Enterprise and Regulatory Reform Bill
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“(6) The regulations may provide for an employment tribunal to have power, where a person fails to comply with an order to carry out an equal pay audit, to order that person to pay a penalty to the Secretary of State of not more than an amount specified in the regulations.
(6A) The regulations may provide for that power—
(a) to be exercisable in prescribed circumstances; (b) to be exercisable more than once, if the failure to comply continues.(6B) The first regulations made by virtue of subsection (6) must not specify an amount of more than £5,000.
(6C) Sums received by the Secretary of State under the regulations must be paid into the Consolidated Fund.”
Baroness Stowell of Beeston
In moving Amendment 58GA, I will speak also to Amendments 58GB and 58GC, which together clarify three elements of Clause 74.
Clause 74 inserts a new Section 139A into the Equality Act 2010. This will enable Ministers to make regulations that will require employment tribunals to order employers to undertake an equal pay audit where they have been found to have broken sex discrimination law relating to pay. Each of these amendments responds to the three recommendations made by the Delegated Powers and Regulatory Reform Committee in its 10th report published on 14 December 2012.
The first recommendation drew the attention of the House to the lack of clarity in subsection (6) about the intended means of enforcement of equal pay audit orders. The second recommendation asked the Government to address the scope of the duty in subsection (7), which provides an exemption for micro and start-up businesses in the first regulations made under this power. In practice, this means that they will not have to undertake equal pay audits in the event that they are found by an employment tribunal to have breached equal pay laws.
The third recommendation of the committee concerned the lack of an expressed requirement for the Minister bringing forward regulations to make them in concurrence, or in consultation, with the Minister with responsibility for employment tribunals at the time.
The Government are very grateful to the Delegated Powers and Regulatory Reform Committee for its recommendations. We have considered them carefully and accept them; I hope that in the amendments I am moving today, we are able to address all the points that they raised. I will take them in turn.
Amendment 58GA outlines the enforcement regime referred to in subsection (6). It explains that the regulations will give an employment tribunal the power to ask an employer who fails to comply with its order to undertake an equal pay audit to pay a civil penalty that initially must not exceed £5,000. This civil penalty can be repeated if the employer’s noncompliance continues. All fines collected by the Secretary of State from noncompliant employers must be paid into the Consolidated Fund.
Amendment 58GB replaces the reference to micro-businesses and start-up businesses in subsection (7) with a definition of the businesses to which the first regulations on equal pay audits must not apply. New subsections (7) and (8) outline what we mean by a micro-business and a start-up business. A micro-business must have fewer than 10 employees immediately before a period that will be set out in regulations. A start-up business, on the other hand, is a business that began during a period that will also be specified in regulations. This amendment also removes the phrase,
“unless further provision is made under this section”.
at the end of subsection (7), which the committee had criticised as lacking clarity.
Amendment 58GC inserts a requirement for the Minister of the Crown responsible for making regulations under the power in new Section 139A to first consult the,
“Minister of the Crown with responsibility for employment tribunals”.
This will ensure that any interdepartmental consultations do not exclude whichever government department has responsibility for employment tribunals whenever secondary legislation is made under this power.
We have found all the recommendations from the Delegated Powers and Regulatory Reform Committee helpful. We are grateful to it and are happy to propose and recommend the clarifying amendments we have made to this clause, which give effect to each of them. I beg to move.
Baroness Thornton
My Lords, I thank the Minister for that very clear explanation of these amendments; we welcome them. There is a general consensus that these amendments are welcome, but the Minister will not be surprised to hear that we believe that the substantive issues needed to go further. I have a few questions to ask the Minister about the substantive issue of these subsections.
As the Minister will be aware, the EHRC advocates that time limits be imposed; the TUC contends, because of the difficulties that employees are likely to face in accessing pay information, that all employers should be required to carry out these orders, not just those taken to a tribunal. As my honourable friend Kate Green MP said on Report in the Commons,
“While the Government have made one or two grudging steps forward in relation to improving equalities, the proposal on equal pay audits is a watering down of our commitment to have such audits across the board for larger businesses, not only when they have been unsuccessful at tribunal”.—[Official Report, Commons, 16/10/2012; col. 252.]
The reason why that is necessary is that recent evidence shows, as the Minister will be aware that gender pay gap continues to persist. The 2012 annual survey of hours and earnings found that the mean pay gap between men and women’s average hourly earnings, excluding overtime, was 14.9% for full-time workers and 7.9% for part-time workers. The Equality and Human Rights Commission’s 2010 triennial view found that pay gaps also affect disabled people and some ethnic groups, and I am going to return to that in a moment. In its response to the modern workplace consultation carried out by the Government, the EHRC noted that the power to impose pay audits needs to be as robust as possible in order to have maximum effect.
It seems to us that the tests for this legislation are, first: will it help employers? Carrying out an equal pay audit should be viewed as a positive means of enabling the employer concerned to eliminate pay inequality and minimise the likelihood of facing future equal pay tribunal court claims, rather than as a penalty. Secondly, will it avoid the possibility that, if equal pay audits are seen as a penalty, there is a risk that employers will settle equal pay cases outside court to avoid that penalty? This could be particularly true of those firms that can afford to settle and are anxious to avoid negative publicity.
Does the Minister acknowledge that conducting an equal pay audit will not in itself eliminate a gender pay gap? It will, however, bring to light and enable employers to address any equal pay issues that are uncovered. Employers will still need to draft an action plan to rectify any unjustifiable pay gaps they find, implement changes and regularly monitor the outcomes. It seems to us that implementing and monitoring the necessary changes are the most important aspect of any equal pay audit. Employers will need to be made aware that there will be an expectation on them to do this. Will the Minister assure the Committee that this is indeed the case? Employers will also need to be made aware of the time limits that will be placed on them to conduct and action their equal pay audits and of what sanctions will be taken if they are breached.
Finally, what are the Minister’s views on progress on pay gaps for other strands of discrimination; for example, religion or belief, age, race, disability, and sexual orientation? Do the Government intend to do any research or take any action on those matters too, and if so, when?
I welcome this part of the Bill and the amendments which will improve it significantly, but I do not believe that any of us can rest on our laurels on this matter. I am sure the Minister will agree.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Baroness for her support of our amendments. The Government very much believe in and are strongly committed to equal pay and the important laws that already exist. If there were enough time, and perhaps on another occasion, I might recount some of the stories that my mother used to tell me about when she first arrived in Nottingham as a teenager and was working in big factories and was very miffed to find that the men were paid a lot more than she was paid for doing the same job.
Businesses should be encouraged to make progress on complying with these important laws. Where it is not necessary, we should avoid a statutory approach in terms of making them comply. I recognise the point that the noble Baroness was making about progress in this area. There has been progress, but clearly more needs to be done. That is why this Government have introduced some measures to increase transparency on how pay is reflected in organisations. There seems to be quite a positive response to those voluntary measures.
We think that equal pay is so important, so we also believe that it is right to introduce these mandatory equal pay audits for businesses that have failed to comply with the law. When the law has been broken, they need to be forced to address that. That is why we believe that this is the right approach to take.
The noble Baroness raised some questions for me to respond to. She asked why equal pay audits are not available as an automatic right. We believe that carrying out a systematic pay audit of staff can be burdensome, and we do not want to place unnecessary burdens on employers who have done nothing wrong. We also feel that some employers are already carrying out these equal pay audits on a periodic basis and are using them in a constructive and good way. We do not want them to feel that they are being unnecessarily penalised when they are already doing the right thing.
The noble Baroness asked whether we thought that, once this measure is in force, the equal pay audits will simply push employers to settle equal pay claims. Our view on that is that if any employer were facing a continuing claim against it on equal pay grounds, it would soon find that it would not be cost effective to keep settling those claims. I do not accept that that would be a consequence of this.
The noble Baroness asked why the equal pay audit would not cover other protected characteristics. As she and I have acknowledged, equal pay legislation for men and women has been in place for some 40 years. We think it is right to focus the audit on sex-based pay differentials alone as only there is there a specific right to equal pay, and the appropriate route of redress for discrimination due to any protected characteristic other than sex in matters relating to pay, is through the discrimination provisions in the Equality Act.
The noble Baroness also asked how the timeframe for carrying out an audit would be decided. New Section 139A of the Equality Act allows employment tribunals to be given discretion in,
“deciding whether its order has been complied with”.
I think those are all the questions that the noble Baroness—
Baroness Thornton
Perhaps the noble Baroness could write to me about what the time limits are, as that is quite important. I do not want to delay the Grand Committee on that matter, so I will accept an answer in handwriting.
Baroness Stowell of Beeston
I will follow that up in writing. It is worth making the point that there will be a second consultation on the detail of how equal pay audits are carried out. It is possible that that might be reflected in it, but I do not know for sure, so I will not try to guess any more on that matter. I shall confirm this in writing to the noble Baroness. I hope that I have covered all the points that she has raised with me today.
