Enterprise and Regulatory Reform Bill

Baroness Stowell of Beeston Excerpts

Monday 4th March 2013 Lords Chamber

[Baroness Thornton]

My Lords, I am greatly honoured to follow the lead offered by the noble Baroness, Lady Campbell, and all the speeches that have been made today. When you are on the Front Bench, it is always easy to put your name to amendments but on this occasion I felt that it was very important that the Government heard the voices of the Back Benches of your Lordships’ House. I felt—as has been proved to be the case—that people would feel passionately that the Government are in the wrong place and that Section 3 should not be removed.

I have two questions for the Minister. The first partly follows the remarks made by the noble Baroness, Lady O’Neill. It concerns the recent briefing from the EHRC, which states that, on the one hand,

“that the inclusion in its founding legislation of a unifying principle to bridge equality and human rights is important”,

but that, on the other hand, perhaps the answer to the dilemma of Section 3 would be a simpler purpose clause which described the commission,

“as the national expert on equality and human rights”,

and the strategic regulator for equality. It is not quite the poetic and aspirational language in the current legislation. Do the Government regard this intervention at this stage of the Bill as helpful or not?

I think that it muddies the water quite considerably. It adds force to the argument put by the noble Baroness, Lady Campbell. Let us be clear, the Government started by wanting to delete the section completely for reasons which the noble and learned Lord, Lord Lloyd, has demolished. However, if they want to change it and if the EHRC is suggesting that it should be changed, this is surely not the place to do so. This has to be a matter of great consideration and discussion among all the different organisations and across both Houses of Parliament. That was the import we gave Section 3 at the beginning in 2006. I suggest that the latest intervention by the EHRC on this matter serves only to underline the case that we should not go down the route proposed by the Government.

My second question is why does not one single stakeholder organisation—I apologise for that phrase, but I cannot find a better one—agree with the noble Baroness and her Government? Why does she think that Sir Bob Hepple has given the advice that he has about Section 3? Has she had discussions in the past month with the bodies which care about this matter? If so, what is the outcome of those discussions? Given that the Government are in absolutely no doubt that all these organisations are concerned about this and do not want this change to happen, have the Government had discussions with them? Have any discussions influenced their position? I hope that their position will be that they will accept this amendment. Certainly, from these Benches, we are adamantly opposed to the deletion of Section 3. If the noble Baroness, Lady Campbell, decides to test the opinion of the House, we will be with her.

[Baroness Stowell of Beeston]

My Lords, this has been an important debate and I am grateful to all noble Lords who have contributed. We have covered an important matter about which we all feel strongly. We all want a society based on equality of opportunity which respects human rights. I pay tribute, as I did in Committee, to all noble Lords who have worked hard in this arena over many years. I especially pay tribute to the noble Baroness, Lady Campbell, not just for everything that she has done but for the very open and straightforward manner in which she and I have discussed her amendments at various stages of the passage of this Bill. I really am grateful to her for that.

A lot has been achieved since we last debated this issue. We have appointed new commissioners and the commission’s budget has been announced. I will come back to these points later today when we debate the accountability of the commission in the final group of amendments. First, I shall be absolutely clear about what this Government seek to achieve via this Bill. We want a strong and independent Equality and Human Rights Commission which promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as for being a strategic enforcer of equality law.

Under the leadership of the noble Baroness, Lady O’Neill, who is respected and renowned the world over for her evidence-based approach, we are confident that the commission’s work will be respected, but in order for her, her board and its successors to determine their priorities and agree a coherent strategy, we must first be clear on the purpose of the commission.

The commission has done some good work since it was established in 2007—most recently, the inquiry into the home care of elderly people and the disability harassment inquiry, among other things, which were referred to by the noble Baroness, Lady Hollins. Let me be clear: removing the general duty would not prevent this kind of work taking place in the future. I will explain in a moment why that is the case. However, we also have to acknowledge that the commission has not been universally acclaimed as a national institution. Indeed, it has been criticised for the way that it has been run. Poor financial management resulting in qualified accounts was the most serious evidence of its failures.

In the past couple of years things have started to improve. Indeed, the past two sets of accounts have been clean and substantial savings have been made. I pay tribute to all those who played their part in that, which includes several Members of this House. However, when an organisation seriously underperforms, it would be negligent not to understand what caused those problems and take steps to put things right. As most successful leaders, whether they are in business or politics, will testify, when things go wrong in an organisation it is often because the organisation lacks clarity of purpose. Indeed, they will argue that for any organisation to be successful, it needs clarity of purpose.

The general duty is not a core purpose. It is a statement with which we all agree, but it is not a purpose. As I said in Committee, that statement for the general duty includes the requirement that:

“We must encourage and support the development of a society in which: People's ability to achieve their potential is not limited by prejudice or discrimination. There is respect for and protection of each individual's human rights”,

and goes on. If the statement were enshrined exclusively in statute and described as the commission’s general duty, that would imply that the commission is responsible for encouraging and supporting the development of such a society on its own.

