Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Wednesday 10th July 2013 Lords Chamber

[Baroness Thornton]

My Lords, government Amendments 86, 87, 88, 89 and 133 will provide a fast-track procedure for gender recognition where individuals have been living in the acquired gender for a long period and clarify that the consent of a spouse means consent to the marriage continuing, not consent to gender recognition. There is no doubt that we wholeheartedly welcome these amendments; we would like to put on record our thanks to the Minister and her team for the amount of work that they have put in on this issue.

This is an issue that colleagues in both Houses have been pushing throughout the Bill’s passage, and we have made progress with the Government on pensions and the fast-track procedure. However, as my noble friend Lady Gould has said, consent is a very sensitive issue, and the transgender community has reacted with outrage at the idea that their final recognition through gender recognition certificates should or possibly could be vetoed by their spouse, particularly if they were estranged or if the relationship had broken down.

Like the noble Baroness, Lady Barker, and my noble friend Lady Gould, we think we have made great progress, but this issue is unresolved and a community that has faced enormous discrimination and prejudice is very concerned about it. We need to keep a watching brief on this issue, and we will need to return to it, certainly in post-legislative scrutiny, if not in another Bill that comes along in which we can find some other way of doing it.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Baronesses who have contributed to this debate, who are the same noble Baronesses who I have met to discuss these matters.

I will be very brief in responding to the points that have been made. The noble Baroness, Lady Gould, raised the question of post-legislative scrutiny. I certainly expect the Bill’s impact to be considered and that the issue of spousal content will be part of that process. That would be a matter of form, so I can give some reassurance in that regard at least.

My noble friend Lady Barker mentioned the fast-track procedure and the length of time. The fast-track procedure reduces the amount of evidence that a transperson must submit to the gender recognition panel. Therefore it saves them from having to obtain new, additional evidence, which may be difficult and time-consuming. It does not affect the length of time from application to the issue of the gender recognition certificate; it is about the process prior to that point.

In concluding, I want to say how grateful I am for the generous remarks that have been made and to remind all noble Lords that the Bill is about allowing same-sex couples to marry. We have allowed transpeople who are already married to stay married. That is an enormously positive step forward, and we should not lose sight of that. However, it is worth pointing out also that because those transpeople are already married, it is essential that both spouses confirm that they want to remain married because their marriage is a legal contract that will change. When we get married—although, as we all know, I am not married. I have been to weddings, even if I have not had one of my own—on our wedding day we take somebody to be either our lawfully wedded wife or our lawfully wedded husband. That is a legal contract between two people. This Bill has enabled us to ensure that if one of those people is transgender and wants to have transgender recognition, they are able to do that and to remain married to the person who they fell in love with and married some years before. That is an important thing that we have been able to make happen. I take on board the points that have been made in the debate, but I am pleased that we are at least able to acknowledge the big step forward that this Bill will allow us to take.

Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Monday 8th July 2013 Lords Chamber

[Baroness Thornton]

My Lords, I join other noble Lords in congratulating everybody, really. This is one of those occasions. I congratulate the noble Baroness, Lady Meacher, the noble Lord, Lord Garel-Jones, who I hope will be back with us soon, my noble friends Lord Harrison, Lady Massey and Lord Alli, the noble Lord, Lord Lester, and the noble Baroness, Lady Brinton. Of course, I also sincerely congratulate the Minister and the very talented team who worked with her on this. Late on Thursday, when we were trying to get the amendment down, get my name on it and do all the clearances, I was in an LSE governors’ meeting. I texted the Minister to say that I thought we both needed a gin and tonic. I did not get one, but I hope she did.

I also congratulate the British Humanist Association, Andrew Copson its chief executive and his team who consistently jumped through hoops that had been set for them all the way through this process. They have sought all along the line to accommodate all the questions that have been asked. Noble Lords may remember that I said that my children would not be able to be married by a humanist celebrant in this country. I will now have to tell them that if they intend to get married they will probably have to have quite a long engagement. However, this is the House doing its job by doing good.

[Baroness Stowell of Beeston]

My Lords, I am very grateful to the noble Baroness, Lady Thornton, for reminding the House that I am part of a team. While I am very taken by the kind tributes made by the noble Lord, Lord Harrison, in particular, and the noble Lord, Lord Alli, it is important to stress that we have worked as a team in Government to be able to come forward with this amendment. We are very pleased to do so. I echo all the tributes just made by the noble Baroness, Lady Thornton. If it were possible in Lords-speak, I would say “Right back atcha”, as they might say somewhere else.

If I may, I will respond to some of the serious points that have been made. My noble friend, Lord Lester, is right that we are amending the Long Title of the Bill to ensure that this amendment is properly reflected in what will become an Act. I note his points about that. I also note his point about there being belief organisations and belief organisations, and the need for safeguards. I note the questions of the noble Lord, Lord Anderson, about what people call, in shorthand, sham marriages. I also note what the right reverend Prelate the Bishop of Chester said about various points of detail. All of these contributions have emphasised why this is important, and why we think it is the right approach to have this review and consultation and make sure that all of these matters are properly considered. That is what we will do. As I said earlier to the noble Baroness, Lady Meacher, it is in the Bill that we have to do that before 1 January 2015, so we will certainly make sure that it happens.

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[Baroness Thornton]

My Lords, I know that my noble friend is very concerned because cultural change is always difficult and sometimes painful, and I understand that. We have discussed these issues in some detail in Committee. I say to my noble friend that although the safeguards to protect people’s freedom of speech exist, we also have the safeguards under the Equality Act, which is a carefully considered piece of legislation. They set the boundaries and characteristics that allow religion and belief as a protected characteristic, so we have the safeguards that ensure that this amendment is not necessary. As several noble Lords have already said during this debate and in Committee, one cannot legislate against idiots taking silly cases. Although in some of the cases that my noble friends have mentioned people won those vexatious, silly cases, that does not mean that you change the fundamental laws and freedoms that we already have. We will be opposing my noble friend’s amendment.

[Baroness Stowell of Beeston]

My Lords, I will begin by saying a couple of things to the noble Lord, Lord Anderson. He is absolutely right that we feel very strongly about the need to protect the freedom of speech, which is what we are doing through this legislation. He also talked about this being a serious amendment, and that he wishes the Government to take it seriously. I can assure him that not only do we take this amendment seriously but that we have taken seriously all amendments that have been tabled, both in Committee and on Report, and will continue to do so.

The noble Lord mentioned various examples to illustrate his argument that employees need additional protection. I responded to all of them at various stages of the Bill, so I will not do so again now. However, he said that people feel concerned that once the Bill becomes an Act—and we hope that it will become an Act—they will not be able to maintain what he described as a mainstream view. I understand that concern; however, not only will it be possible for people to maintain and express their belief, we recognise that that belief is a mainstream opinion. We are not trying to say that it is a sidelined opinion—it is an important belief that many people hold, and we would not want to say anything to undermine people who hold that belief, as we respect them.

On the noble Lord’s amendment and its proposal to amend the Employment Act 1996, we are not convinced that it is necessary, or desirable, to provide additional protection for employees in this way who express a belief that marriage should be only between a man and a woman. Discriminating against an employee because of this belief would already be unlawful under the Equality Act, as the noble Baroness, Lady Thornton, said. That existing protection strikes the right balance in providing protection for the employee, while also protecting other employees and customers from discrimination and harassment. It is important to understand that the Equality Act is there to strike a balance. Employers must have the right to ask their staff to do what is necessary to run their business, provided that it is reasonable and lawful. Therefore, if an employer does not think it right that an employee should express personal views on this or any other subject to customers, for example in a restaurant or hotel, he should be able to ensure that his employees perform their jobs in the appropriate way. To be clear, that does not mean that an employee has no right to hold the opinion or belief that they do.

Furthermore, if we are to pick out this particular belief for protection in the Employment Rights Act, what is the justification for stopping there? Other beliefs are equally worthy of protection, including the belief that marriage can be enjoyed equally by same-sex couples. The principle applies to an enormous range of beliefs which are entirely legitimate, although the expression of them might impede the performance of the job in question.

Employees are already protected under discrimination law. The Equality Act already provides comprehensive protection against unlawful discrimination—both direct and indirect—harassment and victimisation. It would be a matter of fact whether conduct of an employer constitutes a detriment and whether it is imposed because of the employee’s belief that marriage should be of one man with one woman. If there is direct discrimination, it would not be capable of justification and would be unlawful.

We believe that these amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. There is no need for further protection to be added to the Employment Rights Act. I hope, therefore, that the noble Lord feels able to withdraw his amendment.

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[Baroness Thornton]

My Lords, the noble Lords, Lord Deben and Lord Lester, have put this very well indeed. I would add just one other matter. I find my noble friend’s view of the future rather depressing. I do not believe that people will argue and fight with each other about the existence of same-sex marriage. I simply do not believe that this is what will happen. Apart from the fact that in most cases this is a private matter between two people of the same sex or opposite sex, it is not the kind of issue that will raise the problems that my noble friend has suggested. I hope that, as the Bill moves forward in the next year, my noble friend will start to take a more optimistic view of it.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have contributed to this debate. I shall try to avoid repeating myself, because a lot of this amendment would lead me to do so. I will avoid doing that, if the noble Lord, Lord Anderson, will forgive me, and go directly to the central point of his amendment.

My first point is that an employer should have the right to ask his employees to do their job. Equally, he may not impose a requirement on them that would discriminate against them because of their religion or belief. Of course, it is open to private sector employers to make any adjustment they wish for their staff. It is quite possible, and perfectly lawful, for an employer to allow staff not to be involved in any activity that is objectionable to them—if the employer wishes. In this regard, private sector employers are not in the same position as public sector employers. As the noble Lord made clear, he does not include the likes of registrars in this debate in any case.

However, imposing a duty on employers to provide reasonable accommodation in respect of religion or belief would be a new concept in English law, as the noble Lord has already acknowledged, although he mentioned that it was common practice in the US. We would need to consider in detail how that duty would work in conjunction with the rules on indirect discrimination, and whether all other religious and philosophical beliefs should be equally protected—not just the belief that marriage should be of one man with one woman. That is not a task to be undertaken in this Bill, and I note the comments from my noble friends Lord Lester and Lord Deben about their view of this concept.

To pass this amendment would add a new burden on employers, who would have to work out what it means in their own particular context. It is probably worth pointing out that in his evidence to the Joint Committee on Human Rights, Robin Allen QC, on behalf of the Equality and Human Rights Commission, made clear that the existing legal protections contained within employment and equality law would be suitable to deal with any issues that may arise. He advised against including additional safeguards, such as a reasonable accommodation provision in this Bill.

So the current provision in legislation, which prohibits discrimination because of religion or belief, is fit for purpose. To impose a whole new duty of reasonable accommodation in this Bill is unnecessary. It could also be damaging to the balanced way in which the Equality Act operates, create uncertainty and add a new burden on employers who would have to make sense of it. I therefore ask the noble Lord to consider withdrawing his amendment.

Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Monday 8th July 2013 Lords Chamber

Baroness Thornton: My Lords, I ask your Lordships not to be seduced by the honeyed words and assurances of the noble and learned Lord, Lord Mackay of Clashfern, of whom we are all extremely fond and for whom we have the most enormous respect. However, assertions about consummation and children, for which there is really no evidence, are nothing to do with this Bill. The effects of these amendments are the same as those introduced in Committee at the beginning: that one form of marriage is different and therefore probably inferior to another. This completely flies in the face of the Bill’s purpose.

We are all much aware of the noble and learned Lord’s concern about family and children, because he has spoken about them many times in this Chamber. However, with respect, these are not the issues being discussed in this Bill. I agree with many noble Lords who said that this will probably be known as the “brackets” amendment. We do not want or need brackets in this Bill, because its very purpose is to provide for the state to recognise equally the relationships of couples who wish to make a loving and lifelong commitment to each other, regardless of whether they are members of the same sex or of the opposite sex.

I accept that this purpose moves the statutory concept of marriage beyond that which proponents of traditional marriage agree. This amendment is about creating two classes of marriage. I congratulate my noble friend Lord Anderson, who spoke of celebrating his special wedding anniversary, but I hope that I will live long enough to celebrate silver wedding anniversaries of same-sex marriages which will take place next summer. My noble friends Lord Alli and Lord Richard, and the noble Lords, Lord Fowler, Lord Deben, Lord Pannick and Lord Lester, put the case powerfully and well.

