Enterprise and Regulatory Reform Bill

John McDonnell Excerpts

Tuesday 16th October 2012 Commons Chamber

[Jo Swinson]

This is a procedure about obtaining information. There are clearly differences between different cases. However, it is also clear from the consultation that this is being used as a sort of fishing expedition whereby additional questions are asked in order to produce an undue burden on business and perhaps sometimes to encourage the idea that the process might be seen to be far too burdensome and that a settlement should therefore be reached instead, even where there may not have been a breach by the employer.

[John McDonnell (Hayes and Harlington) (Lab)]

Can the Minister say what percentage of responding organisations supported her position, because I believe that 83% were opposed to it?

[Jo Swinson]

It is certainly true that a wide range of views were put forward to the consultation. Among business groups, there was a very strong view that this costs a lot of money, and I will explain why. Based on the sample, the five to six hours spent on each form at a cost of £160 equates to a cost to employers of £1.4 million a year, and it could be considerably higher because many employers may use more expensive legal advice.

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[Mr Umunna]

Quite right. One argument that has been consistently advanced by Liberal Democrat Ministers, as well as at the Liberal Democrat conference the other day, is that the Liberal Democrats are a check on the worst excesses of their coalition partners. I believe, however, that people will look at their actions. Their words do not marry up to what they are doing in Government. The Secretary of State said at his party conference that if Britain wanted

“competence with compassion, fairness with freedom and more equality…that government must have Liberal Democrats at its heart.”

The measures in the Bill really do call that claim into question.

[John McDonnell]

I shall speak to amendment 56. Far be it for me to correct my hon. Friend the Member for Streatham (Mr Umunna), but I think the amendment is in my name. I say that only to give notice formally that I intend to move the amendment and divide the House on it. It is in my name only because of my speed of pace in getting to the Vote Office—that is all.

This is not one of those parliamentary knockabout debates, but a fundamentally important one. I have been a Member since 1997 and I have noted that in every debate on equalities during that period, what emerged was a near consensus about the approach towards, and the commitment to, the legislative framework. When we debated the Equality Act 2006, near consensus was achieved in this House about the legislative framework that was being put in place. I thought that that was one of those occasions on which the House rose to its full height, and it was held in esteem for reaching that consensus.

To be frank, there is an element of tragedy to what is happening. We are going dramatically backwards here. The Minister listed a range of reforms that the Government had introduced, most of which I believe the Opposition supported. I welcome them, but the difference between those reforms and the one we are considering is that there was consensus about most of them, both in this House and outside it.

As my hon. Friend the Member for Streatham has said, a vast range of organisations have expressed concern. I received a briefing from the Equality and Diversity Forum—I hope that other Members have received it, too—which basically urged the Government to think again and provided a detailed brief, setting out point by point its arguments for opposing the Government’s proposals. Some of these organisations deserve listening to. They include Age UK, the British Institute of Human Rights, the Children’s Rights Alliance for England, Citizens Advice, Disability Rights UK, the Discrimination Law Association, End Violence Against Women—the list just goes on and on—the Fawcett Society, Friends, Families and Travellers, Justice, the Law Centres Federation, Mind, the National AIDS Trust, Race on the Agenda, the Refugee Council, the Royal National Institute of Blind People, the Runnymede Trust, Scope, the TUC and the Women’s Resource Centre—and there are many more. As my hon. Friend said, tomorrow there will be a further letter from organisations that supported this House for almost a generation as we devised the legislation and the legislative foundation of our equalities law. This Government are now breaking that consensus.

To be frank, there were concerns that there would be a Conservative party attack on equalities after the election. We were hoping that that would not be the case. I argued that many of the legislative debates we had had over the last generation would be put to bed and would not be reopened. Many feared such an attack, but most of us hoped when the coalition was born that the Lib Dems would head it off. I know that there are those who have tried to do so. We have heard today of letters coming in from different Lib Dem groups, urging the Government to think again. Unfortunately, they have failed. As a result of that failure to convince the Government to think again, we are faced with the most significant step backwards on equalities that we have seen in the last 20 years.

[Kate Green]

I share my hon. Friend’s distress and sorrow at what is happening under this Government. Is it not also the case that when the Equality Act went through the previous Parliament, it was Liberal Democrat Members, including the Minister’s own predecessor, who were particularly at pains to push our Government, a Labour Government, to go further? Is this not an appalling and distressing reversal of position?

