Equality Act 2010 (Specific Duties) Regulations 2011

Earl of Listowel Excerpts

Tuesday 6th September 2011 Lords Chamber

[Baroness Oppenheim-Barnes]

My Lords, I congratulate my noble friend Lord Waddington on moving this amendment and on the moderate and thoughtful manner in which he moved it, giving examples of situations widely ridiculed at the time. It is not a fatal amendment. I wish that it was. I would like to get rid of the regulations.

I am going to clarify my position on the issue in the form of a confession. Some 40 years ago in the other place I was the sponsor of two separate pieces of anti-discrimination legislation. However, it was made clear at the time that these were not in favour of positive discrimination, which is a very different matter. I therefore oppose the regulations on a number of specific grounds. The objective of the regulations is absolutely right if the intention is to prevent victimisation, but it is not right because it is not about equality. It is about inequality of opportunity because it requires a protective element for some but not for others who may in fact be best suited for the job. They are not to be considered equally. They are to be considered after the protected characteristic groups. These groups are very wide and very varied, giving special protection to a wide and varied group. That is positive discrimination, which is neither fair nor equal in regulations stemming from what is the so-called Equality Act.

I emphasise my support for the stated object, that anybody should be given a chance, whatever protected characteristic they may have, as long as they can do the job better than or at least as well as other applicants who do not comply with these characteristics. There is always a chance that some bright young body might claim to have one of these characteristics in order to be considered for the job more favourably. This would only enhance the unfairness. We can only imagine how much these requirements are going to cost local authorities and their ratepayers to enact. How much additional staff will be needed? What burdens will be placed on staff who are already there? How are they to represent their reasons for not employing an able applicant who does not meet the requirements in the regulations but is after all the best person for the job?

The regulations under the Equality Act’s Explanatory Memorandum 10/4 states that this new version, presented to your Lordships’ House today, initiates various savings compared with the previous regulations of up to £205 million over 10 years. That would probably be the cost over the same period of the adoption of the amendment of the noble Lord, Lord Low, if it was accepted. All of us care about the fairness with which people are treated and given jobs and about human rights, but then we look at the Equality and Human Rights Commission, which cost £70 million to set up, was recently condemned by the National Audit Office for not presenting its accounts in an acceptable manner and recently squandered more than £800,000 on a website that did not work. Is this the sort of pattern we wish to impose on local authorities? Again, I emphasise that no one wants to condone unfair discrimination in any walk of life. However, I am not at all sure that these regulations will not lead to discrimination that is more unfair than the very discrimination they seek to prevent.

[The Earl of Listowel]

I am grateful to the noble Lord, Lord Waddington, for tabling this amendment and for the work he has done in this area for many years now. I join him in expressing deep concern about what has happened to those five Catholic adoption agencies. The previous Government and this Government are well aware that voluntary adoption agencies have the best outcomes for children. They provide the best stability and the longer term support for those children and their families to see that those children do well. It is a matter of very great regret that those five agencies have closed. Will the Minister assure me that the guidance makes clear that the principles in the Children Act 1989 and the Children Act 2004 are paramount, that the interests of the child are paramount and that where it is considered that it is in the best interests of children not to be placed with same-sex couples, agencies can do so? I believe it is a perfectly tenable position. I have worked in this House on child welfare for 12 years now and, in my view, it is not generally in the child’s best interests to be placed in that situation. I may be wrong in that view, but there are many professionals who share it. It is not proven that it is safe or in the best interests of children to place them in such settings. I think Professor Golombok—I hope I have her name correctly—has done the most work in this area, but she looks only to the age of 18 and the sample of families examined is quite small. I should be most grateful to the Minister if she could assure me that the guidance will be clear about the paramountcy of the welfare of children, about agencies’ ability to decide where that interest lies and that we will not be seeing a repeat of what happened with those five Catholic adoption agencies.

[Lord Lester of Herne Hill]

My Lords, I should declare a couple of interests before I say anything. First, I was the architect of a Private Member's Bill on equality that went through this House and became a kind of model for what came later. Secondly, I am counsel to the National Secular Society in the intervention in the pending Strasbourg proceedings and, therefore, will not say anything about the cases that have been placed before the European Court of Human Rights. Thirdly, I am so old that I can remember listening for the past 40 years to the arguments I heard just now basically attacking equality legislation root and branch and suggesting it should be consigned to the dustbin.