I am surprised by the opposition to equality of marriage from the noble Earl, Lord Listowel, given his work with children, for which he is famous in this House. If he had discussed this with young people, as I have, he may find that in most cases they really do not understand what the fuss is about or what the problem is here. I do not think that the problems faced by the types of young people the noble Earl helps and supports are a result of, for instance, the proposal for same-sex marriage. That cannot be the case.

I would say to the noble Lord, Lord Waddington, that I have not seen any hostility to the church during the course of these discussions. My noble friend Lady Royall and I have met both the Church of England and the Roman Catholic Church on several occasions throughout the course of this Bill. They were friendly exchanges and friendly discussion. We disagree with each other on some of this Bill, but I have not seen any unfriendliness, nor do I think that the dismal picture that the noble Lord paints will come to pass.

I do not think that the word “wife” will be abolished. As a wife, I certainly do not think so and I hope that nobody will put any ideas into my husband’s head. We wives are probably very safe with the passage of this Bill. My noble friend Lord Alli asked the question, “Why do same-sex couples have to have bracketed marriages?”. I agree with him that it is a bad idea. We should defeat this amendment.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble and learned friend for introducing his amendment and for all the contributions to the debate. One or two noble Lords referred to this issue as being complex. I disagree with them. What is before us is very simple. There is one institution of marriage, it is one of the most important institutions that we have, and we want gay and lesbian couples to be a part of it in exactly the same way as any other couples who wish to be married. These amendments create two separate, potentially legal institutions and, therefore, undermine the fundamental purpose of the Bill, as other noble Lords, including the noble Lords, Lord Pannick, Lord Alli, Lord Deben and Lord Richard, have said.

Every time that we have introduced a change in support of gay rights, it has been hard-fought for and not always been easy to progress. None the less, it has made it easier to take the next step. Each step makes it easier for gay men and women to live their lives in the same way as straight men and women. I noted what the noble Baroness, Lady Howarth, said about gay men and women wanting to live ordinary lives. The more that we allow them to do so, and to see them doing so, the more it leads us to believe that we should remove from them any barriers to being able to do just that.

The creation of civil partnerships was a massive step forward. Through them, we gave gay couples equal rights. I was not in Parliament at the time, but I guessed that Parliament decided that the difference between us justified keeping gay men and women out of the institution of marriage. However, over the past eight or nine years, as we witnessed civil partnerships taking place and have become familiar with couples in civil partnerships, we as a society have realised that the exclusion of gay men and women from marriage is not justified.

My noble friend Lord Cormack said that he wanted us to reach a compromise and that the amendment represented that. I say to him and to all noble Lords who support him and these amendments that the time for compromise is over. We now understand that serious relationships between gay men and between gay women are no different from serious relationships between straight men and women. I have said many times during the passage of the Bill that gay couples want to settle down for exactly the same reasons as all other couples do. They are two people who love each other, want to commit to each other, want to provide security and stability for each other, and want to be a team, a partnership and to support each other. Like straight people, that is what leads gay people to want to marry. There is no difference there between us.

My noble and learned friend Lord Mackay pointed to differences and raised the issue of procreation and children to illustrate his argument. The Bill as it stands distinguishes between same-sex couples and opposite-sex couples only as far as is necessary to achieve a practical result. My noble and learned friend talked at length about children. In response, I should make just a few points. The first, which is really important, is that if we enact the Bill, the children of same-sex couples will be able to enjoy the same status as other children. That is a fantastic thing to be able to achieve. It will mean that children at school will not be treated differently, as their parents will be married in the same way as other parents may be.

Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Monday 24th June 2013 Lords Chamber

[Baroness Thornton]

My Lords, I congratulate the Government on meeting two out of the three issues that the Bill has raised for transgender people, and doing so in a sensible and calm fashion. The only outstanding issue left is the proposal being tested here—that same-sex marriage legislation gives spouses the power of veto over whether a transgender partner can have legal recognition of a change of gender. The noble Baroness, Lady Barker, my noble friend Lady Gould and the noble and learned Baroness, Lady Butler-Sloss, have explained the issues perfectly well. I do not think they are complex; they are very straightforward. This is an unfairness and injustice that needs to be balanced out and dealt with in the Bill.

It is an irony and a great shame that, when enacted, the Bill will affect the human rights of transgender people and take them backwards in the UK. I do not think that is the Government’s intention, and I am sure that it is not the intention of the Minister. From these Benches, we think it is important to resolve this issue, which affects a minority of people but, as the noble and learned Baroness, Lady Butler-Sloss, said, can have a very painful and lifelong effect. The Government need to address it. I hope that between now and Report, we will be able to resolve the issue.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lady Barker for introducing this group of amendments and also to all who have spoken in the debate today. It is an incredibly sensitive issue, and I am mindful of that in responding. The noble Baroness, Lady Gould, made a powerful speech and I want her to know that I was listening carefully to her arguments. The Gender Recognition Panel has been consulted throughout as we have been drafting the Bill and it has not raised any concerns or matter that we have not been able to address.

Before I get to the detail of the amendments, let me be clear from the start—in a way it is a response to a point made by the noble Baroness, Lady Thornton—that our concern in the Bill has been to ensure that as many couples as possible are able to stay married if they wish to do so following one or both spouses obtaining gender recognition. We are proud to make that possible in the Bill and it is something that we very much support.

The provisions in the Bill allow the spouse of a transperson to agree and consent to their marriage continuing as a same-sex marriage after gender recognition. It is not a block or a veto; they cannot prevent their spouse obtaining gender recognition. It is important that I make that point. I will explain in a little bit more detail, but nobody is able to stop anybody getting their gender recognition certificate—of that I can be very clear.

The Bill seeks to strike a fair balance between the Article 8 rights to respect for the private and family life of both spouses. The trans spouse has a right to be granted their gender recognition without unnecessary delay, but the non-trans spouse also has a right to have a say in the future of their marriage following their spouse gaining gender recognition. We have, during the passage of the Bill, listened carefully to interested stakeholders from the trans community. I have been glad to meet some representatives with my honourable friend Helen Grant, the Minister from another place. I am grateful to those who have been involved in the preparation of these amendments, and for the time and effort that have gone into them because I know that has been considerable.

I will turn specifically to what the amendments seek to do. The first aspect is the limit of six months in proposed new subsection (3A), relating to both spouses’ power to initiate annulment proceedings following the issue of an interim gender recognition certificate. The point is that there should be a limit of six months for annulment proceedings to start. In response to a point made by my noble friend Lady Barker and the noble and learned Baroness, Lady Butler-Sloss, I want to make it clear that if a spouse refused to commence annulment proceedings, the trans spouse would be able to do so. In the Bill as it stands, either spouse in the marriage is able to start annulment proceedings. It is not just in the hands of one spouse.

In terms of the second time limit of 12 months in proposed new subsection (3A), once annulment proceedings have been commenced, it is for the court to bring the marriage to an end and, upon that occurring, to issue a full gender recognition certificate to the applicant. To require the Gender Recognition Panel to issue a gender recognition certificate while court proceedings are ongoing would be to require the panel to usurp the functions of a superior court. Where one spouse is deliberately delaying the annulment process, the courts already have the power to deal with this. I will be absolutely clear: either spouse is able to bring forward annulment proceedings and once they start, they are in the hands of the court. Most annulment proceedings take three months—or, from the very outset, six months I think—but it is the court that will ensure that they continue in line with the proper process.

There is another element to the amendments, which I am not sure my noble friend covered in her introductory remarks, but to which I will respond. Proposed new subsection (3B) relates to civil partnerships. The Government do not believe that removing the right of spouses to have a say in the future of their marriage following conversion and gender recognition strikes the proper balance between the rights of both spouses. The agreement of a non-trans civil partner to the conversion of their civil partnership to a same-sex marriage is one thing—it is not the same as their agreement to the resulting marriage continuing as an opposite-sex marriage following their spouse’s gender recognition.

That covers the situation where a couple are already in a civil partnership and one of them has gender reassignment. If the non-trans spouse agrees to transfer the civil partnership to a marriage, to allow their certificate to continue, that is not the same as the non-trans spouse agreeing at the same time that they want to continue to be married to somebody who would then be of the opposite sex but who was of the same sex when they first entered into a civil partnership.

The Government and I are always prepared to listen and to take great care in responding to points raised in debate. It is probably worth mentioning that we have already made an amendment to the Bill to protect the pension rights of transpeople who receive a gender recognition certificate and are then in a same-sex marriage, so that they retain the same rights as if they were married to somebody of the opposite sex. Following the debate in the other place on the fast-track procedure, we have been considering this carefully, and I hope very much to bring forward something positive in that area on Report.

The noble and learned Baroness, Lady Butler-Sloss, and other noble Lords asked whether a spouse is currently notified at the point of application. Under current rules, a spouse is not notified of her trans partner’s gender recognition application. This is because the marriage must be annulled before a full gender recognition certificate can be issued. The process, as it stands, requires somebody to have annulled their marriage before it is possible to get a full gender recognition certificate. However, I have only just been made aware of that issue and would like to follow up with a letter to the noble and learned Baroness, to my noble friend and to other noble Lords to explain the point in more detail.

I regret that I am not able to accept the amendment, but I hope I was able to give noble Lords the assurance they quite rightly seek. This is not about anybody having more control than the other person over the future of their marriage; it is about ensuring that there is an equal share and balance of rights between the two parties, and that it certainly is not just one spouse who has the right to annul the marriage.

[Baroness Thornton]

I do not think the noble Baroness has actually addressed the issue of one spouse having the right of veto. I think that is very important. Spousal vetoes are spousal consents, which we got rid of in this country many years ago. A husband actually had to consent to his wife divorcing him, for example. I ask the noble Baroness to look at this most carefully. At the moment the Bill is in danger of reintroducing into British law a new matter—the right of one spouse to veto the actions of another—which we got rid of many years ago.

[Baroness Stowell of Beeston]

I hoped that I had responded to that, because we are clear that one spouse is not vetoing somebody else’s rights. If the transperson in the marriage wants to go for full gender recognition and receive the certificate, they are absolutely entitled to do that. However, if the person to whom they are married does not want to remain married to them, then they have to make a decision about the future of their marriage. We argue that for the non-transperson, whether they wish to remain married to somebody who has gone through gender reassignment is quite a fundamental thing to have to consider. This is not saying that somebody who wants to reassign their gender is not able to do so. The issue is whether they are able to remain in the same marriage. The person to whom they are married also has some right to decide whether they want to remain married to somebody after that person has changed their gender.

[Baroness Thornton]

The point here is whether the effect of this is that the transperson cannot complete their transition. That is the point the Minister is not answering.

[Baroness Stowell of Beeston]

Forgive me, but I think I am. I am saying that if someone wants to go ahead with gender reassignment and their spouse does not agree to remain married to them, then it is open to them to start annulment proceedings, as indeed it is to the spouse who no longer wishes to remain married to them. Both of them have the right to start an annulment proceeding, and the person who wishes to change their gender and receive a full certificate can do that. It is not about them being unable to change their gender. They have the right to do that, and nobody is stopping them doing that. However, if the person to whom they are married does not wish to remain married, sadly they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them.

This is an incredibly difficult situation, as has been made clear in the course of this debate. Fundamentally, it concerns the decision of two people about their future. Each person has equal rights in the future of their marriage, but they must decide for themselves. These amendments seek to institute a time limit after which the state decides for them. It is not for the state to decide who people should be married to.

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[Baroness Thornton]

We are talking here about a balance of rights. I think that I would like guidance, which I would be happy to take in writing or in a meeting. The objections of either spouse might be based on religious conviction, for example, although other objections are possible, too. Equalities cases such as those of Ladele have shown that Article 9 rights need to be balanced with other rights. In this scenario, are the Government explicitly placing someone’s Article 9 rights above their partner’s Article 8 rights? I am not asking the Minister to respond to that question now, but I would like that to be part of this discussion.

[Baroness Stowell of Beeston]

I certainly accept the noble Baroness’s invitation to respond to her on that point either in a meeting or in writing. However, I can say quite clearly that the rights at issue here are only Article 8 rights; that is, each party’s right to a private family life. I shall of course respond in detail to that.

On the point raised by the noble and learned Baroness, Lady Butler-Sloss, under current rules a spouse is not notified of her trans spouse’s gender recognition application because the marriage must be annulled before a full gender recognition certificate can be issued. In order for somebody to obtain the certificate, they would already have had to deal with the issue of their own marriage, because it is not possible in current law for two people of the same sex to be married.

