Media and Creative Industries: Equality

Baroness Thornton Excerpts

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

Baroness Thornton Excerpts

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

Baroness Thornton Excerpts

Monday 14th January 2013 Grand Committee

Debate on whether Clause 57 should stand part of the Bill.

[Baroness Thornton]

My Lords, in opposing Clause 57 standing part of the Bill, I thank the noble Lords, Lord Lester and Lord Low, and my noble friend Lady Turner for supporting me in doing so. Clause 57 seeks to repeal Section 40 of the Equality Act 2010. Section 40 makes an employer liable for repeated harassment of their employees by a third party, including customers, clients and service users. The liability is triggered only if an employee has suffered such harassment on three or more occasions, the employer knew of the previous incidents and the employer has failed to take reasonable, practicable steps to prevent its recurring. The Government have stated that there is no real or perceived need for this protection but we believe that that simply is not true.

I am grateful to Thompsons Solicitors, who specialise in such matters, for their views and for a copy of the evidence that they submitted to the GEO as part of the consultation on this matter. What is clear from their considerable experience is that the majority of such claims are settled before a hearing happens, which is all to the good. Thompsons point out in that evidence:

“The government’s logic for repealing the provision is contradictory. On one hand the consultation states that the provision is a burden on business and on the other hand it states that it is only aware of one case in England and Wales where a claim relating to this provision was determined at an employment tribunal hearing”.

Given that the provision has been in place for all protected characteristics for less than two years, the Government are not in a position to make an assumption about the effectiveness of the provision within such a short period. Neither do we understand the logic that just because there are not many claims relating to this provision, it is somehow bad law.

It is not in the interests of society to remove from employers the responsibility for protecting workers against harassment from third parties. Workers should be entitled to carry out their duties and engage with third parties without fear of harassment. Do we really want workers to be exposed to harassment on the grounds of one of the protected characteristics without having the force of statutory protection from such harassment? For example, surely a nurse treating a patient should be entitled to expect protection from their employer against harassment by that patient on one of the protected grounds. Losing the provision would be inconsistent with the equality directive, as per EOC v the Secretary of State for Trade and Industry, in that the directive sets out associative protection. This would lead to further litigation. Can the Minister confirm that this is indeed the case? Even if it could be argued that the current legislation goes beyond the requirements of the directive, to amend the legislation by removing the provision would breach the non-regressive provisions of the directive—that is, the equality and recast equal treatment directives. Could the Minister please say whether this is true?

Is there a need for Section 40? We would argue that, yes, there is. A 2008 study by the University of Warwick for the NUT, of 2,575 teachers across 13 local authorities, found that one-third of the respondents experienced threats on at least a monthly basis. A survey for the NAS/UWT found a similar third of teachers suffered prejudice-based harassment and bullying. The EHRC has also found evidence of the prevalence of third-party harassment and its impact, demonstrating a widespread need for the law to provide protection. The people most likely to be affected by the abolition of this provision are some of the most vulnerable and poorly paid people, who are least able to defend themselves. For instance, a recent report on the treatment of care workers by clients comments:

“A survey of public sector social services staff found ethnic minority staff had experienced racist verbal abuse from service users; inappropriate questioning of their authority by users or relatives; users not wanting to be touched by them or asking to be dealt with by a White person (most frequently occurring in the user’s own home); and physical attacks perceived to be racially motivated. Inappropriate remarks from colleagues were also experienced”.

Thompsons say that they have advised and represented unions and union members in third-party harassment claims. With their kind permission, I will mention two such cases. The first involves three claimants who were constantly racially abused by patients in a mental health hospital where they worked as nurses. The perpetrators were two individuals on the same ward. The claimants requested to work shifts where they would not be in contact with the two individuals. The employer refused to change the claimants’ shifts or to take any action against the perpetrators. The claims were settled prior to a full hearing for £3,000 for each claimant, with an undertaking from the NHS trust concerned that action would be taken to protect the claimants from further acts of harassment.

Thompsons also report that their transport union clients are regularly asked to advise when members have been subject to racist abuse by passengers. The TUC certainly asserts that the introduction of Section 40 of the Equality Act has already led to a step change among employers, with actions undertaken to make it clear to service users that harassment of their staff will not be tolerated. Moreover, there may be hidden costs to business for not prioritising action against third-party harassment. Harassment can have a significant effect on the physical and mental health of the workforce, and be a major cause of work-related stress, affecting work performance and absence levels.

The proposed repeal of third-party harassment provisions has been introduced following the Government’s Red Tape Challenge. However, there is no publicly available evidence of concerns being raised about them during the first stage of the challenge. When the Government asked specifically for views on prohibited conduct, not one of the 214 of those who responded opposed the third-party harassment provisions, and a number specifically supported them. When the Government consulted specifically on third-party harassment, 71% of those who responded were opposed to repeal. Moreover, due to the familiarisation costs associated with the change in legislation and the minimal savings to business that are expected as a result of the repeal, the Government’s own impact assessment calculates that this repeal will be an additional burden to business, and not a saving. The assessment admits:

“Provisions for third party harassment may have had a wider impact on reducing discrimination in the workplace, outside of specific third party harassment claims, so the repeal may lead to more instances of workplace discrimination”.

At Second Reading in the House of Commons, Ministers gave a categorical assurance to my honourable friend Kate Green MP that this Bill would not be used to take forward proposals as featured in the Beecroft report on employment law, relating to employer liability for third-party harassment.

In conclusion, I put the following case to the Minister. A employs B. C interacts with B during the course of their employment. C harasses B on the basis of a protected characteristic—race, sex, sexual orientation or disability. A either fails to take adequate steps to minimise the risk of harassment—policy signage, risk assessment, preventive steps and so on—or fails to do so after being specifically alerted to C’s behaviour and prior to a repeat of it. B and C could be a nurse and a patient, a nurse and a family member, a receptionist and a customer, benefits agency staff and a claimant, a taxi dispatcher and a customer, a teacher and a parent, a warehouseman and a delivery driver, a guard on a train and a passenger, a council officer and a service user, a member of an MP’s staff and a constituent and so on.

A third-party harassment provision saves tribunal time and focuses employers’ minds. It also ultimately saves legal costs. Other legal avenues—direct race discrimination or sex discrimination claims, for example—are not available. Establishing that the employer is responsible for the harassment by allowing or failing to prevent a hostile environment at work is time-consuming and difficult. Good employers who are prepared to take reasonable steps to protect their staff from abuse have nothing to fear from the current provisions. Will the noble Baroness please explain to the Committee how such a matter might be resolved without this part of the legislation?