“(7) The first regulations under this section must specify an exemption period during which the requirement to order an equal pay audit does not apply in the case of a business that—
(a) had fewer than 10 employees immediately before a specified time, or(b) was begun as a new business in a specified period.(8) For the purposes of subsection (7)—
(a) “specified” means specified in the regulations, and(b) the number of employees a business had or the time when a business was begun as a new business is to be determined in accordance with the regulations.”
Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012
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Lord McKenzie of Luton
These regulations are subject to the negative procedure, so the Motion to Take Note is an opportunity for us to bring some focus to these provisions. This follows on from the report of the Secondary Legislation Scrutiny Committee’s 15th report, which draws the regulations to the special attention of the House on the grounds that they give rise to issues of public policy. Indeed they do.
ESA was introduced in 2008 as the replacement for incapacity benefit. It was designed to focus on what individuals could do rather than what they could not, placing emphasis on their functional capabilities. This was all part of the broad consensus concerning the importance of work and of helping people move nearer to the labour market. The introduction of ESA has not been without its challenges, although the basic concept has been validated, but with periodic reviews bringing improvements to the process. However, concerns remain about the process and the role of Atos, so perhaps we can use this opportunity to get an update on some of these matters.
Can the Minister give us an update for last year on how many appeals are entered against decisions, either to access the support group or to the work-related activity group rather than JSA? What is the current rate of success? I probe these points because the quantum of appeals on a success rate is clearly indicative of how effectively the system is making the judgments that it should. It is these judgments, made by DWP decision-makers, which drive the conditionality in the regime and the sanctions which flow from it.
The regulations under consideration introduced from 3 December 2012 a new sanctions and hardship regime. As the Explanatory Memorandum makes clear, the rationale of the change is to align as far as possible the sanctions regime with the equivalent category under universal credit. For those claiming ESA, and in the work-related activity group, conditionality involves attendance at a work-focused interview and undertaking work-related activity. No conditionality of course applies to someone in the support group, but obviously greater conditionality applies to somebody placed on JSA rather than in the WRAG.
These new sanctions have an open-ended period which can be brought to an end when the claimant meets a claimant condition followed by a period of one, two or four weeks, depending upon the number of prior sanctions. The effective date of the sanctions to operate is to be brought forward in comparison with current arrangements. In addition, the amount of the sanction is to be increased; rather than 50% or 100% of the work-related activity component, which is currently some £28, the sanction will be 100% of the prescribed ESA amount, currently £71. This will leave the individual with only £28 plus any premiums to which they might be entitled.
We accept that the regime should involve conditionality and that this implies some form of sanction, but this level of sanction is frankly draconian and unacceptable. Our concerns are about not only the huge reduction of income that it entails but the risks of the system for vulnerable people. There is provision for hardship payments; we can ask about any differences between the regime which is being introduced by these regulations and the existing position in terms of eligibility for payment and the amount of any payment.
The Explanatory Note to the regulations says that in determining whether hardship payments are appropriate, a decision-maker will take the following matters into account: whether a member of the family satisfies the requirements for a disability premium or an element of child tax credit in respect of a disabled child or young person; the household’s likely resources without hardship payments, including whether the claimant can seek assistance from others, such as family and friends; the difference between the claimant’s likely resources and the amount of a hardship payment which can be made; the difference between the claimant’s likely resources and the amount of a hardship payment which could be made; the risk that the claimant’s household will not have access to essential items such as food, clothing or heating, or will have access to such essential items at considerably reduced levels without a hardship payment; and the length of time that these factors will continue.
To what extent does that description differ from the detail of the current regime? I am particularly interested in the suggestion that people have to go outside the household, not only to family but to friends, and that resources that friends may have are taken into account in whether or not the hardship payment is made. We need to know particularly about the protections built into this whole regime. As we have discussed on many occasions, individuals in the WRAG, even if properly judged to be capable of work-related activity, could suffer from a wide range of conditions. There are concerns in particular about those with a mental health condition, with fluctuating conditions, and indeed with hidden conditions. It was the prior intent that nobody with a mental health condition would be sanctioned without a face-to-face visit. Is this still the case?
Can the Minister say something about the process attached to these sanctions and the extent to which it differs from that attaching to JSA? Are the good cause rules identical to the current ones? My understanding is that the following still apply as constituting good cause: if there is any misunderstanding on a person’s part because of learning, literacy or language difficulties, or misleading information given by the benefit authority; attending a doctor’s or dentist’s appointment; difficulties with transport where no reasonable alternative was available; the practice of a religion that prevented attendance at a set time; attending a job interview; the need to work in a business if you are trying to become self-employed; if you or a person for whom you were caring had an accident, illness or relapse; attending the funeral of a close friend; a disability that makes attendance impracticable; and any other relevant data. Are those the rules that still apply? I want confirmation of the extent to which they differ, if at all, from those applying currently. The Explanatory Note makes reference to a comprehensive suite of products being developed for operational staff. This is welcome, provided that the DWP has the staffing resources to cope. For the latest year available, how many individuals in receipt of ESA were subject to a sanction, how many appealed, and what was the outcome of those appeals?
We will be watchful regarding these regulations. We note the monitoring review proposals. Finally, how soon will the revaluation of the JCP offer be forthcoming? I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord McKenzie, for his Motion to Take Note, and for giving us the opportunity to discuss these new regulations. Standing back a bit, I think it is worth saying from the start that there is a widespread consensus that the welfare system in this country is in need of a great deal of change. Clearly some of that change is in the structural area, where we are bringing in universal credit, while some changes address the cost of welfare and the fact that the bill for welfare is unaffordable.
Under the heading of structural change, and building on what the previous Government did and on what the noble Lord, Lord McKenzie, referred to, we are putting the emphasis on helping people to get back into work, and on making sure that those who are able to work and those who have been diagnosed as being unable to work but who may be able to return to work at some point in the future have the support that they need in order to return to the workforce. That is what people want. When they are on benefits and find themselves in the very difficult situation of being out of work, particularly at the end of a long illness, they want to know that there is an opportunity for them, as there is for all of us. We proposed the tighter sanctions regime because we place so much importance on the requirements to help people back into work.
As the noble Lord, Lord McKenzie, said, these regulations came into force on 3 December last year. They provide for a more effective and proportionate ESA sanctions system, but they also preserve the important safeguards and clarity that are required to ensure a fair and balanced system. The regulations make no change to the assessment of who is eligible for ESA or to the requirements placed on ESA claimants. They form part of the wider package of reforms that move the employment and support allowance and jobseeker’s allowance sanctions systems substantially closer to that intended for universal credit, helping staff and claimants to prepare for the new benefit.
ESA is designed to place greater emphasis on what the claimant can do, and on the importance and benefits of moving towards work. I will be clear that we never ask ESA claimants to apply for jobs—only to prepare for work if they are able to do so, and to meet their Jobcentre Plus or other trained advisers to discuss this. Most claimants value this support and meet the requirements placed upon them. It is only fair to those who meet the requirements that the sanctions system places due importance on these obligations and provides incentives for all claimants to meet them.
I will now set out how ESA works. Claimants in the work-related activity group have been assessed as having a limited capability for work and are required to attend work-focused interviews to meet a personal adviser and discuss the support available to help them to take steps towards employment. Claimants placed in this group can also be required to undertake work-related activity where this is appropriate in their personal circumstances, such as attending a training course or updating a CV. Whether these work-related activity requirements are imposed by a Jobcentre Plus adviser or a work programme adviser, they must be reasonable in the claimant’s circumstances and cannot include requirements for the claimant to look for work or undergo any form of medical treatment.
If claimants do not meet suitable work-related activity requirements and work-focused interview requirements without good reason, a sanction can and should be applied. This is not new. Sanctions have been a feature of ESA since the benefit was launched in 2008. The regulations we are discussing today did not change what the claimant is expected to do or who might be sanctioned. But until these regulations came into force, the financial consequences of the sanction did not give sufficient weight to the importance of the requirements they enforced. As the Social Security Advisory Committee found, claimants do not always realise that they have been sanctioned. If claimants are unaware that they are losing benefit as a result of a sanction, there is little incentive for recompliance.
An ESA award for single claimants who have been found to be capable of work-related activity is made up of two elements: the work-related activity component of £28.15 and the personal amount of £71. Until December 2012, when these regulations came into force, claimants who failed to attend a work-focused interview or to undertake work-related activity without good reason received an open-ended sanction that was lifted when they re-engaged. The effect of the sanction was to reduce the work-related activity component of their award—£28.15—by 50%, which meant that their award of £99.15 a week would decrease by £14.17. After four weeks of non-engagement, the sanction increased to a 100% reduction of the work-related activity component, so claimants lost the full amount of the £28 which was on top of the original £71.
Lord Wigley
I will raise another question which has not been covered; it might give the Minister a little more time to get answers to the questions. On the information that has been given to me, it is noted that a full impact assessment has not been published for the instrument because it has no impact on the private sector or civil society organisations. I am surprised that this does not have some impact on civil society organisations. Many such organisations deal with the people who are impacted by these changes. I would be glad of some clarification, to know exactly when impact assessments are made and when they are not.
Baroness Stowell of Beeston
I am afraid that I will have to write to the noble Lord on that one. I do not have the answer immediately in front of me.