I take the point that the noble and learned Baroness made about there being a need for spouses to be notified of changes sooner rather than later. Clearly, if the relationship still exists, there will in most cases be a physical awareness of the change. However, since the noble and learned Baroness has raised a serious point, as has my noble friend, I should like to consult my colleagues on it and follow it up in writing.

Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Wednesday 19th June 2013 Lords Chamber

[Baroness Thornton]

My Lords, I will merely say that my noble friend Lord Alli has put his finger on the point. This discussion is not about biology but—as the right reverend Prelate said—fidelity. I suspect that the Government have been round this course. I know from reading the record in the Commons that they had these discussions and settled where they did. At the moment I cannot see any way of moving from that point. I do not accept the biological descriptions and solutions suggested by the noble and learned Baroness, Lady Butler-Sloss. The Government have probably ended up in the right place.

[Baroness Stowell of Beeston]

My Lords, I was wondering earlier how BBC Parliament would cope if this group of amendments came up before the 9 pm watershed. However, we are clearly okay.

[Baroness Thornton]

They could turn the lights down.

[Baroness Stowell of Beeston]

At least we are not going to be subject to an inquiry by Ofcom.

The effect of the amendment of the noble and learned Baroness would be that the question of how adultery and non-consummation would apply to same-sex marriages would have to be determined over time by case law. The Government believe that such an approach would leave the law uncertain in respect of divorce and nullity, and would not give people adequate protection. The noble and learned Baroness will know better than I that the definition of adultery has developed in case law over many years. In order for a definition to be determined for same-sex couples, it would have to go through a similar process. That would provide uncertainty for same-sex couples, which is not what any of us want.

The Bill provides greater clarity by confirming that only sexual intercourse with a member of the opposite sex outside marriage will constitute adultery for all couples, both opposite sex or same sex. The noble Lord, Lord Alli, rightly said that the Government had taken the approach, in designing all parts of the Bill, of trying to avoid disrupting existing marriage law as far as possible. This provision confirms that the current case law definition of adultery applies to the marriages of same-sex couples. I make it clear that at the moment, if a married man has an affair with another man, his wife would not be able to divorce him on the grounds of adultery. However, she would be able to cite unreasonable behaviour, so she would not be denied the right to divorce; only the grounds that she relied on would be different.

Equally, for same-sex married couples, sexual activity with a member of the same sex will support an application for divorce, since it will be open to someone in a same-sex marriage to cite unreasonable behaviour. This will not mean that same-sex couples have any reduced right to divorce or will suffer any delay in applying for it, because the same procedures apply to divorces on the grounds of adultery and those on the grounds of unreasonable behaviour. If a woman in a same-sex marriage has an affair with a man, her wife would still be able to apply for a divorce on the grounds of adultery. If she has sex with another woman outside the marriage, her wife could not seek a divorce on grounds of adultery but would do so on the grounds of unreasonable behaviour. That is what currently happens. As we know, it is not that unusual for someone in an opposite-sex marriage to have an affair outside the marriage with somebody of the same sex.

The noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate argued that these provisions in the Bill mean that there is no requirement for same-sex married couples to be faithful, because adultery is not available to them in the way I have just talked about. The right reverend Prelate used a particular word that I cannot remember; I think he talked about “standards”. I think it is worth making the point that we need to avoid assuming that in order to be faithful people need to know they can divorce someone on the grounds of adultery. It is not the possibility of divorcing someone on the grounds of adultery that leads someone to be faithful to the person they are in a relationship with. What makes people faithful is far more complicated than that. The issues around fidelity, the reasons why people stay together, and their trust and commitment to each other are very complex. Even so, in terms of the law, marriage does not require the fidelity of couples. It is open to each couple to decide for themselves on the importance of fidelity within their own relationship. The law does not lay down requirements about the consensual sexual activity which should or should not take place for married couples.

Similarly, the Government believe that not applying provisions on non-consummation as a ground for the nullity of the marriage of a same-sex couple is the correct approach. There has been a lot of discussion of procreation, not so much tonight but certainly at earlier stages of our debates. Historically, consummation was linked to procreation, although now in law it is not. I want to make it clear that there is no requirement in law that a couple should consummate their marriage in order for it to be a valid marriage. We do not consider that there is a need to extend non-consummation as a ground for annulment to same-sex marriage. This also ensures that the law is clear for same-sex couples, as I already noted.

I think the point made by the noble Lord, Lord Alli, in response to the proposal of the noble and learned Baroness, Lady Butler-Sloss, to transfer the definition of penetration from that of an opposite-sex couple to that of a same-sex couple, but focusing only on men, serves to demonstrate that we have not addressed what penetration means for a lesbian couple. That is why, as I say, it would take a long time to develop this in case law in a meaningful way. The Government do not believe that the Bill’s approach to adultery and non-consummation for same-sex couples represents an inequality with opposite-sex couples. We believe the Bill makes appropriate provision for same-sex couples, while ensuring that the law for opposite-sex couples remains exactly as it is now.

However, I thank the noble and learned Baroness for bringing forward her amendments because, as she rightly says, this is a very sensitive topic. It is not one that people find easy to debate. I never thought I would stand at a Dispatch Box talking about these kinds of things. She serves the Committee well by raising this matter, but I hope I have been able at least to clarify that by not changing what now exists in law we are not actually creating an inequality. I think the desire of same-sex couples to have a successful relationship through marriage does not require the possibility of adultery for them to remain faithful to each other, if of course that is what they intended when they first married. I hope the noble and learned Baroness feels able to withdraw her amendments.

Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Wednesday 19th June 2013 Lords Chamber

[Baroness Thornton]

I thank the noble and learned Lord for that remark. That is indeed the case.

I conclude my remarks by quoting from somebody who got married. He said:

“I got married twice in a week. My first marriage was conducted by someone who had interviewed my wife and me twice, at length, before the wedding; who spent hours (and several emails) exploring the key elements of the connection we wished to celebrate during the ceremony; and offered her guidance when we requested it, based on her knowledge of us as individuals and as a couple”.

Actually, that is exactly what a vicar would do—of course it is. He went on to say:

“My second wedding–to the same woman, I should hasten to add–happened two days later. It was conducted by an official who had met us for the first time minutes before, and was conducted with the polite efficiency of a market research interview. My first wedding was conducted by a Humanist Celebrant; my second by a registrar. Needless to say, when I think of my wedding, and the vows I committed to, the second set I gave that week rarely cross my mind. Yet it is this exchange currently recognised in UK law”.

The question that I put to your Lordships’ House is: which date do you think that couple celebrate when they celebrate their wedding anniversary?

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord Harrison, for introducing the amendment and for explaining how important it is to humanists that they be allowed to conduct their own marriage solemnisations, according to their beliefs, by someone who shares their beliefs and in any place of their choosing, which could include the outdoors. I have no doubt that a celebration conducted by the sister of the noble Baroness, Lady Thornton, in the way that she described is one that would be enjoyed by those involved.

I am grateful to all noble Lords who have contributed to this debate and talked about the importance of humanist weddings being able to take place. I feel that this issue warrants a careful reply from me. I want to cover quite a bit of ground in my reply, so I hope that the House will indulge me if I am not as speedy as noble Lords might like me to be, but I think this is important.

First, it is important for me to remind noble Lords about the purpose of this Bill. It is about allowing people to marry who currently cannot marry, and the only people who cannot marry at this time are gay and lesbian couples. When we decided as a Government to bring forward legislation to allow that to happen, we decided to do so by making as little change as possible to existing marriage law. The noble Baroness, Lady Thornton, has described quite clearly how different humanists might celebrate their weddings, so I will not go through all the details. However, it is important to make the point that humanists can marry in England and Wales. They might not be able to have at this time the wedding celebration that they would like but, even if they do not want to follow the route that the noble Baroness suggested, where some people go first to a register office and then have a separate celebration, because humanists are non-religious, they have the option, within a civil marriage at a register office, of being able to adapt that service to include vows and readings that reflect their humanist beliefs and values. Although that might not be ideal, they are not alone in sometimes having to adapt their arrangements.

[Baroness Thornton]

The noble Baroness needs to acknowledge that humanism is a system of belief. It is quite wrong to suggest that, because humanists do not want to have a religious wedding, somehow it is all right for them to have an adapted civil service. That is not the point here. The point is that humanists want to have a ceremony that is a humanist ceremony, based on their beliefs and their value system.

[Baroness Stowell of Beeston]

I accept that point. Forgive me if I was suggesting anything that was not respectful of what humanists are seeking to achieve. I absolutely understand the point that the noble Baroness is making. I was trying to explain that some people who follow a religious faith might argue that because humanists, although belonging to a belief organisation, are not religious, they have some opportunity to adapt a civil ceremony in a way that a religious person would not be able to.

--- Later in debate ---

[Baroness Stowell of Beeston]

I was trying to make the simple point that the concern that the Attorney-General raised at that time has been addressed. That amendment was very narrowly defined around humanist belief. This amendment is much broader in scope because it is not narrowly restricted just to the British Humanist Association. However, that does not remove from what is at issue for the Government: that by introducing a change this amendment would have wider implications for marriage law in England and Wales. I intend to explain this to noble Lords.

As we have acknowledged throughout our debates on the Bill, marriage is clearly an important institution and a legal recognition through which the state confers rights and obligations. We therefore need to regulate carefully the process by which we allow this important legal status to be established.

[Baroness Thornton]

I am very puzzled by what the noble Baroness is saying. She is now saying that there are other grounds. In the Commons—and it is on the record in Hansard—the Minister specifically said that the letter that she would send to the British Humanist Association would be comprehensive and would cover all the Government’s concerns. This amendment and the discussions that the British Humanist Association has had since then, in good faith, have met all those points. I am very puzzled as to why the noble Baroness is now leading us into what sounds like the answer, “The Government have concerns about other matters”. It seems like we will never reach the end of this.

[Baroness Stowell of Beeston]

I do not have the copy of Hansard in front of me for the debates that took place in the other place. However, I am confident that my right honourable friend the Secretary of State, Maria Miller, made it clear in those debates that there were other concerns about this proposal that went beyond those raised by the Attorney-General on that specific amendment at that time. In the letter that my right honourable friend sent to Kate Green, she was also clear that there were issues of principle which went beyond the narrow point that the Attorney-General raised in those debates.

Beyond civil marriages, which now form the majority of marriages, where we give other organisations—that is, other religious faiths—this power to marry, the authorisation is subject to specific safeguards that are well established and embedded in current law. In the case of religious ceremonies—though I absolutely understand that the British Humanist Association is not a religion but a belief organisation—registration is generally linked to a particular building or, in the case of Quakers and the Jewish religion, by a longstanding arrangement that took account of the particular position of those religious organisations. Historians in this House will know that the Marriage Act 1753 recognised the Jewish faith and Quakers as having a special status, which they have retained since that time.

For every other religion except the Church of England and the Church in Wales, a building must first be registered as a place of worship, then a place of marriage. If that is agreed to, the supervising registrar attends all marriages for a year to ensure that compliance with all regulations takes place, including safekeeping of duplicate marriage registers in the relevant premises to accurately register marriages. Religious faiths have very little freedom because the integrity of marriage in England and Wales relies on this system to ensure that marriages are not registered that should not be, and that status is accurately recorded.

The amendment of the noble Lord, Lord Harrison, would mean that eligible non-religious belief organisations could hold marriages wherever they wished and have greater freedom to appoint those who conduct and register marriages. As the noble Lord says, the amendment does not specifically define the British Humanist Association but goes wider in order to address the concerns that were raised by the Attorney-General.

I will be absolutely clear on the point that the noble Baroness was pressing me on earlier. Our concerns are not about entry to the system of marriage, but spring from opening a new route to marriage and a new system of regulation. In the course of this debate, noble Lords have expressed views on religious groups who can marry now. However, the key point is that they must all comply with the existing system in terms of their being approved. I do not suggest for one moment that there is any concern about any of the groups we may be discussing. However, the reason why the system we have is so important, and why we consider that there would be wider implications if we were to change the way in which we authorise people to marry, is because that could have an impact on things such as, for example, the way we are able to police sham marriages conducted by criminal wedding arrangers.

The noble Lord is shaking his head. I stress that I understand the reason why the amendment is drafted as it is, but because it would allow for other organisations there are implications that we need to consider.

[Baroness Thornton]

Are these implications deal breakers or are they administrative and technical details that could be cleared up? Is the noble Baroness going to say anything positive here?

Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Monday 17th June 2013 Lords Chamber

[Baroness Thornton]

My Lords, these amendments are very similar to those we debated before the dinner break and, in a way, similar to the ones that we will be debating next concerning registrars and public servants. Our view is that the equality legislation—and freedom of thought, speech and belief protected by that legislation—covers these points. I can see why the noble Lord may wish to probe that, and I am sure that the Minister has more than adequate answers to it, but we do not think that the amendments are necessary.

[Baroness Stowell of Beeston]

The amendments of the noble Lord, Lord Dear, provide an opportunity for me again to make clear what is allowed under the law in terms of belief and expression of belief. I do not accept his argument that the law deals only with conduct and not with freedom of speech, because it explicitly does. People are clearly able to express themselves, to hold religious beliefs and express those beliefs, and to do so freely. Nothing in the Bill restricts anyone’s right to express a view on marriage or anything else.

As I said before, I understand that some people are uneasy about the impact of the important change that we are making in the Bill by extending marriage to same-sex couples, but they really have nothing to fear. The law is clear. I understand that there is concern out there but it is my job here to respond to that and to say as clearly as I can that in law there really is nothing to fear. The Equality Act 2010 works in a balanced way to ensure that reasonable discussion of any topic is not restricted. The law comes into play only if someone is subjected to a detriment or is harassed because of a protected characteristic.

The noble Lord’s amendments would provide that a person other than a registrar, superintendent registrar or the Registrar General may not be compelled to express agreement with a religious marriage ceremony of a same-sex couple. Nothing in the Bill or elsewhere requires anyone to express support for marriage of same-sex couples, nor is there anything that prohibits disagreement with same-sex marriage. Nothing requires religious ministers or teachers—if that is what the noble Lord has in mind—or anyone else to express agreement with religious marriage ceremonies of same-sex couples. Religious ministers are free to preach about their views of marriage and those of their faith, and teaching must be factual and appropriate, but that does not involve teachers having to say they believe things that they do not believe.

Expressing disagreement with something is not in itself harassment or discrimination under the Equality Act. Under that Act, it is how people are treated that matters. Accepting this amendment would risk creating doubt as to whether other topics of conversation, such as views on civil partnerships or homosexual relationships generally, need similar protection.

As we have already discussed, we have amended the Public Order Act. I covered that in great detail in previous debates and I shall not go over it again. I can only conclude by saying that the amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. For those reasons, I cannot accept the amendments. I hope that I have been able to give the noble Lord the assurance that he is looking for and that he feels able to withdraw the amendment.

Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Monday 17th June 2013 Lords Chamber

[Baroness Thornton]

My Lords, we have had another interesting and informative discussion.

I wonder how much confusion there is about the fact that when we disagree with each other, that is okay; that it is okay to disagree with each other quite vehemently; and that it is all right to express those vehement disagreements. Our view on these Benches is that the law recognises that that is exactly right. It took me back to the passage of the Equality Act 2010, when the interventions of the noble Lord, Lord Lester, made precisely the point that needed to be made about the protections that existed. Those protections do exist. The fact that they are tested from time to time, and that people on both sides do silly things with them from time to time, does not mean that they are not valid protections; they are very valid protections indeed.

We believe—and the Commons agreed in its debates—that there is no need for additional protection under the Equality Act 2010. It is not necessary. There is already protection for people’s religious beliefs in law, which encompasses views about marriage. It would also be invidious, because it would make the only specific belief that has protection under this part of the Equality Act one that defines marriage as being between a man and a woman. I will return to that.

It is worth saying that Amendment 19 would make a particular viewpoint on marriage, which could be held by people with or without religious beliefs, the only belief that was expressly protected from discrimination on the grounds of religion or belief, elevating it above any other belief. This could have exactly the opposite effect to that intended by the noble Lord, Lord Singh, since a person who believes that the definition of marriage as being between a man and a woman is wrong would also be protected. Therefore, it may do exactly what the noble Lord does not want it to do.

As I said during the debate, the Equality Act 2010 is a carefully considered piece of legislation, which balances the rights of one protected group against those of another. Sexual orientation and religion or belief are both protected characteristics under the Equality Act, meaning that it is illegal to discriminate against someone on the grounds of their sexual orientation or their religion.

The Equality Act already takes care to provide protections for the beliefs of those with a religious faith, including on issues of sexual orientation and marriage. For example, guidance accompanying the Equality Bill, states:

“In the case of Ministers of Religion and other jobs which exist to promote and represent religion, the Bill recognises that a church may need to impose requirements regarding sexual orientation, sex, marriage and civil partnership or gender reassignment if it is necessary to comply with its teachings or the strongly held beliefs of its followers”.

It is completely clear that the law already exists to protect those views and their expression. Religion and belief are protected characteristics under the Act. It means that we cannot be discriminated against for holding or expressing those beliefs. On these Benches, we did not think that the government amendment was necessary, as my noble friend Lord Alli mentioned, but we understand that the Government are acting in good faith on a commitment made by a Minister in another place. Therefore, we accept that the Government are bringing the amendment forward with the best of intentions and that it certainly does no harm. If it gives people peace of mind, that is only to be welcomed.

I will not go through the rest of the amendments because I suspect the Minister will do that extremely well—and it is nearly dinner time.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have spoken in this very important and helpful debate. May I say first that I am grateful to the noble Lord, Lord Alli, for repeating what I said at Second Reading? The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman. It is their right to express that belief and the Bill does nothing to change that. I am also grateful to the noble Baroness, Lady Thornton, and my noble friend Lord Lester for what they said about the Equality Act protecting people who have a range of religions beliefs but in this context hold the belief that marriage should be between a man and a woman and are free to express that belief. It is important that I continue to make that clear.

I also recognise, however, that people are looking for reassurance and want to know that it is perfectly legitimate to continue to hold the beliefs that they have always held, and that they will not be in any way disadvantaged because of these beliefs—or, indeed, that it would be unfair for people to criticise them in any way, although clearly it is free for anybody to express an opinion that is contrary to that view.

As the noble Baroness, Lady Thornton, mentioned, the Government are bringing forward an amendment to the Public Order Act. I will speak to that in a little more detail when I take the amendments in turn. We felt that it was important for us to do this as we recognised the need for assurance and because it was possible to make that amendment to the Public Order Act without causing any detriment to anybody. We really do understand that people are looking to us for assurance.

The amendments have clearly enabled us to explore issues of conscience in relation to the Bill, and it is right that we should do so. Let me start with Amendment 5, which was moved by my noble and learned friend Lord Mackay of Clashfern. He seeks to explore how the Bill could impact on those seeking appointment to a public office—such as appointment to the board of a non-departmental body. The amendment seems to be based on the premise that, should the Bill be enacted, anyone expressing a belief that marriage should only be between a man and a woman might somehow be excluded from appointment to public offices.

I can reassure noble Lords that this is certainly not the case. This Bill is not about forcing people of faith to change their religious views, practices or teachings about marriage. The belief that marriage should be between a man and a woman is, and will continue to be, mainstream and entirely lawful. Indeed, the Bill explicitly makes clear that such a belief is legitimate and mainstream through the specific protections it provides to ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so.

Public appointees, like anyone else, are and will remain free to express their religious or philosophical beliefs as long as this does not affect their ability to do their job.

Enterprise and Regulatory Reform Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Monday 22nd April 2013 Lords Chamber

[Baroness Thornton]

My Lords, I thank the noble Baroness, Lady Flather, for her remarks and I would not for a moment dare to have stopped her contribution to this debate.

The principle that we are discussing remains as simple and straightforward as it was when it was debated in 2010, in Committee on the Bill and on Report. The question is: how do we give legal protection to the victims of caste discrimination? That was reflected throughout the debates in the Commons and this House. It is the case that there is a lacuna in our equality legislation, and surely it is our responsibility to ensure that this form of discrimination, however few the cases are—even if there were only one—has redress under UK law. We do not need any more research to tell us that there is caste discrimination and that it needs a legal remedy.

On these Benches we have been doing what the Government until very recently had signally failed to do over the past two to three years. We have discussed the matter with and made ourselves available to all the groups that have an interest, including those who have reservations and are opposed. I remind the House that it is only because the noble and right reverend Lord, Lord Harries, raised this matter in Committee that the Minister agreed to meet the anti-caste-discrimination groups after refusing to do so for more than two years.

We accept that the Government have some ground to catch up on in the implementation of this legislation and, in the spirit of the cross-party support for this cause, we would like to help them to do so. I am particularly grateful for the constructive dialogue that I and my colleagues in the House of Commons have had with the Alliance of Hindu Organisations, the ACLC, the Sikh Council and the British Sikh Consultative Forum, among others, as well as the Anti Caste Discrimination Alliance and the Dalit Solidarity Network.

I know the House will agree that it is important to put on the record that this is not about vilifying an entire community. Caste discrimination is not specific to any one religion but to residual social and cultural practice, and I hope that the Minister will agree with that. We believe that it is vital that this amendment is carried today and sent back to the House of Commons, because if we do so I am sure that the next stage will be one of negotiation about how, not whether, we deal with caste discrimination.

There are two reasons for that. First, only if we pass this amendment again will the Government realise that the serious matter of caste discrimination has strong cross-party support led by distinguished parliamentarians from all parts of this House and the Commons. Secondly, there is evidence, as the Minister’s remarks revealed, that the Government are considering their position again. We believe that the House of Lords reaffirming its view on this matter will help in that process and permit a discussion on how to move forward. This is the invaluable role that the Lords can play in such matters.

Since the House last discussed this matter, we in the Labour Party have been addressing the matter of implementation with the wide range of different groups that I have already mentioned. We wrote to the Minister over the weekend with our views and offered support, help and co-operation in the implementation of this legislation.

Coming from Bradford, I know that the south Asian communities are among the most enterprising and fair-minded in the UK, and that those community leaders who first arrived in Britain in the 1960s and 1970s do not need any lectures from us on the evils of discrimination. Yet, just because discrimination is perpetrated by a very small number of individuals, that is no reason not to have legislation.

Although I start from a different position in relation to legislation from some of the organisations that I have mentioned, I believe that we are all united in the view that if legislation goes ahead, and we hope it does, we must ensure that the process of implementation is right so as to prevent the entrenchment, rather than the eradication, of caste distinctions in British society.

As soon as this legislation is passed, we think that before the clause is enacted the Government need to commit to conducting a consultation on the interpretation of the term “caste”, which should be set out in guidance or secondary legislation. This would allow time and space to deal with the genuine concerns that have been raised, such as ensuring that this is not interpreted as religion-specific.

The Government should commit to setting out guidance or secondary legislation that employers or public bodies should not seek information about caste identification, nor must there be any requirement on individuals to disclose their caste. We know that this is possible with sexual orientation and we suggest that that holds the way forward. The goal must be to eliminate, not increase, the number of people being identified by caste. Therefore, if the legislation proceeds, we ask that Ministers seek to underpin the guidance with that principle.

This consultation detail and guidance needs to be in place before the new law is enacted. We are therefore happy to support community suggestions that there should be a delay in the implementation of the new clause for perhaps one year, possibly two, after the Bill receives Royal Assent.

We have suggested that the Government should consider a timetable for a statutory review of the clause. There is a clear consensus and commitment across all communities to work to eliminate caste divisions in the UK and ensure that the UK remains, as one individual put it, “the great leveller that it is”. If it comes to a point where caste distinction has become a non-issue in the UK, we should recognise that legislation may not be needed any more, so perhaps there should be a review in 10 to 15 years from commencement.

I think the Government have not thought through their Talk for a Change education programme. It must not be a project that aims to better inform individuals about caste in a way that increases the awareness and use of caste as an identifier and divider. Will the noble Baroness clarify that the Government’s purpose is to facilitate initiatives within communities to address existing residual discriminatory practices?

The Minister will argue that the Government want to consult first on whether to provide legal protection, which I think is the point of her remarks. The Government have come a long way in thinking about this, but we part company from them because we believe that we need to pass this amendment now, to get the legislation on the statute book, and then to resolve the issues that flow from that. That is why we again support the noble and right reverend Lord, Lord Harries, from these Benches.

I regret that the noble Lord, Lord Deben, has, as it were, decided to cave on this matter, although I accept that he has made great threats to the Government, which I am sure they are taking on board. He is right that this is a question of trust. The Government have had two years, almost three, to deal with this issue and have done nothing at all until this moment. I wonder what guarantee can be given by the Minister, other than legal protection, about taking this issue forward; her remarks leave it open to doubt whether the Government are prepared to do so. If this House does not keep the Government’s feet to the flame on caste discrimination, we must fear that it will be kicked into the long grass again and that nothing will happen. I hope that the Minister will agree to this amendment today. If not, I hope that the House will again support the noble and right reverend Lord, Lord Harries, and a move to discuss implementation in a way that achieves the goal of eliminating caste-based discrimination.