[John McDonnell]

To be fair—

[Stephen Pound (Ealing North) (Lab)]

Don’t: there is no need. It is not necessary.

[John McDonnell]

This is a serious debate and, to be fair—my hon. Friend was here at the time—there were Conservative and Lib Dem Members who sought to push things further. What I thought was important about that debate was that we reached a consensus. We reached a fairly high plateau of agreement. It was recognised that some wanted to go even further, but no one wanted to go backwards, which is what this legislation does. This is a backward step.

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[John McDonnell]

With the greatest respect, I do not think that that is the case. I know John well—he is an old friend—and I do not believe that he used that exact form of words. What the organisation said was that it was for the House to decide on the Bill. I think that what the staff and board of the EHRC are trying to do is survive, and I think that some things have been said simply so that they can survive.

[Debbie Abrahams]

The briefing from the EHRC uses very neutral language, but it nevertheless expresses blatant concern about, in particular, the removal of important functions such as the helpline, funding for voluntary organisations, and legal advice. The idea that people should have to pay to issue a challenge when they have been discriminated against is outrageous.

[John McDonnell]

I agree. I think that what John Wadham and others in the organisation have said is that they will do their best and will live with what legislation there is, but I also think that when they gave evidence to the Committee, their intention was not to support the Bill. It is for us to decide.

[Julian Smith]

Either the hon. Gentleman is calling me a liar, or he has not read Hansard. The written record of the evidence sessions shows that John Wadham said that the organisation did not have a problem with the Bill.

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[Madam Deputy Speaker]

No, he did not imply it. He did not raise the issue of the hon. Gentleman’s integrity in any way. There seems to be a dispute about what was actually said, and I think that that is different.

[John McDonnell]

rose—

[Madam Deputy Speaker]

Perhaps the hon. Gentleman will clarify the point.

[John McDonnell]

Let me assure the hon. Member for Skipton and Ripon (Julian Smith) that I would never call him a liar. What I am trying to say is this. The organisation has previously made it very clear that the House will be the determinant of the Bill. I believe that John Wadham has been a good and effective civil servant over the years, and that he will implement whatever comes out of the House as effectively as possible, but I also believe that he and his colleagues are simply trying to survive in whatever way they can, and will speak accordingly.

[Mr Umunna]

As I said earlier—and as my hon. Friend will know, because he has read what John said—John did say that he was not opposed to the Bill. However, I have just given chapter and verse on all the problems that he has raised in relation to it. He is, of course, an existing employee of the commission, so it is very difficult for him. Why should we not consider, for example, what the commission’s former director of human rights and director of disability rights said in July about what the Government are doing? He said:

“By repealing section 3 of the Equality Act 2006, the Commission will cease to be an agent of social change harnessing the law and its powers to address entrenched inequalities.”

[John McDonnell]

We will come on to the individual elements, but it is clear from the representations that have been received that there is sufficient concern. Let me put it no more strongly than that. For any Government whose members have arrived at consensus on a contentious issue to come along and break that consensus warrants much deeper consideration than is being given by the Government. The messages from the organisation itself, which is seeking to survive in whatever form it can, have been clear enough to most of us to suggest that it has an underlying concern that it will be unable to fulfil the role we have expected of it up until now.

[Jack Dromey]

My hon. Friend makes a powerful point about the organisation’s inability to fulfil its role in the future. I have met the staff in the Birmingham office on the issue of disability access to public transport, from buses in Wolverhampton to the de-staffing of stations in the region by London Midland. The disabled are saying that they are being turned into second class citizens who are unable to access public transport and that the support of the Birmingham office of the EHRC is essential to them. Does my hon. Friend agree that if that office goes, so too will the champion of the disabled?

[John McDonnell]

I chair the PCS parliamentary group, which represents the union that represents the staff. I have therefore been involved in the discussion with them about the cuts that have taken place. The pressures that existing staff are under are immense. Reducing staff numbers still further will lead almost to the breakdown of the organisation.

Let me return to the Bill. We have been saying that there is real worry about the Government’s intent and the future of the organisation. The cuts in resources and staff are being compounded by the undermining of the legislative basis on which the organisation operates. It is that legal basis that we must consider.