--- Later in debate ---

[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.

Clause 57 agreed.

Debate on whether Clause 58 should stand part of the Bill.

[Baroness Thornton]

My Lords, I had hoped that the noble Lord, Lord Lester, would have been with us today to move this Clause 58 stand part debate, which stands in both our names and those of the noble Lord, Lord Low, and my noble friend Lady Turner. Unfortunately, the noble Lord has been struck down. He has been in touch with me and the Minister about the fact that he is unable to be here and I am sure that the Committee will wish him a speedy recovery.

Noble Lords may recall that at Second Reading the noble Lord, Lord Lester, spoke with passion about the importance of this clause and his commitment to making his Government change their mind. I expect that between now and the next stage of the Bill that is exactly what the noble Lord will be doing, supported by other noble Lords, including those on these Benches.

Clause 58 repeals the question and answer procedure. The impact assessment states:

“Section 138 of the Equality Act 2010 requires a Minister of the Crown to prescribe forms in order that a person who thinks that they may have been unlawfully discriminated against, harassed or victimised, can obtain information from the person (employer or service provider) they think has acted unlawfully against them”.

This procedure has been a vital part of ensuring access to justice for victims of discrimination since our first discrimination and race relations Acts were passed nearly 40 years ago. Information obtained through this process is intended to help an individual understand why he or she was treated in a particular way and whether they have a legal basis for making or continuing a claim in court or a tribunal.

In the Government’s own Red Tape Challenge, not one concern was raised on the questionnaire procedure. When the Government then issued a specific consultation on questionnaires, that too provided little case for change. Around 80% of respondents opposed abolition of the questionnaire procedure. There is no evidence to support the Government’s claim that these questionnaires are used for fishing exercises.

Case law makes it clear that businesses and other respondents are not required to answer questions that are disproportionate and that a poor response should not lead automatically to a finding of discrimination. Instead, the question and answer procedure is widely regarded by employers and employees as valuable. There is anecdotal evidence that it helps individuals to access evidence at an early stage that can lead to an early clarification of the issues and, if the case proceeds to a tribunal, to greater efficiency in the tribunal proceedings. Indeed, judges and tribunal members regard this procedure as a useful way of establishing the facts and clarifying the issues in contention. The questionnaires have also been known to prompt a quick resolution either through an early settlement or by demonstrating that no discrimination took place, helping to prevent unnecessary proceedings.

The current question form guides claimants to set out their allegations of discrimination in a clear way. This allows the person responding to understand what is being alleged and to provide an explanation of what happened. The absence of a structured standard form may result in some claimants issuing proceedings where they would not otherwise, increasing costs to tribunals and businesses alike. Moreover, removing the standardised structure of these forms, which most businesses are already familiar with, may place some onerous demands on businesses dealing with discrimination claims. Indeed, the Government’s own impact assessment fails to provide any empirical support for removing this “regulatory burden” on business.

Moreover, the financial assessment, which finds a net benefit of just £800,000 to businesses from implementing this measure fails to take into account both the non-monetary costs to the individual employees, who may be further marginalised by the retraction of their employment rights, and the additional cost to businesses and individuals of finding other means by which to obtain information in disputes.

The Discrimination Law Association, whose members comprise lawyers, advice workers and trade unionists supporting victims of discrimination said that,

“without the kind of information which individuals can only obtain through written questionnaires under Section 138, in many cases it will be almost impossible to prove discrimination”.

Indeed, without the questionnaires, an individual who suspects they have been discriminated against will have to institute formal proceedings before they can seek disclosure of documents from the employer. From summer 2013, it will cost £250 to issue a discrimination claim and a further £950 for a hearing. Many victims of discrimination will never bother to seek justice and that will give unscrupulous employers a green light to discriminate at will, I would suggest.

The questionnaire procedure facilitates access to justice, helps both parties to assess where a claim lies and enables them to reach an early settlement where that is appropriate. Therefore, it is crucial that the Government should not repeal Section 138 of the Equality Act.

--- 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?

[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

Moved by

Gender Balance among Non-Executive Directors (EUC Report)

Baroness Thornton Excerpts

Thursday 10th January 2013 Lords Chamber

[Lord Wilson of Tillyorn]

My Lords, I, too, will speak very briefly and not delay the House too long, partly because I am a relatively new member of Sub-Committee B, at least in its present incarnation; I was a member of a previous incarnation some time ago.

The inquiry into women on boards was the first one that I attended as a member of the present Sub-Committee B and it was a very impressive process. The evidence, witnesses and written submissions that came before us were all very thorough, and everything pointed very clearly in the direction in which the committee itself reported. In other words, it is highly desirable to have more women on boards. It is an underutilised resource. Efforts must be made to increase the number of women on boards. In the UK this is happening steadily. There is no sustainable case for doing anything further by legislation rather than by encouragement. Indeed, most of the female proponents of more women on boards very strongly did not want that to happen. For me, it was a very interesting learning process.

With regard to this directive, the Commission is surely right in saying that it is desirable to have more women on boards. It is an underutilised resource, which is putting it rather mechanically, but it is absolutely true. But it is very strange indeed that the Commission goes on to say two contradictory things. First, it argues—although the arguments against have been quite strong—that there is a direct and positive advantage simply to having more women on boards, rather than the more subtle version that a good company gets women on boards and it is successful because it is a good and open-minded company. At the same time the Commission argues that we need a European-wide directive because there will be some countries that do not want to put themselves at a disadvantage by having more women on boards. It is a bit difficult to square that particular circle.

I do not think that the Commission’s proposals really stand up. Of course, what we are discussing this evening is whether they offend against the rule of subsidiarity. The points have all been made by others so I will not labour them. It seems absolutely clear that European-wide legislation does not add an advantage and that such is the diversity within Europe, with different types and structures of boards, that one size fits all simply does not meet the need of the moment. Therefore, I, too, support the recommendation of the noble Lord, Lord Boswell, that we should put in a reasoned opinion saying that what the Commission proposes offends against the procedures for subsidiarity.

[Baroness Thornton]

My Lords, this is the second debate we have had about this issue. I realise that this is the second report, which deals with a different matter, but it is important that we recognise that as we debate the need for gender balance in positions of leadership in business, this Parliament and this Government should acknowledge their own failings in this area. We have no room to be self-satisfied. With just 22% of our current MPs being women, and just four women—that is, 18%—in the Cabinet, we are on a long road.

[Baroness O'Cathain]

I thank the noble Baroness for giving way. This same argument came up before. This has nothing whatever to do with the place of women as non-executive directors on boards of listed companies. The opposition spokesperson in the other place went that way in his opening statement as well but then came firmly down against quotas and for the reasoned opinion.

