarantee in the Bill. I will reflect on what she says. Clearly, I need to have another look at the wording and compatibility to see where it is the same as the European convention on human rights and where it differs. That might be a valid point. However, the Minister has not really addressed the harm that was done by the Malcolm case. I think that whether it is by purpose clause or the equality guarantee, it is a real and live issue.

Mark Harper (Conservative, Forest of Dean)

I was listening to the Minister carefully. I think that she did deal with that issue. If there are cases—there have not been many—where judges interpret that provision very narrowly, as they did in the Malcolm case, the solution is for this Parliament to legislate specifically to deal with it, as we have done in the Bill. That is the better solution than allowing judges to roam more widely and make law more widely than this Parliament intends.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am not sure that I was trying to allow them the leeway to roam more widely. I was trying to narrow their guidance within a defined framework. We will just have to disagree on that. What has been given voice to is a genuine underlying concern about such issues and also the fact that the Bill may miss a unique opportunity to engage with equality in the wider sense. Perhaps the overarching comment about the Bill is that it is confined to the specifics and the precise. How often does an Equality Bill come along? The equality guarantee is an attempt to reach for a wider and higher definition, and to give people the security to feel that they will be protected, whether or not the specifics have in any way omitted or misinterpreted that policy.

Vera Baird (Labour, Redcar)

What about the baldness point and the idea that the hon. Lady would extend the reach of equality law way beyond the specifics, to any characteristic under subsection (2) of new clause 11?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

When the hon. Member for Forest of Dean intervened, he spoke about grounds or combinations of grounds, such as colour and race. My reading of that is that it could still be interpreted as such and would not contradict the idea of two being the number of the multiple discrimination, and any combination thereof. However, I will reflect on what the Solicitor-General said. I do not deny that the new clause might broaden the law. Indeed, that is part of the purpose of the equality guarantee. It would greatly strengthen people if they were covered by it and equal before the law. I shall reflect on the new clause because something is still missing from the Bill, which could be provided by a similar provision.

Tim Boswell (Conservative, Daventry)

On a point of order, Lady Winterton. Before we consider this specific new clause, I spoke earlier of my intention to press new clause 22 to a Division. I am not entirely convinced by the Solicitor-General’s deployment of her arguments, although she did it very clearly. I remain something of a sceptic, but at a somewhat higher level. There will be other opportunities in the consideration of the Bill, so I am not minded to press my new clause to a Division at this stage.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to ask leave to withdraw the motion.

New Clause 20

David Drew (Labour, Stroud)

I beg to move, That the clause be read a Second time.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss new clause 21—Employees and applicants: prohibited pre-employment inquiries—

‘An employer (A) must not subject a disabled job applicant (B) to prohibited employment inquiries.’.

David Drew (Labour, Stroud)

I am aware of the time, so I shall speed on with the two new clauses.

We debated amendments tabled by the official Opposition and the Liberal Democrats to clause 36. In response, the Solicitor-General basically said three things, the first of which related to the key area of informal discrimination in pre-employment inquiries, and how it would be difficult to enforce that practically. That was the view of many in the personnel sector. They thought that it would be an onerous undertaking to monitor.

The second response was that those who felt that they were being informally discriminated against could subsequently take action, although it was unclear how that could be taken and how much could be done in that regard. My hon. and learned Friend’s third response, which she may come back to, was that research is being undertaken. The matter was only debated on 18 June, and I do not know whether the research has found its way through to her before it comes to the Committee. However, there is research into whether such a policy would aid attitudes towards disability and help those who feel that they have been discriminated against.

I come to the matter with a clear constituency perspective. I well remember a woman who had faced a breakdown and had lost her job with the police authority. She felt strongly that what had happened to her was a clear case of discrimination. More particularly, when applying for subsequent jobs, future employers demanded to know why she had left the police authority’s employment. She felt that she was unable to get a job in the public sector because of her original mental health problems and because the police authority had, to my mind, sacked her. She had to disclose that information.

There is a wide range of support for the new clauses. Clearly the commission is minded to support them, and we have the support of Rethink, the Terrence Higgins Trust, the National Aids Trust and the Royal National Institute for Deaf People. The Sainsbury centre for mental health, the Employers Forum on Disability and Mind have gone on record to say that there is a problem. I know that the Minister was sympathetic to the matter, but felt that it was not possible to legislate on it. However, if we are to make a difference on such an important aspect of disability discrimination, we need assurances that things can be taken forward.