[Baroness Stowell of Beeston]

My Lords, I am very grateful to all noble Lords who have contributed to this debate. There have been some important and powerful speeches tonight, as there have been at all stages of the passage of this Bill. I will do my best to respond to most of the points that have been raised but will try not to take too much time, so forgive me if I do not go into great detail.

First, in response to the noble and right reverend Lord, Lord Harries, I will just clarify something that I said which he picked up on. The Government are not suggesting that we should replace the word “caste” with the word “descent”. That is not something that we are proposing; I raised it purely to highlight that it that had been raised by others in the course of this debate.

Several views have been expressed in the Chamber this evening. The noble and right reverend Lord, Lord Harries, questioned a comment I made that some people do not want to be defined by caste. He argued that that should not lead to a decision that we should not recognise caste in law in order to protect against discrimination. I will make a couple of points in response to that. First, over the past couple of weeks in the discussions that the Government have had with different bodies, it has been made very clear to me while attending those meetings that some people do not want to be defined by caste and are worried that caste legislation would allow that. In response to the noble Baroness, Lady Flather, the person who made that point most forcefully to me was a woman from the Hindu community.

It was interesting and illustrative that the noble Lord, Lord Singh, made the point that caste is absolutely not a feature at all in the Sikh religion. The noble Lord, Lord Parekh, said that caste is something that can be recognised across a wide range of different faiths. Indeed, the noble and right reverend Lord, Lord Harries, talked about this being something that can be found in the Christian faith. There are clearly, just in the debate that we have had this evening, several views being expressed in this regard.

Enterprise and Regulatory Reform Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

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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[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—

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[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.

Media and Creative Industries: Equality

Debate between Baroness Stowell of Beeston and Baroness Thornton

Monday 25th February 2013 Lords Chamber

[Baroness Stowell of Beeston]

The noble and learned Baroness raises a very interesting point and I would find it hard to disagree with what she suggests. I will certainly take back that recommendation to the department.

[Baroness Thornton]

The issue of older women in the media has already been raised by the noble Baroness, Lady Gardner, and she is quite right. I am sure that this House appreciates that the new generation of older women in the media does not fancy the idea of being written off and regarded as past it when they are 60, 50 or even 40. Can the Minister go into more detail about how the Government intend to monitor this situation and what they intend to do about it?

[Baroness Stowell of Beeston]

The system of monitoring that I referred to in answer to my noble friend Lady Benjamin’s Question, which the broadcasters are in discussion about at the moment, will include age as well as ethnic diversity. It is up to the broadcaster to gather that information and to make it transparent. We share the principle of transparency, which is why we have introduced the Think, Act, Report initiative about diversity in the workplace more generally.

Enterprise and Regulatory Reform Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Thursday 31st January 2013 Grand Committee

[Baroness Stowell of Beeston]

In moving Amendment 58GA, I will speak also to Amendments 58GB and 58GC, which together clarify three elements of Clause 74.

Clause 74 inserts a new Section 139A into the Equality Act 2010. This will enable Ministers to make regulations that will require employment tribunals to order employers to undertake an equal pay audit where they have been found to have broken sex discrimination law relating to pay. Each of these amendments responds to the three recommendations made by the Delegated Powers and Regulatory Reform Committee in its 10th report published on 14 December 2012.

The first recommendation drew the attention of the House to the lack of clarity in subsection (6) about the intended means of enforcement of equal pay audit orders. The second recommendation asked the Government to address the scope of the duty in subsection (7), which provides an exemption for micro and start-up businesses in the first regulations made under this power. In practice, this means that they will not have to undertake equal pay audits in the event that they are found by an employment tribunal to have breached equal pay laws.

The third recommendation of the committee concerned the lack of an expressed requirement for the Minister bringing forward regulations to make them in concurrence, or in consultation, with the Minister with responsibility for employment tribunals at the time.

The Government are very grateful to the Delegated Powers and Regulatory Reform Committee for its recommendations. We have considered them carefully and accept them; I hope that in the amendments I am moving today, we are able to address all the points that they raised. I will take them in turn.

Amendment 58GA outlines the enforcement regime referred to in subsection (6). It explains that the regulations will give an employment tribunal the power to ask an employer who fails to comply with its order to undertake an equal pay audit to pay a civil penalty that initially must not exceed £5,000. This civil penalty can be repeated if the employer’s noncompliance continues. All fines collected by the Secretary of State from noncompliant employers must be paid into the Consolidated Fund.

Amendment 58GB replaces the reference to micro-businesses and start-up businesses in subsection (7) with a definition of the businesses to which the first regulations on equal pay audits must not apply. New subsections (7) and (8) outline what we mean by a micro-business and a start-up business. A micro-business must have fewer than 10 employees immediately before a period that will be set out in regulations. A start-up business, on the other hand, is a business that began during a period that will also be specified in regulations. This amendment also removes the phrase,

“unless further provision is made under this section”.

at the end of subsection (7), which the committee had criticised as lacking clarity.

Amendment 58GC inserts a requirement for the Minister of the Crown responsible for making regulations under the power in new Section 139A to first consult the,

“Minister of the Crown with responsibility for employment tribunals”.

This will ensure that any interdepartmental consultations do not exclude whichever government department has responsibility for employment tribunals whenever secondary legislation is made under this power.

We have found all the recommendations from the Delegated Powers and Regulatory Reform Committee helpful. We are grateful to it and are happy to propose and recommend the clarifying amendments we have made to this clause, which give effect to each of them. I beg to move.

[Baroness Thornton]

My Lords, I thank the Minister for that very clear explanation of these amendments; we welcome them. There is a general consensus that these amendments are welcome, but the Minister will not be surprised to hear that we believe that the substantive issues needed to go further. I have a few questions to ask the Minister about the substantive issue of these subsections.

As the Minister will be aware, the EHRC advocates that time limits be imposed; the TUC contends, because of the difficulties that employees are likely to face in accessing pay information, that all employers should be required to carry out these orders, not just those taken to a tribunal. As my honourable friend Kate Green MP said on Report in the Commons,

“While the Government have made one or two grudging steps forward in relation to improving equalities, the proposal on equal pay audits is a watering down of our commitment to have such audits across the board for larger businesses, not only when they have been unsuccessful at tribunal”.—[Official Report, Commons, 16/10/2012; col. 252.]

The reason why that is necessary is that recent evidence shows, as the Minister will be aware that gender pay gap continues to persist. The 2012 annual survey of hours and earnings found that the mean pay gap between men and women’s average hourly earnings, excluding overtime, was 14.9% for full-time workers and 7.9% for part-time workers. The Equality and Human Rights Commission’s 2010 triennial view found that pay gaps also affect disabled people and some ethnic groups, and I am going to return to that in a moment. In its response to the modern workplace consultation carried out by the Government, the EHRC noted that the power to impose pay audits needs to be as robust as possible in order to have maximum effect.

It seems to us that the tests for this legislation are, first: will it help employers? Carrying out an equal pay audit should be viewed as a positive means of enabling the employer concerned to eliminate pay inequality and minimise the likelihood of facing future equal pay tribunal court claims, rather than as a penalty. Secondly, will it avoid the possibility that, if equal pay audits are seen as a penalty, there is a risk that employers will settle equal pay cases outside court to avoid that penalty? This could be particularly true of those firms that can afford to settle and are anxious to avoid negative publicity.

Does the Minister acknowledge that conducting an equal pay audit will not in itself eliminate a gender pay gap? It will, however, bring to light and enable employers to address any equal pay issues that are uncovered. Employers will still need to draft an action plan to rectify any unjustifiable pay gaps they find, implement changes and regularly monitor the outcomes. It seems to us that implementing and monitoring the necessary changes are the most important aspect of any equal pay audit. Employers will need to be made aware that there will be an expectation on them to do this. Will the Minister assure the Committee that this is indeed the case? Employers will also need to be made aware of the time limits that will be placed on them to conduct and action their equal pay audits and of what sanctions will be taken if they are breached.

Finally, what are the Minister’s views on progress on pay gaps for other strands of discrimination; for example, religion or belief, age, race, disability, and sexual orientation? Do the Government intend to do any research or take any action on those matters too, and if so, when?

I welcome this part of the Bill and the amendments which will improve it significantly, but I do not believe that any of us can rest on our laurels on this matter. I am sure the Minister will agree.

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Baroness for her support of our amendments. The Government very much believe in and are strongly committed to equal pay and the important laws that already exist. If there were enough time, and perhaps on another occasion, I might recount some of the stories that my mother used to tell me about when she first arrived in Nottingham as a teenager and was working in big factories and was very miffed to find that the men were paid a lot more than she was paid for doing the same job.

Businesses should be encouraged to make progress on complying with these important laws. Where it is not necessary, we should avoid a statutory approach in terms of making them comply. I recognise the point that the noble Baroness was making about progress in this area. There has been progress, but clearly more needs to be done. That is why this Government have introduced some measures to increase transparency on how pay is reflected in organisations. There seems to be quite a positive response to those voluntary measures.

We think that equal pay is so important, so we also believe that it is right to introduce these mandatory equal pay audits for businesses that have failed to comply with the law. When the law has been broken, they need to be forced to address that. That is why we believe that this is the right approach to take.

The noble Baroness raised some questions for me to respond to. She asked why equal pay audits are not available as an automatic right. We believe that carrying out a systematic pay audit of staff can be burdensome, and we do not want to place unnecessary burdens on employers who have done nothing wrong. We also feel that some employers are already carrying out these equal pay audits on a periodic basis and are using them in a constructive and good way. We do not want them to feel that they are being unnecessarily penalised when they are already doing the right thing.

The noble Baroness asked whether we thought that, once this measure is in force, the equal pay audits will simply push employers to settle equal pay claims. Our view on that is that if any employer were facing a continuing claim against it on equal pay grounds, it would soon find that it would not be cost effective to keep settling those claims. I do not accept that that would be a consequence of this.

The noble Baroness asked why the equal pay audit would not cover other protected characteristics. As she and I have acknowledged, equal pay legislation for men and women has been in place for some 40 years. We think it is right to focus the audit on sex-based pay differentials alone as only there is there a specific right to equal pay, and the appropriate route of redress for discrimination due to any protected characteristic other than sex in matters relating to pay, is through the discrimination provisions in the Equality Act.

The noble Baroness also asked how the timeframe for carrying out an audit would be decided. New Section 139A of the Equality Act allows employment tribunals to be given discretion in,

“deciding whether its order has been complied with”.

I think those are all the questions that the noble Baroness—

[Baroness Thornton]

Perhaps the noble Baroness could write to me about what the time limits are, as that is quite important. I do not want to delay the Grand Committee on that matter, so I will accept an answer in handwriting.

[Baroness Stowell of Beeston]

I will follow that up in writing. It is worth making the point that there will be a second consultation on the detail of how equal pay audits are carried out. It is possible that that might be reflected in it, but I do not know for sure, so I will not try to guess any more on that matter. I shall confirm this in writing to the noble Baroness. I hope that I have covered all the points that she has raised with me today.

Enterprise and Regulatory Reform Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Monday 14th January 2013 Grand Committee

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Baroness, Lady Thornton, and others who have put their names to this clause stand part debate today. It gives me an opportunity to make clear that Clause 57 does not diminish people’s right to equal treatment, or their access to justice, when they believe that they have encountered discrimination. The aim of this clause is to achieve these outcomes in a more straightforward and cost-effective way.

Clause 57 removes the specific but arbitrary “three strikes” test for employer liability. I should like to reassure the Committee that it does not remove protection for employees who have been harassed by third parties at work. The noble Baroness, Lady Thornton, asked me a specific question about whether the repeal is consistent with the equal treatment directive. I can confirm that it is.

The ruling of the court in the case of Equal Opportunities Commission v Secretary of State for Trade and Industry in 2007 stated that,

“there is nothing explicit, or even arguably implicit”,

in the European equal treatment amendment directive,

“requiring a Member State to impose vicarious liability on an employer, or indeed liability for negligent failure to take steps”.

