Deregulation Bill
Lord Low of Dalston Excerpts(9 years, 9 months ago)
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Lord Low of Dalston
Lord Low of Dalston (CB)
My Lords, I shall move Amendment 3—which is in my name and the names of the noble Lords, Lord Lester and Lord Hunt, and the noble Baroness, Lady Thornton—in the absence and at the request of the noble Lord, Lord Lester, who is currently recovering from heart surgery. I am glad to be able to report that he is doing well, but there would be no better “Get well soon” message that we could send him than to accept his amendment today.
Clause 2 amends Section 124 of the Equality Act 2010 to remove the power of employment tribunals to make recommendations to employers in cases where there has been a finding of unlawful discrimination, harassment or victimisation but the claimant no longer works for the employer. These are commonly referred to as “wider recommendations”. Its effect will be that, in future, an employment tribunal will be able to make a recommendation aimed at preventing or reducing the adverse effect of the discrimination on only the claimant in the particular case. In 2013, a BIS survey of employment tribunal applications found that only 16% of claimants in discrimination claims were still working for the employer against which they made their claim. This means that the effect of Clause 2 will be that in 84% of discrimination cases the employment tribunal will no longer have power to make recommendations to employers to take steps to improve their practices to avoid discriminating against other employees. This will be a significant reduction in the powers of employment tribunals.
Amendment 3 would remove the provision in the Bill which takes this power away from tribunals, thus preserving employment tribunals’ current power to make wider recommendations following a finding of unlawful discrimination. The power to make wider recommendations is of strategic importance for employees and employers. So far as employees are concerned, even when, as in the great majority of discrimination cases, the employment relationship has broken down and the employee has left the employer’s employment, they can help prevent or reduce future discrimination and are an effective way of tackling systemic issues and practices. So far as employers are concerned, recommendations are an important way of helping employers who have discriminated to improve their practice. An employment tribunal hears evidence about the circumstances in which the unlawful discrimination occurred and is thus well placed to identify steps the employer can take to rectify any discriminatory practices. Recommendations also offer an important means by which employers can learn from their mistakes and help avoid future discrimination claims.
The power to make wider recommendations is criticised on four grounds: first, that they impose a burden on employers; secondly, that the power is little used; thirdly, that there is no evidence that wider recommendations are effective in changing employers’ practices; and, fourthly, that there is no means of enforcing wider recommendations.
As regards burden, the impact analysis attached to the Government’s consultation on reform of enforcement provisions in discrimination cases suggested that this provision, when operating as expected, will affect only between 0% and 3% of employment tribunal cases, which, it suggests, is likely to result in 17 cases a year. It is hard to maintain that this will constitute an undue burden on employers and business. Moreover, by limiting the cases in which wider recommendations could be made to those where the discrimination, harassment or victimisation has a serious adverse effect on persons other than the person bringing the claim, Amendment 3 addresses criticisms that the wider recommendations power imposes a disproportionate burden on business.
On the point that the power is little used, perhaps it is too early to tell, as it has existed only since 2010. However, on the basis of a review of over 400 employment tribunal judgments issued between December 2012 and September 2014, the Equality and Human Rights Commission concluded:
“Given the benefits to employers and employees which can result from wider recommendations, concerns that the power is little used should be addressed by encouraging employment tribunals to actively consider whether a wider recommendation should be made … not by removing the power”,
entirely.
As regards effectiveness, recommendations mainly concern the provision of training for managers and a review of policies or procedures. I might draw attention to a number of cases, but in order not to detain your Lordships too long I will mention just a couple. One case concerned where a disabled woman was denied a reasonable adjustment that should have been made for her. The employment tribunal ordered that within six months,
“line managers and human resources are to receive adequate training on understanding and implementing the Respondent’s disability leave policy and to ensure that the policy is properly communicated to employees as is appropriate in the circumstances”.
In another case, the Ministry of Defence was found liable for both direct and indirect discrimination in its handling of the promotion prospects of an RAF group captain. The employment tribunal commented that it was shocked that senior personnel were not fully competent in, nor apparently had they been trained on, codes of practice in respect of the Equality Act or the predecessor legislation. The tribunal made a number of recommendations including: first, that all personnel involved in promotion and recruitment should have training in equality and diversity as set out in the Equality Act and the code of practice; secondly, that decisions of the appointments and promotions board should be recorded in writing, with reasons clearly explained and these should be retained for at least 12 months; and, thirdly, that the resolution of the service complaints procedure should not be unilaterally suspended pending the outcome of an employment tribunal complaint. I submit that those are not inappropriate recommendations for an employment tribunal to make with a view to improving the employment practice of the employers with whom it is concerned, and that the effectiveness of its decision would be substantially diminished if it did not have the power to make such recommendations.