I make no apology for bringing the matter back in the even clearer form of the new clauses. The question is whether it can be done. I ask the Minister to assure us on that. If she cannot do that now, can we have some clarity on Report? I know that members of the Committee will know that other national jurisdictions have legislated on this matter. The groups that I mentioned have said that there is similar legislation—as indeed there was in relation to amendments to clause 36—in some European countries. Spain, France, Italy, Belgium, Portugal and the Netherlands have already legislated, as indeed has the United States.

I hope that such legislation is the way forward. Time means that I shall have to cut my remarks to a brief introduction. I hope that my hon. and learned Friend will look sympathetically at the matter, and that we can make some progress on what is often the most devastating sort of discrimination. We have seen the statistics. People with mental health problems who suffer from AIDS find that it is the informal discrimination that prevents them from getting back to work. We need to do something about it. I hope that we can do so in the Bill.

Mark Harper (Conservative, Forest of Dean)

I shall not get very far with my argument, but I shall begin. I start where the hon. Gentleman left off on 18 June, and he made a good case today. He referred to the Solicitor-General’s response to the debate on the amendments tabled by my hon. Friend the Member for Weston-super-Mare. In response to that debate, the Solicitor-General mentioned a number of concerns—I shall deal with those in a moment—but said she that was engaged with the issue and impressed by my hon. Friend’s arguments. Although she urged him to withdraw the amendment and consider the issue, she confirmed that she would write to him on the matter or speak to him directly in Committee. The hon. Gentleman just made that point, and that is effectively what we are now doing.

Picking up on the first of the Solicitor-General’s concerns, which was about the extent to which prohibiting pre-employment inquiries would damage the ability of employers to make—

Mark Harper (Conservative, Forest of Dean)

I go back to the point about reasonable adjustments. The Minister had some concerns about whether reasonable adjustments would be able to take place if we prohibited pre-employment inquiries. In the amendments tabled by my hon. Friend, I thought that we tackled those concerns because we referred to allowing the inquiries as far as reasonable adjustments were necessary. Proposed subsection (2)(a) of new clause 20, tabled by the hon. Member for Stroud, specifically states that

“the inquiry is for the purpose of determining whether an applicant requires reasonable adjustments...and is stated as being such an inquiry”.

If that were the case, the inquiry would be allowed. It is absolutely right—we do not want to stop employers making those reasonable adjustments or those applying for jobs to be able to set out what reasonable adjustments they need.

The hon. Gentleman raised a specific constituency example, which was about someone with a mental health problem. If we look at the range of the organisations supporting the measure, they are largely those that deal with invisible disabilities such as mental health problems, HIV or AIDS. Clearly, if someone had a visible disability, for example if they were a wheelchair user, it would be a bit obvious, and the question about the pre-employment inquiry would become moot. The issue is when we are talking about questions for those with invisible disabilities. The evidence that was given by the various supporting organisations, such as the Royal College of Psychiatrists, the Disability Charities Consortium, Rethink and the EHRC disability committee, makes it clear that they support, not necessarily the new clauses, but similar provisions, as do the National AIDS Trust and RADAR. I think that they are powerful recommendations.

Given the relatively positive way in which the Minister addressed the issue when she responded to a previous debate, and given that she speaks for the Government on such matters, I want her to look at the work that the Select Committee on Work and Pensions did on the issue. When that Committee was looking at the Bill and how disability equality fitted within a single equality Act, it looked at the issue in some detail. It went back to 1999 and looked at what the Disability Rights Taskforce recommended, which was that

“disability related enquiries before a job offer should be permitted only in very limited circumstances.”

The Disability Rights Commission made the same recommendation in 2003. At the time, the Government rejected the proposal. Susan Scott-Parker, from the Employers Forum on Disability, an organisation which the hon. Member for Stroud mentioned, said to the Work and Pensions Committee:

“We have advised our members that it is a waste of time and effort and money to ask questions about what is wrong with you at the pre-recruitment stage in terms of medical questionnaires for a long time. One of our member banks did some research and found they were spending all this money asking doctors if the guy was okay, and it did not predict anything. They could not predict absenteeism in the future or anything, so they just stopped.”