I know that the noble and learned Lord, Lord Lloyd of Berwick, questioned my reasoning, but I stand by it. The Government’s argument remains that several institutions—Parliament, the Government, other public sector organisations, business and everyone—are collectively responsible for achieving the kind of society that that general duty sets out. Having such a wide-ranging and unrealistic general duty would make it harder than it should be for the commission to prioritise its work. That would be the case for any organisation given that general duty.

The noble Baroness, Lady O’Neill of Bengarve, made clear in her contribution the commission’s view of what the Government are proposing, and I am grateful to her for that. She said that while the commission lacks enthusiasm in the language that uses for the Government’s proposals to remove the general duty, it none the less acknowledges that it would not impact significantly on its work. She also agreed that that general duty is aspirational, the nature of the Equality Human Rights Commission is for it to be aspirational and that that is not required to be set out in statute.

The noble Baroness, Lady Campbell, the noble and learned Lord, Lord Lloyd of Berwick, and other noble Lords referred to the memo from Sir Bob Hepple and questioned the unifying link that Section 3 provides between equality and human rights. The commission can perform its functions under its duties in respect of equality under Section 8 and of human rights under Section 9, so that any unifying link between these two concepts provided by the duty is not essential. As the commission made clear in the briefing distributed at the end of last week, it sees the general duty as symbolic rather than practical.

The Government are clear that the commission’s core purpose is to promote equality and to protect human rights. These duties are set out in Sections 8 and 9 of the 2006 Act. They are supported by a suite of enforcement powers in that Act, such as conducting inquiries and investigations, issuing compliance notices or entering into agreements with organisations and instigating or intervening in judicial reviews or other legal proceedings.

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[Lord Sheikh]

My Lords, I am grateful for the opportunity to contribute to the debate and thankful to the Government for introducing this Bill, which will support British businesses in cutting unnecessary costs and red tape, boost consumer confidence and help to create more jobs.

I wanted to speak briefly on the amendment of the noble and right reverend Lord, Lord Harries, relating to the inclusion of caste when considering cases of discrimination. This is not a new debate; indeed, when the Equality Act was published in 2010, a specific provision was included to allow for caste to be added as an aspect of race at a later date. Later that year, the National Institute of Economic and Social Research undertook an extensive government-commissioned study into the prevalence and severity of caste discrimination in the United Kingdom and concluded that it does in fact occur in many of the areas covered by the Equality Act, such as education and the workplace. That led me to conclude that government action is indeed required as a matter of some urgency.

As a man with Indian ancestry, I am all too aware of the deep-rooted prejudice and unfair treatment that results from allowing the caste-based system to persevere. The Minister may be aware of the religious concept of untouchability, whereby certain individuals are declared untouchables due to their perceived association with impurity and pollution. As a result, they are ostracised and isolated from the rest of society in order to protect and preserve the quality of the majority.

In particular, across much of south Asia, the Dalit community has suffered greatly from this deep, ingrained form of discrimination. Dalits are a community considered so lowly in the social hierarchy that in some circles they are in fact excluded from the caste system altogether and completely segregated by social customs.

Historically, in countries such as India, Dalits have also been physically separated from the rest of society, housed outside the main villages and entitled to perform only the most menial of jobs. This horrendous social mentality still prevails in some rural communities, although thankfully it is becoming less common. Today, the Indian constitution outlaws discrimination based on caste and provides for the reservation of seats in the House of the People and the states’ legislative assemblies for those who have been historically disadvantaged due to the caste system. There are also programmes to promote and provide educational and employment opportunities for those such as Dalits. Many people in this country will be completely unaware of the existence of such a caste system and its history in suppressing minorities here. This is why it is particularly important that we acknowledge the potential extent of the problem in the United Kingdom.

I was instinctively drawn to support this amendment. Following further reading and a highly reassuring discussion with the Minister this morning, I am now very much aware of how seriously the Government are taking this matter. They have been very clear that nobody should suffer prejudice because of their caste, and as such have developed the Talk for a Change programme to work with the communities affected by this discrimination. As with so many of the most deep-rooted cultural ills, education and awareness is the key to prevention and this is exactly the approach this programme will take. I also appreciate that there will be a political focus on the Hindu and Sikh communities where the problem is most prevalent. Such assertive action is extremely welcome and is necessary both in the name of protecting vulnerable individuals and in maintaining our reputation as a country that embraces progressive and tolerant attitudes.

The Government have also been clear that they have no plans to remove the provision contained within the Equality Act which allows for caste to be included at a later date. This again reassures me that they are maintaining a flexible approach to tackling this problem and were we to enforce the type of legislation called for in this amendment we would simply be pushing against an open door.