On enforcement, it is perfectly true that the employment tribunal does not have power directly to enforce the carrying out of wider recommendations. However, the Equality and Human Rights Commission reviews all employment tribunal cases where there have been findings against employers, prioritises cases where there have been wider recommendations and works with employers to secure the implementation of such recommendations.
Finally, it must be said that the Government’s approach on these matters is not entirely consistent. From 1 October 2014, the Equality Act 2010 (Equal Pay Audits) Regulations 2014 require an employment tribunal to order an employer who loses an equal pay claim to carry out an equal pay audit unless specified exemptions apply. These audits require, among other things, that employers develop an action plan, with a view to ensuring that they do not fall foul of equal pay policies in the future. I submit that this is the better approach, the right approach and the approach that should be similarly followed with regard to wider recommendations. Precisely the same considerations apply, and it is hard to see why tribunals should not have the sort of powers in relation to the making of wider recommendations that they have in relation to the ordering of equal pay audits.
This matter was considered in Committee when an amendment to delete Clause 2 entirely was judged an amendment too far and was rejected. However, I submit that the more surgically crafted amendment of the noble Lord, Lord Lester, deals with the issue that we are considering in a more proportionate way and, as such, is deserving of your Lordships’ approval. I beg to move.
Lord Wallace of Saltaire
My Lords, the Minister is not going to take this amendment away and come back. It is a very kind offer to make. We had an extensive discussion on this clause in Committee. The Committee voted by quite a substantial majority to retain it. What we have here is an amendment that is offered as a compromise but which seems to the Government to make the situation a good deal more complicated.
What we have in Clause 2 at the moment is a straightforward repeal of the requirement on tribunals to offer non-enforceable recommendations on wider issues. It does not reduce or abolish the right of tribunals to offer comments on particular cases and it certainly does not lower what they can do in this overall area. It does, however, simplify the position. By contrast, the amendment offered by the noble Lords, Lord Lester and Lord Hunt, would lead, we argue, to a more complicated system for tribunal recommendations. It would reduce the protection for claimants and set up more complex arrangements for tribunals. It would allow a tribunal to make a recommendation if it thought that it would completely obviate—not just reduce—the adverse effects evident from the case. That is a much higher standard of proof for the complainant than we require under the present system or that would be required following the repeal.
I will comment briefly on the general issue from the Equality Act. This was intended by the Government to be a light-touch element in the very large number of tribunal cases. I understand that there have been around 1 million employment tribunal cases in total, of which around 10%—100,000—were discrimination cases. Some 3,000 of these discrimination cases were successful and in 40 of them there were recommendations. Therefore, we are talking about a very small number. The range of recommendations includes the question of equal pay where there is a requirement for equal pay audits, which is enforceable. An equal pay audit ordered by an employment tribunal is a precise and mandatory requirement with sanctions for non-compliance to advance equal pay in the small number of organisations where a breach of equal pay law has been found and it is also a direct transparency measure as it has to be published.
By contrast, wider recommendations in discrimination cases are effectively discretionary for employers and do not have to be made where an employer loses a discrimination case. Wider recommendations are generally broad-brush proposals; for example, a recommendation that human resources staff undergo equalities awareness training. These are non-enforceable recommendations about training, company culture or a range of other areas that are made by tribunals that may not themselves be very closely aware of the culture of the companies concerned. They are recommendations from the outside.
The noble Lord, Lord Hunt, suggested that, although the amendment is in some ways defective, he would like the Government to take it away and improve it. The amendment, even if modified as the noble Lord proposes, would, in our opinion, result in a quite complex and heavy set of requirements. These could mean, for example, that tribunals might be required to consider wider recommendations in a very large number of cases while quite minor omissions by employers, such as failing to train a manager or to update a diversity statement, could become unlawful acts under equality law. I regret, therefore, that the Government have to decline the invitation to take this away and improve the quality of the amendment.
Our repeal will not prevent tribunals from making non-binding observations on employers’ practices. These could reasonably include the type of points mentioned by the noble Lord, Lord Low, in specific cases. For all employers, losing a tribunal case and having to pay compensation, which our repeal will not affect, itself concentrates employers’ minds and persuades them to learn from their mistakes. The lack of enforcement already there means that they have to take them into account.