Susan Scott-Parker had a clear view from business that detailed pre-employment questionnaires serve no useful purpose. In its report, the Work and Pensions Committee made a clear recommendation:

“We endorse the Disability Rights Taskforce’s recommendation that disability related enquiries before a job offer should be permitted only in very limited circumstances. As a general rule such questions should only be permitted after a conditional/provisional job offer has been made. There will be cases where a job offer is withdrawn because of health-related concerns or because reasonable adjustment for a disability is not possible. However, the process would then be transparent, and where there is disagreement as to the decision, further consideration or mediation are possible.”

That is important. When the Minister responded to the previous debate, she made the point that if someone went through the process and was discriminated against, they could take action. One of the problems people find is producing the evidence of that. Someone who has received a conditional job offer and who knows that they are the best person for the job will be given reasons why the job offer is being withdrawn. It is much clearer if they are given reasons. They can argue about them. They can bring a case. The evidence is clear. They know that they were going to be given the job and the employer has to have some reasons.

The difficulty for people who are weeded out during the recruitment process is that they do not know whether they would have been given the job. They do not know whether their health disclosures were the reason for them not being interviewed or not being given the job. They do not have that information. Bringing a case is very difficult here. The Work and Pensions Committee’s view was clear. The Government’s response to that view was nowhere near as encouraging as what the Minister told us in Committee. Paragraph 42 of that response states:

“The Government is not convinced of the need to outlaw pre-employment disability-related enquiries, particularly because the information provided can help the employer to decide what reasonable adjustments, including any adjustments to the recruitment process, the disabled person may require.”

I thought both our amendment and the new clauses tabled by the hon. Member for Stroud deal with that perfectly satisfactorily. They make it clear that inquiries can be made of the person applying for the job specifically about the recruitment process and they allow those inquiries to take place for that purpose only. That point is dealt with. Clearly someone who has a mental health disability or a condition such as HIV, which has no impact on the recruitment process at all, does not have to disclose anything. Paragraph 43 of the Government’s response reads:

“The Government recognises that some employers require a health declaration. However, the employment provisions in the Equality Bill make it unlawful to use information about a person's disability to discriminate against that person. Any disabled person who considers that the employer has discriminated against them because of their disability may take action under new procedures for settling internal disputes which the Government has made simpler and more flexible since 6 April 2009. They can also make use of the DL56 Questions Procedure. Formal enforcement action may be taken by making a claim to an Employment Tribunal, where the burden of proof falls on the employer to show that it has not discriminated.”

There are two points there. The first, which I have already touched on, is that once it is thrown back on the individual to have to prove they have been discriminated against, it is much more difficult for them to prove that it was because of disability-related conditions if they are discriminated against at a very early stage in the process. If they have had a conditional job offer withdrawn it is a much more straightforward process. An employer has to be much clearer about the reasons for the withdrawal of that job offer.

I do not find the first part of the reasons set out in paragraph 43 very compelling. The second is not entirely right. I am sure that the Minister will touch on that when she responds. If I remember correctly from some of our earlier debates, at an employment tribunal the burden of proof does not fall on the employer to show that he has not discriminated until the employee has demonstrated a prima facie case that there has been some discrimination. I am not entirely certain that that is right in fact. Even so, requiring the employee to take that step when they may have very little evidence at their disposal is very difficult.

The Minister’s response to this matter on 18 June was quite positive. She said that she would go away and have a look at it to see whether our arguments held water. The Government’s later response—the response dated 23 June from the Minister with responsibility for disabled people to the Work and Pensions Committee—was much less positive. It would be helpful if the Minister could outline those differences.

It is worth considering the information we had from the National AIDS Trust on the pre-employment questionnaires. The trust highlighted the response to the Work and Pensions Committee, said that it was sadly not encouraging and encouraged members of the Committee to raise the matter again. It said that the Government had asked whether banning the use of questionnaires would encourage more recruitment of disabled people, and it supplied a case study from the Terrence Higgins Trust report, “21stCentury HIV”, which contained a quote from an individual:

“Some time ago I did experience some discrimination in the first stages of the application process when applying for a job. In three different applications I got through the interview stages and I got to the point of doing the medical tests you need when you are practically in and have the job, but for some reason things didn't go any further. Since then I've gotten to the stage where I could go to interviews and I haven't, because of my fears, I suppose, of going through the same thing.”