[Baroness Thornton]

If the noble Baroness would let me continue, she may find that I will do the same, but there should be no complacency about this matter. That was the only point I was making; and I am sure that she would agree with that. I was about to pay her a great compliment, so perhaps she would like to wait for that, too. It is late, and I do not intend to speak for very long. My honourable friend in the other place was right to raise the issue. The subject of gender balance is important, but we have an underrepresentation on company boards in other respects, which we also need to address. The fact that only 5.7% of FTSE 100 directors are drawn from ethnic minorities is, I think, a problem. That is not the first time that that has been mentioned.

As I have said in the House before, we welcome the report of my noble friend Lord Davies on women’s representation on boards. My noble friend has made it clear that there is a moral imperative to change the state of affairs. There is a very strong case for that. We on these Benches also believe that we should regulate or legislate only as a last resort, but we should not rule out the need to take further action if we do not reach the target set by my noble friend, which we all seriously support—25% of female representation on boards by 2015. I acknowledge that we are on the right trajectory to get there, but more action will be needed.

I congratulate the noble Baroness, Lady O’Cathain, on two things. The first is the excellent report that we discussed in November; and the second is her personal role in encouraging women to come forward to positions of responsibility, not just on boards but in other places. In all my time in your Lordships’ House since 1998, I have seen her as a very good example of what women can and should aspire to and could achieve. Whether we reach those aspirations through the Davies report will become clearer during the next year. We will probably need to return to the subject towards the end of this year, to see where we are and what further needs to be done.

I will not rehearse what action has been taken by the Commission at European level, but a point that I have raised with the noble Lord, Lord Boswell, is that the problem that I have with these Motions is not to do with the arguments about the draft directive and the committee’s reasoned opinion, it is to do with how we in the UK should work constructively in other ways to advance the cause of equality in company boardrooms along with our European partners. We must be very careful not to send the message through this action today that it is in any doubt that we should be doing that.

The Under-Secretary of State for Women and Equalities, in her response to the House of Lords European Union Committee, said that she agrees that the European Union has an important role to play in improving the representation of women on boards. If that is the case, I hope that the Government will say how that should happen, how we should give a lead and what our involvement should be. That debate presents a golden opportunity—although Viviane Reding has raised the issue in the way that she has, we should not get drawn down the road of European protocol and subsidiarity. We have to say what we need to say, but we should also make it clear that the UK wishes to be in the forefront of debate in achieving greater equality in this matter.

Disability Services

Baroness Thornton Excerpts

Thursday 10th January 2013 Lords Chamber

[Baroness Thornton]

My Lords, I start by thanking my noble friend Lord Boateng for bringing forward this debate. I asked a Question about this report in the House when it was first published, so I am very pleased that we have been able to have this debate today. I congratulate Scope on an excellently researched report.

Almost everything that can be said about the importance and urgency of this issue has been eloquently said by most noble Lords; indeed, the noble Lord, Lord Low, has pretty much stolen my thunder. I intend to ask three questions about the report, and I am putting them in the context of what the Government are doing to their equality strategy at present, which was also alluded to by the noble Baroness, Lady Hussein-Ece. The Government’s review of the public sector equality duties and equality impact assessments has the potential to undermine the framework for making progress in this area, and we need to be quite clear about that. Indeed, that might answer some of the questions that the noble Baroness, Lady Berridge, had when she was wondering why this might have become a party political issue. While it ought not to have become a party political issue, this is possibly the crux of why it has become one.

Scope has been very concerned about the potential shift within government to a more watered-down commitment to assessing equality implications as a crucial part of decision-making. The noble Lord, Lord Low, referred to the fact that the Prime Minister said to the CBI that the Government were calling time on equality impact assessments, and indeed a statement from the Minister at the DCLG just this week has said that that department is informing local councils that equality impact assessments are not mandatory. That is the unhelpful context in which this discussion is taking place.

If we see a diminution in the commitment to monitoring, consulting and impact measurement, that also needs to be seen in the context of the impact of the welfare reforms that the Government are pursuing with regard to disabled people. Here is just one fact: disabled people have seen a drop in income of £500 million since the emergency Budget of 2010, and recent reports have shown that cuts have ranged from £200 to £2,065 in a typical disabled household over the past year.

Despite widespread criticism, the Government have refused to monitor the impact of their welfare reforms as they are implemented in order to understand how they affect disabled people and their families and mitigate any adverse impacts where possible. Impact assessments should consider not just aggregated impacts from one specific policy but the cumulative impact of several policies on individuals and their families. It is in that context that I pose my three questions.

First, the Government’s Fulfilling Potential—Next Steps White Paper, on their approach to the forthcoming disability strategy, emphasises the need to build better linkages between government departments and agencies to work together to achieve shared objectives for disabled people facing multiple disadvantages. Will the Minister confirm that this will include the development of a joint implementation plan between the Office for Disability Issues and the Government Equalities Office as well as other government departments, as recommended by Scope?

Secondly, following criticism from the United Nations Committee on the Elimination of Racial Discrimination, what plans do the Government have to implement a national race equality strategy? What plans do they have to ensure that the overlaps between different equality characteristics in future equality impact assessments are recognised, given that the needs of BME disabled people are not easily captured in a system designed to assess only one single equality characteristic? Can the Minister clarify the means by which the Government will assess the equality implications of their proposed policies on protected groups, including disabled people, in the light of the Prime Minister calling time on equality impact assessments?

Thirdly, does the Minister agree that in the light of this debate, the public sector equality duty, which is currently under review and includes the race equality duty, is as vital now as it has ever been and should not be equated with bureaucracy and red tape, as the Government are so often seen to do?

Enterprise and Regulatory Reform Bill

Baroness Thornton Excerpts

Wednesday 9th January 2013 Grand Committee

[Baroness Prosser]

My Lords, I did not intend to speak in this debate, but I have been fired up by comments made. I start by declaring an interest as having spent six years, until the beginning of December 2012, as the deputy chair of the Equality and Human Rights Commission. I shall be brief. I know that the noble Lord, Lord Lester, and the noble Baroness, Lady Greengross, are not alone in considering that the loss of the section would not cause any harm. Obviously, I respect the right of people to hold a different view, but I make the point that there is a long history in legislative terms of overarching statements of intent being extremely useful to judges and others when determining the meaning of legislation—so, even on that level, it has a value. I run with my noble friend and the noble Lord, Lord Low, especially in his comments that this has a symbolic value. In this country, we are far from being able to consider that there is no further need for symbols, promotion, ideas, excitement or energy about the equality agenda. We are lacking that in great amount at the moment. We need to be as positive as we can about the need for an equality programme within our society. We continue to need to encourage and explain to people the value to society as a whole of the equality agenda.