I can at least respond to one of the questions put to me by the noble Lord, Lord McKenzie. On appeals against WCA outcomes—the decision as to whether to put somebody in the work-related activity group or the support group—42% of appeals heard by the tribunal in the first quarter of this financial year were successful. What I do not have is the number of actual appeals. Regrettably, I will have to follow up in writing to the noble Lord on the other question that he raised about appeals. That notwithstanding, I hope that I have been able to provide enough information to satisfy the Committee today that these new regulations, which introduce this new sanctions regime, as I stressed at the start, very much emphasise the importance of the requirements on people in the work-related activity group as to how they can return to the workforce at the right time. That is what most people in work-related activity definitely want. It is our responsibility to make sure that they are clear on their requirements and that those requirements help them in that regard.
The Countess of Mar
My Lords, when the noble Baroness mentioned the evaluation review, she said that the department was looking at people’s satisfaction with the receipt of their benefits. Two major ME/CFS charities have done reviews with their clientele, amounting to well over 1,000 people in each case. Would the department be prepared to accept these reviews as part of its evidence?
Baroness Stowell of Beeston
I am sure that if evidence is there that would be relevant to what we are doing, it would be very welcome.
Lord McKenzie of Luton
My Lords, I thank the Minister for her response and for dealing with quite a lot of detailed questions. There is not a difference between us on the importance of encouraging people into work and the difference that that can make to their lives as well as to the economy of our country. The key issue around these particular regulations is how these things operate for a range of people who might have a mental health condition, autism, learning disabilities or fluctuating conditions—a whole range of circumstances—where the approach needs to be particularly sensitive, particularly knowledgeable and sometimes very specific, if not individual. I do not think I got the flavour of that from the response.
The statistics for the appeal success rate, which I thought was going to be declining, are worrying because they seem to suggest that the process under way for people in the WRAG or support group, or left on JSA, is still not working as well and effectively as it should be. It has a chequered history. I think the approach is right—indeed we legislated for that approach—but how it works, and is working, in practice, particularly with Atos, remains a cause for concern. That point is not unrelated to these regulations—it is germane to the starting point, so I have residual concerns about that. Helping people to understand their obligations under the system to take advantage of facilities, work-focused interviews and work-related activity is fine. However, a sanction of £71 a week to concentrate the mind is, frankly, outrageous. For us, it is totally unacceptable.
Over the past 12 months, there have been sanctions for people on ESA, and one of the few questions that was not answered was the extent to which there have been appeals and the outcome of those appeals. That goes to the heart of the resources that the DWP will need to address this regime. I would be very grateful if the noble Baroness, in the fullness of time, could follow up on that. The noble Lord, Lord Wigley, made a very pertinent point about the impact assessment and the impact on civil society. Perhaps the noble Baroness will share her answer on that with Members of the Committee. Having said that, we have had one go at this and will keep it in our sights because it is of concern.
Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013
Baroness Stowell of Beeston Excerpts(13 years, 4 months ago)
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Baroness Stowell of Beeston
That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013.
Relevant documents: 12th and 15th Reports from the Secondary Legislation Scrutiny Committee, 8th Report from the Joint Committee on Statutory Instruments
Baroness Stowell of Beeston
My Lords, this order was laid before Parliament on 15 October last year under the powers of the Public Bodies Act 2011. It provides for the abolition of the Disability Living Allowance Advisory Board.
The board provides independent advice to the Secretary of State on matters relating to disability living allowance and attendance allowance. It cannot provide advice unless specifically asked to do so and cannot be asked to provide advice on issues other than those relating to DLA or AA. It is not a representative body for disabled people and plays no role in the decision-making process for benefits.
The Disability Living Allowance Advisory Board Regulations 1991 specified that the board’s function was,
“to give advice to the Secretary of State on such matters as he may refer to them for consideration”.
The Secretary of State usually commissioned work on medical matters relating to specific conditions or illnesses. For example, the board undertook a study of cases where the highest rates of benefit had been awarded under special provisions for people who were terminally ill and not expected to live beyond six months, yet a number of such awards had been in payment for more than seven years. The board was supportive of the fact that special rules exist and should continue to exist but nevertheless it recommended that such cases should be reviewed after three years.
Clearly, the board provided some excellent advice in its time. However, the defined scope and membership of the board means that there is a limit to the type of advice it can provide. In fact, the last time the board was commissioned to do any work was in 2008, two years before the end of the previous Government. Since coming into government, we have found that using time-limited, tailored advisory groups and targeted professional advice—as we did with the Harrington reviews of the work capability assessment—is better than the prescriptive approach of a standing board.
We have used this more dynamic approach in relation to the design and development of the personal independence payment, involving experts and consulting disabled people and their organisations. The Secondary Legislation Scrutiny Committee commended the department for its extensive consultation on PIP, including our work with voluntary organisations that represent the interests of disabled people. I will return to this in a moment.
In its 15th Report of Session 2012-13, the Secondary Legislation Scrutiny Committee made a number of points that need to be answered in this debate, particularly on the tests laid down in the Public Bodies Act. I will address the points in turn. The report is clear that it expects me to use this forum to answer some of the points. I hope that noble Lords will forgive me if it takes me a little while to go through them systematically.
I will start with our decision not to consult on the proposal to close the board. The Secondary Legislation Scrutiny Committee accepted the department’s explanation of why there was no legal obligation for us to consult but it did not consider this to be in keeping with the spirit of the consultation requirements. I should restate that the board was not outward facing and did not have free rein to examine the policy, operation or administration of DLA, being able to respond only to concerns expressed by the Secretary of State. In our view, to offer a consultation to groups with no ability to influence the work of the board would not be in the spirit of meaningful consultation.
Moreover, disability organisations have shown little interest in the board over the years. Back in 2007 when it was reviewed as part of the normal process of reviewing non-departmental public bodies, more than 100 organisations of and for disabled people were contacted, but only 11 responded. Out of those, three reported that they could not spare the time to comment and the remainder had little to say about the functions of the board.
During the design of the personal independence payment, which as noble Lords know will replace disability living allowance, we undertook three consultation exercises. I acknowledge absolutely that no specific questions were asked about the board during those consultations, but the respondents had the opportunity to raise anything they wanted to about the reform of DLA. We received more than 5,500 responses, and again not one of them mentioned the board. We also discussed the board in both Houses during the passage of the Public Bodies Act, and the department has not received any correspondence or parliamentary Questions on the subject. There have been several meetings between disability organisations and Ministers and officials, and again the future of the board has never been an issue.
Perhaps I may turn to the issue of efficiency and effectiveness, which is another one of the tests under the Public Bodies Act. The department has an existing medical policy team covering a wide range of policy areas who can provide medical opinion or who can commission work by others, if needed. This is a more flexible resource than that provided by a standing board. The team also produces guidance for operational staff, advice on operational issues and audits the quality of outsourced medical advice. It is our view that short-life working groups can be set up quickly when work is needed, which is more efficient and effective than retaining a standing collection of eminent people whose expertise is not necessarily being put to good use consistently. For instance, during the development of PIP, we set up a group to help develop the assessment criteria. The group encompassed a wide range of expertise across health, social care and disability, including from occupational therapy, social work and a representative from Disability Rights UK. Very importantly, we also sought the views of user-led organisations and disabled people themselves through our implementation stakeholder forum. This group involves more than 60 user-led, grass-roots and national organisations working with us to get the design and delivery arrangements right.
Legislatively maintaining the status quo for the board places a burden on the department because the regulations require that the membership contains specifically qualified personnel. Therefore, if a member leaves the board either by choice or because their tenure has ended, the department is required to recruit even though there may be no actual work to do. The recruitment process is expensive, resource intensive and, in my view, verges on being disrespectful to those people who apply for the post. We consider that using time-limited groups is more effective than maintaining a standing body. We continue to use the expertise of other disability groups, and our recently launched Disability Action Alliance has convened a wide range of disabled people and their organisations who will work alongside the department to deliver results in a less prescriptive manner.
I shall move on now to the test of economy. As the Secondary Legislation Scrutiny Committee acknowledges, it is cheaper to run one NDPB rather than two, while Equality 2025 is a body representing disabled people that helps the Government to understand their needs and wishes. It has been in existence since 2006 and there have been no additional costs to that body since the DLA board has not been used. In addition, I can assure noble Lords that the medical policy team has absorbed some of the work previously undertaken by the board at no extra cost. Commissioning independent advice on an ad hoc basis is more economical than commissioning it from board members because they were paid fees for attending meetings and for contributing to reports, whereas the individuals and organisations who advised the department on the development of the PIP assessment did not receive a fee.
The Department of Work and Pensions considers that the use of time-limited groups will increase accountability. The scrutiny committee is of the opinion that accountability remains the same, as the Minister will commission time-limited groups, much in the same way as the board could meet only at the Minister’s direct request; it disagrees with our view that accountability will be enhanced. However, the board’s composition was laid down in statute. It is required to have members with professional knowledge or experience of physiotherapy, occupational therapy, social work, nursing people with disabilities and medical practice, as well as six or more members who are themselves disabled and at least one carer. Now we can target individuals with the specialist knowledge that we require. For instance, if the department wants up-to-date information on people with mental health conditions, it can specifically target mental health professionals who may be better placed to provide that advice.