We need to stop situations such as that, where people feel there is no point. As soon as they see the application form and they know that there is going to be detailed questions about their health, many people—a bit like the constituent of the hon. Member for Stroud—do not even go through the process. They have had so many knock-backs and rejections that as soon as they see that they face questions about their health, they do not even want to go there. That is what we are challenging.

An earlier debate and the quote that I read from Susan Scott-Parker of the Employers Forum on Disability make it clear that business is very relaxed about the change and would positively welcome it. In our evidence-taking sessions, I asked all the employer organisations whether they would have any issues if the Government legislated to rule out pre-employment health questionnaires, apart from in the case of allowing information to be gained for making reasonable adjustments, and they were all very relaxed about it. Businesses have had concerns about a number of clauses introduced in the Bill, but this is one area where the Government could legislate with the support of a wide range of disability organisations, and business, if not actively supportive, would not have any issues. Given what the hon. Member for Stroud said in our previous debate and the Solicitor-General’s positive response, even if she feels that she cannot accept the new clauses, I urge her to give a commitment that the Government will think about this and bring forward their own, perhaps better drafted, measure on Report. The Committee will find that a positive step.

John Howell (Conservative, Henley)

I wanted to follow on from my hon. Friend’s comments, as a member of the Work and Pensions Committee, to emphasise the seriousness with which we looked at the issue. He has already mentioned that we went back quite a long way, to 1999 and the Disability Rights Taskforce. Indeed, if we look at the restrictions that that taskforce sought to place on any overall ambition, we see that they mirror closely what is in the new clause today. From 1999 to the present is a long time to wait for what is quite a straightforward element.

My hon. Friend has already touched on the support of business, but he has not necessarily gone far enough. The evidence taken during the Select Committee was much wider than the examples he gave. For example, the Federation of Small Businesses came to us. We asked about the questionnaires and the response was:

“I think they should be got rid of”—

getting a clearer statement than that is difficult—

“My day job is helping disabled people get back to work, and we have put in applications from the same person with a tick saying they have not got a disability and they have got the interview, and then the same person has ticked it and they have not.”

That illustrates the point.

One of the other organisations that came to us as a witness was the CBI.

Joe Benton (Labour, Bootle)

I remind the Committee that with this we are considering new clause 21—Employees and applicants: prohibited pre-employment inquiries—

‘An employer (A) must not subject a disabled job applicant (B) to prohibited employment inquiries.’.

John Howell (Conservative, Henley)

Welcome back to the Chair, Mr. Benton, on the downhill slope to the end of our consideration of the Bill.

When we adjourned, I was explaining that business supports the new clause. I had mentioned the support of the Employers Forum on Disability and the Federation of Small Businesses, and was about to come on to the CBI’s support. Subsection (2)(a), (b) and (c) meets the points raised by the CBI in the Work and Pensions Committee evidence session.

I make no apology for speaking on this matter because it is important. That importance is illustrated by question 43 of the first sitting of this Committee, in which my hon. Friend the Member for Forest of Dean asked:

“Can I ask whether you support such a restriction on pre-employment questionnaires?”

The response from Caroline Gooding of RADAR was:

“We think that, in relation to the employment of disabled people, that is probably the single biggest difference and improvement that could be made through the Equality Bill.”——[Official Report, Equality Public Bill Committee, 2 June 2009; c. 23, Q43.]

There has been praise for the new clause from many sources, but that quotation sums it up.

My hon. Friend mentioned the Government response to the Select Committee report. Paragraph 42 states:

“The Government is not convinced of the need to outlaw pre-employment disability-related enquiries”.

If I may give the Minister some wriggle room, that answers the wrong question. The Select Committee never proposed outlawing pre-employment disability-related inquiries, but said specifically in its report that that should be done on certain occasions and that questions about health and disability should be raised only at certain times.

I think that the Minister has enough scope to reach a sympathetic conclusion on this issue, which has acquired an enormous consensus, including disability groups, the Select Committee and business.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Welcome back for our last sitting, Mr. Benton.

I rise simply to vocalise Liberal Democrat support for the new clause, which was tabled by the hon. Member for Stroud. We think that the removal of barriers to employment is important. The new clause seems to be the simplest way forward. There are no legitimate arguments against such a move. It is not dissimilar to the idea behind no-name employment. It is about removing, in an informal sense, the first barrier, which people find so hard to overcome. It can be removed so easily and in a cost-free way.