Finally, having been deputy chair for six years, it is unsurprising that I take exception to some of the comments made about the equality commission, many of which seem to me to be based on myth upon myth. I agree that there have been issues and problems far too complicated and outside the remit of the equality commission to go into here. Equally, I would say that there is a tendency on the part of many to look back at the pre-Equality and Human Rights Commission era and look at the previous commissions through rose-coloured glasses. People involved in each of the three commissions have done that. This has not been a steady or an easy path since the 1960s, when legislation was first introduced to try to address some of these issues. We need to be careful about making comments about the role of the EHRC in recent years without making sure that we are really clear about the issues, why they have arisen and what has been done to try to detract from them. I support this amendment because it is part of a programme of encouragement of a society becoming more equal, understanding and tolerant.

[Baroness Thornton]

My Lords, it is significant that it has taken an hour and 10 minutes to get to this point. Noble Lords across the Committee feel very strongly about this and I suspect about some of the other amendments that the Government are proposing to this part of the Bill.

We have heard some wonderful speeches this afternoon, including the opening speech from the noble Baroness, Lady Campbell, and sometimes they show aspiration and emotion. The speeches show that these things matter. The noble Lord, Lord Lester, makes some technical analysis about the effects of removing Section 3. I am surprised that such a distinguished campaigner as the noble Lord is out of step on this particular matter.

I do not need to say much more. On these Benches we support the noble Baroness, Lady Campbell, my noble friend Lady Turner and the noble Lord, Lord Low, in these amendments. I expect that the Minister will pray in aid evidence given to the committee that the EHRC has stated that it does not object to these changes in its remit. I confess that I was surprised when I read that. However, we must look at this matter in the context in which those remarks are made. In addition to the proposals to amend the legislative basis of the EHRC, the Government are also undertaking a range of actions that seriously threaten its independence and effectiveness. A few weeks ago the Government published a review of the public sector duty, most of whose members as far as I can see are from either the Conservative Party or the Liberal Democrat party, or they are officials from the GEO. I do not know if they will be taking evidence. If they are, I hope that those who are interested in this matter will tell them what their views are about it.

In the context of this proposal, I ask the Minister if it would not have been better to wait before abolishing the general duties and making these changes to see what the review of the public sector duty proposes, since the Government have used its existence to defend precisely this proposal. Does the Minister think that we are in danger of both these duties being abolished? What effect does she think that will have on the work of the EHRC?

In the Third Reading of the Bill in the Commons, my honourable friend Kate Green said:

“There is still racism and there is still religious hatred. There are still women who … are victims of violence, or who are at risk of it. All those groups continue to suffer from derogatory language, discriminatory behaviour, prejudice and public hostility. It is quite wrong to think that we do not need to continue to protect in legislation a positive duty to promote and improve good relations”.—[Official Report, Commons, 16/10/12; col. 253]

The Minister argued that since the EHRC is bound by the public sector equality duty in Section 147 of the Equality Act 2010, it will still have a duty to consider the need to take steps to promote good relations and activities. Given that we know that the future of this duty is in doubt, I wonder if it is not better to shelve these proposals right now and wait until we see what happens. How is this going to be resolved? If this is taken together with the fact that the EHRC will have its budget cut by 62%, as had been mentioned, and will have lost 72% of its staff compared to when it was established in 2007, these are disproportionate cuts. Further cuts are anticipated in the next spending review and as a result of a zero-based budget review.

--- Later in debate ---

[Lord Deben]

Can I not ask the noble Baroness to go a bit further than that? For that comment by the Secretary of State for Business to be relevant, surely he should have explained why removing this section is helpful. In other words, he seems to have it the wrong way round. It does not help to say, “This section, in its existence, is not being helpful to business”. That is one thing, but it is there. Removing it is a real action. In that case, surely he should have explained why it would be helpful to business to remove this section. I do not see that he has proved that. My problem with this issue is that I do not see why we should not just leave it there, unless there is a good reason to change it. I am old-fashioned enough to believe, “If it ain’t broke, don’t try to change it”.

[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 ---

The noble Lord, Lord Low, and I think the noble Baroness, Lady Thornton, also mentioned the commission’s budget in this context. The budget for the commission has been reduced in line with those for other public sector bodies. The significant reduction in the budget is a result of the fact that the funding for services such as conciliation and the helpline is going with those services, as one would expect, rather than remaining with the commission.

[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 ---

Moved by

[Baroness Thornton]

28ZB: After Clause 56, insert the following new Clause—
“Commission for Equality and Human Rights: accountability to Parliament
(1) The Equality Act 2006 is amended as follows.
(2) In paragraph 1 of Schedule 1, (membership) after sub-paragraph (1) insert—
“(1A) Appointments shall not take effect until such time as they are approved by a Committee of both Houses of Parliament.”
(3) In paragraph 7 of Schedule 1, for sub-paragraph (2) substitute—
“(2) An appointment under sub-paragraph (1)(a) shall not take effect until such time as it has been approved by a Committee of both Houses of Parliament.”
(4) In paragraph 32 of Schedule 1, for sub-paragraphs (4) to (6) substitute—
“(4) The Commission shall lay each annual report before Parliament within 3 months of the end of the financial year to which the report relates.
(5) The Commission shall send a copy of each annual report to—
(a) the Secretary of State,(b) the Scottish Parliament, and(c) the National Assembly for Wales.”(5) In section 4 (strategic plan), for subsection (4) substitute—
“(4) The Commission shall lay the plan and each revision before Parliament.
(4A) The Commission shall send a copy of the plan and each revision to the Secretary of State.”
(6) After paragraph 38 of Schedule 1 (funding) insert—
“38A The budget fixed under paragraph 38 is subject to approval by a resolution of each House of Parliament.””

[Baroness Thornton]

My Lords, I thank the noble Baroness, Lady Hussein-Ece, and the noble Lords, Lord Low and Lord Crisp, for supporting me on the amendment. This is by way of trying to be helpful. As the Government, in their wisdom, chose to alter our equalities framework, we thought that we would take them at their word and make even more improvements. I suspect that the amendment is not perfect, but I hope that it gives the gist.

I acknowledge, as was outlined by the noble Baroness, Lady Greengross, when she was in her place, that the balance of accountability has already started to shift. I should also say, as a member of the Government who put the 2010 Act on the statute book and supported the Equality Act 2006, that perhaps we did not get it quite right then. This is an attempt to remedy that. The amendment amends the Equality Act 2006 so that Parliament can have a greater say in appointment to the EHRC, its budget setting and its reporting.