However, under the Equality Act 2010, employers are vicariously liable for the harassment of one employee by another. We maintain that the general harassment provisions in the Act can provide protection for an employee who has been harassed by any other third party. If the harassment causes the employee alarm or distress, a claim may be possible under the Protection from Harassment Act 1997. Where it is such that the employee feels there is no alternative to leaving the job, a claim for constructive dismissal can be brought. All this protection will remain, and that is why the third-party harassment provisions in Section 40(2) to (4) of the Equality Act are not needed.

Indeed, introduction of the “three strikes” test was itself unnecessary because a change in the legal definition of harassment in 2008, following a judicial review, allowed a wider range of claims. The then Government added the “three strikes” test to the harassment provisions in the Sex Discrimination Act 1975 specifically to address a set of facts referred to in the judgment. In our view this introduced an additional legal test that is both arbitrary and unnecessary.

The new definition of harassment following the change in the law in 2008 referred to unwanted conduct “related to” the sex of a person. That was instead of “on the grounds of”. This specific change extended the scope of protection against harassment to apply to wider circumstances than before, including potentially by a third party. This formulation now exists in the Equality Act 2010 and therefore applies to all the relevant protected characteristics, not just to sex.

The “three strikes” test was introduced to cover only the situation where, knowing that an employee is being repeatedly harassed at work, the employer does not take any reasonable steps to prevent that employee being harassed again. However, the extremely limited scope of these provisions is widely misunderstood and some businesses have also told us that they find it impossible to comply with the provisions in practice, no matter how they try. Most businesses recognise that they must not let their employees be harassed or ill treated by other employees or by third parties. Where this is not the case, the other legal protections that I have set out will continue to exist. However, they see the unique “three strikes” test as onerous, arbitrary and unfair. It expressly makes the employer liable for a specific number of actions—three—by a third party. In most cases the employer will have no control over the nature or number of events or the third parties concerned. The uncertainty over what exactly is required in order to avoid being caught out by the “three strikes” test makes it difficult for employers who want to comply and at the same time will not deter employers who may be less concerned about their obligations to their staff.

[Baroness Thornton]

I am wondering where the evidence for this is. I really need to know where this evidence is because certainly, as far as we can tell from the impact assessment and the evidence that I recalled in my speech, this did not seem to be the case. Perhaps the noble Baroness can write to me and list the cases to which she has referred because I certainly have not been able to find them.

[Baroness Stowell of Beeston]

The point in some of the cases that I shall come to is that people have been able to bring cases of third-party harassment without using the clauses to which we are referring. The response to the consultation by members of the industry has been clear that this part of the legislation is confusing and is very difficult for them to comply with. However, I will of course follow up in writing and provide further information to the noble Baroness.

As long as this test remains, employers can face claims from their employees of liability for third-party harassment on the basis of an arbitrary number of events, but taking no account of context. This approach cannot be right. Influencing employers’ behaviour is neither the primary role nor the intention of most provisions in discrimination law, and this is certainly not the reason why the Section 40 third-party harassment provisions exist. This confusing legislation is not the most effective way of achieving cultural change. Nor does it appear to have had any significant legal effect. As far as we can determine, only one case brought under these provisions has actually been heard by a tribunal in the four years since they were first introduced. The other examples of cases successfully alleging third-party harassment of which we are aware were brought before the “three strikes” test was introduced. That is the point that I made before; it is clear that it is possible for people to bring forward claims of third-party harassment because they have done so, even before this change in legislation was introduced. We believe that a better way to encourage employers to protect their employees from harassment at work, which as the noble Baroness, Lady Turner of Camden, said is an important matter, is through education and good practice guidance.

I turn to the question put to me by the noble Baroness, Lady Turner, who referred to the case of Blake and how protection for employees such as those in that case would be protected. Depending on the particular facts and circumstances of the case, it should be possible for a claim for third-party harassment to be brought under the general harassment provisions under Sections 26 and 40(1) of the Equality Act. Nothing in the Blake case would exclude it from that statement. Noble Lords will bear in mind that this is the only case known to have been decided by a tribunal during the lifetime of the “three strikes” third-party harassment provisions.

I commend Clause 57 to the Committee, but I will follow up on the points that the noble Baroness raised.

[Baroness Thornton]

I thank the Minister for her reply, but the Committee needs more evidence than she has been able to produce. She started by saying that this provision does not diminish people’s rights to equal treatment. Some of the experts, particularly those in the trade unions and the lawyers that I have quoted, believe that that is certainly not the case and that it does reduce people’s equal treatment. This piece of law has been in place for only two years. Does the Minister accept that, as Thompsons have said, its existence has prevented tribunal cases? That is rather an important matter.

I am not surprised by the answer that I received from the Minister, but it is not satisfactory, both in terms of equal treatment and because she has not made the case for this provision to be in the Bill or for Section 40 to be deleted from the Equality Act on the Government’s own terms of business effectiveness, enterprise or the Red Tape Challenge. The Minister has not refuted the facts that I gave about there being no majority in favour of getting rid of this provision; she managed to quote one case which, she said, caused confusion. So the Government have not made their case. Then you have to wonder why this is in the Bill, which leads only to the supposition that it is for reasons not to do with equality but more to do with politics—a sort of trawl to see what they can put in the Bill. That is very sad. On that basis, I shall not press my question but we will return to the matter later in the Bill.

--- Later in debate ---

[Baroness Stowell of Beeston]

I do not know how to follow that.

I join other noble Lords in wishing the noble Lord, Lord Lester, a speedy recovery, although I know that had he been here he would not have been speaking in support of the Government today. I know that he would have brought his own great expertise to these discussions and I am sure that he will return to us very soon and we will have the benefit of his expertise. Certainly, he was kind enough to give me some of his time over the past few weeks to discuss this matter in great detail and I am very much aware of his position on this and the history of his involvement over a long period.

Clause 58 does not diminish people’s right to equal treatment or their access to justice where they believe they have encountered discrimination. Let me be clear: repeal of the obtaining information procedure will not reduce an individual’s right to pursue a discrimination case or the remedies available to those who are successful. Our intention is to simplify the whole pre-claim process so that all parties achieve the right outcome in the most straightforward and cost-effective way. I will discuss in more detail what we propose as an alternative before I sit down.

I will not rehearse the whole process involved in obtaining information except to make the point that Section 138 provides that Ministers must prescribe forms to be used for the procedure in secondary legislation. Business and the Government now believe that, over time, enshrining this process in legislation has led to it being out of date, burdensome and to some extent one-sided.

Let me be clear from the outset that not one single employer or business organisation told us that they saw value in the questionnaires. I know that the noble Baroness, Lady Thornton, and others requested information to that end. I will happily ensure that that is provided after today’s debate. As noble Lords have said, this process has been in anti-discrimination legislation for nearly 40 years. I must say to the noble Baroness, Lady Howe, that while I know that some of her remarks were about more recent legislation, this practice of obtaining information is now very much something that has been with us and has been tried for a very long time, but I would add that the process of obtaining information is only in anti-discrimination legislation; it is not replicated in other areas of employment law.

During the past 40 years, much has changed. The procedure was initially created to help to level the playing field between individuals and employers or service providers through a simple question and answer process to help to establish basic facts to determine whether discrimination had occurred. This was necessary in 1975. At that time, no one had brought a sex discrimination claim or knew whether it would be possible to do so successfully without any assistance. However, in recent years, 10,000 to 20,000 have been accepted by tribunals every year.

In 1975, when the legislation was being debated in Parliament, the Government included the obtaining information procedure, because they did not wish to make changes to the arrangements governing the burden of proof. As was said then, the procedure was,

“likely to tilt the balance somewhat the other way”.

The Government continued that they were,

“enabling the woman complainant … to … write a letter or to use a prescribed form”.—[Official Report, Commons, 18/6/1975; col. 1603.]

Since then the legislation on the burden of proof has changed to make it explicit that the complainant has to put forward only facts from which discrimination could be deduced, and it is for a respondent to prove that their actions were not, in fact, discriminatory. From the point of view of a respondent, it therefore seems that both aspects of the law are now, in their minds, stacked against them. Employers believe that over time the process has become heavily legalised and is frequently misused as a means of gathering detailed information, whether it is relevant or not. Such information is frequently sought in cases where the individual has already taken the decision to take their case to a tribunal and is simply forcing as much pre-claim disclosure as possible.

[Baroness Thornton]

Can I query what the noble Baroness has just said about getting information prior to a claim? Is that not a good thing? Does it not mean that the process will be sped up and settled, and possibly not even go to a tribunal if there is more information available? I am not sure why there is a problem and why the noble Baroness seems to think that this process is being misused. It collects lots of information. Is that not the whole point?

[Baroness Stowell of Beeston]

Obviously I was not being clear. The point that I was trying to make is that, while the purpose of the legislation is to help people to obtain information so that they can decide if they have a case, it is apparent that some individuals have already decided that they are going to take their case forward and are using this process for gathering information in a pre-claim disclosure arrangement.

[Baroness Thornton]

I am sorry to pursue this point. How many cases like these are there? The noble Baroness may not be able to tell me now but I would like to know from where the evidence for this has come. How many were there as a proportion of the consultation process?

[Baroness Stowell of Beeston]

I will endeavour to provide further information in that area and follow up in writing to the noble Baroness.

Noble Lords have argued against Clause 58 from the perspective of claimants, so may I put forward the arguments from the perspective of employers and the business community, which it is important for us to take account of? Collating this information can be onerous for employers, particularly where 20, 40 or even 100 additional questions are asked. They can often see that the information requested has little or no merit to a claim. However, they feel bound by the legislation and by the legal advice, which they feel is necessary to engage with and respond to, and within the statutory time frame. These exact concerns the then Opposition raised during the 1975 debate on the Sex Discrimination Bill, where it was said:

“There is no limitation on what can be asked. There is no screening process”.

If the respondent,

“decides that it is unsafe not to answer them, his answers to those questions may be admitted as evidence”.—[Official Report, Commons, 18/6/1975; col. 1602.]

Now, as then, the problem is not just simplifying the questionnaire form, which is simple and straightforward; the problem is ensuring that the questionnaire does not get used as the starting point for rafts of detailed and leading questions. Clearly we cannot and do not want to restrict the dialogue between parties where they are trying to explore and perhaps resolve their differences. That is why we are proposing a different approach altogether, based on conciliation and guidance, which I shall come on to.

The noble Lord, Lord Low, referred in the context of the questionnaire form to some 2009 research and said that employers had responded to it by saying that the questionnaire was straightforward. The GEO research in 2009 concerned only the layout of the questionnaire and not the whole process of dealing with the completed set of questionnaires from a claimant. Often the extra material is the problem.

Those arguing in favour of retaining these provisions—obviously they are speaking today—claim that they are often helpful in weeding out potential claims that are unmeritorious, or those based on mistake or misunderstanding. The noble Baroness, Lady Whitaker, was very specific on that point. She asked whether there were any statistics available to show how many cases this process had avoided coming to court. I do not have any statistics available, but I know that we have not received any from the Tribunals Service. I am not clear about whether we have asked for them, but it has not been able to provide them, or perhaps it just has not put any forward. If it is the latter, then obviously I shall follow that up. However, not a single response that we have received from our consultation, from an individual business or representative body, endorses the view put forward by the noble Baroness and others.

--- Later in debate ---

[Baroness Stowell of Beeston]

If the noble Baroness is referring to 2009, I think I have already answered that point by explaining that that was about the layout of the questionnaire and not the whole process of dealing with a full set of questions from a claimant. However, I am clear that the response to our consultation from the business community was clear. As I said at the beginning, I am very happy to follow up, in writing to the Committee, with further information to support that point. I should add that in some cases the cost to business, including legal advice, often runs to several hundreds of pounds and that is before any costs associated with defending the case at a tribunal.

Having said that, I turn to what is a more constructive alternative way forward. We are agreed that there is value in the aim of encouraging a pre-claim dialogue and exchange of information. There is merit in establishing the facts of a potential discrimination case, and this is certainly what our proposed early conciliation of certain employment claims is intended to achieve. Noble Lords who followed this Bill in debates on earlier clauses will be familiar with the sort of changes that we are proposing. I think those clauses have attracted considerable support.

People thinking of bringing proceedings could still seek information from an employer or service provider about an alleged breach of the Equality Act 2010, either verbally or in writing. As I read that out, I should make it clear that that can be done orally or in writing because I am not aware of anyone writing without using words. That point was stressed by several of those responding to the consultation. This is in a climate where, compared to 40 years ago, businesses are on the whole far more transparent about the information they disclose. I am speaking generally but I think organisations understand the importance of transparency in the way they operate, and that attaches to their reputation. Employers or businesses who refuse to respond to reasonable requests for information will continue to run the risk of this being taken into account by a court or tribunal when deciding whether a basic case of discrimination has been made out. They will be more conscious of that risk than in the past for the reasons that I have just given.