In addition, the board could report only to Ministers and only at their request. Time-limited groups have the flexibility to engage with and report to a range of parties. For example, in his independent reviews of the work capability assessment, Professor Harrington took evidence from hundreds of organisations and individuals and ultimately presented his report to Parliament.
On safeguards, I do not consider that the abolition of the board will remove any necessary protection or prevent any person continuing to exercise any right of freedom. I say that because, as I have already mentioned, there is a range of ways in which Ministers receive and seek advice, and consult. There have been scores of stakeholders meetings with Ministers and officials. These will clearly continue.
This is a good and sensible reform, formally closing a body which, although of considerable help to the department in its time, has not been asked to give any advice since 2008. Before I close, I pay tribute and offer sincere thanks on behalf of all current Ministers at DWP to the current chair, Anne Speight, her predecessors and all members who have served on the DLA board over the years.
I hope that I have been able to give the Committee the information necessary to demonstrate that, in abolishing the DLA advisory board, we are in no way diminishing the way in which we will consult properly with experts and ensure that all ranges of advice are taken properly into account. I beg to move.
Lord McKenzie of Luton
My Lords, I thank the noble Baroness for her introduction to this order which, as has been described, abolishes the DLA advisory board. I join the noble Baroness in paying tribute to those who have served on the board over the years and all the work that they have done. We acknowledge the extensive consultation that has taken place on the creation of PIP. The extent to which it was always spot on is something we will have the chance to discuss when we discuss the regulations quite shortly. However, we acknowledge that that has been an extensive process.
We have of course debated the proposition of the board being abolished when we considered it during the passage of the Public Bodies Act. Since then, we have had time to reflect on those discussions and the Minister will be aware of the debate at the other end, particularly the strong points made by my right honourable friend Anne McGuire, former Minister for the disabled.
Paragraph 4.6 of the Explanatory Memorandum makes it clear that the board satisfied the three tests of performing a technical function whose activities require political impartiality and needing to act independently to establish facts. Can the Minister say a little more about the assessment that was undertaken to make the judgment that the DWP is better suited to the in-house team of medical advisers? Can we have an update on the size of that in-house team and the range of skills which it encompasses? Paragraph 7.2 of the Explanatory Note refers to “a larger resource”, but how does the range of skills match that which is available to the board? The Minister ranged over the skills that the board has. Paragraph 4.4, on the constitution of the board, sets out the range of skills which the board should have. It should include people from the fields of,
“physiotherapy, occupational therapy, social work, nursing disabled persons, medical practice, and at least one member with experience of caring for a disabled person”.
Baroness Stowell of Beeston
My Lords, I will start by responding to the question the noble Lord asked about why the DLA advisory board could not become what is commonly described as a “task and finish group”. The noble Lord may not have noticed, but I resisted using that phrase in my opening speech because until I had my briefing for this debate I had never come across it—so I asked the officials to remove it. I will answer some of the noble Lord’s other specific questions in a moment.
It is possible that the DLA advisory board could become a task and finish group, but it is set up in statutory terms, which specifically lay out what it exists to do and how it can operate. Instead, we are introducing a regime that is much more flexible and allows us, quite rightly, to draw on the expertise that we need for our work, but to do so in a way that we believe will work better. Indeed, there were current members of the DLA advisory board on a group that was put together to advise us on something recently. It is not that we do not want that expertise; we want to be able to use it in a way that is much more flexible and responsive to immediate needs.
The noble Lord asked what assessment we had made of the PIP assessment development group and the in-house medical policy team, and how they compared with the DLA advisory board in terms of resources and expertise. The department’s medical policy team consists of six officials, all of whom are qualified doctors. The medical policy team has taken on some of the work previously done by the advisory board—for example, producing guidance on medical conditions.
Where the department requires advice from a wider range of professionals, this can be commissioned, as was the case for the development of the PIP assessment. Some of the DLA advisory board members were in that group, as I have said. The group includes people from Equality 2025: Liz Sayce of what was originally Radar and is now part of Disability Rights UK; Professor Tom Sensky, a psychiatrist; Itai Chikomo, a community psychiatric nurse; and Hugh Constant, a social worker—so a whole range of different areas of expertise is covered.
The noble Lord asked who will now advise on attendance allowance and how that would be dealt with. I can confirm that the medical policy advisers in the department are responsible for that and that they will use what he has calls “task and finish” and I call “time-limited” groups, where that specific expertise is needed.
I covered the more general point about consultation in quite some detail in my opening remarks and acknowledge the criticism in the scrutiny committee’s report. However, as I said previously, the board did not attract much comment on how it was operating when we gave that opportunity to a large number of groups. Most importantly, it was not a question of not consulting disability groups because we did not want to hear what they have to say but that the board exists for a specific function, as I have already described, and it would seem almost insulting to consult disability groups about a board over which they have no influence in terms of how it did its work. There was no intention to prevent consultation because we did not want to hear what people wanted to say. We felt that the way in which we were carrying out our general process of consulting on the policies that we were developing was very extensive and that people had the opportunity to influence the design and development of those policies. I take on board the point that he made but would only say again that this is a board that had not met since 2008—so had not met under the last two years of the previous Government, not just during this Government. I am convinced that, in its place, we are putting arrangements which will ensure that we have the right expertise and advice coming to us as we develop policy and that we are consulting widely as we roll out that policy and taking on board the responses and the feedback that we receive.
Growth and Infrastructure Bill
Baroness Stowell of Beeston Excerpts(13 years, 4 months ago)
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Baroness Stowell of Beeston
My Lords, before I move that the House be resumed, perhaps I may give some guidance to those involved in the next debate. Two noble Lords have scratched from the speakers list so we will go from the noble Viscount, Lord Montgomery of Alamein, straight to the noble Lord, Lord Davies of Oldham. With the reduction in the number of speakers, it is my pleasure to offer a little extra time for noble Lords to speak. With the exception of the noble Lord, Lord Palmer, and my noble friend the Minister, who will continue to have 10 minutes and 12 minutes respectively, all other speeches are now limited to four minutes. I shall be handing over shortly to my noble friend Lord Attlee and I know that he will assist the House by making sure that all noble Lords stick to four minutes. I beg to move that the House do now resume and, in doing so, I suggest that the Committee stage begin again not before 8.37 pm.
Unemployment: Young People
Baroness Stowell of Beeston Excerpts(13 years, 4 months ago)
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Baroness Stowell of Beeston
My Lords, I am very grateful to my noble friend Lord Chadlington for securing this debate. I feel as strongly about youth unemployment as everyone else who has spoken today. First, I associate myself with the comments made by the noble Lord, Lord Mitchell, about presentation and the importance of communication. Like the noble Lord, I believe it is essential that people get it right because there is only one chance to make a first impression.
I also very much share the views of the noble Lord, Lord Ramsbotham, about the importance of vocational education and of people having a clear route to success via that road if an academic route is not right for them. It may interest noble Lords to know that I was a teenager in the early 1980s and did not go to university. I do not remember anybody encouraging me to go but that may have been because I desperately wanted to go to work. I was very fortunate to have two wonderful parents, who said to me that getting a job, being dedicated to it and doing it to the best of my ability would be a route to success. I will leave others to judge whether I have achieved success so far but I very much understand how important it is for those who do not naturally want to follow an academic route to have other clear options available to them.
Youth unemployment is still too high in this country, as my noble friend Lord Chadlington made clear. However, the levels of worklessness among some young people cannot simply be put down to the present state of the economy. The problem we face, as noble Lords have indicated in their comments today, is much more entrenched than that. For the past decade and longer, too many of our young people have been trapped on the margins, some of them growing up without positive role models or in families where no one has ever held a job, failed by underperforming schools or dropping out of education without any qualifications, and ending up in the jobcentre at 18, unready for the world of work.
Even before the recession, youth unemployment had started to rise. In 2001, just over half a million young people were unemployed. By 2007, that number had already increased to just over 700,000. As all noble Lords agree, we cannot afford to neglect the next generation. Whether it be keeping them in school or vocational training, or helping them into work, this Government are committed to supporting young people, ensuring that they realise their potential.
Even in these tough economic times, we have seen that it is possible to make some progress. Youth unemployment is down by 72,000 in this quarter alone. If you take out those in full-time education, that fall is even greater—down 90,000 to 626,000, the lowest figure since the beginning of 2009. However, we are not complacent, and I am not here to talk down the situation. There are promising signs that the steps we are taking to tackle youth unemployment are having an effect but, clearly, we need to do more.
I will come to online issues in a moment but will first say something about investment and how we have radically changed the way we are approaching the issue of youth unemployment in this coalition Government. Through the £1 billion Youth Contract, this Government have brought together previously piecemeal provision and underpinned it by greater funding, scope and ambition. With the DWP, the DfE and BIS working together, the contract offers intensive employment support for young people, targeted at addressing the particular barriers they face.