The noble Lord, Lord Hunt of Wirral, also talked about introducing the word “proportionate” into the legislation. As someone who struggled in the EU balance of competences review to define “proportionate”, I am conscious that it opens a large door to lawyers and that it is very difficult to discover precisely what proportionality means.
The noble Lord, Lord Beecham, raised the question of the introduction of fees and I recognise that that is of course a serious point. He will in turn recognise that the Government are struggling to contain public expenditure. It is important to emphasise that the Government have been careful to ensure that fee waivers are available for people of limited means in order that they are not excluded from seeking redress in tribunals. The Government have committed to reviewing the introduction of fees, although of course it will be for the Government after the next election to take on that review. We are considering the scope and timing of the review and will bring forward our plans in due course.
I hope that that provides sufficient information to persuade the noble Lord, Lord Low, to withdraw the amendment. The House did support the Government’s repeal proposal at Committee stage last autumn and I stress that we proposed a straightforward repeal of an unenforceable power that creates a perception of burden and unfairness.
Lord Low of Dalston
My Lords, I am grateful to the Minister for his reply and I am grateful to all those who have spoken, especially to the noble Lord, Lord Hunt of Wirral, who I thought went out of his way to suggest ways in which there might be a meeting of minds between the proposers of the amendment and the Government. I am sorry that the Minister is not prepared to respond more flexibly to the invitation from the noble Lord, Lord Hunt, to be flexible, which I am afraid does not give us a lot of room for flexibility on our part, although we might well have shown it had the Minister agreed to accede to the suggestion made by the noble Lord to make time for a further look at the amendment.
The Minister said that this is intended to be only a light-touch measure. I cannot see how more light touch it could possibly be. He gave us the statistics showing that there were 1 million tribunal cases over the period he referred to, of which 100,000 were discrimination cases. Some 3,000 of those cases were successful, and in only 40 cases were wider recommendations made. It is hard to see how this could be more light touch than that. You cannot say that the tribunals have been abusing this power.
The Minister went on to suggest that there is no need for such a power by dismissing as immaterial or unimportant the sort of cases in which it has been used. He said that it had been used in minor cases such as the failure of a company to train a manager. Well, I am not sure how much less minor it is possible to be than failing to train your managers properly. He also suggested that our amendment would make the situation worse. I cannot see that because it seeks simply to reinstate the position as arrived at in the Equality Act. It does not seek to be more draconian than that or more burdensome on employers. I think I showed in moving the amendment that it is hard to argue how the use of this power, as it has been used, constitutes a burden on business and employers.
No one in the House or even in the country is more expert on these matters than the noble Lord, Lord Lester, and I am sure that we are all extremely sorry that he is not able to be present today to give us the benefit of his wisdom. However, I am perfectly sure that he would not be moving an amendment of this kind if he did not think that it was a useful component of discrimination law and the light-touch enforcement thereof. In crafting it, the noble Lord sought to be compromising and to move a less drastic amendment than the complete removal of the clause as was attempted in Committee. This is a different approach. It is perfectly open to the House to support the amendment. It is not constrained in that matter by the discussions that took place in Committee. For all these reasons, I want to test the opinion of the House.
Dogs: Microchipping
Lord Low of Dalston Excerpts(12 years, 9 months ago)
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Lord Taylor of Holbeach
I am very grateful to the noble Lord for his support for what may indeed be included in the package. It might help the House to know that the cost of rehoming each stray is £1,100. The economic cost to this country of irresponsible dog ownership is enormous, let alone the human damage that can be caused by out-of-control dogs.
Lord Low of Dalston
My Lords, is the Minister aware that attacks on guide dogs are now running at over seven a month? The person who first drew this to my attention said, “What on earth are they doing putting a tax on guide dogs? Whatever next?”. But actually it is a very serious problem. It can mean a vulnerable person being left alone, in need of assistance, and without a dog for a considerable period of time. The dog may need to be treated, retrained or even withdrawn from service altogether. As each guide dog costs £50,000 over its lifetime, this has huge financial implications. Will the Government consider making attacks by dogs on assistance dogs a punishable offence in the same way as attacks on human beings?
Higher Education: ERASMUS Scheme
Lord Low of Dalston Excerpts(13 years, 6 months ago)
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Lord Henley
My Lords, I agree with virtually everything that the noble Lord said. No one is talking about stopping ERASMUS; we are talking about encouraging the Union to make changes to ERASMUS as it develops. The specific Question about fee waivers is a detailed Question for Her Majesty's Government and one that colleagues in the Department for Business, Innovation and Skills will consider and make the appropriate decision in due course.