Even if the 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 Government Equalities Office is in discussion with ACAS with a view to producing approved guidance which would help set out for employers and potential claimants in discrimination cases—

[Baroness Thornton]

For my own clarification, because I have not heard this process described in quite this way, am I right in understanding that if somebody wants information because they think they have been discriminated against by either their employer or a service provider, they have to go to ACAS first? Is that right?

--- Later in debate ---

[Baroness Stowell of Beeston]

They do not have to go to ACAS first but in the conversations that the Government are having with ACAS about this process, ACAS is suggesting that it would be preferable for somebody who is considering making a claim to go to it first as it would much rather have that initial conversation without the burden of a lot of information so that the parties do not get bogged down in the detail of, “He says, she says” at that stage of the process.

[Baroness Thornton]

Does the Minister not think it likely that ACAS will fill in a form?

[Baroness Stowell of Beeston]

The noble Baroness may be more familiar with the processes followed by ACAS than I am. I cannot speak for ACAS and I do not know what it would undertake to do. I am just reporting to the Committee what ACAS advises is the best way forward in this context.

If I may conclude the point that I was making, ACAS seeks to produce approved guidance which would help set out for employers and potential claimants in discrimination cases both the scope and requirement for disclosure of pre-claim information. This will be an ACAS-led approach, with the TUC and equality stakeholders as well as employers invited to participate in ensuring that the guidance is right.

I have indicated that I will follow up in writing to some of the points that have been made, but I hope that I have provided the Committee with sufficient assurances to make clear that the repeal of Section 138 of the Equality Act 2010 will not affect any individual rights under law, will command business confidence and will be followed up by a lighter-touch process in consultation with key parties, which will deliver, as I said at the start, the outcome that everybody has a right to expect if they feel that they are in any way at risk of discrimination.

[Baroness Thornton]

My Lords, I thank the noble Baroness for that useful and helpful explanation. I also thank the noble Lords, Lord Low and Lord Ouseley, the noble Baronesses, Lady Turner and Lady Howe, and, indeed, the noble Baroness, Lady Oppenheim-Barnes, who is not in her place, for their interventions, which I look forward to reading in Hansard so that I can fully understand the insult that was meted out to the noble Baroness, Lady Howe.

My noble friend Lady Whitaker rightly said that we probably have not done justice to what the noble Lord, Lord Lester, would have said. I say to the Minister that this is the beginning of this process rather than the end. We will need to have further discussions on this issue, for which she always makes herself available. I think that the Minister made the false assumption that we were talking only about employees. In fact, I referred in all my remarks to employees and employers because we think that this form is useful to everybody concerned. The Government’s proposal to abolish it fails on almost every ground, including that of cost. Further, I do not think that their proposal will be any more efficient. The noble Baroness described what she thinks people will do in going to ACAS. However, it seems to me that that makes the process more complex. That does not feel like a light touch process to me. I am happy to have a discussion about that but it feels like a more complex process.

The noble Baroness is deceiving herself if she thinks that ACAS will not go into drafting guidance and forms, and do many things based on what already exists. This fails in terms of efficiency, it does not add anything to the aims of enterprise in this Bill, and it certainly fails in terms of the test of fairness and access to justice. I am afraid the Government have not made the evidence available to the Committee today to convince us that this is a necessary clause. On that basis, I will not proceed with my question. Even if I do not return to this, the noble Lord, Lord Lester, can probably be trusted to do so.

Clause 58 agreed.

Clause 59 : Primary Authorities

Amendment 28ZDA

Enterprise and Regulatory Reform Bill

Debate between Baroness Stowell of Beeston and Baroness Thornton

Wednesday 9th January 2013 Grand Committee

[Baroness Thornton]

The noble Lord makes an absolutely perfect point; I wish I had made it myself. I have two final points on the amendments that the Government are proposing in this part of the Bill. One is on the provision of conciliation duties and the repeal of Section 3. Under the Equality Act 2006, the EHRC provides conciliation services and the Government propose to repeal that provision. One particular issue really concerns me, which is that of transferring the complaints service for disabled travellers to the Civil Aviation Authority. I have to say that this astonished me. Apart from concerns arising on the ability of the CAA, which has close ties to the aviation industry, one has to ask: will it act independently and impartially? It seems a remarkable thing to be doing.

Moreover, through forcing private and public sector organisations down the more costly compliance route, rather than that of conciliation, and driving the commission towards a court-led approach as opposed to pre-court conciliation, the repeal of Section 3 directly contradicts the overarching aim of the Bill. I would be grateful if the noble Baroness could explain to the Committee how this can be justified.

[Baroness Stowell of Beeston]

My Lords, this has been an important and impassioned debate. I must say that, from the conversations I have had with many of the noble Lords who have spoken in this debate, that was what I expected it to be. I say from the start how grateful I am to so many of your Lordships for giving up their time to talk to me. I would also like to place on record from the start my recognition and thanks for what so many noble Lords who are here today have achieved on equalities over not just years but decades. I recognise that. Indeed, I know that I am a newcomer to this issue. As a fairly recent member of the Government, I tend to hear myself saying that I am a newcomer to whatever debate I happen to be responding to. In this area, I genuinely think that the fact that I come to this without any of my own baggage is helpful. I have been very open-minded in my approach, apart from my firm belief in the importance of equality and having an equal society, which I know I share with everybody in this Room.

The debate is helpful because it allows us to talk about this important issue. We will agree on several things and, from the comments made by most noble Lords today, one is that the commission has to date not lived up to expectations. Its initial problems had many causes, including government failings. That said, things have improved, certainly in the past couple of years, as evidenced by its unqualified accounts. Although things have improved, we are not there yet. We can all agree that we want a strong and effective equality body and an A-rated national human rights institution. More than anything else, what we all want, and what the debate is all about, is an equal society free from discrimination. Today is not about the past; it is an opportunity to focus on the future. I noted carefully what many noble Lords said, in particular the noble Lord, Lord Morris, that the job of achieving an equal society is not a job that is done yet. I recognise that and share his view.

I also understand from the comments made and the strong and powerful speeches today that noble Lords want me to be clear about what the Government expect of a strong and effective equality and human rights body. They will want me to spell out what success looks like, which is certainly what I will try to do. As for looking to the future, it is important that the commission has the right relationship with government. Some noble Lords have talked about accountability but we can come on to that in the debates that will follow on later amendments.

For an organisation to be successful, it needs to be clear on its purpose. At its most simple, the purpose of the organisation of the commission is to promote and protect equality and human rights. That is reflected in what I regard as the commission’s core duties at Sections 8 and 9 of the Equality Act 2006. There is nothing passive about these duties. They require the commission to be an agent of change, to promote understanding, encourage good practice and promote awareness. I know that the noble Baroness, Lady Campbell of Surbiton, raised a concern about whether the commission would still be an agent for promoting change in the future. The answer is absolutely yes. While the Government consulted on amending the equality duties in Section 8 of the Act to clearly define the commission’s role as an equality regulator, we listened to the feedback and decided against those changes. We agreed that it was neither realistic nor desirable to expect the commission to regulate every part of society. The commission has quite enough on its plate as an agent of change. We want the commission to monitor our progress in reducing persistent inequalities, conduct inquiries into their root causes, establish the evidence about what works, and make and publicise its recommendations for action. I take this opportunity to point out, as the noble Baroness, Lady Greengross, has just done, that some very important work has been carried out by the commission during the past years. I pay tribute in particular to the disability harassment inquiry and the home care inquiry.

To have impact, the commission must gain the respect of all as our national expert on equality and human rights issues—a body to which everyone can turn and have confidence in, even if its final conclusions will not be supported by all. I heard very clearly what the noble Lord, Lord Ouseley, said. I say to him that, when I talk about final conclusions not being supported by all, I mean that a salutary and sharp nudge in the ribs of the Government is sometimes what we would expect this commission to do.

That is not least because rights are competing. The importance of the commission lies in its ability to advise on how we get the balance right; for example, between the rights of the offender and the rights of the general population to be protected; and between the rights of lesbian, gay, bisexual and transgender people to be protected from discrimination and the rights of religious people to act in accordance with their faith.

The commission cannot be, or be seen to be, the voice of any one group. It has to be guided by the evidence—that is what I think we are all looking to it for. It should not be possible to presume the EHRC’s position on any issue, because its position should be evidence-led. It should not be not an impassioned lobbyist leading emotive campaigns; its role is to be an expert witness, and to make recommendations on the basis of the facts.

As the guardian of our legal rights, it is also the commission’s role to raise awareness of people’s rights under equality and human rights law and to ensure that the law is working as Parliament intended. Where there is a lack of clarity, it should use its enforcement powers where they will have most impact, in a strategic way, to clarify the position; for example, where there appears to be a contradiction between domestic and EU legislation.

Noble Lords are right: the repeal of the general duty will neither stop nor impair the commission’s ability to fulfil its important equality and human rights functions. Nor does it provide a clear statement of purpose. Section 3 is a political statement with no clear legal effect. In many respects, no one can disagree with it. Who does not want to live in a society in which people’s ability to achieve their potential is not limited by prejudice or discrimination? The noble Baroness, Lady Campbell, quoted my noble friend Lord Boswell, and my noble friend Lady Hussein-Ece quoted my honourable friend Eleanor Laing as stating their support for the intention behind the general duty during the passage of the 2006 Act—and that is right; it is something with which we agree. But the problem with Section 3 is that it implies that the commission, uniquely, is responsible for encouraging and supporting the development of such a society. This is patently wrong and arguably insults the efforts that we all make in support of these goals, whether through the work of Parliament, government, the wider public sector, business or the community. We are collectively responsible. We might need the commission’s help, but it cannot achieve an equal society on its own.

We are seeking to repeal the general duty on the commission because it creates unrealistic expectations, positive and negative, about what it on its own can achieve. However, as several noble Lords have said during this debate and as I have already indicated, the statement in that general duty is important and removing it from the legislation does not mean that it cannot be replicated in the commission’s own strategic plan or in the way it wants to set out its own mission. I think that it was the noble Lord, Lord Ouseley, who referred to it as a mission statement. I agree. I think that that is where it is best used and will have most effect.

--- Later in debate ---

[Baroness Thornton]

Will the Minister provide the Committee with a financial breakdown of exactly how the cuts to the commission’s budget have been disbursed?

[Baroness Stowell of Beeston]

I think that it would be easier for me to provide that in a follow-up letter subsequent to today’s debate.

[Baroness Thornton]

Yes, of course.

[Baroness Stowell of Beeston]

I add that I hope that very soon—indeed, imminently—we will publish the budget that the Government have agreed with the commission. It is important for me to make the point that the setting of the budget is informed by the commission’s core function, its responsibilities and what it is required to do. We are confident from the conversations and discussions that we have had with the commission that the budget that we have agreed with it will properly allow it to fulfil its responsibilities.

During this debate, the noble Baroness, Lady Thornton, and other noble Lords raised the issue of the public sector equality duty. We will come to later amendments where I expect the debate to focus very much around that issue. However, the public sector equality duty review is just that—a review of the public sector equality duty. When noble Lords refer to the general duty in the public sector equality duty, I think that it is worth my responding that that is very different from the general duty that we have discussed today. The two things are very different. Our proposal to repeal Section 3 is not related to the public sector equality duty.

Bearing in mind that there are other amendments where we will be able to continue the debate about accountability and, as I said at the start, the commission’s relationship with government and Parliament, I would conclude at this point and say to all noble Lords who have spoken today—not just those who have put their names to the amendments—with the exception of my noble friend Lord Lester and the noble Baroness, Lady Greengross, to whom I am grateful for their support, that I hope that I have given some assurance which goes some way to giving the Committee the clarity that it is seeking from me as far as what the Government intend in their proposals in this Bill.

--- Later in debate ---

[Baroness Stowell of Beeston]

I am grateful to the noble Lord. I hoped that I had said that in my remarks concluding that the public sector equality duty review is just that. What we are proposing is very much contained in Section 3 and does not relate to what we are reviewing in the public sector equality duty. The decision to remove Section 3 is a decision that we have reached. Now, we are reviewing the public sector equality duty and that is not related to this decision.