The most useful way in which I can assist the House is to begin by explaining a bit more about the framework within which this debate takes place as that might throw some light on what we are talking about. The previous Government, with all-party support—I commend the noble Baroness, Lady Royall, in particular for having led the Government at the time on this issue in this House—were responsible for introducing Section 149 of the Equality Act, which is the public sector equality duty. That duty was already in our law in relation to gender, ethnicity and disability, but it was strengthened in important respects by the previous Government with support from all three main parties right across the House. The duty requires every public authority in the exercise of its functions to have due regard to three things: first, to eliminate discrimination, harassment, victimisation and other conduct which is prohibited; secondly, to advance equality of opportunity between people who share a relevant protected characteristic and those who do not; and, thirdly, to foster good relations between people who share a relevant protected characteristic and others.

The duty covers various grounds, including religion or belief. I assume that even the staunchest opponents of the legislation are pleased that discrimination on grounds of religion and belief is covered. I say with all respect that it has nothing to do with positive discrimination, which is dealt with in a limited form by a completely different provision. It imposes a general public sector duty. There are particular problems about the way in which the duty treats religion and belief in the same way as the other protected characteristics. Some would argue, and I would be one of them, that religion is too strongly protected in the legislation, but we really need not go into that today.

The Explanatory Notes on the Equality Act make it clear that a whole range of religions, including Catholicism, Protestantism, Liberal Judaism, Orthodox Judaism and various forms of Islam, are to be looked at individually and separately if there is an allegation of discrimination. That is the framework. The power being exercised under the regulations is to give better governance in complying with that general duty. Complaints about the Act itself were settled by the previous Parliament when it enacted the legislation.

Where I part company with the noble Lord, Lord Low, with whom I hate ever to disagree, is in believing that his amendment—I have already had the advantage of speaking to him about it—is a real example of overregulation of the worst kind. The best way in which I can illustrate that is by giving just one example, that of religion. Under the general duty, every public authority has to have due regard to the three things that I mentioned. The first thing that an authority has to do under the law is to identify within its area various religious, irreligious, non-religious and atheistic groups. Then it has to decide whether something needs to be done in order to tackle inequality, discrimination and so on with regard to those groups. The regulations strip down the core needs to ensure compliance with the general duty in a well targeted and sensible way. They state that each public authority must publish information to demonstrate its compliance with the Section 149 duty, which is quite right and entirely sensible. They further state that the information has to include information relating to persons who share a relevant protected characteristic, which they define—perfectly sensible. The third thing that the authority must do is prepare and publish one or more objectives that it thinks will achieve the things that I have already mentioned. Again, that is perfectly sensible. Then they say that the objective must be “specific and measurable” —again entirely sensible.

The amendment of the noble Lord, Lord Low, would add that each public authority in the country must,

“publish information on equality analyses they have undertaken … set objectives designed to facilitate compliance with the General Equality Duty … publish information about the engagement they have had with affected groups when developing these objectives and … report annually on progress towards meeting these objectives”.

I do not wish to be unmannerly in saying that it reads a bit Soviet—

--- Later in debate ---

[Baroness Verma]

My noble friend is right, but it is about ensuring that there are those equalities of opportunity. That is what the regulations lay out.

My noble friend Lord Waddington asked about adoption agencies and the fact that some have had to close. I think the noble Earl, Lord Listowel, also mentioned that. Let me be clear that the Equality Act (Sexual Orientation) Regulations 2007 and the Equality Act which replaces them did not and do not mean that faith-based adoption agencies must close. Nor do they mean that those agencies cannot restrict their services of recruiting and assessing prospective adopters to people who are Catholic. They just mean that those agencies must not refuse their services to prospective adopters just because they are lesbian, gay or bisexual. It is an important principle that publicly funded services should be provided to people irrespective of their sexual orientation.

[The Earl of Listowel]

I could not quite understand what the Minister just said. Could she rephrase it, because it was not clear to me?

[Baroness Verma]

The noble Earl may read Hansard tomorrow.

In response to my noble friend Lord Tebbit, I declare an interest as a person who has a business in the care sector. The specific duties will ensure that those receiving publicly funded services are responded to through those services more appropriately to their requirements. The duties do not create discrimination; they will enhance the services that people receive.