On clause 52, the original legislation laid out a general duty to send out the message to which my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) referred. As a community we needed and continue to need the message that there is an organisation advising the Government that will encourage and support a society based on freedom from prejudice and discrimination—a society based on individual human rights, respect for the dignity and worth of each individual, equal opportunities to participate and a mutual respect between groups based on understanding and valuing diversity and shared respect for human rights. I do not think that society has changed so dramatically that that statement is irrelevant—it needs to be embodied in legislation and repeated time and time again. It had all-party support in 2006.

[Andrew Gwynne]

My hon. Friend is absolutely right, and I am proud to have been part of the Government that introduced the Equality Act. However, does not this provision shed light on the Government’s real motives? By stripping down the commission and stripping it of its remit, they are undermining the equalities that we cherish and hold dear.

[John McDonnell]

I do not see how it can be interpreted any differently. The argument has been made that this provision has been included in the Bill for a purpose and that it is all to do with removing restrictions on businesses so that they can be encouraged to be more enterprising and create better profits, which might somehow contribute to tackling the recession. The argument is almost that we cannot afford equality, but our argument is that we cannot afford inequality. That is exactly why we enacted that legislation in 2006. There were strong arguments about not just fairness but efficiency. If there is discrimination against people, sections and groups in society, they cannot make their contribution. That was why we made a strong economic argument for the 2006 Act.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I note that the Minister talked about value for money. Does my hon. Friend agree that the value-for-money argument for dismantling the commission is a very bad one, because of its impact on our economy through the added cost to businesses of failing to tap into the potential of people against whom there is discrimination in our society?

[John McDonnell]

Exactly. In 2006 we had a lengthy debate on all sides when we identified groups in society that had not been given a fair crack of the whip and which, if they had, could contribute so much to our economy. Clause 52(1)(a), which removes section 3 from the Equality Act 2006, removes that statement.

It is interesting that only a few months ago the European Commission, in its recent report on equality, recommended to other Governments that they follow the example of the UK and embody in legislation a vision of an organisation that can contribute towards developing a society based on equality. Here we are, taking a step backwards from what is happening elsewhere across Europe. This is not just a tidying-up exercise. It is not about creating unrealistic expectations. It undermines the legislative basis of the organisation.

At the recent conference on discrimination law, Sir Bob Hepple QC made it clear what section 3 stands for. He said that it provides the link between the promotion of equality and good relationships between groups and society, and that without it we are rudderless. That was his statement. We included the measure in the original legislation to give direction.

It is extraordinary that in the Government’s own consultation, which has been cited time and again today and which was entitled “Building a fairer Britain”, there was overwhelming opposition to the abolition of section 3. The opposition was 6:1 against removing that visionary statement from the legislative basis of the commission.

Clause 52(1)(b) repeals the duty to promote good relations between members of different groups. MPs who have been working in their constituencies as MPs, councillors or community activists will recall that it is these sections that we have used to protect individual groups against racist attacks, attacks on Travellers and against undermining and stigmatising people with mental health problems. This is the legislative base that we have used time and again to ensure that the commission can play its full role.

As my hon. Friend the Member for Streatham said, this is the measure that we used to tackle racism in football, so it has been used in campaigns and it has been effective. We have used it to undermine the development of extremist racism in our society and to ensure that we give advice to public authorities, particularly local authorities at elections, to set standards.

It has been argued that other organisations will be available to do this, such as the Runnymede Trust and the Fawcett Society, but both of them are reliant on public funds and some of the public funds that go to those organisations are from the EHRC. The EHRC is having its grant-making cut so those organisations will not be out there to fulfil that role.

On the removal of the duty in section 10, I want to raise an issue on behalf of organisations such as DPAC—Disabled People Against Cuts—and the group in Scotland, Black Triangle. Section 10(5) places a duty on the commission

“to promote or encourage the favourable treatment of disabled persons.”

Over the past year we have had debate after debate on hate crime against people with disabilities. We thought we had a breakthrough with the Paralympics in raising the profile of people with disabilities and extolling what they can do if given the chance. What message does it send out that we are scrapping that duty of the commission?