We know that a lack of experience often proves a problem, so we are creating an extra 250,000 work experience places over the next three years. Of 65,000 young people who have started work experience already, nearly half are off benefits 21 weeks later. We know that for businesses, employing a young person comes with both a cost and a risk attached, which is why we are offering 20,000 new apprenticeship grants and 160,000 wage incentives to encourage employers to take on young people. By easing the costs, it becomes more straightforward to give young people a chance. However, we are also emphasising the potential benefits to employers, which is incredibly important—a point made most forcefully by my noble friend Lord Chadlington. As he said, young people are what is known now as “digitally native” and can offer skills that are valuable to businesses, certainly to small and medium-sized businesses that might not naturally have those skills already available to them in their existing workforce.
In the DWP, alongside these valuable interventions, we are harnessing online tools and channels ensuring that our employment services reflect how claimants—and young people in particular—choose to interact. I have given a range of examples but the most recent and significant is the Universal Jobmatch; an online service which has transformed the way people look for and find work. It is simpler and quicker for jobseekers to use, with alerts when new jobs are posted. It provides a free service for employers, and the service also benefits Jobcentre Plus advisers by modernising how they review claimants’ work search activity.
However, as the noble Lord, Lord Ramsbotham, said, we must recognise that not all people have access to the internet, and that not everybody has the skills to be able to use these kinds of services. I would say to the noble Lord that even the most basic jobs these days do require some form of digital skill, even if it is just data-entry in a warehouse. We must recognise that if someone is not able to use some of our online services to find jobs, it is our responsibility to make sure that they are trained so that they can use those services, because they will need those skills once they arrive at work. I was interested to hear that the initiative that the noble Lord, Lord Mitchell, said that he launched when he first entered the House of the Lords was his e-learning foundation and the provision of devices. I wish him continued success with that.
I turn now to what we are doing for those still in school and the points made by my noble friend Lord Chadlington about online communication to promote opportunities—all of which I agree with. I believe that the bottom-up approach and co-ordinating our effort are not mutually exclusive—neither is his point about tone. We need to do all these things, as well as learn from what works in the private sector and be open to new initiatives that we do not run ourselves.
One national service that is available is the National Careers Service, which was launched in April last year. It supports young people in making training and career choices. I note what my noble friend said about some of the services available, but I am sure that a service that is less than a year old is seeking to improve what it offers continually, learning from the experiences of those who use it.
UCAS is independent of government and provides an online application service for those wanting to pursue further and higher education. Picking up one of the points that my noble friend made about ensuring that there is co-ordination of services, it is worth reminding ourselves that one of the advantages of the digital and online world is that users like to be able to access data and adapt it—to use it in ways that best suit their needs. That lends itself to—and points towards—not necessarily having a single shop that is nationwide and available, but making something accessible so that people can adapt it.
The Government have recently made data available that compares university courses—this is on a website that we run called Unistats—but we are also making that data widely available. The consumer service Which? has taken advantage of this and has already adapted that material into its website, which is available to those who want to be able to see and compare directly how different courses might provide the kind of training and education that they want.
The National Apprenticeship Service provides information on a nationwide basis, but we know that there is more we can do to promote the schemes available. We think that the idea set out by the noble Lord, Lord Adonis, in his article in the Financial Times earlier this week—that UCAS should become an integrated higher education and apprenticeships service—is a great one. We have noticed that UCAS is enthusiastic about this as well and David Willetts is already pursuing this.
All these national services are tweeting and using social media to communicate what they are doing. I myself have retweeted things in the past to promote what they are doing. But we must be careful that we do not try to control too much from the centre. As with the great initiative that the noble Lord, Lord Mitchell, referred to, TheJobCrowd, if something is working and people are using it, far be it from us to seek to control it.
As my noble friend said, plotr.co.uk is a new website arising from a partnership of businesses in response to the Prime Minister’s direct challenge to find new ways to inspire young people to broaden their horizons. That is something that we want to see continue. However, as and when new local schemes, such as the Jobs Network, which my noble friend mentioned, get off the ground and achieve results, we want to hear about them so that we can promote them to other schools for heads to consider. Earlier I talked about today’s debate to my honourable friend Matthew Hancock, the Minister for Skills, who works out of both BIS and the Department for Education. He asked me to inform my noble friend that he would welcome learning more about the Jobs Network.
The noble Lord, Lord Ramsbotham, pointed to the risk to young offenders of long-term unemployment. It is worth pointing out that when young offenders are released they are referred directly to the Work Programme at the start of their claim. This provides intensive support and providers are incentivised to support this group as being in need of particular support. Perhaps the noble Lord is aware that there was a debate earlier this week specifically about support and training for young offenders. If he has not had an opportunity to read that debate in Hansard, he might be interested in the response that my noble friend Lord Ahmad gave to that debate.
In conclusion, we cannot underestimate the challenge of youth unemployment, especially in an uncertain economy, nor the damage we would do if we did not support our young people to be ambitious for success. By providing more training, work experience and opportunities for young people via the online channels that they use readily and often, we are giving individuals a chance to prove themselves and to secure a better future, which everyone here today wants to achieve. From a personal point of view, we must ensure that we do not define success too narrowly. For me, success is doing what you do as best as you can, and I want all young people to be able to experience that.
Enterprise and Regulatory Reform Bill
Baroness Stowell of Beeston Excerpts(13 years, 5 months ago)
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Baroness Stowell of Beeston
My Lords, I am grateful to the noble Baroness, Lady Thornton, and others who have put their names to this clause stand part debate today. It gives me an opportunity to make clear that Clause 57 does not diminish people’s right to equal treatment, or their access to justice, when they believe that they have encountered discrimination. The aim of this clause is to achieve these outcomes in a more straightforward and cost-effective way.
Clause 57 removes the specific but arbitrary “three strikes” test for employer liability. I should like to reassure the Committee that it does not remove protection for employees who have been harassed by third parties at work. The noble Baroness, Lady Thornton, asked me a specific question about whether the repeal is consistent with the equal treatment directive. I can confirm that it is.
The ruling of the court in the case of Equal Opportunities Commission v Secretary of State for Trade and Industry in 2007 stated that,
“there is nothing explicit, or even arguably implicit”,
in the European equal treatment amendment directive,
“requiring a Member State to impose vicarious liability on an employer, or indeed liability for negligent failure to take steps”.
However, under the Equality Act 2010, employers are vicariously liable for the harassment of one employee by another. We maintain that the general harassment provisions in the Act can provide protection for an employee who has been harassed by any other third party. If the harassment causes the employee alarm or distress, a claim may be possible under the Protection from Harassment Act 1997. Where it is such that the employee feels there is no alternative to leaving the job, a claim for constructive dismissal can be brought. All this protection will remain, and that is why the third-party harassment provisions in Section 40(2) to (4) of the Equality Act are not needed.
Indeed, introduction of the “three strikes” test was itself unnecessary because a change in the legal definition of harassment in 2008, following a judicial review, allowed a wider range of claims. The then Government added the “three strikes” test to the harassment provisions in the Sex Discrimination Act 1975 specifically to address a set of facts referred to in the judgment. In our view this introduced an additional legal test that is both arbitrary and unnecessary.
The new definition of harassment following the change in the law in 2008 referred to unwanted conduct “related to” the sex of a person. That was instead of “on the grounds of”. This specific change extended the scope of protection against harassment to apply to wider circumstances than before, including potentially by a third party. This formulation now exists in the Equality Act 2010 and therefore applies to all the relevant protected characteristics, not just to sex.
The “three strikes” test was introduced to cover only the situation where, knowing that an employee is being repeatedly harassed at work, the employer does not take any reasonable steps to prevent that employee being harassed again. However, the extremely limited scope of these provisions is widely misunderstood and some businesses have also told us that they find it impossible to comply with the provisions in practice, no matter how they try. Most businesses recognise that they must not let their employees be harassed or ill treated by other employees or by third parties. Where this is not the case, the other legal protections that I have set out will continue to exist. However, they see the unique “three strikes” test as onerous, arbitrary and unfair. It expressly makes the employer liable for a specific number of actions—three—by a third party. In most cases the employer will have no control over the nature or number of events or the third parties concerned. The uncertainty over what exactly is required in order to avoid being caught out by the “three strikes” test makes it difficult for employers who want to comply and at the same time will not deter employers who may be less concerned about their obligations to their staff.
Baroness Thornton
I am wondering where the evidence for this is. I really need to know where this evidence is because certainly, as far as we can tell from the impact assessment and the evidence that I recalled in my speech, this did not seem to be the case. Perhaps the noble Baroness can write to me and list the cases to which she has referred because I certainly have not been able to find them.
Baroness Stowell of Beeston
The point in some of the cases that I shall come to is that people have been able to bring cases of third-party harassment without using the clauses to which we are referring. The response to the consultation by members of the industry has been clear that this part of the legislation is confusing and is very difficult for them to comply with. However, I will of course follow up in writing and provide further information to the noble Baroness.