Vera Baird (Labour, Redcar)

Welcome home, Mr. Benton, for what will be a short stretch of further incarceration.

New clauses 20 and 21, which were tabled by my hon. Friend the Member for Stroud, would limit the circumstances in which employers can use pre-employment inquiries to determine whether job applicants are disabled or to ascertain the extent of their impairments. Employers would be allowed to ask for such information only to identify the need for reasonable adjustments, to facilitate the monitoring of disabled applicants, to support positive action in recruitment or to determine whether someone can perform a specific job-related function. He makes no apology for raising this issue again and neither do Opposition Members. I do not think that they should apologise. We discussed this area on 18 June, when debating amendments 207 to 212, and the new clause has come from that debate.

Our precise concern about the new clause is that it is about capturing information for the purposes of identifying the need for reasonable adjustment. For example, someone with a mental health condition may require more time at interview to consider questions and put together their answers. There is nothing to stop an unscrupulous employee using that information to discriminate unlawfully. We want to be careful, since one purpose of the Bill is to simplify and streamline protection, not to do anything that would be contrary to that aim. If we restricted the use of pre-employment inquiries to that set of closely defined circumstances and put tight conditions around their use, that could be an unwelcome area of complexity. There is obviously a balance to be struck in respect of disability and equalities rights.

I have seen the brief from the National AIDS Trust, the Terrence Higgins Trust and Rethink, the Work and Pensions Committee inquiry material that has been mentioned already and the research by the Chartered Institute of Personnel and Development, mentioned in the Work and Pensions Committee report, which found that 60 per cent. of employers said that they had disregarded applications—and, by implication, would do so—from people with drug or alcohol problems, criminal records or a history of mental health problems or incapacity. That is clearly blatant, direct discrimination that must be tackled.

There is already a mechanism for challenging direct disability discrimination in employment under the Disability Discrimination Act 1995, and those provisions are carried forward in the Bill, which provides for anyone who considers that information about their disability has been used to discriminate against them can challenge the employer through an employment tribunal.

There was some discussion about the burden of proof. The briefing from the NAT, Terrence Higgins Trust and Rethink acknowledges that current disability law provides that protection and considers such cases hard to prove, but it does not recognise the fact that legislation puts the burden of proof on the employer. Typically, the questionnaire procedure would probe why the job offer was not gone through with or was withdrawn. So that would, one imagines, make available the first step to the aggrieved party, which would show that there has been some discrimination. Then the burden of proof turns immediately to the employer to show that it has not discriminated. That is some element of important protection for disabled people.

Mark Harper (Conservative, Forest of Dean)

I think that the Minister said at the beginning of her answer that some survey evidence showed that 60 per cent. of employers had withdrawn job offers for a number of reasons, including someone’s having a mental health incapacity. That implies that such discrimination is fairly widespread—although that may be a slight exaggeration—and is certainly not uncommon. Given what she said about employment tribunals, will the Minister share with the Committee any information about the number of successful and unsuccessful cases that are brought against employers for such discrimination in the employment process? If she is correct in what she is saying about the protection that is in place and about such discrimination being widespread, we would expect a significant number of cases at least to be brought to tribunal, if not brought to a successful conclusion.

Vera Baird (Labour, Redcar)

No, I cannot directly help with that, but they are taken to tribunal; I am in no doubt about that. I cannot say what numbers were behind the 60 per cent. of employers who responded in that way to the Chartered Institute of Personnel and Development research. So I am afraid that I cannot throw better light on that matter at present.

It has been suggested in Committee that the use of pre-employment inquiries is limited in other jurisdictions. The US is one jurisdiction that is usually cited, and there pre-employment questionnaires are only allowed if they relate to the

“ability of an applicant to perform job-related functions.”

The note from NAT, Terrence Higgins Trust and Rethink contends that that ensures that it is easier to recognise cases where employers have discriminated against applicants, and it cites data from a 2002 research report that 16,000 discrimination claims are filed under the Americans with Disabilities Act of 1990 each year. We have looked at the US experience, but we have not been able to find any evidence to show that that specific element of protection is widely used, or that it has had any positive effect on the recruitment of disabled people.

We have also tried to make a comparison between the claims filed in the US and in this country. About 19,500 disability discrimination claims were filed with the US equal opportunities commission in 2007-08. In Great Britain, just over 5,800 claims—not necessarily specifically about this provision—were registered with the Tribunals Service. That is about one third of the US total, in a country with a population about one fifth the size. That does not suggest that a greater proportion of people are finding it easier to take enforcement action in the US than in this country.