The EHRC put forward a proposal that required the commission to lay its business plans before Parliament, achieving, as he put it, an optimal balance between independence, accountability and transparency. I recommend Members of the Committee to read what the commission said in its document of 2011, Building a Fairer Britain: Reform of the Equality and Human Rights Commission. That discusses in detail what the balance between independence, accountability and transparency should be. This amendment is drawn very largely from those proposals.

Parliamentary accountability was recommended also by the Joint Committee on Human Rights, which stated that,

“the standard model of non-departmental public body accountability is [not] a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission)”.

Similar constitutional bodies with a role in holding the Government to account, such as the National Audit Office, report directly to Parliament, as do other national human rights institutions such as the Scottish Human Rights Commission, which is accountable to the Scottish Parliament.

Furthermore, the previous and current chairs of the UN International Coordinating Committee endorsed this model. In June 2011, the then chair of the ICC, Rosslyn Noonan, wrote to Theresa May MP and the noble Lord, Lord McNally, stating:

“The challenge is in the nature of the accountability, which should not be, as proposed, to an agency of the government, but should be to the Parliament … Providing an individual government agency (other than the official Auditor) with active oversight powers would undermine the independence of the NHRI in relation to its monitoring of that agency”.

To this end, we tabled this amendment, which seeks to change the balance of accountability of the EHRC in accordance with the Paris principles that gave our EHRC its “A” status.

I hope that this will be seen in the light of trying to start a discussion. The amendment will strengthen the commission’s accountability to Parliament, thereby making it better able to fulfil its mandate as Britain’s equality regulator and national human rights institution. It covers the appointment of commissioners and the chief executive of the EHRC and includes requirements for the commission to lay annual reports and strategic plans before Parliament and for the commission’s budget to be subject to approval by a resolution of each House of Parliament.

The commission has a strategy responsibility to assess how the Government are complying with their domestic and international equality and human rights obligations. It will do that job very much better if parliamentary accountability provides it with the appropriate independence from government. I mean any Government, not just this Government. I include what I hope will be my own Government after 2015. That is the right way to go. It is not always comfortable for Governments to be held to account in this way on their equalities and human rights record, but it is vital that they are.

In addition, this approach will offer long-term consistency of accountability arrangements to the commission. This will overcome some of the major difficulties recognised in the establishment of the commission, which to date has had a number of different sponsor departments. Again, I hold my own Government responsible for the movement of the Government Equalities Office and therefore for the commission. I understand that it is now on the move from the Home Office to the DCMS; a machinery of government announcement was made just before Christmas. Frankly, that is not consistent. We will have a few months of planning blight, because that is what happens when departments have to move their base and find themselves a new home. I do not think that that is a particularly good move, but if the commission is accountable to Parliament for its work, that will help and perhaps, as the future unfolds, we will find a permanent home in government for the Government Equalities Office. That would be a very good idea.

This does not mean that Ministers and the Government do not have responsibility for the overarching policy and the policy framework through which our equalities and human rights legislation should take place. That is not the purpose of this amendment; its purpose is to make the EHRC a more effective and accountable body to our Parliament. I beg to move.

[Lord Low of Dalston]

My Lords, I support this amendment, which has been ably moved by the noble Baroness. As a minimum requirement, “A” status national human rights institutions must comply with the Paris principles. The key ones among them relate to independence from government, guaranteed by constitution or legislation. Greater parliamentary accountability would also be helpful in this regard.

Parliamentary accountability has also previously been recommended by the JCHR in three reports. In 2003, it stated that the “standard model” of non-departmental public body accountability is not,

“a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission)”.

The proposed single equality body did not exist at that time. Again, it said:

“On the whole we would tend to favour a form”,

of appointment,

“which requires a duty to consult Parliament on the appointment of commissioners as a guarantee of independence and democratic accountability, so long as this was a statutory duty”,

and that,

“as a guarantee of independence … Parliament should be directly involved in the setting of any commission’s budget”.

More recently, the JCHR has agreed the Belgrade principles, which relate to the relationship between national human rights institutions, such as the commission, and national Parliaments. The principles were adopted by participants at an international expert seminar led by the UN Office of the High Commissioner for Human Rights in 2012. The Belgrade principles include several mechanisms for closer relationships between Parliaments and the national human rights institutions: for example, that such institutions,

“should report directly to Parliament”,

and that,

“Parliaments should develop a legal framework for”,

the national human rights institution,

“which secures its independence and its direct accountability to Parliament”.

Again, the principles say:

“Parliaments should invite the members of”,

national human rights institutions,

“to debate the Strategic Plan and/or its annual programme of activities in relation to the annual budget”.

The Public Administration Committee has also emphasised the importance of parliamentary accountability and scrutiny of non-departmental public bodies. As the noble Baroness has told us, many similar constitutional bodies with a role in holding the Government to account, such as the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman, report directly to Parliament. So do other national human rights institutions, such as the Scottish Human Rights Commission, which is accountable to the Scottish Parliament. Other regulators, such as the Office of Fair Trading, also report directly to Parliament with the status of non-ministerial departments. The Government have recently published plans to make the Office of the Children’s Commissioner for England more accountable to Parliament. In future, that office will lay its own business plan before Parliament and will be expected to involve appropriate Select Committee chairs in developing its business plan.

In framing this amendment, we have taken account of many precedents that suggest the appropriateness of greater accountability to Parliament for national human rights institutions, both in terms of the advocacy of the Joint Committee on Human Rights and the Public Administration Select Committee and precedents constituted by the existence of a raft of other bodies, which report directly to Parliament. We have also taken account of the Belgrade principles in framing the matters which we think ought to come before parliamentary scrutiny. I hope that the Committee will feel that this amendment is very much in keeping with the way in which these matters have been developing over the past few years, and that we have framed the amendment by taking full account of the issues which it is suggested should form the subject of parliamentary scrutiny. I am happy to support the amendment.

--- 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.

[Lord Lester of Herne Hill]

Perhaps I may add that the independence requirements that we wrote in were used by some at staff level on the commission to justify not being properly financially accountable. I was blamed by officials for having introduced the independence requirements on the ground that there was not proper accountability. Therefore, those at the UN who are considering the Paris principles will also consider that independence does not mean a lack of proper accountability. I make that point because that is something for which we all wish—I refer to financial accountability for the way that money is spent.

[Baroness Thornton]

I was not making that point at all but I absolutely agree with the noble Lord. The remarks of the Minister were helpful. I beg leave to withdraw the amendment.