We must realise that, as a nation which has so proudly and successfully championed the fusion of a diverse range of minority communities with modern-day Britain, we have inevitable responsibilities. These responsibilities should be seen as challenges to relish; ways in which we can assist our new communities and help them to integrate better into what many see as the mainstream of British life.

Our Prime Minister has made the point that Britain is open for business, and I believe that furthering our commitment to fairness and equality in our boardrooms, offices and factories can only serve to make us an even more attractive nation to do business with. I believe that the Government share this sentiment and I look forward to following the progress of the Talk for a Change programme.

If a Division is called, I shall certainly vote not-content.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have contributed to this very important debate. Let me start by being absolutely clear: the Government recognise that there is some evidence of caste prejudice and discrimination taking place in the United Kingdom. Such behaviour is wrong; no one should suffer prejudice or discrimination, whether because of caste or any personal characteristic, and it should not be condoned whether or not it is prohibited by legislation.

Before I go any further, I should like to pay tribute to the work of those who have campaigned so hard on behalf of victims of caste prejudice and discrimination, particularly the noble Lord, Lord Avebury, and the noble and right reverend Lord, Lord Harries of Pentregarth. I think they underestimate what they have achieved through their efforts over the last few years. Their commitment has already achieved a great deal in highlighting the problem and in ensuring consideration of this issue.

As noble Lords closely involved in this campaign know, the Government were already reviewing the NIESR report that has been referred to before my noble friend Lord Avebury tabled his amendment to this Bill at the end of last year. However, a decision by the Government as to what action they would take had not emerged at that stage. During debate in Committee, I undertook that the Government would reach a decision which would be announced before today’s Report. In the light of the strong arguments in Committee, I also undertook to ask the relevant departmental Minister, my honourable friend Helen Grant, to meet representatives from all the major pro-legislation caste organisations. That meeting took place earlier in February and my noble friends Lord Avebury and Lady Northover and the noble Baroness, Lady Thornton, were all able to attend. Though I was not able to be present myself because I was required on other business in this House, I met Helen Grant beforehand to relay personally the details of our previous debate. She has since given me a comprehensive read-out of the discussions.

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[Lord Deben]

I understand that, but none of those things is fixed in the way in which caste is fixed. Those are things which can be changed—sometimes they are just changed by speaking differently. You cannot change your caste, and that is why it is an exact parallel with race and may indeed be included within race. Surely it is not acceptable to say that there is anything else like caste.

[Baroness Stowell of Beeston]

As I continue laying out the Government’s response, I will answer more directly the points that my noble friend has made. I want to make it plain that there are other forms of prejudice from which people in this country suffer to a great extent for which no clear, direct legislation exists to prevent it happening.

The noble and right reverend Lord, Lord Harries of Pentregarth, provided some rather shocking evidence and stories of discrimination outside the UK, as did other noble Lords. The Government have to legislate to tackle what happens in this country; that is what we—what all Governments—must ensure that we do. The noble Lord, Lord Alton, and the noble Baroness, Lady Flather, talked about the huge number of crimes committed against Dalits in India. We have existing criminal law here in Great Britain for dealing with those kinds of assaults and other crimes if they take place in this country.

At this point, let me make it clear that we remain willing to consider whether there may be a case for legislating specifically in regard to caste discrimination, and hence our willingness to meet representatives of the key groups. I will return in a moment to the circumstances that would lead us to such a decision, and why we remain unconvinced that legislation is the best answer. It is clear from the NIESR report, which is the most robust study available so far, that the majority of incidents of caste-related prejudice or abuse would not be covered by equality legislation. Our assessment is that the great majority of cases in the report are either in areas outside the legislation—such as in relation to volunteering, which is not covered by discrimination law—or would already be subject to redress through a range of measures from claims for constructive dismissal to criminal prosecution. That said, we are clear that no one should suffer prejudice because of caste. Such prejudice should not be condoned and it should never be ignored, and that is why I am pleased that the Government have announced that they are taking clear action to tackle caste prejudice and discrimination through an education initiative. I thank my noble friend Lord Sheikh for his support for this initiative, and I must say that I was rather surprised that the noble and right reverend Lord, Lord Harries, dismissed it as being patronising and interfering. Even if a new law on caste discrimination was to be introduced, without education it would not address the underlying causes.

[Lord Avebury]

Did my noble friend note the quotation I gave from the NIESR report which talked about the educational effect of legislation? The fact is that because employers would have to discharge their responsibilities, they would educate their workforces and thus the whole of society.

[Baroness Flather]

Who is going to educate whom? We have put down so many things under education that I should think they could fill a whole blackboard. Without legislation, I do not understand who will give this education and who will be educated.