As long as this test remains, employers can face claims from their employees of liability for third-party harassment on the basis of an arbitrary number of events, but taking no account of context. This approach cannot be right. Influencing employers’ behaviour is neither the primary role nor the intention of most provisions in discrimination law, and this is certainly not the reason why the Section 40 third-party harassment provisions exist. This confusing legislation is not the most effective way of achieving cultural change. Nor does it appear to have had any significant legal effect. As far as we can determine, only one case brought under these provisions has actually been heard by a tribunal in the four years since they were first introduced. The other examples of cases successfully alleging third-party harassment of which we are aware were brought before the “three strikes” test was introduced. That is the point that I made before; it is clear that it is possible for people to bring forward claims of third-party harassment because they have done so, even before this change in legislation was introduced. We believe that a better way to encourage employers to protect their employees from harassment at work, which as the noble Baroness, Lady Turner of Camden, said is an important matter, is through education and good practice guidance.
I turn to the question put to me by the noble Baroness, Lady Turner, who referred to the case of Blake and how protection for employees such as those in that case would be protected. Depending on the particular facts and circumstances of the case, it should be possible for a claim for third-party harassment to be brought under the general harassment provisions under Sections 26 and 40(1) of the Equality Act. Nothing in the Blake case would exclude it from that statement. Noble Lords will bear in mind that this is the only case known to have been decided by a tribunal during the lifetime of the “three strikes” third-party harassment provisions.
I commend Clause 57 to the Committee, but I will follow up on the points that the noble Baroness raised.
Baroness Thornton
I thank the Minister for her reply, but the Committee needs more evidence than she has been able to produce. She started by saying that this provision does not diminish people’s rights to equal treatment. Some of the experts, particularly those in the trade unions and the lawyers that I have quoted, believe that that is certainly not the case and that it does reduce people’s equal treatment. This piece of law has been in place for only two years. Does the Minister accept that, as Thompsons have said, its existence has prevented tribunal cases? That is rather an important matter.
I am not surprised by the answer that I received from the Minister, but it is not satisfactory, both in terms of equal treatment and because she has not made the case for this provision to be in the Bill or for Section 40 to be deleted from the Equality Act on the Government’s own terms of business effectiveness, enterprise or the Red Tape Challenge. The Minister has not refuted the facts that I gave about there being no majority in favour of getting rid of this provision; she managed to quote one case which, she said, caused confusion. So the Government have not made their case. Then you have to wonder why this is in the Bill, which leads only to the supposition that it is for reasons not to do with equality but more to do with politics—a sort of trawl to see what they can put in the Bill. That is very sad. On that basis, I shall not press my question but we will return to the matter later in the Bill.
Baroness Oppenheim-Barnes
My Lords, I hope that this is not too light a note, but this is an apology that I owe to the noble Baroness, Lady Howe, of some 40 years standing. I remember that she wrote to me making a complaint about the Caledonian girls. I do not know whether noble Lords are old enough to remember that there were pretty dolly girls in the advertisements. The noble Baroness will remember that she found them offensive. I found myself on “Any Questions” when the whole matter erupted again and I said that I rather liked to see these nice brisk young girls. “Who wants to be served by old bags?” I said, only to receive at least 20 letters from members of the public saying, “You’re on the radio. How do we know that you’re not an old bag yourself?”. At this point I apologise.
Baroness Stowell of Beeston
I do not know how to follow that.
I join other noble Lords in wishing the noble Lord, Lord Lester, a speedy recovery, although I know that had he been here he would not have been speaking in support of the Government today. I know that he would have brought his own great expertise to these discussions and I am sure that he will return to us very soon and we will have the benefit of his expertise. Certainly, he was kind enough to give me some of his time over the past few weeks to discuss this matter in great detail and I am very much aware of his position on this and the history of his involvement over a long period.
Clause 58 does not diminish people’s right to equal treatment or their access to justice where they believe they have encountered discrimination. Let me be clear: repeal of the obtaining information procedure will not reduce an individual’s right to pursue a discrimination case or the remedies available to those who are successful. Our intention is to simplify the whole pre-claim process so that all parties achieve the right outcome in the most straightforward and cost-effective way. I will discuss in more detail what we propose as an alternative before I sit down.
I will not rehearse the whole process involved in obtaining information except to make the point that Section 138 provides that Ministers must prescribe forms to be used for the procedure in secondary legislation. Business and the Government now believe that, over time, enshrining this process in legislation has led to it being out of date, burdensome and to some extent one-sided.
Let me be clear from the outset that not one single employer or business organisation told us that they saw value in the questionnaires. I know that the noble Baroness, Lady Thornton, and others requested information to that end. I will happily ensure that that is provided after today’s debate. As noble Lords have said, this process has been in anti-discrimination legislation for nearly 40 years. I must say to the noble Baroness, Lady Howe, that while I know that some of her remarks were about more recent legislation, this practice of obtaining information is now very much something that has been with us and has been tried for a very long time, but I would add that the process of obtaining information is only in anti-discrimination legislation; it is not replicated in other areas of employment law.
During the past 40 years, much has changed. The procedure was initially created to help to level the playing field between individuals and employers or service providers through a simple question and answer process to help to establish basic facts to determine whether discrimination had occurred. This was necessary in 1975. At that time, no one had brought a sex discrimination claim or knew whether it would be possible to do so successfully without any assistance. However, in recent years, 10,000 to 20,000 have been accepted by tribunals every year.
In 1975, when the legislation was being debated in Parliament, the Government included the obtaining information procedure, because they did not wish to make changes to the arrangements governing the burden of proof. As was said then, the procedure was,
“likely to tilt the balance somewhat the other way”.
The Government continued that they were,
“enabling the woman complainant … to … write a letter or to use a prescribed form”.—[Official Report, Commons, 18/6/1975; col. 1603.]
Since then the legislation on the burden of proof has changed to make it explicit that the complainant has to put forward only facts from which discrimination could be deduced, and it is for a respondent to prove that their actions were not, in fact, discriminatory. From the point of view of a respondent, it therefore seems that both aspects of the law are now, in their minds, stacked against them. Employers believe that over time the process has become heavily legalised and is frequently misused as a means of gathering detailed information, whether it is relevant or not. Such information is frequently sought in cases where the individual has already taken the decision to take their case to a tribunal and is simply forcing as much pre-claim disclosure as possible.
Baroness Thornton
Can I query what the noble Baroness has just said about getting information prior to a claim? Is that not a good thing? Does it not mean that the process will be sped up and settled, and possibly not even go to a tribunal if there is more information available? I am not sure why there is a problem and why the noble Baroness seems to think that this process is being misused. It collects lots of information. Is that not the whole point?
Baroness Stowell of Beeston
Obviously I was not being clear. The point that I was trying to make is that, while the purpose of the legislation is to help people to obtain information so that they can decide if they have a case, it is apparent that some individuals have already decided that they are going to take their case forward and are using this process for gathering information in a pre-claim disclosure arrangement.
Baroness Thornton
I am sorry to pursue this point. How many cases like these are there? The noble Baroness may not be able to tell me now but I would like to know from where the evidence for this has come. How many were there as a proportion of the consultation process?
Baroness Stowell of Beeston
I will endeavour to provide further information in that area and follow up in writing to the noble Baroness.
Noble Lords have argued against Clause 58 from the perspective of claimants, so may I put forward the arguments from the perspective of employers and the business community, which it is important for us to take account of? Collating this information can be onerous for employers, particularly where 20, 40 or even 100 additional questions are asked. They can often see that the information requested has little or no merit to a claim. However, they feel bound by the legislation and by the legal advice, which they feel is necessary to engage with and respond to, and within the statutory time frame. These exact concerns the then Opposition raised during the 1975 debate on the Sex Discrimination Bill, where it was said:
“There is no limitation on what can be asked. There is no screening process”.
If the respondent,
“decides that it is unsafe not to answer them, his answers to those questions may be admitted as evidence”.—[Official Report, Commons, 18/6/1975; col. 1602.]
Now, as then, the problem is not just simplifying the questionnaire form, which is simple and straightforward; the problem is ensuring that the questionnaire does not get used as the starting point for rafts of detailed and leading questions. Clearly we cannot and do not want to restrict the dialogue between parties where they are trying to explore and perhaps resolve their differences. That is why we are proposing a different approach altogether, based on conciliation and guidance, which I shall come on to.
The noble Lord, Lord Low, referred in the context of the questionnaire form to some 2009 research and said that employers had responded to it by saying that the questionnaire was straightforward. The GEO research in 2009 concerned only the layout of the questionnaire and not the whole process of dealing with the completed set of questionnaires from a claimant. Often the extra material is the problem.
Those arguing in favour of retaining these provisions—obviously they are speaking today—claim that they are often helpful in weeding out potential claims that are unmeritorious, or those based on mistake or misunderstanding. The noble Baroness, Lady Whitaker, was very specific on that point. She asked whether there were any statistics available to show how many cases this process had avoided coming to court. I do not have any statistics available, but I know that we have not received any from the Tribunals Service. I am not clear about whether we have asked for them, but it has not been able to provide them, or perhaps it just has not put any forward. If it is the latter, then obviously I shall follow that up. However, not a single response that we have received from our consultation, from an individual business or representative body, endorses the view put forward by the noble Baroness and others.