Amendment 28ZB withdrawn.

Moved by

[Baroness Thornton]

28ZC: After Clause 56, insert the following new Clause—
“Equality Act 2010: Equality Impact Assessment
(1) The Equality Act 2010 is amended as follows.
(2) In section 149 (public sector equality duty), after subsection (6) insert—
“(6A) A public authority shall make the following arrangements for compliance with the duties under this section—
(a) assessing and consulting on the likely impact of its proposed policies on the promotion of its duties under this section; (b) monitoring its policies for any adverse impact on the fulfilment of its duties under this section;(c) publishing the results of such assessments and consultations as are mentioned in paragraph (a) and of such monitoring as is mentioned in paragraph (b);(d) ensuring public access to information and services which it provides; and(e) training staff in connection with the duties imposed by this section.””

[Baroness Thornton]

My Lords, two of the strongest indications to date that the Government may be rowing back on the issue of institutional discrimination are the reviews of the public sector equality duty and of the requirement to undertake equality impact assessments that are under way. On the public sector equality duty, despite a recent public consultation in which 90% of the respondents were opposed to any change being made to the public sector equality duty, the Government have appointed a steering group to consider whether that duty performs as intended.

We are right to be suspicious. I hope that the Minister will be able to allay those suspicions, but, so far, she has not done so. The removal of that duty could lead to public organisations no longer being required to consider the wider impact of policy on marginalised groups, less than two years after the duty was introduced.

On the issue of equality impact assessments, the Prime Minister, David Cameron, announced at the CBI conference on 19 November:

“So I can tell you today we are calling time on equality impact assessments. You no longer have to do them if these issues have been properly considered. That way policy-makers are free to use their judgement and do the right thing to meet the equalities duty rather than wasting their own time and taxpayers’ money”.

That means that public sector organisations will no longer be required to undertake equality impact assessments as a means to fulfil their obligations as outlined in the public sector equality duty. Instead, those important assessments have been dismissed as unnecessary box-ticking, with no alternative suggested that will enable and ensure robust consideration of the impact of policy proposals on protected groups.

Each of those announcements presents its own challenge, but the two are also clearly correlated and, together, risk undermining the consideration of marginalised groups in policy development altogether. Without a duty “to have regard to”, the risk of neglect must be high. We believe that, instead of destabilising this important piece of legislation further, we should be seeking actively to strengthen it. That is the point of the amendment.

Rather than calling time on equality impact assessments, we should enshrine them in legislation. We therefore call for an additional amendment to be made to the Bill that will require public authorities to assess, consult, publish and monitor the likely impact of proposed policies.

The public sector equality duty, as set out in Section 149 of the Equality Act 2010, requires public authorities to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, as well as to advance equality of opportunity and to foster good relations between people who share protected characteristics and those who do not.

The new duty replaces the former race, disability and gender equality duties, the origins of which date back to the findings of the Stephen Lawrence inquiry in 2000, with a single duty that applies to eight protected characteristics: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. The public sector equality duty requires public authorities to assess the impact that changes to policy and practices could have on different protected groups, ensuring that those decisions are being made in a fair, transparent and accountable way, and in consideration of the needs and rights of different members of the community. It applies to public bodies across Great Britain listed in Schedule 19 to the Act and to any other organisation that is carrying out a public function. It having been in place for less than two years, repealing or significantly changing the duty now would be premature. A much better evidence base is needed before a decision is reached.

An equality impact assessment involves assessing the likely or actual effects of policies or services on people in respect of disability, gender and racial equality. Although equality impact assessments are not legally required, they have been widely adopted as an effective and efficient means for public authorities to undertake proper consideration of equal opportunities and are described by the authorities which use them as,

“a positive force for the delivery of real equality”.

In addition, case law suggests that those assessments provide robust evidence documenting how decisions were reached.

The recent announcement by David Cameron indicates that policymakers will be free to determine how the need to have due regard to equalities issues in policy development should be met. However, without robust alternatives to EIAs, that ambiguity could leave public sector organisations exposed to costly, time-consuming and reputation-damaging legal challenges.

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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.

Amendment 28ZC withdrawn.

Moved by

[Baroness Thornton]

28ZD: After Clause 56, insert the following new Clause—
“Equality Act 2010: caste discrimination
(1) Section 9 of the Equality Act 2010 (race) is amended as follows.
(2) In subsection (5) for “may” substitute “shall”.
(3) After subsection (5)(a) insert—
“(5A) A Minister of the Crown may by order—”.”

[Baroness Thornton]

My Lords, in moving this amendment I declare an interest as the Minister partly responsible, along with my noble friend Lady Royall, for supporting the amendment to the Equality Act 2010 to give power to the Minister to add caste as a strand of race discrimination in the Act, following a period of research to establish whether caste discrimination exists in the UK and requires a legislative response.

That research took place. It was conducted by the National Institute of Economic and Social Research in 2010. In the past two years, the Government have failed to act. What is even worse—I hope to stand corrected by the Minister if I am wrong—they have failed to discuss with or consult effective groups and organisations in all that time.

The report that I referred to states clearly on page 48:

“Firstly, the overlap between religion and caste. Some of the cases might have been either caste or religious discrimination. This does not mean that caste discrimination laws would be redundant. Ravidassias and Valmikis may be protected under religion or belief discrimination laws. However, low caste individuals of other religions or none will not always be covered, nor would the harassment using offensive caste language. Thus, without legislation specifically prohibiting caste discrimination, such discrimination would only be partially reduced by law”.

Most recently, the EHRC stated:

“The … Commission supports the enactment of Section 9(5) of the Equality Act 2010, which provides that a Minister may by order amend the statutory definition of race to include caste and may provide for exceptions in the Act to apply or not to apply to caste. The Commission notes the findings of the government-commissioned National Institute of Economic and Social Research … paper on caste discrimination. In light of this, the Commission would suggest legal protection under the Equality Act 2010 for those experiencing discrimination in Britain should be as comprehensive as possible”.

During the past two years, despite questions and requests, the Government have ducked the issue. They have said that there is no consensus on it. However, the organisations that deny discrimination—the Hindu Council and Hindu Forum—do not like and have never liked the proposals, and it is not surprising that they resist change. They pray in aid an exchange of letters between the noble Lord, Lord McNally, and the research organisation—I wonder whether the Minister is familiar with it. In September 2012, Dr Hywel Francis MP, chair of the Joint Committee on Human Rights, received a letter from the Minister, the noble Lord, Lord McNally, stating:

“This is an emotive issue in which the considerations as to whether to legislate or not are finely balanced. For instance, as I have indicated, there is no consensus of opinion among the wider Hindu and Sikh communities as to whether such legislation is necessary. You also mention the evidence that is currently available through reports such as the NIESR report from 2010. While the NIESR report considered that: ‘Evidence of [caste] discrimination and harassment was found’ it also acknowledged that ‘proof either way was impossible’. Ministers are therefore considering the arguments presented by a range of stakeholders together with whether legislating would be a proportionate response to the significance of the problem and the scale of the issue domestically”.