However, we need to look at the Rethink survey quoted in the documents. It indicates that some 41 per cent. of mental health service users who were surveyed said that they were put off applying for jobs for fear of being discriminated against. An important duty that we all have is to try to accelerate the rate at which disabled people who want to work and who can work come into employment. Therefore, we must attend to this topic.

The position, as Opposition Members would see it, is that I responded positively to the debate on 18 June, and on 23 June—aha, a split in the Government—there was a less positive response from a different Minister. One of the happy things about the new public Bill procedure is that we take evidence, which is put into Hansard. It is readily available to assist in convincing people who are concerned that there is not a strong push from the employees’ side to ensure that the change is brought about, and that the business sector will resist it. The Hansard extracts that indicate a keenness for it from the employees’ side and, at the very least, a relaxed if not actively supportive approach from the employers’ side have been useful since 23 June. We will introduce a clause to deal with the problem on Report, if my hon. Friend the Member for Stroud will withdraw his new clause.

David Drew (Labour, Stroud)

With that delightful news, and in the spirit of consensus that I hope the Committee will finish with, I am delighted to withdraw the new clause on the basis that the matter will come back on Report. I beg to ask leave to withdraw the motion.

Vera Baird (Labour, Redcar)

May I take this opportunity, before we put our final question, to thank you, Mr. Benton, for your fair and helpful chairing, and may I through you offer our thanks to Lady Winterton, who has been as fair, helpful and engaging as you have been? I add our note of thanks to your fellow Chairmen, Mr. Taylor and Mr. Bercow. There was an empty chair at some strategic point in this Committee, which both of them in sequence were able to fill, and we owe them a debt of gratitude for coming to our rescue at that stage. You, Mr. Benton, and Lady Winterton have ensured that the Bill has had a fair hearing in the evidence sessions and has been subject to proper scrutiny subsequently. That is no mean task, because it is large and wide-ranging.

I am most grateful to my hon. Friend the Parliamentary Secretary, Government Equalities Office, for his support in the Committee. I am also grateful to all Committee members from all parties for their contributions. I think that we have focused on the right issues and ensured that the most important have had a good airing.

We have discussed the Bill mostly in a constructive and positive way, while recognising that there are, as one would expect, different views on some of the many matters that it covers. These are important issues, and I am pleased that they have been treated with the seriousness, and given the attention, that they deserve. Occasionally, they have been given attention again and again, but they have none the less been treated in an appropriately serious way.

I thank the hon. Members for Forest of Dean and for Hornsey and Wood Green for their contributions and for leading on behalf of their parties. May I also seek your indulgence, Mr. Benton, to make particular fond reference to the hon. Member for Daventry, who has told us that he is retiring from Parliament at the next general election? Over the years, he has made a magnificent contribution to the cause of equality and particularly to the cause of the disabled. He has made an excellent and characteristic contribution in this Committee, and his comments have been very well informed and sensitive. We shall miss him, his intellectual rigour, his robust common sense and, overwhelmingly, his compassion.

I am grateful to the Clerks, who have supported us all in the Committee. I am grateful to the attendants, the police and to the Hansard writers, who do not always have a straightforward job. I also thank the officials from the Government Equalities Office and from other Departments that were involved in the Bill. They could not have been more helpful to me, staff on the Committee, the Hansard writers and, from time to time, other members of the Committee.

I am pleased that we have been able to take forward our debate in a rational and positive way. The Bill has been improved by scrutiny and by a number of amendments, although they were all the Government’s. However, I have agreed to consider five matters: whether to include various fire and rescue bodies in the socio-economic duty, as proposed by the hon. Member for Hornsey and Wood Green; the clarification, if necessary, of the asymmetric nature of disability protection in clause 13(3); the issue around the case of Malcolm and whether we need to make the protection in clause 14 clearer; the case for representative actions; and, very recently, whether to limit the use of pre-employment disability questionnaires. That is a little survey of the work that I still have to do before we gather again on Report. I will seriously consider all those proposals.

