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Equality Bill [HL]

moved Amendment No. 1:"Page 54, line 7, leave out ““The Secretary of State shall appoint”” and insert ““There shall be””" The noble Lord said: In speaking to Amendment No.   1, I shall speak also to the other amendments in the group—that is, Amendments Nos. 2, 4 and 5, 12 to 18, 34 to 37 and 39 to 43. All the amendments are in the names of my noble friend Lord Lester of Herne Hill and, with the exception of Amendment No. 2, of the noble Baroness, Lady Prashar. Amendments Nos. 1 and 2 are in the name of the noble Baroness, Lady Howe of Idlicote, as well. They are all amendments to Schedule 1 which covers the constitution for the proposed Commission for Equality and Human Rights. Their aim is to make the commission as independent of government as is possible. Under the Bill, the commission is to be a non-departmental public body, as are the existing commissions which it is to replace. This means that the commission will be a separate legal entity. It will not be part of the Home Office, nor will it, its members or its employees be servants or agents of the Crown. But they will be under the control of the Home Secretary in many respects, and answerable to him. For example, the Home Secretary will appoint the chair and the members of the commission. The Home Secretary may remove a member of the commission who, in his opinion, is unable, unfit or unwilling to perform their functions. The Home Secretary must approve the appointment by the commission of its chief executive. The Home Secretary must determine the pay and allowances of commissioners. The Home Secretary must decide—subject, in practice, to Treasury approval—the funding of the commission. I believe that this leaves the commission with insufficient independence. The case has been made very strongly by the Joint Committee on Human Rights in its report on the proposals for the commission, as set out in the Joint Committee’s Sixteenth Report of Session 2003–04. I shall read an extract from that report which sets out its case very precisely. Paragraphs 45 to 47 state:"““The time has come for the Government to recognise that there is a class of public bodies which have a distinctive constitutional role, and that these need to be designed with this special status in mind. It is not sufficient to pick the NDPB model off the shelf and apply it to every new public institution.""““There is an emerging, but rather unacknowledged group of these special bodies. They comprise at present the Parliamentary Commissioner for Administration, the National Audit Office and the Electoral Commission. Each does have a distinctive (though slightly different) accountability structure  . . .""““The relevant shared characteristics of these bodies is that they   are established as part of the constitutional machinery, supplementary to Parliament, to act as a check on abuse of executive power. It is inappropriate, therefore, for them to be beholden to Ministers in any way. So far as they are to be held accountable of their actions, and for their use of public money, it is the proper task of Parliament to ensure this. They should not, however, be creatures of Parliament. The basic principles for the design of independent national institutions supporting democracy are that they should enjoy—""statutory guarantees of independence from both the executive and Parliament;""a system of funding independent of direct ministerial control;""independent staffing arrangements;""statutory involvement of a parliamentary body in approving and overseeing its budget and strategic plan;""parliamentary involvement in key appointments;""direct reporting to parliament””." The principles set out in the report of the Joint Committee are absolutely right. Of course, many non-departmental public bodies are set up to advise on, or to implement, government policy. The status of an NDPB is obviously appropriate for bodies in those categories. This commission, however, will from time to time have to stand up to the Government and challenge them. That may amount to only a small proportion of the matters handled by the commission, but they will be particularly important matters. It is therefore essential that the commission should be, and be seen to be, independent of ministerial control. I shall explain how these amendments achieve this. They are based to a considerable extent on the constitution of the Electoral Commission, set up under the Political Parties, Elections and Referendums Act   2000. Amendment No. 1 would remove the power of the Home Secretary to appoint commissioners. Amendment No. 2 sets out what is called the appointments and oversight committee, which I shall refer to as the AOC. The AOC should be a small body. Our amendment proposes that it should have only three members: one of them appointed by the Prime Minister after wide consultation with the leaders of political parties in Great Britain, not including the Northern Ireland parties because the Bill does not extend to Northern Ireland; ex officio the Chair of the Joint Committee on Human Rights; and the Chair of the Judicial Appointments Commission. We put forward this composition of the AOC as a matter of debate, but it is very much open to alternative suggestions. We may well wish to reconsider exactly what the composition will be. We understand that the noble Baroness, Lady Prashar, was unhappy with the proposals for composition, which is why she has not put her name to this amendment. The AOC will make recommendations to the Crown for the appointment of members and the chair of the Commission for Equality and Human Rights. It is proposed also that the AOC should make an annual report to Parliament. Amendments Nos. 4, 5 and 12 are consequential. Amendment No. 13 would ensure that the commissioner could be removed from office only by an address from both Houses of Parliament following a report from the AOC. This is based quite closely on provisions for removal of members of the Electoral Commission under the Political Parties, Elections and Referendums Act 2000, except that under that Act the address is required only from the House of Commons. That is appropriate for a committee concerned with elections—in particular elections to the other House—but is not appropriate for the Commission for Equality and Human Rights. We believe that the address under the Bill should come from both Houses and not from just one. Amendment No. 14 is consequential. Amendments Nos. 15 and 16 remove the need for the Home Secretary to approve the appointment of the chief executive of the   commission or to approve arrangements for the appointment of other staff. Amendments Nos. 17 and 18 deal with the appointment and removal of investigating commissioners. Amendment No. 34 provides for the commission itself to lay its annual report before Parliament instead of sending it to the Home Secretary to be laid before Parliament by him. On the question of funding, Amendments Nos. 35 to 37 and 39 to 41 transfer responsibility for determining the pay, allowances, pensions and compensation for commissioners or members of advisory bodies created under the Bill from the Home Secretary to the AOC. Finally, Amendments Nos. 42 and 43, which are unfortunately lengthy, are taken more or less directly from provisions in Schedule 1 to the Political Parties,   Elections and Referendums Act 2000. These amendments deal with the provision of funds, the accounting for those funds and audit. On further thought, it may be appropriate that we have a larger AOC and that the powers relating to funds should be exercised only by those members of the AOC who are Members of the House of Commons, because of the exclusive responsibilities of the House of Commons for supply. I hope that I have set out the amendments sufficiently clearly for Members of the Committee to understand. They are no doubt imperfect, and improved versions could be drafted, but we believe that this is ultimately the right way in which to achieve our objectives. We believe that the amendments achieve the result that is necessary if the commission is to have the demonstrable independence from the Government that is needed if it is to have the confidence of the public. I beg to move.