I have two things to say on this. First, the letter sent to the noble Lord, Lord McNally, by the director of the research body concerned was completely clear in stating that,

“I think it would be useful to clarify our conclusions from the study, as your two quotes may leave some confusion. Our statement that ‘proof either way was impossible’ was a philosophical point over the nature of knowledge and proof. Unless a discriminator admits to discrimination, one can rarely be certain discrimination has occurred. This equally applies to, for example, race and sex discrimination, the existence of which we do not doubt. Notwithstanding the philosophical point, the evidence strongly suggests that caste discrimination and harassment, including of the type which would fall under the Equality Act, exists in Britain. I hope this clarifies our findings”.

Secondly, the bodies which do not want this legislation are part of the reason why such discrimination exists, so of course they do not want it. I therefore think that the ambiguity in that report has been cleared up.

On the discussions that have taken place, I understand that the noble Lord, Lord Dholakia, hosted a meeting between Ministers and the Hindu Council and Hindu Forum in 2011, soon after the report was published. However, neither the alliance that is fighting caste discrimination, the ACDA, nor, to my knowledge, any stakeholders representing victims of caste-based discrimination were invited to that meeting. I also understand that the response of the noble Baroness, Lady Verma, to Parliamentary Questions—one of which was mine—in which she stated that there was no consensus on using Section 9(5) was based on views expressed at the meeting convened by the noble Lord, Lord Dholakia. I also understand that when the two Ministers—Lynne Featherstone and the noble Baroness, Lady Verma—attended a meeting of the alliance in January 2011, they refused to comment on the report’s findings.

The need for legislation is clear. Existing religious discrimination legislation only partially covers caste discrimination. Reliance on this was deemed inadequate. There is a real danger, if the UK Government do not accept and deal with the issue of caste discrimination, that the problem will grow unchecked, with devastating consequences for thousands of people in the UK. The report by the National Institute of Economic and Social Research contends that relying on the Indian community to take action to reduce caste discrimination and harassment will be problematic. Instead, it recommends that legislative steps be taken to provide redress for victims.

I hope that the Minister will accept the amendment. It is very simple and it would right a great wrong. However, if she does not feel at this point in the Bill that she can accept it, fairness, justice and truth will be served if she agrees, with her ministerial colleagues, to meet the ACDA and other organisations that have been consistent and vigilant in their search for equality for Dalits in the UK. The Government owe them the courtesy of a hearing. I beg to move.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Amendment 28ZD withdrawn.

Equal Marriage Consultation

Baroness Thornton Excerpts

Tuesday 11th December 2012 Lords Chamber

[Baroness Thornton]

My Lords, I thank the Minister for her Statement and the Government for bringing forward these proposals, which are consistent with the progressive changes that my Government carried through over many years. The Minister can expect our support in carrying forward this enlightened legislation to make it possible for couples who love each other and want to make a long-term commitment to each other to be able to marry regardless of their gender or sexuality. Labour strongly agrees that gay and lesbian couples should have an equal right to marriage. Same-sex couples deserve the same recognition from the state and society as anyone else. I wholeheartedly agree with the Minister that extending marriage to same-sex couples strengthens, not weakens, the institution.

Labour’s introduction of civil partnerships faced some opposition at the time, but much progress has been made in fighting discrimination in the past few years. We need to continue progress on lesbian and gay equality, and same-sex marriage is an important step. Indeed, freedom of religion is also important. No one is proposing that churches should be obliged to hold same-sex marriages. Religious freedom is guaranteed in law and both the Human Rights Act and the European Convention on Human Rights put the protection of religious belief beyond doubt.

Religious marriages are a matter for each church, religious organisation or denomination, not for the Government. We expect the Bill to rule out any church or individual minister being required to perform same-sex marriages and that the protection of religious freedom will be double-locked or double-double-locked, as set out in the Bill. However, freedom of religion also means that we support those churches and faiths that wish to hold same-sex marriage ceremonies in being able to do so, including the Quakers, the Unitarians, Liberal Judaism and Reform Judaism. The Government initially ruled this out in their consultation but, thanks to the campaigns that have been waged, I am happy to see that they have changed their mind and that these provisions may now be included.

Labour’s Front-Bench equalities team has been supportive of permissive legislation which would allow those religious organisations that want it the opportunity to celebrate same-sex marriage ceremonies. This has precedent in Section 6 of the Civil Partnership Act 2004, amended by Section 202 of the Equality Act 2010—now known in this House as the Waheed Alli amendment—which allows religious organisations to host civil partnerships on their premises if they wish.

Some religious leaders have expressed opposition even to proposals for same-sex civil marriage. Although we respect their right to hold such views, we do not agree with them. There was similar opposition to civil partnerships when Labour introduced them seven years ago, yet many people of all faiths now respect and support civil partnerships. I hope that, over time, the Church of England, among others, will take as enlightened a view of this matter and perhaps consider permissive legislation of its own; although I have to say that, after the vote on women bishops, I am not holding my breath.

Labour made huge progress on equality over 13 years in government. As well as introducing civil partnerships, we created an equal age of consent, ended the ban on LGBT people serving in our Armed Forces, increased sentences for hate crimes and outlawed discrimination in goods and services. Between 1997 and 2010, the Labour Government did more for the advancement of lesbian, gay, bisexual and transgender equality than any other Government in British history.

The Minister is correct: marriage is not a static institution. It has, rightly, changed many times over the years to make it relevant to the society it serves. Changes include, for example, the introduction of non-religious, civil marriages in the 1830s, allowing married women to own property in the 1880s and outlawing rape in marriage in the 1990s. Freedom of religion is extremely important. No one is proposing that religious organisations should be obliged to perform same-sex marriage ceremonies.

I listened with interest, as did the Minister, to the debate on the Statement in the Commons. I offer my sympathy to the noble Baroness and some of her colleagues over some comments made by Conservative Members of the House of Commons. One of them said that 98% of his constituents were opposed to this proposed legislation. Quite how he knows that, I am unable to say. I hope that noble Lords behind the Minister will take a more enlightened view of these proposals. The Minister has, unsurprisingly, dwelt on the safeguards. I hope that the Government will not be defensive over the Bill; they should be proud of it.

