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Equality Bill [HL]

moved Amendment No. 1:"Page 55, leave out lines 12 to 14 and insert—" ““(1)   In appointing Commissioners the Secretary of State shall— (a)   appoint an individual only if the Secretary of State thinks that the individual— (i)   has experience or knowledge relating to a relevant matter, or (ii)   is suitable for appointment for some other special reason, and (b)   have regard to the desirability of the Commissioners together having experience and knowledge relating to the relevant matters. (2)   For the purposes of sub-paragraph (1) the relevant matters are those matters in respect of which the Commission has functions including, in particular—”” The noble and learned Lord said: My Lords, the group of amendments in my name will considerably strengthen the independence of the commission from government. Noble Lords will have noticed that there is a mistake in Amendment No. 1, which says,"““leave out lines 12 to 14””." It should read,"““leave out lines 12 to 15””." I hope that noble Lords will be willing to proceed on the basis that that is the correct amendment. I am very grateful to the noble Baroness, Lady Miller of Hendon, and the noble Lord, Lord Lester, for nodding assent to that. With the leave of the House, we shall proceed on that basis. With the agreement of the noble Lords, Lord Ouseley and Lord Adebowale, and the noble Baroness, Lady Turner, I should also like to speak to Amendments Nos. 2, 3 and 6, which are in their respective names in this group, as well as all the supplementary amendments to Amendment No. 1. I know that this was a matter of considerable concern to noble Lords from all sides of the House when it was debated in Committee. I am particularly grateful to the noble Lord, Lord Lester, for his careful and considered contributions to that debate and to the persuasive arguments put forward by the noble Baroness, Lady Miller. During Committee, the noble Lords, Lord Lester and Lord Goodhart, proposed an alternative model to the classic non-departmental public body framework on which the constitution of this commission is based. There was a long, lively and high-quality debate about the merits and flaws in such a model, and my noble friend Lady Ashton invited representations on other alternatives as a way of addressing those very real and important concerns. Officials and colleagues worked hard over the summer to consider other appropriate alternatives. On balance, however, we have found the non-departmental public body framework to be the most appropriate model; it is tried, tested and well understood. However, that does not mean that we have failed to be persuaded. The amendments in this group, in my name, seek to address a number of concerns, which I shall briefly explain. We have sought to ensure that the Bill makes crystal clear that the Secretary of State can make appointments only based on merit unless he has some other special reason for doing so. It would be implicit therefore that, were the Secretary of State to invoke some special reason, he would be required to explain that reason clearly. I believe this amendment will ensure that those appointed to the commission will—except in the most exceptional circumstances—have secured those appointments based only on their ability to meet the criteria set out in the Bill; namely, knowledge or experience in the named areas of discrimination, in human rights or in other matters relevant to the functions of the commission. The functions of the commission include knowledge or experience of business, trade unions and the public sector. Amendments Nos. 2, 3 and 6 in the names of the noble Lords, Lord Ouseley and Lord Adebowale, and the noble Baroness, Lady Tuner of Camden, seek further to ensure that there is gender balance, that at least half of the commissioners have personal or direct experience of discrimination, and that a quarter of commissioners are of a black or minority ethnic background. While I fully support the sentiments behind these amendments, we must take care to strike the right balance between providing the commission with sufficient flexibility and independence to determine its own affairs and taking measures that within the core principles of the commission are statutory and binding. We have already provided strong guarantees that knowledge and experience of discrimination and human rights should be criteria for appointment and we have further strengthened the appointments process to ensure that appointments are made, except in special circumstances, only on the basis of that knowledge or experience. I very much hope that, when the commission is appointed, its make-up will broadly reflect the balance that these amendments seek to secure but I do not feel that it is an issue on which we should legislate. I very much hope that the noble Lord will withdraw those amendments. I turn to the issue of funding. A number of noble Lords spoke in Committee with great passion and concern about the need to ensure the commission’s independence by providing some security about its funding. Amendment No. 16, which sets out the obligations on the Secretary of State in relation to the commission’s funding, replaces the term ““appropriate”” with ““reasonably sufficient”” which I believe addresses the spirit and intent of those concerns legitimately raised by noble Lords in Committee, strengthening therefore our commitment to provide fully adequate funds for the commission to carry out its work. As far as possible Ministers will seek to provide, through the non-departmental public body framework, the funding the Commission for Equality and Human Rights will need to implement its strategic plan. It will also inevitably be determined to some extent by the overall state of government finances and spending priorities. This is both pragmatic and fair, recognising government’s responsibility to ensure that public spending offers value for money, efficiency and efficacy. We have already indicated that our working assumption is an annual budget of around £70 million when the new commission is fully operational, which, as noble Lords know, represents a 43 per cent increase over the combined budgets of the existing commissions. In moving these amendments I believe that we have honoured the spirit and the intent behind many of the concerns expressed by noble Lords in a way that does not risk or undermine the non-departmental public body framework. We are also proposing to introduce a new duty on the Secretary of State to have regard to the desirability of the commission operating with as few constraints as reasonably possible in determining its activities, timetable and priorities. This duty will further underwrite the commission’s independence in determining and implementing its plans and activities on which it will, of course, be required to consult widely. We believe that this greatly strengthens our commitment to the commission’s independence and I invite noble Lords to support it. Many noble Lords expressed concerns at the number of provisions—too many in their view—that enabled the Secretary of State to direct the commission’s work. Many noble Lords felt that was an inappropriate constraint on the commission’s independence, and we agree. These amendments therefore remove the Secretary of State’s direction-making powers in respect of advising on the effect of existing or forthcoming legislation; undertaking inquiries and investigations; and making assessments of performance under the public sector equality duties. There may well be occasions where it will be appropriate for the Secretary of State to invite the commission to make its expertise available through advising on the law, or conducting inquiries, investigations or public sector assessments into particular issues of public interest. I would expect the commission to look positively at such requests, but such agreement is better reached through constructive working relationships between the Secretary of State and the commission rather than through the use of compulsory powers. The amendment related to codes of practice limits the Secretary of State’s direction-making power in respect of preparing codes of practice. The direction-making powers here can be exercised only on matters likely to be the subject of forthcoming legislation and that the Secretary of State expects to include in the commission’s remit. For example, if the Government were to bring forward a single equality Act, as we intent to do in this Parliament, the Secretary of State would be able to direct the commission to start the work to prepare a code of practice while the legislation was making its way through Parliament. Without such a direction, the commission would have no powers to do that, as the new legislation would not yet be listed in the commission’s remit. In this way, the code of practice can be available at the time when the legislation is enacted and not several months afterwards, which is a benefit for employers and service-providers who may be required to comply with the legislation. Amendment No. 34 responds to concerns raised by the noble Lord, Lord De Mauley, in Committee. He made a strong case for greater transparency before Parliament with respect to the commissions’ strategic plan. I hope that he will share my confidence that Amendment No. 34 addresses the issue that concerns him. The commission, unlike its predecessor bodies, will be a commission for all working across many different interests and communities. It is required to consult widely and in a meaningful way on its strategic plan. In other words, it must listen to, consult on, and hear the concerns and aspirations of its many constituencies so that it is as open and transparent as possible about how it determines its priorities. It is therefore right that such a document, drawing on the experiences, hope and concerns of those including, but going beyond the obvious interests, should be made available to the Secretary of State and to Parliament. After all, the Secretary of State is ultimately accountable for the new commission, and we in Parliament should be afforded an opportunity to comment and question the Government on the commission’s priorities. Taken together, this set of Government amendments is a powerful package of measures to strengthen the commissions’ independence. We listened carefully to the concerns expressed in the House and elsewhere, and we have responded. I commend the amendments to noble Lords. I beg to move.