Draft Equality Act 2010 (Amendment) Regulations 2023

Stuart C McDonald Excerpts

Wednesday 6th December 2023 General Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is good to see you in the Chair, Mr Hollobone. I want to make a couple of short points. From my party’s perspective, it is good that we are retaining important EU employment law rights in our domestic legislation and it is good that it is to be enshrined in primary legislation, although I rather object to the general rewriting of primary Acts of Parliament by statutory instrument. More fundamentally, from my party’s point of view, it does seem that a hell of a lot of effort has been put into keeping things as they are. That is, of course, the inevitable result of Brexit, of the type of Brexit that was negotiated and the Retained EU Law (Revocation and Reform) Act 2023, all of which we absolutely opposed and continue to regret.

But we are where we are, and although we are restating the law as it stands, it is important to bear in mind that divergence is going to occur in future. EU law principles and employment law will continue to develop after 1 January next year, driving up minimum standards and protections. Those developments will not take place in the UK unless we replicate them. Perhaps the way we should respond to those developments is a debate for another day.

Turning to this SI, this is quite a technical task and it is difficult to scrutinise through a Statutory Instrument Committee. I echo the comments of the Equality and Human Rights Commission about this particular issue. It welcomed the enshrining of these protections in law, but stated that

“it is desirable that Parliament and other stakeholders have sufficient opportunity to scrutinise any proposals to avoid unintended consequences, such as through primary legislation.”

But not only are we rewriting the Equality Act through a Statutory Instrument Committee, the explanatory memorandum explains that consultation was not deemed necessary by the Government. That is a wholly inadequate process and, given the limited scrutiny and the lack of consultation, how confident can the Minister be that there are no unintended consequences of these regulations in the light of these comments? Against that background, I very much welcome the work of the European Scrutiny Committee in looking at these particular statutory instruments, because I do not think an SI Committee such as this can really do that job properly.

The other point I want to make is to echo something that the shadow Minister, the hon. Member for Ellesmere Port and Neston, alluded to: there is a question about what is still missing from the Government’s SIs. An article I read about this SI noted that there still has not been any incorporation of European Court of Justice decisions on issues such as the use of 90-day rolling periods when assessing if collective redundancy consultations are required or whether contracts can be split after a TUPE transfer. Those are just two examples of things that do not appear to be in this SI or any other. Is there to be another employment-related SI to come before the deadline at the end of the year?

We support what has been done. We support this SI, but we object to the process and not just to the process—the reasons behind the process being required in the first place.

[Sir William Cash]

I hope that everyone in this Committee, and indeed in this House, wants to protect women. That is a very important principle as expressed, for example, in my International Development (Gender Equality) Act 2014. On the question of the charter of fundamental rights, that has now been excised from our statute book by clear and explicit words. That is the issue that I want to address and that my Committee, the European Scrutiny Committee, is examining at the moment in a series of evidence sessions.

I listened with great interest to my hon. Friend the Member for Penistone and Stocksbridge because there is a lot of law in here that I will not regale the Committee with today. I think there is time enough for that. The bottom line is that in the Supreme Court judgment last month, which by any standards was an important judgment, the case of ASM was dismissed. It did not receive much attention, but that is what happened. The Court concluded that the statutory repeal under the Retained EU Law (Revocation and Reform) Act 2023 had the effect that provisions relating to his case had been, by clear and explicit words, effectively removed, so his case had to fall and was dismissed. That is very important indeed. It was reflected by what Lord Jonathan Sumption said on the “Today” programme only a couple of hours ago: he said that if the words are explicit and clear in the case of a repeal of, in this instance, retained EU law, the courts will of course carry out the instructions of Parliament where the intention is clear, unambiguous and explicit. That is the crucial test.

The question in this instance is whether that test is something that needs to be taken into account at the time the decision is taken on the Floor of the House. The procedure of the House can be a little opaque. It can be that we end up without having a full debate on the subject. I heard what my hon. Friend the Member for Penistone and Stocksbridge said—that there are questions still in the mind of the Government over this. In that event, I would suggest that the most appropriate approach in this instance would be to make sure that there is adequate time for consideration. In other words, we should not have a rushed decision on the Floor of the House about these regulations.