This is a good Bill, which will advance the cause of equality, and I hope that it will help to drive culture change. It still has to go through one or two stages, but I could not resist looking back at a series of cartoons about equality that I have in my office. We have been advancing the cause of gender equality to a large extent, and one really nice cartoon shows a lady, whose hands are in the kitchen sink and covered with Fairy Liquid-type bubbles, saying to her little girl, “I have to keep my hands soft in case I ever get back to being a brain surgeon.” The second cartoon that caught my eye depicted a figure lamenting, “Seasonal work, long hours, low pay, no health and safety, no danger money, but they did say I could keep the dress”—it is the fairy on top of the Christmas tree. I am grateful to all participants and I look forward to our proceedings on Report.

Mark Harper (Conservative, Forest of Dean)

Without repeating everything that the Minister has said, I would like to echo her thanks to you, Mr. Benton, and, through you, thank Lady Winterton, Mr. Taylor and Mr. Bercow—if we are still allowed to call him that now that he has been elevated to the Chair.

I thank the Clerks and the witnesses, whom I do not think the Minister mentioned. As she said, the evidence that they gave in our evidence-taking sessions was very helpful in some of our later deliberations. I would also like to thank those who have served us in the Committee room, including the Doorkeepers and the police officers.

I thank members of the public who have listened to our proceedings—sometimes with great interest and sometimes, I am sure, with less interest. I also thank all members of the Committee for our debates, particularly my hon. Friend the Member for Weston-super-Mare, who sadly is not here to listen to my thanking him for his work in supporting me on the Front Bench.

I echo the Minister’s comments about my hon. Friend the Member for Daventry, who, on this particular subject, brings a huge amount of wisdom and experience both in office and outside it. If he is not dragooned into being a member of another Committee, this may well have been his last Public Bill Committee before he leaves the House. That will be sad. He has conducted himself to the credit of the Committee and has brought a great deal of wisdom to our proceedings on a number of matters, for which I am grateful—as is the hon. and learned Lady.

I also thank my hon. Friend the Member for Henley, who for most sittings has been splitting himself between our proceedings and those on the Finance Bill, and has acquitted himself well. Last, but not least, I thank our Whip, my hon. Friend the Member for Billericay. We must never forget the Whips or they will certainly never forget us.

I thank the Minister for the way in which we have had a good-natured and fruitful debate on most occasions, apart from when I usually spoilt them by referring to Baroness Thatcher, which seemed to rile the hon. and learned Lady. Apart from that, she has dealt with the Committee in an even-handed and thoughtful way, and I echo her thanks to her officials who, on occasions, have been very helpful to the Opposition.

I also thank the hon. Member for Hornsey and Wood Green, who speaks for the Liberal Democrats on such matters. Finally, I thank the hon. Member for Glasgow, East, who speaks for the Scottish National party, although on many occasions, as he made clear, not on religious matters, when he spoke for himself. I thank you again, Mr. Benton. We are almost there.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I wish to say what a pleasure it has been to serve under your chairmanship, Mr. Benton, and through you I convey my thanks to Lady Winterton. I thank the Clerk and the officials who have helped to make our proceedings so pleasant and smooth running. The hon. Member for Daventry has added wisdom, and I often found that we were speaking in a similar manner on similar issues. That may or may not please him—I have no idea—but he brought a great deal of experience to the Committee.

I thank my excellent colleague, the hon. Member for Oxford, West and Abingdon, who has scrutinised in great detail, with great wisdom and commitment, parts of the Bill, which after all is the job of the Opposition. Despite the occasional strange look on the faces of members of the Committee, he has done a remarkable job. The Solicitor-General has omitted one thing. We have had a very good debate and I am very pleased with the matters that she will take away to look at, and perhaps bring back.

I should be very interested in, and look forward to hearing about, the results of the work of the Department for Work and Pensions on discrimination in the workplace. I also thank the hon. and learned Lady for her tolerance and patience on some occasions and for conducting the Committee. I have not taken part in many proceedings in Committee, as is probably apparent, but it is quite a task for a person to be on her feet throughout proceedings in Committee on demand and I pay tribute to her for that.

I pay tribute to the hon. Member for Forest of Dean, who picked arguments extremely well, and also to the hon. Member for Glasgow, East, who speaks for the Scottish National party for some of the time.