Baroness Whitaker
I am sorry to interrupt the noble Baroness. I am grateful for her answer about the statistics, as far as it goes. As regards what the employer stands to gain from retaining the questionnaire, which was the case that I was also trying to argue, would she comment on the British Chambers of Commerce survey which showed that none of the businesses questioned raised concerns about the questionnaire procedure? In the Government’s survey of 2009, when I think they examined 811 businesses, was it not the case that only one organisation said that the questionnaire had been a time-consuming exercise? Could she comment on that?
Baroness Stowell of Beeston
If the noble Baroness is referring to 2009, I think I have already answered that point by explaining that that was about the layout of the questionnaire and not the whole process of dealing with a full set of questions from a claimant. However, I am clear that the response to our consultation from the business community was clear. As I said at the beginning, I am very happy to follow up, in writing to the Committee, with further information to support that point. I should add that in some cases the cost to business, including legal advice, often runs to several hundreds of pounds and that is before any costs associated with defending the case at a tribunal.
Having said that, I turn to what is a more constructive alternative way forward. We are agreed that there is value in the aim of encouraging a pre-claim dialogue and exchange of information. There is merit in establishing the facts of a potential discrimination case, and this is certainly what our proposed early conciliation of certain employment claims is intended to achieve. Noble Lords who followed this Bill in debates on earlier clauses will be familiar with the sort of changes that we are proposing. I think those clauses have attracted considerable support.
People thinking of bringing proceedings could still seek information from an employer or service provider about an alleged breach of the Equality Act 2010, either verbally or in writing. As I read that out, I should make it clear that that can be done orally or in writing because I am not aware of anyone writing without using words. That point was stressed by several of those responding to the consultation. This is in a climate where, compared to 40 years ago, businesses are on the whole far more transparent about the information they disclose. I am speaking generally but I think organisations understand the importance of transparency in the way they operate, and that attaches to their reputation. Employers or businesses who refuse to respond to reasonable requests for information will continue to run the risk of this being taken into account by a court or tribunal when deciding whether a basic case of discrimination has been made out. They will be more conscious of that risk than in the past for the reasons that I have just given.
Even if the parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding of the issue and of the tribunal process. The Government Equalities Office is in discussion with ACAS with a view to producing approved guidance which would help set out for employers and potential claimants in discrimination cases—
Baroness Thornton
For my own clarification, because I have not heard this process described in quite this way, am I right in understanding that if somebody wants information because they think they have been discriminated against by either their employer or a service provider, they have to go to ACAS first? Is that right?
Baroness Stowell of Beeston
They do not have to go to ACAS first but in the conversations that the Government are having with ACAS about this process, ACAS is suggesting that it would be preferable for somebody who is considering making a claim to go to it first as it would much rather have that initial conversation without the burden of a lot of information so that the parties do not get bogged down in the detail of, “He says, she says” at that stage of the process.
Baroness Thornton
Does the Minister not think it likely that ACAS will fill in a form?
Baroness Stowell of Beeston
The noble Baroness may be more familiar with the processes followed by ACAS than I am. I cannot speak for ACAS and I do not know what it would undertake to do. I am just reporting to the Committee what ACAS advises is the best way forward in this context.
If I may conclude the point that I was making, ACAS seeks to produce approved guidance which would help set out for employers and potential claimants in discrimination cases both the scope and requirement for disclosure of pre-claim information. This will be an ACAS-led approach, with the TUC and equality stakeholders as well as employers invited to participate in ensuring that the guidance is right.
I have indicated that I will follow up in writing to some of the points that have been made, but I hope that I have provided the Committee with sufficient assurances to make clear that the repeal of Section 138 of the Equality Act 2010 will not affect any individual rights under law, will command business confidence and will be followed up by a lighter-touch process in consultation with key parties, which will deliver, as I said at the start, the outcome that everybody has a right to expect if they feel that they are in any way at risk of discrimination.
Baroness Thornton
My Lords, I thank the noble Baroness for that useful and helpful explanation. I also thank the noble Lords, Lord Low and Lord Ouseley, the noble Baronesses, Lady Turner and Lady Howe, and, indeed, the noble Baroness, Lady Oppenheim-Barnes, who is not in her place, for their interventions, which I look forward to reading in Hansard so that I can fully understand the insult that was meted out to the noble Baroness, Lady Howe.
My noble friend Lady Whitaker rightly said that we probably have not done justice to what the noble Lord, Lord Lester, would have said. I say to the Minister that this is the beginning of this process rather than the end. We will need to have further discussions on this issue, for which she always makes herself available. I think that the Minister made the false assumption that we were talking only about employees. In fact, I referred in all my remarks to employees and employers because we think that this form is useful to everybody concerned. The Government’s proposal to abolish it fails on almost every ground, including that of cost. Further, I do not think that their proposal will be any more efficient. The noble Baroness described what she thinks people will do in going to ACAS. However, it seems to me that that makes the process more complex. That does not feel like a light touch process to me. I am happy to have a discussion about that but it feels like a more complex process.
The noble Baroness is deceiving herself if she thinks that ACAS will not go into drafting guidance and forms, and do many things based on what already exists. This fails in terms of efficiency, it does not add anything to the aims of enterprise in this Bill, and it certainly fails in terms of the test of fairness and access to justice. I am afraid the Government have not made the evidence available to the Committee today to convince us that this is a necessary clause. On that basis, I will not proceed with my question. Even if I do not return to this, the noble Lord, Lord Lester, can probably be trusted to do so.
Clause 58 agreed.
Clause 59 : Primary Authorities
Amendment 28ZDA
Arrangement of Business
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Baroness Stowell of Beeston
My Lords, I will take very little time because I am sure that noble Lords will want to get on with the very important business of today. As noble Lords are already aware, today’s debate is not time-limited. However, as those who are listed on the speakers list will already have been informed by the Whips’ Office, noble Lords, with the exception of the movers and those making the winding speeches, might find it helpful if we offered some guidance.
As the Companion sets out, the expectation of this House is that those participating in a debate are here for both the opening and closing speeches. If we were to aim to rise today at around 5 pm, we have estimated that Back-Bench speeches of around seven minutes would get us to that rising time. I and my Whip colleagues will assist the House in arriving at that estimated time, but we will look for your Lordships’ co-operation in achieving that time as well.
Leveson Inquiry
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Lord Donoughue
My Lords, this is clearly an important and so far fascinating debate. There are many fine speakers to come, and I shall try not to delay noble Lords too long.
First, I should declare some ancient interests. Long ago, I worked as a journalist for four newspapers, including one owned by Rupert Murdoch. I was sacked by him, an experience of which I am unequivocally proud. I was also sacked by Robert Maxwell, but I shall not go into that here.
The Leveson report, which we are here to debate, is immensely impressive. I basically support its approach, especially on the need for a fine, delicate layer of statutory underpinning. I support all that was said by my noble friend Lady Jones and by the right reverend Prelate about the value of the local press, the remaining, though fast disappearing, jewel in our media.
The report, of course, has deficiencies and omissions, which is inevitable with such a vast subject to cover in such a little time. It has been and will be comprehensively covered today, so I shall try not to repeat much of what has been said—and I am sure will be said—on the body of the report.
I wish to make just two points. The first, which has been stressed to me by old journalist friends, is that the fact that present proprietors, editors and journalists sadly include some thugs, bullies and, in the case of the Murdoch gang, some alleged—I stress alleged—criminals, does not in itself justify eliminating the basic freedom of the press. I agree with that. However, I do not believe that the Leveson report, if read carefully and fairly, does anything like that. It is careful and subtle in deliberately setting out not to do so. Only the recent ridiculous campaign by some parts of the press to denigrate Leveson by proposing that its aim is for the Government to control what journalists do and do not say suggests that it might do so. The Prime Minister, who is perhaps historically too close to the Murdoch camp—he and his party are not alone in that—is wrong in apparently believing that that is the danger in Leveson, and in seeking to appease the press rather than its victims. I trust that the Minister, when he replies to the debate, will demonstrate that that is not so by accepting the need for some statutory underpinning. However, I confess that I am not too optimistic about that. He should acknowledge that on many previous occasions when the press has been under the scrutiny of previous commissions of inquiry into newspaper behaviour—I think that there have been six in my lifetime—it has always promised to perform more responsibly in order, of course, to avoid closer regulation, but has always broken its word. In recent times it has behaved worse than ever, as the evidence to Leveson and recent actions by the police have proved. It does have form, my Lords. The fact is that it cannot be trusted to operate complete self-regulation.
My second and main point concerns one of the crucial factors which is understandably given little analysis in this hasty report: that is, the excessive concentration of ownership power in the media, which has shaped the culture of the media, to which the noble Lord, Lord Inglewood, rightly referred, in particular the concentration of power in Murdoch’s media empire which stems from the 1981 decision to allow him to take over the Sunday Times and the Times. That concentration led to his newspapers having the power to intimidate politicians as well as ordinary members of the public and, over time, led to some—I stress “some”—of his newspapers and journalists feeling that they were above the law and unaccountable. Indeed, it apparently led some of them to feel that they were above all normal standards of moral behaviour, thus leading to the appalling episodes of behaviour which Leveson exposed.
