Basic equality statement?

This page outlines the current position on proposals for a Bill of Rights and Responsibilities, and suggestions by the equality commissions for a purpose clause or constitutional promise.

Bill of Rights and Responsibilities

Equality is one of the areas which the Government proposes to include in a Bill of Rights and Responsibilities. The Government has been consulting on ideas for the Bill in its Green Paper on Rights and Responsibilities (link to justice.gov.uk), March 2009. A summary of responses to this consultation (pdf, link to justice.gov.uk) as well as a report analysing the findings of a series of events (pdf, link to justice.gov.uk) were published on 30 March 2010.

The Green Paper said that the Government wants to "avoid opening up new areas of litigation, disrupting the ability of front-line service providers to deliver services effectively and displacing the current balance of power between Parliament, the executive and the judiciary." Whether or not cases are alike and whether differential treatment is objectively justified can involve value judgments, and it should not always be the judges who have the last word on whether the principle has been observed. The Green Paper goes on to say, at para 3.38:

"The Government's overarching aim in this area would be to set out in any Bill of Rights and Responsibilities an accessible and straightforward statement of equality to embody its central place in UK society. There are justifiable exceptions to the principle that all should be treated alike; for example in accordance with eligibility rules on benefits, rules on immigration and citizenship and exceptions to discrimination law permitted or required by EU law. Generally, these exceptions are already the subject of detailed legislation, which would remain unaffected by any Bill of Rights and Responsibilities. It would also be important to ensure that Parliament could continue to legislate for such exceptions where appropriate. The Government welcomes views on how a statement of equality in the Bill of Rights and Responsibilities might be framed, in order to secure equality's place at the highest levels of political principle.

In response to the Bill of Rights debate, the Equality and Human Rights Commission has developed a set of key principles which it believes are essential in developing a Bill of Rights: www.equalityhumanrights.com/legislative-framework/bill-of-rights/

My comment

It sounds as if any new equality provisions might be designed to have no or minimal legal effect.

I find it understandable that the Government should not want courts departing from rules such as those enacted in DDA. However, those rules and their application can be unclear. A Bill of Rights and Responsibilies might usefully set out principles to help guide the courts in resolving the uncertainties that inevitably arise when applying equality and other legislation.

More generally, the Government clearly seems unwilling to extend powers of the courts to rule against enacted legislation on equality grounds. I would agree that one needs to be wary of handing over to the courts what may be essentially political decisions.

Equality Bill - Government view, and debate on the Bill

The Government has decided not to have a purpose clause in the Equality Bill. Its priority is to have legislation that is as clear as possible, and it does not believe that a purpose clause will assist that aim.

An equality guarantee and purposes clause were proposed in the House of Commons Committee on the Equality Bill but were withdrawn for the time being in the light of Government opposition. Lynne Featherstone for the Liberal Democrats said about the equality guarantee, "in our view equality rights are too important to allow them to be subject to the Law Lords [such as in the Malcolm case]. 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. (col 706-732, Public Bill Cttee, 7th July 2009 (link to UK Parliament website)).

Links:
Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008
Equality Bill.

EHRC proposals - Equality Guarantee and purpose clause

In its Parliamentary Briefing on the Equality Bill Second Reading (pdf, link to EHRC website), May 2009, the EHRC says it would like to see

An Equality Guarantee, extending the commitment to equality beyond the Equality Bill, and meaning equality was considered in every action of the state and in every piece of future legislation.
A Purpose Clause - a provision at the start of the Bill stating the goals and underlying principles of the Bill. This, says the EHRC, would be a useful tool in clarifying the law, and is particularly helpful in ensuring legislation is not misinterpreted.

The EHRC said more in its earlier Response to the Discrimination Law Review (Word doc on EHRC website), pages 5-6. There should be a set of principles which:

create a constitutional promise on equality;
are drafted to have some constitutional significance and to ensure that other procedures, rules and law are subject to them;
provide a philosophical basis for judicial adjudication; and
can be used as a basis from which to derive the rest of the more detailed rules in the new equality act.

It recommended that the first chapter of the Equality Bill should state the basic principles of equality under the law, which would require more than a purpose clause. Alternatively, the set of principles might form the basis of an equality guarantee in the proposed bill of rights suggested by the government in their 'Governance of Britain' paper.

Former equality commissions' proposal - purpose clause

The Equality and Human Rights Commission took over from the former equality commissions in October 2007. The Disability Rights Commission with the other two former equality commissions recommended that the Equality Bill should include a clear statement of its purpose: not merely eliminating discrimination but enhancing dignity and participation and achieving substantive equality through positive action where required. The DRC argued that such a clause would improve public understanding and guide courts, tribunals, and everyone else dealing with the legislation as to how it should be applied and interpreted. (A Framework for Fairness Response (on DRC website)), pages 16-21). There should be more detail on the proposal at www.drc.org.uk/the_law/equality_and_human_rights/proposed_principles_for_a_sea.aspx.html, but this seems to have been currently deleted from the archived DRC website.

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Basic equality statement?

Bill of Rights and Responsibilities

My comment

Equality Bill - Government view, and debate on the Bill

EHRC proposals - Equality Guarantee and purpose clause

Former equality commissions' proposal - purpose clause

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