It is still open to the Government because, as you rightly said when I made my point of order, Mr Hollobone, this is a matter for the Committee to consider, rather than decide on. We want to be sure that when the decision is taken, account can be taken of, for example, what the European Scrutiny Committee may want to say about this. We will obviously look at it, because it has evoked a lot of interest and some concern. Rather than repeat what my hon. Friend the Member for Penistone and Stocksbridge has said, the best thing I can say is that my objective in being here today, while I obviously do not have the right to vote, is to take this opportunity to speak—for which I am extremely grateful to you, Mr Hollobone.

The subject matter is important, and there are principles here of great significance. There are questions of interpretation by the courts that could be taken at a later date. We want to be crystal clear that if serious objections have been and can be raised—and will be—as we proceed and as the situation evolves, the House can come to the right conclusion as to what interpretation will be placed on this provision.

[Stuart C. McDonald]

Is not the problem we now face as a Parliament that we have this deadline of the end of the year to get this sorted, and it is precisely because of that that we are left with pretty much no choice but to take what the Government deliver to us, or else lots of these employment protections will fall away?

[Sir William Cash]

The hon. Gentleman is super courteous, and he has put his finger on it, I have to say. In informal discussions with members of Government I have raised that I am concerned about the fact that this list of legislation has not yet been finalised. Some Members may recall that I took part in the ping-pong on this subject. The Government accepted an amendment that I put forward, which has also been put forward in principle in the House of Lords to ensure that the list accurately reflects what we want to remove and what we do not.

That is something the hon. Gentleman quite rightly points to; we have had to wait an awfully long time for this list to appear. If it does appear, it seems to me that there are grounds for including this provision as one that should be revoked rather than allowed to go through by way of adaptation. I will not offer more thoughts on that for the purposes of this Committee.

I would just like to put on the record that a lot more consideration could usefully be done. We are not asking for an adjournment of this Committee or anything like that, but we would like the opportunity to deal with the issue properly and fully and for the Government’s reappraisal of the position—if it is thought to be appropriate—to take place as the result of proceedings in the House. This is a very good example of the way in which this House operates compared to some foreign jurisdictions, where these matters are not properly looked into. It is tribute, if I may say, to the manner in which we conduct our procedures that these opportunities can be provided to clarify things and make sure we do not make any serious mistakes.

[Robin Millar (Aberconwy) (Con)]

I thank you, Mr Hollobone, for the chance to speak in this debate, even though I too do not have a vote. Can I extend my thanks and gratitude to hon. and right hon. Members present? I know that these Delegated Legislation Committees are sometimes a bit of a chore, and as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has said, this maybe is not the best vehicle for examining some of the detailed legal considerations. Certainly it has been a challenge to me as I have looked at it. However, I do have some concerns about regulation 3 of the regulations before us.

I echo the concerns of my hon. Friend the Member for Penistone and Stocksbridge that the existing provisions will be, in her words, on steroids as a result of this. We all recognise the importance of the Equality Act 2010, and the provisions and protected characteristics within it. Likewise, we recognise the importance of provisions for addressing direct discrimination and indirect discrimination, but this seems to extend that further to be an associated indirect discrimination. I hence have this concern about a kind of gold-plating of the regulation that we have, which I would suggest works pretty well at the moment.

I have two particular concerns: one is to the direct effect and the other is to desirability. I will take direct effect first. The Minister proposes to make these regulations under section 12 of the Retained EU Law (Reform and Revocation) Act. Now, that section gives a “relevant national authority”, in this case the Minister, power through regulations to reproduce the effect of any retained EU law that has direct effect. That is, EU law that, under section 2 of the European Communities Act 1972, has legal effect without further enactment. As the explanatory notes and the REUL dashboard make clear, regulation 3 reproduces the effect of the case that we referred to as CHEZ previously, which has been described by my hon. Friend the Member for Penistone and Stocksbridge. That decision expands the scope of indirect discrimination under the Equality Act, so as to confer a right of action on claimants who suffer alongside victims of indirect discrimination, even if the claimant does not share the same protected characteristic.