Lord Low of Dalston
My Lords, is the noble Lord aware that the limiting of fee remission to those aged up to 25 studying for a first full level 2 and specified level 3 qualification will negatively impact on disabled people seeking apprenticeships, because they can take rather longer? Will he agree to look at the matter again?
Lord Henley
My Lords, again, that would be a matter for the European Union to look at. Again, I will pass that question on to my right honourable friend and I am sure that it is one that he will want to take up with the Commissioner in his further consultations about the future development of ERASMUS.
Public Bodies Bill [HL]
Lord Low of Dalston Excerpts(13 years, 7 months ago)
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Lord Low of Dalston
Lord Low of Dalston
My Lords, I shall speak also to Amendment 21. In Committee I pointed out the valuable function that the Disabled Persons Transport Advisory Committee performed in focusing attention on the transport needs of disabled people. I do not want to go over that ground again today but, given the fact that DPTAC was performing a valuable function, the noble Lord, Lord Newton, and I were concerned that we should have a better idea of the successor arrangements that the Government proposed to put in place to ensure that the distinctive extra dimension that DPTAC brings to policy-making and implementation is retained.
I am pleased to say that constructive discussions have taken place since Committee and I am most grateful to the Minister, the Bill team, officials from the Department for Transport and the noble Lord, Lord Newton, for the time and effort that they have been willing to put into these discussions.
Amendment 21 seeks to reflect the understanding which I think we reached at the end of those discussions: namely, that an order abolishing DPTAC would not be made until robust successor arrangements were in place on which the Government had consulted relevant stakeholders, organisations for disabled people, their families and carers; furthermore, that there should be a report to Parliament setting out the successor arrangements and the consultations that had taken place on them, and indicating that they have broad support. If the Minister can confirm that that is also his understanding of the discussions that we had, we might be able to go forward on that basis. I beg to move.
The Lord Speaker (Baroness Hayman)
I have to inform the House that if this amendment is agreed to, I cannot call Amendment 21 by reason of pre-emption.
Lord Low of Dalston
My Lords, I thank all noble Lords who have spoken, in all cases with a great deal more eloquence than I did myself—and also with greater transparency, because most noble Lords who spoke declared an interest, and I did not do so myself. I shall waste no more time and declare my interest as a disabled person.
I thank the Minister for his response. I am not completely persuaded by the mainstreaming argument. I have always thought—indeed, I have always found—that when everyone is given a responsibility, it can all too easily turn out to be the case that nobody has a responsibility. I do not have a problem with everybody having a responsibility, but—especially if the responsibility is a specialised one, requiring specialist expertise—it is usually essential that there is someone around, some specialist with specialist expertise, to keep them up to the mark.
I think that, having listened to the debate, the Minister can be in no doubt about the strength of feeling from all parts of the House that robust arrangements need to be put in place to replace DPTAC. The Government, in the words of the noble Lord, Lord McKenzie, have a high hurdle to clear if your Lordships are to be satisfied that it would ever be appropriate to abolish DPTAC. However, from what the Minister has said, it is clear that the Government have it in mind to put in place successor arrangements to provide the specialised advice which is needed in this case. We still do not know what those arrangements are, but the Minister has made it clear that the Government intend to publish proposals and consult on them and that an order to abolish DPTAC will not be brought forward without a document explaining how the safeguards in Clause 8(2), as well as other equalities considerations, have been met.
I hope that I can also take it from the Minister’s remarks that the Government would not wish to bring forward proposals for successor arrangements until they were sure that they had the support of relevant stakeholders. In the circumstance that there will be no order to abolish DPTAC and that there will be a full opportunity for consultation—indeed, that there will be opportunity for your Lordships to scrutinise the Government’s proposals and how adequately they fulfil the function presently carried out by DPTAC—and given the Minister’s assurances, I beg leave to withdraw the amendment.
Queen's Speech
Lord Low of Dalston Excerpts(14 years, 5 months ago)
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Lord Low of Dalston
My Lords, it is a pleasure to follow the noble Lord, Lord Whitty, and I, too, welcome the Ministers to their new positions. At the weekend I attended a lecture entitled, “Do we get the politics we deserve?”, which drew attention to the mixed emotions that the coalition has aroused. On the one hand we welcome the new politics of consensus and co-operation and of people working together for the benefit of the country. It would indeed be good if we could see a more bipartisan approach to the vexed question of social care and an end to the competitive auction on who can build and fill the most prisons. We breathe a sigh of relief at the prospect of stability and cheer on David Cameron as, like an auctioneer on speed, he knocks down the prized possessions of new Labour—going, going, gone. I welcome particularly the smack of firm government seen in the firing of the chairman and chief executive of the Student Loans Company.