[Baroness Stowell of Beeston]

I hope that, as I continue my remarks, I will be able to answer the points made by my noble friend and the noble Baroness. My noble friend Lord Avebury talked about business only needing to familiarise itself with caste legislation when a case of discrimination occurs. I would argue that that is not the case. Employers and service providers have to familiarise themselves with the law in order to avoid being faced with claims for discrimination. The noble and right reverend Lord, Lord Harries, asked about the cost of the education initiative. I can inform him that the estimated cost is around £20,000. I should also say that I thought that the contribution made by the noble Lord, Lord Singh, on the history behind caste was very illustrative because it demonstrated the point I have just made in response to my noble friend Lord Avebury about the need, if we were to introduce a law, to educate business in just how complex an issue this is and therefore how much education will be necessary.

The joint initiative between the Department for Communities and Local Government and the Government Equalities Office has already appointed a body called Talk for a Change to take this work forward in partnership with any organisation that wishes to become involved in finding practical, community-based solutions to the problems and harm that caste-based prejudice can cause. Over the next few months, the programme will see Talk for a Change running a series of regional workshops that will engage with individuals and organisations from local communities to explore the nature and sensitivities of the caste system and the emotional harm that caste prejudice and discrimination can cause. In response to a point made by my noble friend Lord Deben, I say that the workshops will also be used to raise awareness within those communities of the channels of redress that are already open to those who feel themselves to have been victims of caste prejudice, discrimination or harassment. The outcomes from these events will be used to provide material that can be made available to local authorities, schools, colleges, employers, the police and any others who may come into contact with caste-related issues. The details of how those who wish to participate in this project can get involved will be available shortly on the Talk for a Change website, and we will also ensure that these projects are widely advertised.

We believe that this education programme, which will explore all the issues, not just those covered by discrimination legislation, is an appropriate and targeted way of dealing with incidents related to caste that are not already susceptible to the criminal law or other remedies such as employment law or informal grievance procedures. However, that is not all we are doing. As has already been referred to, the Equality and Human Rights Commission was mentioned several times during our debate in Committee as an important player in this issue. We have been in discussions with the commission about caste discrimination, and both the Government Equalities Office and the commission have agreed that it would be useful to examine the evidence from existing studies and the extent to which different approaches might address the problem. This work will not duplicate the previous work undertaken in the area, such as the NIESR report.

In response to the noble and right reverend Lord, Lord Harries, and my noble friend Lord Avebury, who I think used the term Groundhog Day when commenting on this issue, let me make it absolutely clear how this is going to be different. NIESR carried out primary research to determine whether caste prejudice and discrimination exists in Great Britain. That research included discussions with a range of organisations and interviews with individuals who have claimed to be the victims of such behaviour. The commission will use the evidence that is currently available as part of its consideration of the nature of caste prejudice and harassment and the extent to which this problem is likely to be addressed by legislative or other solutions. The commission intends to publish its findings later this year, which we will of course consider carefully. My noble friend Lord Avebury asked whether a budget had been set aside for the commission to look at this issue. The commission has not requested a budget for this work because, as we debated at length in the previous debate, it is an independent body that takes its own decisions about its workload and spending within its own overall budget.

My noble and learned friend Lord Mackay of Clashfern raised an important legal matter, and he was supported in doing so by my noble friend Lord Lester. He said that caste is already potentially a subset of race and that perhaps the current existence of the separate power on caste in the Equality Act 2006 detracts from that. It goes without saying that my noble and learned friend knows far more about the law than I could ever begin to know myself, and whenever he intervenes to make a point, I consider it carefully and with great seriousness. However, we are not aware of any case law directly on this point, although I note that my noble friend Lord Lester seemed to suggest that some exists. What I would like to suggest is that, when the commission undertakes its study, this is an area on which it might properly reflect as part of its work. This is precisely the kind of thing that the commission should consider in the work that it is about to do.

[Lord Lester of Herne Hill]

Is the Minister aware that the UN Committee on the Elimination of Racial Discrimination has called on the United Kingdom to legislate in this area?

[Baroness Stowell of Beeston]

My noble friend is familiar with the detail in this area. If that is so, I am not in a position to suggest that he is wrong. However, we do not believe that it is necessary to introduce legislation at this time.

The Government are largely in accord with the aims of this amendment. We all want to see an end to caste-based prejudice and discrimination. We are not closing the door to legislation. We have no plans to remove the power from the Act, and we will leave it there in case new evidence emerges which makes it clear that legislation would help to achieve the aim that we all share. As I have already made clear, we will consider the outcome of the commission’s study when it reports later this year.

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[Baroness Thornton]

My Lords, I was very happy to put my name to this amendment from the noble Lord, Lord Lester. He spoke with great passion and authority about this issue at Second Reading and has done so again to explain why this amendment is so important. In terms of practical equalities on an everyday basis, this is probably the most important amendment we are going to discuss today because it is about how ordinary people can start to challenge whether they have been discriminated against.