[Chris Ruane (Vale of Clwyd) (Lab)]

Four or five categories of hate crime are monitored—race, religion, gender, sexuality and disability. Over the past year disability hate crimes are the only hate crimes across all the categories that have gone up, and the reason is the language used by the Tories. Does my hon. Friend agree?

[John McDonnell]

In debates in Westminster Hall and in this Chamber, Member after Member has raised the issue of the rise in hate crime against people with disabilities. They have cautioned Conservative Members and others about the language that they use and about their actions. This proposal sends out a message that the Government are not interested in this matter, and it undermines the very organisation that has the statutory responsibility. We are not the only ones who are anxious about this. The Government’s consultation shows that the proposal was opposed by 7:1.

On section 12, the Government seek to reduce the frequency of monitoring progress from three years to five years. It is extraordinary that in the debate on the introduction of the monitoring process, it was Conservative Members who argued that three years was not enough, because there would be only one report every Parliament. Now it is to be every five years. That was opposed by 5:1. It is argued that further reports can be brought forward at the commission’s will, but the most important thing is the requirement that the House places on the organisation. The monitoring process every five years will prove totally ineffective.

The repeal of section 27 and the powers to provide conciliation services to resolve disputes involving alleged discrimination is extraordinary. In other parts of the Bill the Government promote conciliation to resolve disputes, yet in this area we are removing that role from the commission. The argument is that the commission has not been particularly effective. If we are concerned about the effective operation of the commission, we should reform the commission, not undermine its legislative base and remove its powers. If the pre-appointment hearing for the new head is today, we should give that person a chance to reform the organisation before we take away the opportunities to exercise effectively the powers that were bestowed upon it by previous legislation.

I will deal with new clause 13 and the abolition of the questionnaire only quickly, because, like my hon. Friend the shadow Secretary of State, I have dealt with these questionnaires from a trade union point of view. As has been said, only 2% of employers have ever been involved and none has claimed the duty was onerous. To be frank, when the questionnaires come back a trade union representative can tell his member, “This isn’t a runner,” or he can say, “This is a runner. We had better start negotiating.” When it can be proved that a case has merit, usually the employer will realise that there is something real to address.

[Jack Dromey]

Again, from my experience in the trade union movement I support what my hon. Friend says. As a result of the process of using the questionnaire, for every one case that goes forward, three cases do not, precisely because it is established that there is no case to pursue. That means that the hopes of individuals are not raised, but neither is any unnecessary burden imposed, in this case on employers.

[John McDonnell]

Exactly. Part of the role of a trade union representative is to ask the individual, “Do you really want to put yourself through this when there is so little chance of success bearing in mind what information has come back?”

[Mr Umunna]

What I find so reprehensible about what the Government are doing to these protections in this Bill—the same applies to the points that we will be discussing tomorrow in relation to employment law—is that in many respects the people for whom these protections are so important are those who are not represented by a trade union because they provide backstop protections for them in the event that they cannot get assistance elsewhere.

[John McDonnell]

Exactly. Amazingly, the questionnaire process has been operating effectively since 1975, and in the consultation, 83% opposed this proposal. Most people just want to get on with the practicalities of conciliation, not resort to law because of its expense and risk, and the questionnaires enable us to do that. The Discrimination Law Association offered example after example of the questionnaire’s effectiveness, but they seem to have been completely dismissed by the Government.

New clause 12 relates to third-party harassment which my hon. Friend the Member for Streatham eloquently addressed. I do not think that scrapping the duty set out in the legislation will in any way clarify matters. In fact, I think that it will cause more confusion. At least when cases are brought up with employers, even informally, representatives can point to the legislation and the duty and it is then clear what the employers have to do. Example after example has been pointed out, but I will give one that was raised with us some years ago. Black firefighters arriving at a scene were being discriminated against and targeted, so their employers had to put in place additional protections. Another example was of discrimination taking place in jobcentres. With regard to the consultation, if the Government were listening to people they would hear that 71% are opposed to these proposals.

Reference has been made to other cuts that have been made to the commission. The Minister raised the issue of the helpline, which has now been transferred to the Government Equalities Office. It only takes referrals from other organisations and does not advertise its services, so I think that the Government are effectively hoping that it will simply wither on the vine and there will no longer be a service for people.