Already, however, we can see the shine coming off as the Government begin to do the sort of things that Governments do: announcing measures to the media before Parliament; demonstrating the arrogance of power in a strident and partisan tone, so different from that of President Obama; tinkering top-down with the local government of Norwich and Exeter in a way that flies in the face of the proclaimed intention of pushing power downwards and outwards; and fixing the length of a Parliament in a manner that insulates itself against a loss of confidence. The answer to the last point is simple. Parliaments should be for five years unless the Government have first lost the confidence of the Commons. Lastly, the Government are threatening to swamp your Lordships’ House, which is already overloaded, with new creations in a manner that at one and the same time is unnecessary, runs counter to the Government’s longer-term aims and is antithetical to the spirit of the place. The Government have to be able to lose the argument. Will the coalition give rise, I wonder, to the canard, “Lloyd George knew my grandfather”? It will also be interesting to see whether Bills arrive here any better drafted and considered than before.
On the economy, the essentially parasitic nature of finance capitalism stands revealed for all to see. The noble Lord, Lord Skidelsky, spoke in this debate last year of the emergence of an insolent and largely footloose financial aristocracy or plutocracy as a direct result of the dominance of the financial services sector in our economy. I am amazed that this has not led to a greater crisis of legitimacy, for the shamelessness of the bankers far outstrips that of the expenses scandal. I suppose that the expenses scandal was a handy diversion. At all events, the crisis is still playing out. The markets coming after the banks is one thing—and it was a close-run thing—but we ought always to have been able to get over the meltdown in the financial sector when the banks had their Governments standing behind them. However, when the markets come after Governments, where do we go then? Have we now reached the bedrock on which the whole system rests?
We are certainly in a difficult position. Governments have had to raid their treasuries to an alarming extent. Even so, people question whether they have done enough and suggest that more might still be necessary. At this point, it is important to say that Gordon Brown has been unfairly criticised. The structural deficit was a manageable 2.6 per cent of GDP in the second quarter of 2008 when the recession struck and no one can seriously doubt that it was necessary to throw the kitchen sink at the problem at that point. Even so, the recovery is still fragile and the scale of renewed lending half-hearted. That being so, it seems to me a brave decision to take £6.25 billion out of the economy in 2010-11. I understand the need to reassure the markets, but I think that we should avoid turning reassurance into appeasement by buying into doomsday scenarios predicated on imminent bankruptcy and accept that a more measured approach not only is viable but may actually be less damaging. With the recovery still so tentative, at 0.3 per cent of GDP in the first quarter of 2010, taking 0.45 per cent of GDP out now runs the real risk of plunging us back into recession. It will certainly mean more job losses. David Blanchflower puts the figure at 140,000 and it should not be imagined that this can all be done just by freezing vacancies. Then there is the effect of the multiplier, which means that more jobs are lost because of reduced spending power. Recession costs much more to the economy in lost tax revenue and unemployment benefits than deficit reduction at a time of better economic growth.
It seems quite wrong that the ordinary citizen should be made to carry the can for bankers’ recklessness. With 55 speakers and still not half way there, I can give only the headlines, but perhaps I may mention five things that seem blindingly obvious even to a non-economist. First, there needs to be structural change. Retail and speculative banking should be separated. There is perhaps more to this than meets the eye, but the last Government were insufficiently robust on it. Secondly, we need a transaction tax. The sight of the bond markets opening in the middle of election night so that they could bet on the result was a barefaced example of the insolence to which the noble Lord, Lord Skidelsky, referred. Thirdly, those responsible for the deficit should pay proportionately more. Bankers’ bonuses, which amounted to £7 billion last year, should be subject to controls. Fourthly, contrary to what is frequently asserted, the UK has an internationally competitive tax regime. Taxation, particularly on high earnings, could afford to take more of the strain of deficit reduction. Finally, before general living standards are clobbered, it is imperative that big-ticket items should bear their fair share. I am glad that the defence review will include a wide-ranging review of Britain’s role as an international policeman—on Trident, I incline more to the Lib-Dem wing of the coalition—and it may be that economic necessity will succeed where penal policy has failed in reducing the demand for prison places.
If the coalition cannot adopt a balanced approach to getting us out of our present difficulties—recognising that we are all in this together—it risks undermining legitimacy and fuelling a widespread sense of injustice and even social unrest.