As we are on jokes, some members of the Committee might not be aware that, in a previous life, I was a designer and an illustrator. When I joined the Liberal Democrats, I did some cartoons about equality and fairness, one of which showed a high chair with Paddy Ashdown next to it and a woman—it could have been me—saying, “But, Paddy, this is not what I meant by a safe seat.” A second cartoon was about a little child tugging his mother’s skirt saying, “Mummy, mummy, why is daddy never here?” to which the mother replied, “There, there, darling. He is out campaigning every night for fairness and equality.” I thank the Committee.

Tim Boswell (Conservative, Daventry)

I would not have risen to my feet, but saying a word on behalf of the Back Benchers collectively might be appropriate, Mr. Benton, not least because for various reasons I probably have had more to say than most of them—not for the first time—and for that I apologise to the Committee.

I want to record that everything that has been said from the Front Benches has been entirely appropriate, accurate and fair, which is not always the case, but was on this occasion. I include all the participants, from the Solicitor-General, through my hon. Friend the Member for Forest of Dean and the rest of our Front-Bench team, to the Liberal Democrats and those who have served in silence, but with interest and courtesy, as well as all the rest. It has been very welcome.

I wish to respond to the exceptionally generous remarks of the Solicitor-General and of the hon. Member for Hornsey and Wood Green. In the light of those remarks, I am inclined to think that it is possibly just as well that I am retiring, because I am not sure that they would have advanced my parliamentary career. In a sense that does not matter.

I advert, although I do so reluctantly, to my comment on the conduct of the Bill on “The Westminster Hour” on Sunday night—those who have not heard it can still hear it on iPlayer. I made the point, without being invidious, about the distinction between those Bills in which there is a common spirit and a Minister who is prepared to lead things into improvement, and those that are about doing the press release, drafting the Bill and so on. The Bill has been one of the former. It is very much better for Parliament if it can do that. I still think in a funny and rather old-fashioned way that legislation matters, that it is better to get it right than half right and that it is better to talk about it than to leave it unconsidered.

I have enjoyed the Committee. To finish, my hon. Friend the Member for Forest of Dean referred to archers this morning and, having a Welsh wife, I have a certain interest in that profession as well. I recall that, after a much more contentious Committee on the National Minimum Wage Bill, I concluded my remarks when I was in his post by referring to Henry V before Agincourt and saying:

“We would not have missed it for the world.”—[Official Report, Standing Committee D, 17 February 1998; c. 1037.]

John Mason (Scottish National Party, Glasgow East)

I thank you, Mr. Benton, and through you Lady Winterton, for looking after us over the past 20 Committee sittings. You have managed to keep us from straying too far, as when we seemed to get bogged down in discussing Scotland in one of the debates.

The Committee is only my second Public Bill Committee as I come towards the end of my first year as a Member. I was extremely impressed by the Solicitor-General, who handled everything herself; on my previous Bill Committee, with the hon. Member for Forest of Dean as well, there were I think four Ministers, who all took turns. I assumed that that was the norm, so I was impressed with the Solicitor-General—with her colleagues, too, with some of whom we had robust debate, but we managed to avoid being too personal.

I also thank the hon. Member for Forest of Dean and his colleagues for their helpfulness. The hon. Member for Oxford, West and Abingdon and I, in particular, seemed to have a few intellectual jousts or whatever the word is. However, we managed to keep a reasonable tone throughout the debate, and discussing some of those issues, including religion and so on, is good.

The Bill is extremely good, the vast majority of it my party and I are supportive of, and we look forward to it reaching the following stages.

Joe Benton (Labour, Bootle)

First, I thank the Minister, the Opposition spokesmen and all Committee members for the courtesy extended at all times to the Chair. All the nice remarks will be passed on to Lady Winterton, Mr. Speaker and David Taylor. Thank you all very much for that.

I also thank the learned Clerks and all people who have contributed to the smooth running of the Committee, which has been interesting. I have enjoyed it—very informative.

I would like to conclude with my own appreciation of the hon. Member for Daventry. As he was speaking and as the Solicitor-General was making her comments, my mind went back many years ago to my arrival in the House. I soon became a member of the education team and had the good fortune to work on a further education Bill, on which the hon. Gentleman was further education spokesman. I was immediately impressed by his wisdom and by his contributions to that Committee. That has not changed much over 18 years. His contribution, which he still makes and which has been indicated clearly during consideration of the Bill, has been deep, thought-provoking and positive. I add my compliments to you, sir, and wish you all the best for the future. You will be a loss, although we shall still remain politically divided. Thank you all.