[Baroness Thornton]

If I were the noble Lord, Lord Lester, I might be slightly worried about this. Perhaps the Minister would be wise to take up my proposal to withdraw this. Let us see what the review holds and where we are after the public sector equality duty review. My reading of what the Minister has just said—she has repeated it twice—is that these two things are completely separate.

[Baroness Stowell of Beeston]

They are separate because the public sector equality duty review, which we will debate when we come to the noble Baroness’s amendment about the equality impact assessment, is about whether the public sector duty is operating in the way in which it was designed. Is it achieving its purpose and its aims? We are reviewing how that operates. We are saying that the core function of the Equality and Human Rights Commission is very much rooted in its responsibilities for equality and human rights. The removal of Section 3 does not weaken its ability to do what it exists to do. Its removal is because we believe that it is a statement which should not sit on its own as a responsibility for the commission but as a responsibility for a wider set of public bodies, including Parliament.

--- Later in debate ---

[Lord Lester of Herne Hill]

I was the one who above all raised the issue of the Paris principles in relation to the setting up of the commission in the 2006 Act and beyond. I have sat on the JCHR ever since. I have no doubt that it is not the function of the UN Paris principles procedure to prescribe precisely to each member state the nature of each relationship in order to satisfy the requirements of the principles. I suggest that the commission would not be treated in the same way as other public authorities, because it would have a continuous role through its chair and, if necessary, otherwise with a standing committee of both Houses that was expert in human rights and had an oversight function, in addition to its relationship with Whitehall. I would be amazed—although I will ask; we will see whether I am right or wrong—if the JCHR, having considered this, came back and said that it thought that that relationship was inadequate to satisfy the Paris principles. I would say that this is premature at the moment, but perhaps the right thing to do is to put it on the agenda of the Joint Committee on Human Rights next week.

[Baroness Thornton]

I thank the Minister and my supporters, the noble Lord, Lord Low, and the noble Baroness, Lady Hussein-Ece. I also thank the noble Lords, Lord Lester and Lord Deben. I think that we have made some progress with this discussion, which is what we intended to do.

The noble Baroness, Lady Hussein-Ece, gave us a very useful description of the practicalities and symptoms of the dysfunctionality in the relationship between the Government Equalities Office and the EHRC, and of the way in which it has impacted on the commission’s work and on its ability to do its job properly. It seems likely that the Government Equalities Office and the EHRC share the same budget source. That would be quite wrong, because they are probably fighting for the same resources. I ask that as a question that does not need to be answered now but which is pertinent.

It possibly answers the point raised by the noble Lord, Lord Deben, which I completely accept: that the reason that there were serious management problems was because the two organisations share the same budget line. Despite the assurances put into the 2006 legislation—the noble Lord, Lord Lester, was quite right about them—the relationship simply has not worked in some respects. That has been very important and a source of genuine regret. The discussion is about how we make these things work better and how we make sure that accountability works better.

I hope that the Joint Committee on Human Rights will have this discussion before the next stage of the Bill, because that will help us. If we need to discuss this at the next stage of the Bill, I hope that the discussion will be about what will happen in future and that we will get the discussion on the record.

[Baroness Stowell of Beeston]

I am grateful to the noble Baroness for allowing me to come back to her in writing on the question of budgets. There was one point on which I was not as clear as I ought to have been. I was reminded of something that my noble friend Lady Hussein-Ece said. I said repeatedly that the commission had “A” status under the current arrangements. As has been made evident in the debate, clearly there were problems in the past in the way in which the commission related to the Government Equalities Office. The relationship did not work as well as it needed to. However, what I sought to say on behalf of the Government was that the relationship had improved and continues to improve. We are in danger of shooting ourselves in the foot. We have “A” status under the current arrangements. We are improving what is wrong. We will continue to improve and put things right, so let us not put ourselves in a situation where we improve everything and then the ICC turns around and says, “We will remove your ‘A’ status because you keep telling us that the arrangements do not work”, when we have been able to show that recently they have started to improve and that we know how to improve them further—which is what we will do.

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[Baroness Stowell of Beeston]

My Lords, I am grateful for the debate on this amendment. It might be worth saying for the record, and for the purposes of clarity, that the amendment that we are debating now is to Section 149 of the Equality Act and that the Bill in front of us does not propose to amend that bit of the Act. This is of course different from the general duty for the Equality and Human Rights Commission, which this Bill will amend. I say that because, as I said in an earlier debate today, it is important to keep reminding ourselves that the two are different things.

Let me say first that I understand the concerns raised in this debate but that I would put myself absolutely shoulder to shoulder with my noble friend Lord Deben in what he says. Like him, I absolutely support equality but I do not support bureaucracy, particularly because I do not want processes to undermine our ability to extend the support for equality beyond those of us who feel passionately about it. It cannot just be the same people who believe in equality; if we are to improve equality in our society, we have to get everybody on board. We need to be mindful of that in how we design our approach to achieving that end. We all want the same thing: the better consideration of equality issues by public bodies when they are designing services and policies. Where I think we differ, and this is obviously what we are debating, is the method for achieving it. I will explain why I believe this Government’s approach is the right one.

The implementation of the public sector equality duty in 2011 marked a significant change in approach compared to previous equality duties. We wanted to move away from the bureaucratic box-ticking and form-filling to make sure we make real progress on equality. I understand that we in the Government have to deliver on that outcome; that is what we will be judged on. We believe that this amendment would be a regression to the previous practice of too much process and bureaucracy, with not enough focus on real equality outcomes.

Because it has been referred to, let me refer directly to the speech made by my right honourable friend the Prime Minister to the CBI about equality impact assessments. This is really a point in response to my noble friend Lady Hussein-Ece, but what the Prime Minister was saying that day was that EIAs are not and never have been a legal requirement to ensure what we are committed to achieving, which is public services that do not marginalise or discriminate but which ensure that people are treated equally. They are an intensive resource that can take key staff away from planning and delivering better public services.

If that is not bad enough, worse, they are often produced after key decisions are taken, so they can be a sort of reverse-engineering exercise: a decision has been made and the decision-makers then go back and look at the equality impact assessment form, rather than thinking about the effect of their policy on equalities at the time of their forming it. For that reason, departments were asked to call a halt to the production of equality impact assessments. It was not of course to stop in any way their absolute requirement to have due regard to the public sector equality duty.

Public bodies should consider the potential equality impacts of their policies throughout their design and delivery. Records of this can be used as evidence of due regard to the relevant equality aim and there is no need to create additional unnecessary paperwork. The public sector equality review is taking place at this time but it is important to stress, going back to the point made by my noble friend Lord Deben, that we want to make sure that it delivers the outcome that we all seek to achieve. We feel strongly about it and we are absolutely committed to the need for the public sector to deliver policies and services that ensure an outcome in support of everyone. We want to ensure that it delivers that aim.

The noble Baroness, Lady Thornton, asked in a previous debate whether we would be taking evidence. We plan to hold a series of round tables that will allow us to gather evidence from the VCS, legal advisers to public bodies, equality and diversity practitioners, trade unions, inspectorates and the private sector. We are also developing a questionnaire to enable public service professionals to provide their personal experience of working with the duty. The involvement of the Equality and Human Rights Commission in the review is critical and, for this reason, the commission is represented on the independent steering group that oversees the review. We are also working closely with the commission as we develop the evidence-gathering for it. The noble Baroness referred to the Schneider Ross research. In evidence-gathering to date, so far we have focused on analysing existing research and case law, but we will look closely at that research as part of this. I realise that we are keen to make progress, so I hope that in this short debate I have given the noble Baroness enough reassurance for her to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for her remarks and, indeed, I am also mindful of wanting to make progress. I also thank the noble Lord, Lord Low, the noble Baroness, Lady Hussein-Ece, and indeed the noble Lord, Lord Deben, for their remarks.

Experience tells us—this is partly based on the very wise remarks of the noble Lord, Lord Deben—that while public bodies and people know that they must have financial probity and regard to the truth, they do not always know that they have to understand the impact of their decisions on different groups. We have mountains of experience telling us that people simply do not think about the impact of the decisions that they take on disabled people or other groups. That is why we have this legislation and why it is so important. I will read the comments made by the noble Baroness, and we will then decide what we want to do next. I beg leave to withdraw the amendment.

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[Baroness Thornton]

Perhaps I may ask the noble Baroness—

[Baroness Stowell of Beeston]

I will finish the point that I was about to make. It is not that the legislation would catch all of those public bodies; it is that the process of ensuring that they are properly familiarised to comply with the law could, in our view, be disproportionate to dealing with the discrimination that we are discussing.

[Baroness Thornton]

My point relates to “disproportionate”. We have legislated in our discrimination law about Travellers. There are actually not very many Travellers in this country but they suffer terrible discrimination. There are thousands of Dalits living in the UK who potentially can be discriminated against, so I am not sure what the proportion is that the noble Baroness is referring to.

[Baroness Stowell of Beeston]

The noble Baroness makes a helpful point in drawing a comparison with Gypsies and Travellers. It is domestic case law, not specific legislation, that has determined what we are discussing for Romany Gypsies, Irish Travellers and Scottish Gypsy Travellers. They are distinct racial groups who are covered by our equality legislation. It is case law that has done that, rather than legislation.

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[Baroness Stowell of Beeston]

Without the full facts of the case, I am afraid that it is not possible for me to respond to an individual case in that way. The best I can do is, as I have indicated, to say that I am very happy to have a meeting to discuss matters further outside the Committee. However, I know that it is important that we now draw the debate today to a close.

[Baroness Thornton]

I say a big thank you to the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Avebury, because I am honoured to be fighting alongside them again—the old team is back. I also thank the noble Lord, Lord Deben, enormously for his comments. I remember some issues from when I was a Minister—I think “contaminated blood” was the one that haunted me. The Government just got it wrong: we got it wrong all the way through. This Government came and dealt with it in the way in which my Government should have done. This is one of those issues. The Government are getting this wrong and they need to remedy it. I have enormous respect for the Minister and I am very grateful that she has agreed to have those meetings. I am hopeful that when we have those meetings we will make some progress. I beg leave to withdraw the amendment.

Violence Against Women and Girls

Debate between Baroness Stowell of Beeston and Baroness Thornton

Thursday 22nd November 2012 Lords Chamber

[Baroness Stowell of Beeston]

I am sure that on another occasion my noble friend Lord McNally will respond in greater detail. As I said in response to a previous Question, as part of the offender management programme there are clear programmes to address those who have gone through the system and been convicted of these crimes.

[Baroness Thornton]

My Lords, I hope that the Minister is on some kind of productivity bonus, given the work that she is having to do today. I have two very quick questions. First, cuts to council budgets mean that half a million streetlights are having to be turned off, leaving women feeling unsafe when they are out at night and walking home. Will the noble Baroness write to local authorities to point out the issue about streetlights and safety for women? Secondly, we know that all the elected Labour PCCs have committed to a policy of making the fight against domestic violence a central part of their planning. Will the Minister write to all the other PCCs, inviting them to do the same? We would be very happy to let her have a copy of the policy.

[Baroness Stowell of Beeston]

I am grateful to the noble Baroness for her suggestion about streetlights. That is clearly an interesting idea. I will take it away and give it further consideration. On the role of the PCCs in taking the lead to address violence against women and girls, clearly the principle behind PCCs is that they are there to decide how to prioritise strategies in their local areas. However, local campaign groups have been very effective in raising those issues with PCC candidates, and I am sure that the organisation that acts as an overall body for PCCs will want to communicate this point to them as well.

Equality: EC Policies on Women on Corporate Boards

Debate between Baroness Stowell of Beeston and Baroness Thornton

Wednesday 17th October 2012 Lords Chamber

[Baroness Stowell of Beeston]

There are lots of statistics to show that progress is being made. As far as I am concerned, business needs to show that it wants women and not just that it is willing to put up with them

[Baroness Thornton]

My Lords, notwithstanding the party opposite’s visceral hostility to all things European, I think the Minister concedes that the fact that the European Commission has initiated this discussion will have focused the minds of many FTSE 350 companies on the need to address this problem. What are the Government doing to address the presence of women on public bodies, for example on health boards and clinical commissioning groups? Are the Government monitoring the number of women who are coming forward and are being appointed to those bodies as well?

[Baroness Stowell of Beeston]

Just to be absolutely clear, while we do not support the quotas or the European legislation, we feel very strongly about this issue. I think that I am right in saying that we have a target of 50% for appointments to public bodies by 2020. If I am wrong I will write to the noble Baroness, but we are definitely ensuring that as much effort is made in that area as it is in the corporate world.