As the noble Lord, Lord Lester, and my noble friend Lady Turner have just said, there is no evidence that this procedure is being used as a fishing exercise. Case law makes clear that businesses and other respondents are not required to answer questions which are disproportionate and that a poor response would not automatically lead to a finding of discrimination. Indeed, the Government’s impact assessment fails to provide any empirical support for removing this so-called regulatory burden on businesses. The questionnaire procedure facilitates access to justice. It helps both parties to assess where a claim lies and enables them to reach an early settlement where appropriate. It is therefore crucial that the Government should not repeal Section 138 of the Equality Act 2010.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords for their contributions today on this matter. I start by repeating what I said in Committee on this measure: our proposal does not impact on the substantive rights of those who believe that they have encountered discrimination. It does not deny people access to justice or reduce the remedies available to those who have experienced discrimination. It simply replaces an out-of-date system with a simpler and fairer approach for all. Let me be clear: we want a process that commands confidence from all the parties likely to be involved in discrimination cases.

Before I go any further, I will respond to a point made by the noble Lord, Lord Ouseley, about legal aid. He suggested that it was being denied, making it harder for people to bring claims. Legal aid continues to be available in discrimination cases.

Our concerns are with the nature of the statutory mechanism around Section 138 of the Act, and the particular combination of features—an unlimited scope for request of detail concerning a possible complaint, a short deadline for response and the tribunal’s power to draw pejorative inference from the response or lack of it—which employers and businesses feel really back them into a corner. This process started off, as my noble friend Lord Lester said, over 40 years ago with the intention of a straightforward question and answer procedure. In 1975, the then Minister described it as a way of enabling the complainant to obtain simple, basic information on which to decide whether to start a case. Noble Lords might compare that sentiment to actual, although, of course, anonymised, examples of the sort of questions that are nowadays put to employers. Here are a couple: “Please specify the number of employees who have requested, applied for or been invited to transfer to another department within the 18 month calendar period prior to” whatever date; “Please explain how many of those transferred had raised grievances whether formal or informal, prior to their transfer.”

At times the number of supplementary questions runs to 40, 50 or even 100, all of which employers, including small employers, often feel required to answer within eight weeks or face a tribunal case where they are already handicapped by the inferences which the tribunal may draw under the statute. It is, therefore, not surprising that many businesses feel that the balance has shifted too far in favour of the claimant. The repeal that we propose will address this and, together with the non-statutory arrangements that we are working on, will make for a fairer and simpler process, as I said before, for all involved.

My noble friend Lord Lester said that no court, tribunal or legal practitioner had ever suggested that the procedure is abused. I am happy to write to my noble friend about this because we believe some legal practitioners would certainly disagree with his statement that no abuse occurs. I hope he will not mind if I follow up on that in writing rather than trying to respond today on the Floor of the House.

When we debated this in Committee, some noble Lords doubted my contention that,

“not one single employer or business organisation told us that they saw value in the questionnaires”.—[Official Report, 14/1/13; col. GC 136.]

Indeed, that has been challenged again today by my noble friend Lord Lester and the noble Baronesses, Lady Turner of Camden and Lady Thornton. I find that a bit surprising because I thought that the letter I sent to the noble Baroness, Lady Thornton, on 8 February provided the evidence for that statement. Indeed, I noted in that letter the alienation of employers and other companies from the view expressed frequently in debates on this clause that the obtaining information process benefits business as well as individuals by weeding out unmeritorious claims. In support of this, I refer to one particular response which sums up the employer view: “The information we send in response is rarely if ever used subsequently in the case, but does require us to undertake a considerable amount of work obtaining and collating the requested information.” It is a matter of concern that what is seen in Parliament as a major benefit of the procedure—its usefulness, on occasion, to both parties as a prevention mechanism—is in reality simply not shared, or even recognised, by respondents to the questionnaires.

Despite this, I emphasise that we are not trying to do away with the concept of pre-claim disclosure. We do indeed note the claim of those arguing in favour of retaining these provisions that pre-claim disclosure can on occasion be helpful to all concerned. That brings me to what we propose to put in place of Section 138 of the Equality Act. I underline what I said in Committee about the value we see in encouraging a pre-claim dialogue and exchange of information. Our early conciliation provisions in the Bill are intended to achieve just that and will provide the right sort of platform to help establish the basic facts to determine if discrimination has occurred. However, even if parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding—

[Lord Lester of Herne Hill]

I would like clarification, although I am listening very carefully. Is it contemplated that the conciliation procedure will enable a claimant to do something like serve such a questionnaire in order to try to understand whether they have a good case or not, or is this procedure to be abolished if the Government have their way?

[Baroness Stowell of Beeston]

To be absolutely clear, this is not about abolishing the opportunity for anybody to submit questions to an employer to gather information. All we are removing is the statutory requirement for that employer to have to respond to those questions within a time limit, and, if they were not to do so, providing for their non-response to be considered by the tribunal service.

I will return to what I was saying. If parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding of the issue and of the tribunal process. The individual will then still be able to seek information from the employer or service provider, before making any decision on whether to take their claim to the tribunal. Individuals will still be free to seek information from an employer or service provider about alleged discriminatory conduct without the statutory process. Information can be sought informally, in writing or orally.