I am also concerned—the Minister has not mentioned this—that a new framework document is now being discussed with the commission that, I think, threatens to limit its future freedom of operation. There is to be a further budget review, as I have said. If the Government are planning to abolish the commission, I would rather they came clean about it and were up front, rather than killing it off by stealth, by cuts and by undermining its legal powers. That would be more honest.

It is not the case that equalities are no longer relevant; discrimination is taking place in our society. We extol the virtues of British society but the reality is that, as everywhere else, discrimination takes place daily and has to be confronted, and we need an effective organisation to do that. If we want an effective organisation, it has to have legal powers that are set out clearly in law. This legislation will undermine those powers and make them less clear than ever before.

I think that this flies in the face of everything this House has worked for over the past generation and the joint work that has been done across parties to promote equality and give effective powers to a body and underpin them in legislation. That is now being thrown to the wind, and for what? I think that it is the result of a combination of ideology and the desire to make savings that, frankly, I do not think will be realised. The proposals will most probably cost more than they actually save. I urge the Government to think again. I urge the Liberal Democrat partners in the coalition to return to their first principles and to what they said a number of years ago. If the Government do not amend the Bill, I hope that the other House will take a role in this and stand up for equality in our society once again.

[Kate Green]

It is a pleasure to follow my hon. Friend the Member for Hayes and Harlington (John McDonnell) and to endorse his comments. We are genuinely shocked, disturbed and surprised that the Government, and particularly the Minister, have brought forward the amendments to the Equality and Human Rights Commission’s remit and by some of the specific changes proposed to employment legislation.

As my hon. Friend has just said, despite progress—progress that we can be proud of across this House and in society at large—in addressing inequality and injustice in this society, despite the fact that much good work has been done in our communities to boost and strengthen community harmony, despite the many efforts that have been made to create better educational opportunities for young people from all backgrounds, and despite many examples of progress for women, disabled people, black and ethnic minority people, lesbians and gay and transgender people, despite all that progress, we are still a fundamentally very unequal society.

We are a society where there is still a gender pay gap of 20%; where young black men are still disproportionately more likely not to be in employment, and even when they achieve good degrees still find that they end up with fewer employment chances and lower earnings; where disability hate crime is reported to be on the rise; and where great offence and hurt can still be caused within our communities, as we have seen only recently with the “Innocence of Muslims” film. It is really important that we do not take progress on equality for granted, because there is a very long way to go.

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[Jo Swinson]

Every organisation is entitled to put forward its views and concerns. It is important that language is used carefully, as has been pointed out by various Members. Whether they are a member of the Government or not, everyone needs to be careful about the language they use in these discussions. That is not to say, of course, that we should never make any changes to provisions affecting people with disabilities, but that debate should be conducted responsibly.

The hon. Member for Hayes and Harlington (John McDonnell) was rather dismissive of many of the Government’s measures on equalities, and said that there was much consensus in these areas. These are measures that the previous Labour Government did not undertake during their 13 years in power, so if there is such consensus, the question needs to be asked, “Why didn’t they get on with it?”

[John McDonnell]

The hon. Lady completely misinterpreted what I said. I was not dismissive at all. I welcomed the measures and said that they were supported across the House. This measure, however, is one of the first steps on equality in nearly a decade that has not been taken consensually.

[Jo Swinson]

I take the hon. Gentleman’s point that there has not been a consensual debate today, although I do not think it would be accurate to say that there is a consensus on, for instance, the Government’s measures to tackle discrimination in the trans community or our proposals on equal marriage. I can say that as a constituency MP, and my mailbag, and no doubt those of others, would attest to it. The Government have a positive record, including on measures that the previous Government did not address.

On the reasons for new clause 12, the shadow Secretary of State gave a version of events that differed from mine in referring to the case in 1994. For the record, according to the GEO’s lawyers, the reasoning and rationale for bringing forward that provision is as I set out in my opening remarks. It is also worth pointing out that even though the 1994 case to which he referred happened before that provision was in place, those individuals rightly won their case. Ultimately, the important change is the change in definition, which took place as a result of the case, which I mentioned, in 2007.

