Conversion Practices (Prohibition) Bill

Debate between Maria Caulfield and William Cash

2nd reading
Friday 1st March 2024 Commons Chamber

[Maria Caulfield]

The hon. Member for Brighton, Kemptown has made that argument as well, but we feel it is important to get the details right at the start of the legislative process rather than towards the end.

[Sir William Cash]

Would the Minister be good enough to give some indication of what such a draft pre-legislative Bill would look like? The arguments presented from our side of the equation demonstrate manifestly that it would be impossible for the Bill to overcome its difficulties in relation to criminal law and the like in Committee.

[Maria Caulfield]

I take my hon. Friend’s point. That is why the Government propose to publish our Bill and take it through pre-legislative scrutiny in both Houses before it follows the normal processes in Committee. We will be able to shape the legislation in a way that deals with many of the concerns that have been raised today.

As the House is well aware, this policy area is complex and nuanced. It is clear from today’s discussion that colleagues are listening and thinking carefully about the challenges the Government have encountered in preparing legislation in this space, notably ensuring that legislation is clear, balanced and respects freedom of speech, belief and religion, and does not cause unintended consequences for parents, clinicians, teachers or religious groups.

Draft Equality Act 2010 (Amendment) Regulations 2023

Debate between Maria Caulfield and William Cash

Wednesday 6th December 2023 General Committees

[The Parliamentary Under-Secretary of State for Health and Social Care (Maria Caulfield)]

I beg to move,

That the Committee has considered the draft Equality Act 2010 (Amendment) Regulations 2023.

It is a pleasure to serve under your chairmanship, Mr Hollobone. This statutory instrument will reproduce select interpretive effects of retained EU law, in order to maintain equalities protections against discrimination. These protections are reproduced by making amendments to the Equality Act 2010.

It is important to make clear from the outset that the overwhelming majority of our equality law is contained in domestic legislation. The Equality Act 2010 was approved and voted on by our own Parliament, and so the interpretive effects of retained EU law have a bearing on our equality framework in only a limited number of areas.

This instrument uses the powers of the Retained EU Law (Revocation and Reform) Act 2023 to ensure that necessary protections are put into our statute. This will end the inherent uncertainty of relying on judicial interpretation of EU law and instead ensure that strong and clear equality law protections are set out in our domestic legislation. To be clear to hon. Members, this instrument applies just across Great Britain.

This statutory instrument safeguards and enshrines key rights and principles across a range of areas. First, it protects women’s rights by maintaining equal pay protection where employees’ terms are attributable to a single source but not the same employer; protecting women from less favourable treatment at work because they are breastfeeding; and protecting women from unfavourable treatment after they return from maternity leave, where that treatment is in connection with a pregnancy or a pregnancy-related illness occurring before their return. It ensures that women are protected against pregnancy and maternity discrimination where they do not have a statutory right to maternity leave, but have similar rights under alternative occupational schemes. It also ensures that women can continue to receive special treatment from their employer in relation to maternity; for example, ensuring that companies can continue to offer enhanced maternity schemes.

I am sure that all of us in the House will agree that women should not face discrimination for being pregnant or taking maternity leave, should continue to receive equal pay for work of equal value, and that they should not receive less favourable treatment in the workplace because they are breastfeeding. This instrument reproduces these principles in domestic law to ensure that women can continue to rely on these protections.

This instrument also maintains protections for disabled people in the workplace, so that they are able to participate in working life on an equal basis with other workers. It is, of course, important that disabled people have the same opportunities as everyone else to start, stay and succeed in work, and this amendment will mean that disability protections continue to apply where someone’s impairment hinders their full and effective participation in working life on an equal basis with other workers.

Finally, this instrument maintains two protections that apply more broadly. The first of these maintains the status quo whereby employers and their equivalent for other occupations may act unlawfully if they make a discriminatory public statement relating to their recruitment practices, including when there is not an active recruitment process under way. This ensures that groups that share certain protected characteristics are not unfairly deterred from applying for opportunities in an organisation. The second maintains protections against indirect discrimination for those who may be caught up and disadvantaged by indirect discrimination against others, so that they are also protected when they suffer substantively the same disadvantage.

We intend that there will be no time gap and no break in protections between this law coming into effect and the removal of the special status and EU-derived features of retained EU law at the end of this year. By maintaining these important protections, we will ensure that our domestic equality framework has continuity. Importantly, these amendments do not add any regulatory burdens on business, as the legislation reproduces the status quo, meaning that the regulatory environment will not change. I hope that colleagues will join me in supporting these draft regulations and I commend them to the Committee.

[Sir William Cash (Stone) (Con)]

On a point of order, Mr Hollobone. I want to be quite clear, as Chairman of the European Scrutiny Committee, that, as some may know, we are having a full inquiry into the implementation of arrangements regarding the revocation and reform of retained EU law. We are actually having inquiries on a continuing footing. Am I right in saying that, while this Committee will consider the issues concerned, the ultimate decision will be taken by the House? That would be very helpful indeed.

