Draft Equality Act 2010 (Amendment) Regulations 2023

Justin Madders Excerpts

Wednesday 6th December 2023 General Committees

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I will not detain the Committee too long, Mr Hollobone, because, like you, I am keen to hear what other hon. Members have to say. It is a pleasure to see you in the Chair this morning, and I am grateful to the Minister for her introduction.

The Opposition consider these draft regulations to be uncontroversial. We are satisfied that, as the Minister said, they do not constitute a change of policy approach. This is, though, just one of a flurry of sets of draft regulations being laid before the House by the Government in an effort to safeguard important protections derived from EU case law and ensure that they are retained before the end of the month. As we pointed out during the passage of the Retained EU Law (Revocation and Reform) Act 2023, retaining important principles from the interpretation of retained EU law is just as important as actually retaining pieces of EU legislation. Without the restatement of certain interpretative effects, many important rights derived from the EU could be in jeopardy from 1 January 2024.

The protections being restated today underline why this process is so important and our workers cannot lose the rights that are being reasserted in these regulations. As we have heard, they are massively important to women—protecting them through and after pregnancy, against pay inequality, and from discrimination. They are also crucial in providing people who have disabilities with protection against discrimination. These vital protections need to be retained. I agree with the Minister that it is also important that we give people and the law certainty by restating these principles. However, the fact that we are getting round to restating them only a matter of weeks before they could have disappeared is a little concerning. It presents some questions about the Government’s wider approach to identifying which bits of important case law they wish to retain and then pass, through regulations, on to our statute book.

The most obvious question is how the identification process actually operates. Following the litany of failures with the original legislation, culminating in the fiasco of thousands of hitherto unknown pieces of retained EU law appearing on the dashboard, we know that there are sometimes problems in identifying exactly where EU law impacts on domestic law. Can the Minister tell us what measures the Government are taking to ensure that important decisions in terms of interpretative effects of retained EU law are being taken? Do the Government have an equivalent to the dashboard that was introduced for identifying statutory instruments for European Union judgments that have an impact on domestic law? What about actually restating these judgments in law? We have seen numerous draft regulations in recent months. Therefore, it is sometimes hard to keep up with exactly where we are up to with retained EU law. Would it not be sensible to have, in a manner similar to the dashboard, a central record of which changes have been made and where restatement is taking place, so that not just hon. Members but businesses and, indeed, individuals who would be benefiting from the restatement of rights can know exactly where they stand?

It is also worth asking what advice has been received from Government lawyers about the impact of restating certain bits of law and, most importantly, what criteria are being used to determine which judgments will be retained. How does one decide which ones will be kept and which ones will fall off the cliff at the end of the year? There is nothing controversial in what is being restated today, although there was a change of stance on the single source equal pay protections. We welcome the Government’s U-turn on that, but we need to know exactly what the thought processes were to reach that point.

Turning to the content of the regulations, as we heard, regulation 2 reproduces the effects of retained EU law regarding discrimination related to pregnancy, maternity and breastfeeding. Among other protections, it restates important principles such as rights for women to make claims for direct sex discrimination at work on the grounds of breastfeeding. It also protects women against unfavourable treatment due to pregnancy or a related illness that occurs during the protected period.

As we heard, regulation 3 will ensure that those without a protected characteristic who suffer from a disadvantage, together with persons with the protected characteristic as a result of a discriminatory provision, criterion or practice, can continue to bring a claim. Regulation 4 updates the recent decisions in relation to protection from discrimination in access to employment.

Regulation 5 is probably the most important one in terms of Government policy decisions because that has reproduced the effect of the single source principle. In case Members are not aware, that principle sets the standard for a body that is in a position to ensure equal treatment between employees in respect of such terms. In practical terms, that means that tribunals and courts can continue to compare the pay of men and women who work for an enterprise or organisation that can control the terms under which they are employed, including pay, even though they may technically be working for different employers. That will hopefully send a clear message to employers that outsourcing obligations in respect of equal pay for men and women is not an acceptable response to the question of equality.

As we heard, regulation 6 relates to maintaining the interpretation of disability. We should be mindful that just because these laws are being restated and we are content that there is no detrimental change in the legal outlook, it does not mean that the battle for equality is over. The earnings gap between disabled and non-disabled people has increased. It is over half a century since the Equal Pay Act 1970 was introduced and we are still to reach pay equality. The most important element of the debate today is not necessarily what is being restated because we are in agreement with that, but what regulations are being made in a way that ensures that all the protections will be retained. What is the thought process that leads us to that? Can we be confident that we have everything covered?

Monitoring the effectiveness of the process is crucial to understanding whether the Government’s objectives have been achieved. That is an important process, and possibly the Chair of the European Scrutiny Committee, the hon. Member for Stone, will have some thoughts on the Government’s approach more generally. We need to be able to understand what the Government’s principles are and then judge whether they are delivering them in practice.

I would imagine that the Department has dedicated large amounts of resource to identifying the particular elements of law that need to be retained, but we cannot be absolutely sure that everything has been picked up. Let us be clear: if something does slip through the net, the consequences could be serious for potentially millions of workers. It is important that we are clear on how the process operates and what monitoring is going on to ensure that all important elements of retained EU law will stay in place.

Ultimately, we believe that the regulations are a positive step that draws cross-party consensus. We still believe that there is more to be understood about the Government’s approach to retained EU law. We have no insight into how we have actually got here today; we just see a patchwork of instruments being presented. It does not fill us with confidence that the Government have a clear strategy or plan for how to approach EU law. We believe that the publication of a strategy on the matter is overdue, and that would approve accountability in this place. When the Minister responds, I hope that she can outline the principles that are being adopted when considering which elements of retained EU law to keep. That would give us all a useful guide about whether the Government have actually got a coherent approach to this, and whether they are actually sticking to it.