To help this process, this informal approach will be set out in ACAS-approved guidance. This is being developed with the input of interested parties, including the Equality and Diversity Forum, the Equality and Human Rights Commission, and the CBI. Since we last debated this issue, ACAS has developed draft guidance for consideration by the group of interested parties. The guidance will include advice on how to seek pre-claim information in the employment as well as the goods and services context.

My noble friend Lord Lester referred to the fact that without statutory procedure employers will not help claimants by providing information. My response is that we are removing that statutory requirement for them to respond. When that ceases to exist, courts and tribunals may still take into account a refusal to answer questions or their provision of answers that look evasive when deciding whether a case of discrimination has been made out. The fact that there is no statutory process does not remove the risk to an employer or service provider of deciding not to respond to a claimant; it only removes the unnecessary and prescriptive process around that.

In conclusion I remind noble Lords of what I said in Committee, that we are now in a different climate to 40 years ago when this legislation was introduced. Businesses are more concerned with upholding their reputations and the damage reputational risk may have on their position in their market. There is a greater trend towards transparency around information held by business. Clearly that is progress and something that we support.

I hope that noble Lords can agree that the statutory process is no longer the right approach and that our alternative arrangements will continue to enable the kind of pre-claim dialogue that business and the Government are fully committed to supporting, with a lighter-touch process which benefits all equally. I hope that in responding I have given my noble friend at least some assurance that might lead him to withdraw his amendment.

[Lord Lester of Herne Hill]

I am grateful to the Minister and to others who have taken part in the debate. I wish that there had been some assurance that I could rely upon, because I very much hoped that it would not be necessary to test the opinion of the House. However, as the noble Baroness, Lady Thornton, said, this is probably—in fact it is—the most important amendment that the House is considering, because it seeks to help the vulnerable, who are more than half the population. If you add together women, elderly people, the disabled, black people, brown people, religious minorities, and the gay and lesbian community, it comes to more than half the population. Therefore, to take away a simple procedure that has worked well in the estimation of all the judges and experts whom I have ever known—and I can claim a bit of expertise, since I have been arguing cases in this area for about 30 years, God help me, and perhaps I have a little more practical experience than some others who are advising the Government—will make it very hard to bring a discrimination claim.

It is all very well to say, “Oh well, you don’t need the statutory thing—you can just go and write a letter”. To write a letter that will lead to any kind of result probably means going to a solicitor or a trade union representative, if you are lucky enough to have one in the real world. In the real world, without this procedure, and without legal aid for employment tribunals, the applicant will bring cases that are misconceived, the conciliation process will not work well because of a lack of information, and the whole situation will be worse for victims. I do not know whether the Conservative part of the coalition wishes to go into the next election with credit for having dismantled one piece of valuable assistance to claimants. If it does, so be it. That, however, would be foolish. I speak only for the Liberal Democrats, but I do not believe that the Conservative part of the Government wishes to undo the valuable work done by previous Conservative Governments over the past 30 or 40 years in supporting this measure and others like it.

We put this on the statute book only two years ago in the 2010 Act, with all-party support. What has changed since then? The Red Tape Challenge. The original notion of that was to dismantle the whole of the equality legislation, and this is one part that has survived. It is foolish of the Government to continue to do this, and therefore I must reluctantly beg leave to test the opinion of the House.

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[Baroness Prosser]

My Lords, I support this amendment. I was reminded by the noble Lord, Lord Deben, of something that happened a good many years ago when I was the national women’s secretary of the Transport and General Workers’ Union. I was on a mission to include within the rulebook of the union requirements for each of our administrative areas to provide positive action programmes for women, and for sanctions to be introduced into the rulebook against those senior officials of the union who might be found guilty of harassment or bad behaviour towards women. “Attacked” is not the right word, but the response of more senior people in the union than me—men—verged on that. They said to me: “We don’t need a change in the rulebook, what we need is a change of culture”. I said: “Of course we do, I absolutely agree that we need a change of culture, but while we are working on the change of culture we will have a change in the rulebook so that outwith those rules you will not operate”.

We all know that large bureaucracies find it terribly difficult to shift. The idea that organisations out there—public sector bodies, services, et cetera—are going to be able to change their culture, and be willing or capable of doing that in any speedy fashion without some framework within which we require them to operate, seems to me to be cloud-cuckoo-land. I do not believe that if we remove the pressure for equality impact assessments to be the final step in delivering public sector equality duties we will see any change at all going on out there. I support this amendment and I hope that others will also do so.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece. I will explain my views on their amendment. I am grateful to them because it provides me with an opportunity to respond to some points which are important in this wider debate about equality impact assessments and the public sector equality duty.

Before I get into that, let me say from the start that this Government have a strong commitment to establishing a strong, modern, fair Britain which is built on two key principles: equal treatment and equal opportunity for all. The equality duty was designed to ensure that the needs of people are taken into account when public bodies develop, change, implement or review a new policy or service.