I say this very respectfully: is it possible for those of us who were not nominated for this Committee—my Friend the Member for Aberconwy and me—to speak but not vote? We will be as brief as we can, because I suspect that our hon. Friend the Member for Penistone and Stocksbridge has something that she would like to say. We just have a few thoughts that we would like to offer to the Committee as well. Is that all right?

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[Maria Caulfield]

I am grateful to all hon. Members who have spoken. Britain has a proud history of justice and fairness and has some of the world’s strongest and most comprehensive equalities legislation, thanks to the Equality Act 2010. By setting out these EU-derived protections in domestic law, we will ensure that our equality framework provides clarity and continues to protect the fundamental rights and freedoms of people in this country.

I assure the shadow Minister, the hon. Member for Ellesmere Port and Neston, that there is a cross-Government approach to retained EU laws. A publication on progress on that work is planned for January as part of the statutory six-month reporting requirement. The EU law dashboard on gov.uk, which was last updated on 8 November, sets out the laws that we are retaining. I take his point that more information on that would be helpful to Members across the House. I reiterate that the retained EU law powers are available until June 2026, so we can continue to review the EU laws, and even if we do not retain them now, we have the potential to do so in future.

On the comments by my hon. Friends the Members for Penistone and Stocksbridge and for Aberconwy, I reiterate that the CHEZ ruling is already the basis of law across Great Britain. Whether or not we agree with the judgment, it was made in 2015, before the implementation period, and therefore falls under section 4 of the European Union (Withdrawal) Act 2018. Because of that, it falls under section 12(8) of the Retained EU Law (Revocation and Reform) Act 2023, which enables the Government by regulation to reproduce to any extent the effect of anything that was retained EU law by virtue of section 4 of the European Union (Withdrawal) Act. That is why it comes under the Retained EU Law (Revocation and Reform) Act, and why we have been able to table these regulations.

Section 3 of the Retained EU Law (Revocation and Reform) Act gives Ministers powers not just to replicate but to amend laws as they are put on the statute book. That is not specific to this instrument. That power was voted on in Parliament.

[Sir William Cash]

On a point of information, regardless of what happens with these regulations, which are only for consideration in this Committee and will be subject to final approval on the Floor of the House after fuller consideration, does the Minister agree that if the argument is made as clearly and thoroughly as it can be—thanks to my hon. Friend the Member for Penistone and Stocksbridge, the case has been made more clearly and more explicitly—it could be included in the Government’s list of items for revocation in their entirety?

[Maria Caulfield]

My hon. Friend is suggesting that we revoke the legislation that we are considering, which provides the protections that I set out in my opening speech. It is certainly the Government’s view that it is important that we retain those protections, whether they relate to discrimination against women going through pregnancy, disabled people or others with protected characteristics. To clarify, the way the instrument interprets the CHEZ ruling is not new legislation. As I set out, the CHEZ judgment was before the implementation period, so it is already a basis on which judgments are made. Because it falls under the Retained EU Law (Revocation and Reform) Act, this statutory instrument just puts that on a domestic footing.

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[Maria Caulfield]

The legal advice is that it is arguable that it can be interpreted as giving horizontal rights, and that is why the instrument reflects that.

The basis of this argument was that we believed that, in leaving the EU, it was fundamental that Parliament made decisions about which laws we retained, repealed or amended. That is exactly what we are doing today. We may differ over whether we believe that the protections are needed or whether they go too far, but it is now Parliament that is making that decision.

[Sir William Cash]

The Minister is making an interesting case, and I understand that she prepared her notes and thoughts before she came to the Committee. At the same time, questions have been raised with regard to matters of ambiguity or uncertainty in interpretation that could apply in this instance. It is possible for the Government to consider their position on the merits of the issue—on the basis of another understandably important opportunity to look at the legal implications of the instrument—after the Committee has finished its consideration. They cannot make the decision now. There is an opportunity for these matters to be looked at more carefully and with great legal analysis in a way that I am quite sure will throw up some further points, which can then be taken into account when the final decision is about to be made. I am sure that the Minister would agree with that. Otherwise, there would be very little point in the procedures.

[Maria Caulfield]

I take my hon. Friend’s point, but if we had not left the EU, the CHEZ ruling would still be the basis of the way in which decisions are made right now on discrimination cases. Any law can be challenged in courts and precedents can be set, but that does not mean that we should not set out the law as we determine it should be interpreted. Obviously, case law can change that, but the CHEZ case was back in 2015, so it falls under the European Union (Withdrawal) Act. We have decided as a Government to retain those protections. Let me set them out for hon. Members: they are around maintaining equal pay for pregnant women; protecting women from less favourable treatment because they are breastfeeding; and helping pregnant women facing discrimination with being able to return to work.