How will this legislation work? Will the people who currently have civil partnerships be able to, as it were, convert to a civil or religious marriage? How will they do that and will there be any constraints or time limits? The Government have made available their response to the consultation but will they make available its results?

The second lock mentioned by the Minister concerned amending the Equality Act, but I wonder whether, and why, this is necessary. My understanding is that this matter is already covered precisely in that Act.

In conclusion, the Labour Party strongly supports same-sex marriage. People who love each other and want to make a long-term commitment to each other should be able to get married. As a society, we should support and celebrate that commitment. We are pleased and we welcome the fact that the Government have gone further than they originally intended and that they will allow religious organisations that want to celebrate same-sex marriage the chance to do so.

Violence Against Women

Baroness Thornton Excerpts

Thursday 29th November 2012 Lords Chamber

[Baroness Thornton]

My Lords, I start by thanking the noble Baroness, Lady Jenkin of Kennington, for initiating this very important debate. I have only a few minutes in which to speak and the hour is late. I am also feeling extremely cold, so if anyone notices a colleague falling asleep they had better wake them up, because I have been in this Chamber for about five hours and I am now very chilled. I shall limit my speech to putting to the Minister a few questions about the problems we face in the UK. We have had an extremely good debate that has covered both the world and many of the issues, and I congratulate noble Lords on doing that.

Like my noble friend Lady Crawley, I read with interest the latest report from the Home Secretary, A Call to End Violence Against Women and Girls: Taking Action—The Next Chapter, that was published in March this year. It sets out progress on the 88 recommendations in the action plan. It is indeed a comprehensive round-up of what the Government are doing and what they want to do. It reads well and in some parts it is very good. However, it may ring hollow in places because the broader policies being implemented by the Government will undermine many of the aspirations set out in the document. For example, on page 17 the Government want to achieve outcomes that include that:

“VAWG victims receive a good and consistent level of service across England and Wales”.

I wonder how this will be possible given what is happening on the ground.

I turn first to intelligence and information. In 2007 and 2009 the End Violence Against Women coalition was funded to provide what were called the Map of Gaps reports. Both of them were very important documents, and I shall highlight the main points. The first pointed to the fact that a third of local authorities provided no services at all for women suffering domestic violence, while the second report published in 2009 similarly reported gaps in services, pointing in particular to the problems faced by ethnic minority women. Of course, the funding for this ended in 2010. My question for the Minister is therefore about how information and intelligence is being gathered now. How accurate will the Government’s picture be of refuges and the services that are available in 2012? Who is collating the information and where and when will it be published?

What we know is that the cuts of 27% to local authority budgets appear to have been translated into cuts of 31% to the services that protect women who are experiencing violence. For example, Eaves, a local charity that supports vulnerable women, has reported that demand for its services has increased from 366 referrals for advice and support in 2009-10 to 548 in 2010-11, a 50% rise on the previous year. The 31% funding cut in the domestic violence and sexual abuse sector means a reduction from £7.8 million to £5.4 million. According to a Women’s Aid survey, on a typical day some 3,410 women and 2,502 children were living in refuge accommodation, but that 230 women seeking refuge—around 9%—were turned away due to lack of space. The number of independent domestic violence advisers, who we regarded as crucial, has been reduced. In 2011 eight major IVDA service providers supported 13,180 clients, but two of them faced cuts. This means that those services are not being provided.

I have two other issues that I wish to highlight because I think that they will have a terrible effect on services for abused women. One of them has already been mentioned by my noble friend. Refuges are going to be particularly hard hit by the changes being made to housing benefit. Are the Government monitoring the effect that this is going to have on abused women?

The second issue concerns changes to the legal aid structure that will make it more difficult for women to get legal aid when they need it. I recommend a briefing that has just been produced by Gingerbread, Resolution and Women’s Aid, which explains the problems that there are going to be for the domestic violence gateway criteria. Will the Minister assure the House that she and the Equalities Minister will be monitoring this issue and the effect that it is going to have, and will take action if what we think will happen happens?

I congratulate all noble Lords who have spoken. We have had a good and hard discussion but clearly there is much more to do.

Violence Against Women and Girls

Baroness Thornton Excerpts

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.

EU Report: Women on Boards

Baroness Thornton Excerpts

Tuesday 13th November 2012 Lords Chamber

[Baroness Thornton]

My Lords, I start by thanking the noble Lord, Lord Moynihan, for his comments. The noble Baroness, Lady Grey-Thompson, was worried that she would not be able to be here to make the points that he so adequately made, so I am sure that she will be extremely pleased by his remarks. He was quite right. I wondered how I could possibly squeeze any of those sporting remarks into my two minutes.

Lack of women on boards is a waste of talent and potential. It is a terrible waste of talent and potential right now. I congratulate the committee on its work, although it is a shame that it set its sights against quotas so completely. It is also a shame that the newly appointed Minister for Women and Equalities, Maria Miller, instead of taking a positive stance on this matter, as most noble Lords have done, chose to attack the Labour Party as being obsessed with quotas. We have not said very much recently about them. Instead of celebrating successes achieved and talking about how to make progress, she decided instead to have a go. That is a great shame.

My understanding of what is to come out of Europe in the next 24 hours or so is that member states already taking action will be exempt from quotas if they get up to 40% of non-execs by 2020. That is eight years away. Does the Minister think it possible for the UK, with the progress that we have made so far, to reach 40% by 2020? We should be able to.

I am proud that Labour took action to ensure that women are better represented in Parliament and politics, for example. We now have more women than all the other parties in Parliament put together. That does not mean that there is not a long way to go. How will the Government put their own house in order on these matters? I draw attention to research published in Sunday’s papers, secured by my honourable friend Luciana Berger MP. It is about government departments and their appointments at a senior level. I will share with your Lordships’ House the bottom five. BIS is the fifth bottom. It managed to recruit 25% of women in the last tranche of senior appointments that it made. Fourth from the bottom is Defra with 23.5% of women. Third from the bottom is the Department for Transport: 16.6% of its recent appointments were women. Second from the bottom is the Treasury, with 14.2%, or two out of 14, of the last senior appointments that it made being women. At the bottom is the Department of Energy and Climate Change, with one out of 15 appointments, or 6.6%. That is simply not good enough. It seems that the Government need to get their own house in order.

Earlier this year, the Prime Minister said that he did not rule out going further and using quotas as a way to get women into top executive jobs. This weekend, we saw the Minister for Women and Equalities say that that was absolutely out of the question. Perhaps the Minister in this House would clear up whether it is Ms Miller who is right or the Prime Minister.