The amendment was discussed in Committee and, as has been explained by the noble Baroness, Lady Thornton, seeks to impose a number of processes on public bodies in addition to the central requirement to have due regard to the three main aims of the equality duty when exercising their functions. Some of the requirements it seeks to impose are already an integral part of the process of complying with the public sector equality duty. Having due regard to the equality duty when exercising their public functions is the legal duty on all public bodies. Let me be clear; that has not changed, nor has the requirement to be able to demonstrate that it has happened. For example, the proposal for public bodies to assess and monitor the likely impact of their proposed and actual policies is already required, while the requirement to publish the results of such assessments is caught by the requirement in the specific duties to publish information to demonstrate compliance with the duty. These requirements include considering the need to eliminate unlawful discrimination, advance equality of opportunity, and foster good relations between people with different characteristics. Public bodies are also required to publish information at least annually to show how they have done this, and to set at least every four years equality objectives that will promote these aims. There is therefore already a thorough requirement on public bodies to have due regard to the public sector equality duty.

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[Baroness O'Neill of Bengarve]

I have observer status; I am not a member of the working party.

[Baroness Stowell of Beeston]

I am grateful to the noble Baroness for her clarification, and I am sorry if I misrepresented her position on the steering group.

The noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred to the membership of the steering group. I say clearly that its members have been selected because of their experience and knowledge around these issues, and it is not intended at all to be a politically representative body. The steering group represents the main delivery public sectors of policing, education, health, local and central government. It can use their expertise to shape the scope of the evidence-gathering and develop the final recommendations. As the noble Baroness, Lady Thornton, said, we have extended the timetable to June from the previous announced date of the end of April at the request of the chair and the steering group to help to ensure that the review and its recommendations are robust.

The evidence-gathering for the review began in January and includes a series of round tables, involving a wide variety of experts, to gather evidence on how the duty is operating. The first round table involved voluntary and community sector organisations such as the Equality and Diversity Forum, the Stephen Lawrence Trust and Age UK. The second involved lawyers from across the public sector. A further six round tables are planned, including with inspectorates, private sector contractors and senior decision-makers. The work will include site visits to public bodies, for example to a police force or a school, to examine the experiences of different individuals within an organisation. The work will also include the commissioning of qualitative research, which will be conducted independently—as is always the case in these matters—through a series of in-depth interviews with public bodies. We will be inviting evidence from organisations and individuals about the operation of the duty, which should provide insight about public bodies’ experiences of working with the duty. We are also analysing written evidence in the form of existing literature, case law and international comparisons. We are therefore approaching this review with an open mind and gathering evidence from numerous sources to get a comprehensive picture of how the duty operates in practice.

The noble Baroness, Lady Thornton, asked how we would respond once the work is complete and the steering group produces its report. As I am sure she would expect me to say, it is far too early for me to speculate on how we will respond. However, given that we have set up the review and given it the remit to roam and consult as widely as it is doing, we will clearly take the report seriously and are looking forward to receiving it.

The equality duty and supporting regulations provide sufficient safeguards for holding public bodies to account, and introducing a further legal requirement for an equality impact assessment will not add anything material. Furthermore, the timing is not right when we are taking stock of how the current legislation is operating in practice. As I have said before and to make absolutely clear, this is a review of how that responsibility is operating, not whether public bodies should have due regard for equality. I hope that I have been able to give the noble Baroness more information about the review, and I am grateful for that opportunity.

[Baroness Thornton]

My Lords, I thank my noble friends Lord Harrison and Lady Prosser, and the noble Baroness, Lady Hussein-Ece, for their comments. I also thank the noble Lord, Lord Deben, who, as ever, made pertinent comments.

The response from the Minister was actually very helpful. We do not agree and I would obviously much prefer that the equality impact assessments were mandatory. There is no question that that would work better. However, while the Minister may not have given much comfort to her noble friend Lord Deben in what she said about the way she sees the public sector equality duty and impact assessments working, I found the Minister’s response useful and helpful, and I will read her comments in greater detail.

As to the public sector equality duty review, it was useful and reassuring to know that the review is ranging far and wide and taking evidence from a range of bodies. The Government would have been wise to make the review more balanced, given that politicians from different councils are taking part. It would have been useful to have had a Labour person on the steering group, but that does not mean that the outcome will not be useful. I am also reassured that the review is taking time to get this right.

Given the information that the noble Baroness has provided to the House, I am happy, at this stage, to beg leave to withdraw the amendment.

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[Baroness Thornton]

My Lords, I agree completely with the noble Baroness, Lady Hussein-Ece. I have written down “micromanagement by the Government Equalities Office is a bit of a red tape challenge that the Government could probably do well to look at”, so our thoughts were heading in the same direction. I see this group of amendments as continuing the positive discussion that we had in Grand Committee, where the Minister started to explain where the Government were going and what the direction of travel was. I see this group of amendments as part of that process and discussion, and I congratulate my noble friend Lady Prosser on her introduction.