It is therefore unclear to me whether this judgment has direct effect in UK domestic law, and it follows then that it is unclear whether the Minister has powers under section 12(8) of the REUL Act to reproduce the effects of CHEZ. I ask the Government to delay enactment of the regulations until such time as this question has been fully explored and satisfied or, if I might refer to my hon. Friend the Member for Stone, at least until we have had time to be regaled by him on the points of law on that matter.

I will turn to the question of desirability. Regulation 3(2) provides that persons with the “relevant protected characteristic” must suffer “particular disadvantage”, and people without it must suffer “substantively the same disadvantage”. This begs the question, what does “substantively” mean, in the Government’s view? Does it mean that the disadvantage has the same cause or that it is the same extent of disadvantage? It would be helpful to clarify this. This is important because regulation 3 does not actually safeguard the concept of discrimination, in so far as I understand it. The purpose of indirect discrimination is to protect minorities in particular, but instead of protecting minorities particularly, this new law protects anyone generally who suffers disadvantage. Why are the Government trying to protect discrimination by effectively diluting it into non-existence? I am happy to be challenged and corrected on these points but this is my understanding of it.

I will give an example. The law currently sets height requirements for police candidates, and says that those are indirect discrimination because they would put women at a particular disadvantage. The Government want to expand the law, it appears, so that short men will have the right to sue for sex discrimination because they then suffer the same disadvantage. It begs the question whether it is the purpose of equality law to protect short men or anyone who suffers a comparable disadvantage. There are important ramifications: I am concerned this new law will expose employers to unlimited damages, if they are then found liable. As somebody with an engineering, rather than legal, background, I hope my colleagues will forgive me if I have stumbled over this, but how will employers keep on the right side of the law? I am looking for practical application here.

[Stuart C. McDonald]

I welcome the incorporation of this judgment and I will give the hon. Gentleman a different example. Let us say that an employer has discriminated against LGBT members of staff, and actually that discrimination includes somebody who is not, in fact, LGBT, but is perceived by an employer to be. This judgment would surely then allow that person to also seek damages. I do not think that this would be objectionable from any point of view, would it?

[Robin Millar]

The hon. Gentleman has done two things: he has exposed my engineering, rather than legal, background, and he has raised a very good question, which I look forward to hearing people with a legal mind tear apart and pick apart in consequence. I thank him for that.

--- Later in debate ---

[Maria Caulfield]

That is open to interpretation, and that is exactly what the courts are there for: to decide how existing laws are interpreted. However, the CHEZ judgment is part of existing case law. It is the basis of how discrimination is determined right now. If we did not have this instrument and we had not left the EU, that would continue to be the case. At the end of this month, if we do not retain the law, those protections for pregnant women, disabled people and those with protected characteristics will fall completely. The CHEZ judgment is actually the basis of case law.

[Stuart C. McDonald]

Will the Minister give way?

[Maria Caulfield]

I do not wish to test your patience, Mr Hollobone, but I will take a final intervention.

[Stuart C. McDonald]

I am trying to be helpful to the Minister here. Putting aside all those arguments, I am not an employment lawyer, and I did not prepare on this particular case in advance. However, a more fundamental point is that that judgment is part of UK law just now. It would be outrageous if, through the statutory instrument procedure, we just decided to dump it overnight. If people have a beef with that particular case, they should promote a private Member’s Bill or encourage the Government to bring in another bit of legislation. Today is about a statutory instrument preserving the status quo. Any other course of action from the Government would be completely unacceptable.

[Maria Caulfield]

Absolutely; I agree with the hon. Gentleman on that point. I hope that in debating the statutory instrument, colleagues will realise that whatever we think about which laws we retain or revoke, it is based on the CHEZ ruling of 2015. That will not change after the statutory instrument is approved on the Floor of the House. There is no change: it is still based on the exact same principles since the CHEZ ruling of 2015. It is really important that we retain those protections, because without them vulnerable groups will be left without protection and face discrimination. I hope that colleagues will join me in supporting the regulations, which I commend to the Committee.

Question put and agreed to.

Resolved,

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