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[Jo Swinson]

I meet and speak to those Liberal Democrat colleagues regularly, and I spoke to Lester Holloway last week about these issues. Some of the points that have been made have been based on inaccurate information, such as that about black and minority ethnic staff in the commission. The commission has corrected a lot of inaccurate information and misunderstanding about the impact that the restructuring plans will have on its staff. Of course, diversity is taken very seriously in all public sector organisations, but in the EHRC perhaps more than most there is acute awareness of how vital it is.

The duties that will remain in sections 8 and 9 of the Equality Act 2006 are the core functions of the EHRC. Several Members referred to the Let’s Kick Racism Out of Football campaign, which was an excellent initiative but contained nothing at all that could not be done under section 8. It is a false argument to take something excellent that the EHRC has done in the past and say that such an initiative could not be taken in future because of the changes that we are making to section 3. It absolutely could be taken under section 8.

Several Members asked whether the changes to the EHRC were about growth. I am not going to pretend that making its remit more structured is specifically a growth measure, but that does not mean that it is not a helpful thing to do. I have outlined the impact that the provisions coming out of the red tape challenge will have on business. Business will welcome that, coupled with all the other measures that we are taking in the red tape challenge to bear down on unnecessary regulation.

Several comments have been bandied around that many Government Members wish to see the back of the EHRC and that the change is abolition by stealth. I hope that I can reassure hon. Members that that is not the case. We certainly have not heard any suggestions to that effect from Government Members. Perhaps if that was what they believed, they would have come to the House to say so today. [Interruption.] I am sure that if any of them had wished to say that, they would have done. Even if that were the case, it is not the coalition Government’s position. We recognise that the EHRC is an important institution and that equalities law is vital. It is vital to our economic recovery, because we need to ensure that we use the talents of all the people in our work force and potential work force. That is why we are ensuring that it is focused on what is most important. We want to focus the EHRC on its core functions and, as I have mentioned, strengthen its governance and accountability, in which we have already had some degree of success.

A few Members mentioned the consultation and suggested that there was not necessarily unanimous support for the Government’s measures. However, if we examine the responses that were received from individuals—for clarification, they were not Members of Parliament—we see that more than half advocated the abolition of the EHRC. Opposition Members should be slightly careful what they wish for if they urge Governments always to follow consultation results exactly. We obviously have to take views into account, but we must also ensure that important provisions and protections are not undermined. Even if there were to be a groundswell of support for doing such a thing, the Government would recognise the important protections that the EHRC ensures are in place.

The hon. Member for Hayes and Harlington (John McDonnell) asked questions about the equality advisory and support service helpline, which opened on 1 October. It has some advantage compared with the previous commission helpline. It is open for longer—from 9 am to 8 pm Monday to Friday and from 10 am to 2 pm on Saturday—and is therefore more convenient. It handles conversations that people might not want to have while they are at work, so having longer opening hours is helpful and makes the service more accessible. It is free to phone from landlines, and it will soon be free from most mobiles too.

The inaccurate suggestion was made that the helpline can be used only when there are referrals from other organisations. That is not the case. It is there to help people with discrimination problems, and there is nothing to prevent a member of the public from approaching the EASS directly, although we accept that most people probably will access it via a referral.

[John McDonnell]

Can the hon. Lady explain where it is advertised?

[Jo Swinson]

It started on 1 October and there are not massive advertising budgets at the moment, but—[Interruption.] The hon. Gentleman clearly wants some huge advertising campaign, but we do not have massive budgets available at the moment. It is important that the advice is out there, that referrals are there and that the information is available when people wish to access the service.

The hon. Gentleman also said that he was concerned about the zero-based budget exercise that was being conducted on the EHRC. However, I understand that that is now Labour party policy. At its recent conference, the shadow Chancellor said that

“the public I think would expect this, to have a proper zero-based spending review where we say we have to justify every penny and make sure we are spending in the right way.”

Perhaps the hon. Member for Hayes and Harlington does not agree with the concept of a zero-based budget review, but his shadow Chancellor certainly does.

[John McDonnell]

There is a difference between conducting a zero-based budget exercise when seeking to ensure the effective operation of an organisation and having one when 62% cuts have just been made and the Government are threatening to close it.

[Jo Swinson]

I can say from the Dispatch Box that there is no such threat to close the organisation. The EHRC is an important part of our equalities infrastructure and the Government are committed to ensuring that it is maintained—