What we are essentially addressing here is how the EHRC can deliver its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations, how it can best do that and how it can be independent in doing so. It seems to us that parliamentary accountability would provide the commission with that appropriate independence from Government to fulfil its role impartially. I hope that the Minister will accept something that I said in Grand Committee: this is not a means of stopping the Government setting the overall policy direction on equality matters. Everybody accepts that that is the Government’s job. However, it means that our Commission for Equality and Human Rights, apart from anything else, has the necessary independence to from time to time be critical of the Government and hold them properly to account.

[Baroness Stowell of Beeston]

My Lords, as I said in response to the first debate this afternoon, the Government want a strong, independent Equality and Human Rights Commission that promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as a strategic enforcer of the law. Clearly, we also value its “A” status and want it to retain it. We are committed to strengthening its accountability to Parliament and, in responding to this debate, I hope I can demonstrate what progress we are making.

I start with the appointments. As already acknowledged by the noble Baroness, Lady Prosser, and others who have contributed to the debate, the appointment of the new chair of the commission, the noble Baroness, Lady O’Neill, was for the first time subject to pre-appointment scrutiny by the Joint Committee on Human Rights. That is a move that the Government welcome. In January, we appointed six new commissioners and, with the appointment of the new chair, we believe that the new board marks the start of a new era for the commission steering it in a new strategic direction. We want to see the commission go from strength to strength. We are open to discussing with the Joint Committee on Human Rights how it can be involved in future appointments.

Since the debate in Committee, the Joint Committee on Human Rights has been in touch with my honourable friend the Minister for Women and Equalities, Helen Grant, who is the Minister responsible for the commission. The JCHR has set out its plans to work with the commission to strengthen the commission’s accountability to, and co-operation with, Parliament and, in particular, with the JCHR itself. I am aware that the JCHR seeks to work with the EHRC to develop a protocol of collaborative working strategies to improve accountability. I certainly echo the sentiment expressed in my honourable friend Helen Grant’s reply to the letter from the chair of the committee. We welcome the non-legislative approach taken by the JCHR, and following this exchange of correspondence, which was circulated to noble Lords before today’s debate, I understand that at the request of the chair of the Joint Committee on Human Rights a meeting will take place soon. To reiterate: there is ongoing dialogue between the commission and the JCHR to the effect that the noble Baroness, Lady Prosser, has argued for in her amendment.

I reassure the House that the commission’s annual report and accounts are already laid before Parliament, as well as its strategic plan and its reports on progress. With respect to the commission’s budget, since Committee, and as I referred to earlier today, we have published the outcome of the comprehensive budget review. This review, conducted in partnership with the commission, sets out the agreed level of funding adequate for the commission to fulfil its functions. As the noble Baroness, Lady O’Neill, said, the review agrees a budget that will allow the commission to,

“continue as an effective organisation in all our roles”.

Furthermore, as my noble friend Lord Lester mentioned in Committee, the commission’s founding legislation includes an obligation for Ministers to make sure that it receives reasonably sufficient funding to fulfil its functions. That will continue. As such, we do not believe that it is necessary for Parliament to set directly the commission’s budget.

The vast majority of public bodies are set up in a similar way to the Equality and Human Rights Commission, and that is because it is not practical as a general rule for Parliament to provide the level of day-to-day support often required. To agree a budget with an organisation requires quite a lot of ongoing detailed discussion to reach an agreed amount. That is not something which usually lends itself to the work of a Select Committee. My noble friend Lord Deben, who has a good deal of experience with this, made that argument during Committee. It is worth pointing out that, unlike most other such bodies, there is no power for Ministers to compel the commission to do anything, so in terms of the process by which it agrees its budget, it does not set a budget to ensure it fulfils something that it does not want to do.

Moving on to the framework document, officials are working with the commission to put in place a new, improved framework by the end of this month. While I cannot go into the detail as this work is ongoing, I can assure noble Lords that officials are working to ensure the commission’s independence is not compromised by the need for it to be accountable. The noble Baroness, Lady Prosser, and others referred to the ICC’s view of the commission’s accountability to Parliament. It is quite right that in 2010 the ICC, as part of its special review, suggested that it might be sensible for the Government to consider increasing the level of the commission’s accountability to Parliament. Our view is that this is being achieved through the steps we are taking, some of which I have just outlined. I should also make clear that the commission was accredited as an “A”-rated institution without any change in its reporting arrangements. My point is that its “A” status was conferred on it as it is currently constituted, so it already exists in the way that it is constructed. I am aware that the commission will be considered at the next meeting of the ICC’s sub-committee on accreditation in May. As I stated in Committee, we have a constructive dialogue with the chair of the ICC and this will continue.