The events of 1981—the takeovers by Murdoch of the Times and the Sunday Times—were central to this process of decline and corruption. The politicians, led by Prime Minister Thatcher, for whom I have great admiration in other fields, behaved outrageously in conniving with Murdoch for him to acquire this excessive power: a bigger concentration of newspaper ownership and power than was ever held by notorious newspaper barons such as Northcliffe and Beaverbrook in the United Kingdom and Hearst in America. Murdoch’s acquisitions were characterised by deceit, misrepresentation of facts to Parliament and the public and contempt for company law—all to avoid reference of these takeovers to the Monopolies and Mergers Commission and to allow Murdoch to avoid the official guidelines of a 30% maximum share of newspaper ownership. These events were all set out in meticulous detail by Sir Harold Evans in his inside story, Good Times, Bad Times, which I recommend noble Lords to read, and have never been challenged or disputed. They show how the Prime Minister had a secret meeting in No. 10 to plan these developments. The Prime Minister and Murdoch both later denied that meeting to Parliament and it was never reported to Cabinet although it was minuted by her press secretary. No other competing bidder was given that privileged access. When the deal was done, Parliament was reassured by Murdoch giving five statutory undertakings, backed by criminal sanctions, which mainly referred to guarantees of editorial independence. All these guarantees were subsequently breached without action being taken against Murdoch.
In seeking to avoid a referral to the Monopolies and Mergers Commission, the device was used of claiming that the Sunday Times, which in the past and in the future is one of the most profitable British newspapers in history, was “not a going concern” and therefore needed Murdoch’s immediate financial rescue. In fact, the financial statistics on the performance and prospects of the Sunday Times were distorted and misrepresented to Parliament. The paper’s finance director, who knew the true figures, was not called to brief the Department of Trade, whose Secretary of State was handling the issue on behalf of the Prime Minister. It was later reported to me by an official from the No. 10 private office, who I knew, that Mrs Thatcher was heard to say, “Rupert supported me in the election, and I must support him now”. That is an understandable political reaction.
That excessive concentration of power given to Murdoch by dubious methods was, and still is, inimical to the workings of a healthy democracy. It is indicative of the bad effects of such a concentration of media power that the later alleged criminal activities of journalists were concentrated in, though not exclusive to, Murdoch’s empire. When the alleged criminalities were first exposed in the brave Guardian newspaper, that paper was exposed to derision in the mass media, much of it owned by Murdoch. The same patterns of behaviour began to be observed as Murdoch moved towards increasing ownership and power in television through seeking control of BSkyB. If that proceeds, he will probably offer guarantees, but we should remember that he once said the guarantees he gave over the Times were “not worth the paper they were written on”. He has the virtue of honesty.
Concentration of media power enables a proprietor to intimidate or reward politicians, as Murdoch rewarded Mrs Thatcher with future electoral support in his papers, although, of course, that was his natural inclination anyway. Politicians naturally need media support, hence they are tempted to return favours to supporting media. As we know, the police—
Lord Donoughue
I am concluding. It is a potentially corrupting game. All power corrupts and excessive media power corrupts excessively. The Leveson inquiry was an impressive enterprise but it will fail if it does not ensure that such a concentration of media power, and the corruption which follows it, never happens again.
Baroness Stowell of Beeston
My Lords, I know that the noble Lord, Lord Donoughue, missed my remarks at the beginning of today’s debate, but it might be helpful for me from time to time to give noble Lords a sense of how we are doing as regards time. I remind everybody that we have suggested—this is just guidance—that speeches should last for around seven minutes if we are to rise at around five o’clock this afternoon. We are starting to run a little behind schedule.
Gender Balance among Non-Executive Directors (EUC Report)
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Baroness Stowell of Beeston
My Lords, as this is a debate on a Motion from a Committee of this House, my contribution is purely to set out the Government’s position, not to respond to the debate; I will leave that to the noble Lord, Lord Boswell. As other noble Lords have described what the Commission is proposing and explained eloquently the general principles of subsidiarity, I will not take any time on that but get straight to the matter, which is the Government’s position on the directive.
We set that out in the Explanatory Memorandum, which was sent to the European Scrutiny Committee by my honourable friend the Minister for Employment Relations, Consumer Affairs, Women and Equalities. We gave the Government’s assessment of whether the Commission’s proposal meets the principle of subsidiarity. Since submitting that memorandum, the Government have had an opportunity to further analyse the directive from the Commission and we have concluded that its proposals do not meet the test of subsidiarity. We believe that there is no reason why member states cannot achieve these objectives acting alone, and there is no evidence of any value added by the involvement of the EU in the way put forward in that directive.
However, the Government are committed to increasing the number of women on boards; and, as the noble Baroness, Lady Thornton, and other noble Lords have said, it is very important that we, as a Government, make it absolutely clear that the fact that we do not believe that the Commission’s proposals meet the test of subsidiarity in no way dilutes that commitment. We believe that increasing the number of women on boards is the right thing to do because it is the right thing for women, for business and for our country’s wider economic success.
We pledged to promote gender equality on the boards of listed companies in the coalition agreement. An independent review in 2011, led by the noble Lord, Lord Davies of Abersoch, identified the barriers preventing women from reaching senior roles in business and recommended to the Government a business-led strategy to bring about the necessary change. We have been working with business to implement this strategy and we believe that the results already demonstrate that national-level solutions are working.
The Government believe that this voluntary business-led approach is right for the UK. We need to see a real culture change taking place at the heart of business if progress is going to be sustainable and long-term. Companies need to understand and believe that diverse boards are better boards. We want a business environment where women can and do take their seats at the boardroom table on merit and without the spectre of tokenism. I have always believed that, to attract not just more women but the best women with a wide range of experience, businesses need to show that they want them to join the team for what they bring, not because of who they are, and certainly not just because they have been told they have to.
The Government believe that member states must retain the flexibility to respond to their own individual circumstances. Likewise, businesses need to be able to respond to the varying needs of the sector, size and type of business. None the less, the Government agree that the EU has an important role to play in improving the representation of women on boards, which is the point made by the noble Baroness, Lady Thornton, my noble friend Lady O’Cathain and others. We share the Commission’s view that in the member states and throughout Europe, fair chances and opportunities for women in executive posts should and must be promoted. The EU has done a good job of highlighting the issue and raising member states’ awareness of its importance. As a result, many countries are developing their own individual programmes of initiatives. The Government agree that the EU should continue to show leadership on this issue, shining a light on and disseminating good practice across member states.
However, in line with the subsidiarity principle, it is first and foremost up to member states to find their own national approach to achieving this goal. Many member states are considering, or have implemented, various differing national measures on a voluntary basis to facilitate raising the proportion of women in boardrooms. Some have decided that domestic legal action is appropriate for their own circumstances. It is our view that these efforts must be granted more time in order to establish whether they can achieve fair female participation in economic decision-making on Europe’s company boards.
In the case of the UK, the Commission has projected that only 17% of UK listed companies would have at least 40% women directors by 2020. The Commission’s analysis is based on extrapolating the increase in the number of women on boards between 2003 and 2011 forward to 2020 using a linear progression. Of course, 2011 is when the noble Lord, Lord Davies of Abersoch, published his report on increasing the number of women in British boardrooms. Since his work started, we have seen nearly a 50% increase in the number of female non-executives in the FTSE 350. While we have therefore not forecast the number of individual companies that might have 40% female directors by 2020, we would expect it to be significantly in excess of the 17% projected by the Commission. Indeed, research by the Cranfield School of Management shows that should the current pace of change be maintained, we are on a trajectory to achieve 27% on FTSE 100 boards by 2015 and 37% by 2020.
As I have said, we believe that we need to see a real culture change taking place at the heart of business if progress is to be sustainable and long term. Companies need to understand and believe that diverse boards are better boards. Voluntary measures that businesses can truly buy into, such as the business-led approach that the UK is taking, can help to bring about this change in a way that blunt legal measures never can. We believe that prescriptive measures such as quotas or binding targets run the very real risk of undermining women and their contribution at the most senior levels in our economy. They will more than likely be counterproductive to our overall aim of seeing more women reach the boardroom. We do not want to see the spectre of tokenism.
We agree with the Committee that all parties need to work together to achieve gender-balanced boards via measures that focus on bringing about real, lasting change for the benefit of women, business and the economy in a way that is sustainable and achievable. The negotiations in Brussels on the Commission’s proposals have not yet started but we are already discussing them with a number of stakeholders. Clearly, today it is a matter for the House to decide whether to send a reasoned opinion to the Commission but the Government welcome this debate and the support expressed for our approach to addressing the very important matter of women’s reputation on corporate boards. This is clearly something on which we will continue to focus and seek to make good and strong progress.
Lord Boswell of Aynho
My Lords, I am very grateful to all noble Lords who participated in this debate and for the general message of support for this reasoned opinion. I am also grateful to the Minister for reiterating the Government’s support. The support has not of course been unqualified and it is right that the reasoned opinion be questioned but, if nothing else, it at least provides a mechanism for sending a message to the Commission to reconsider where it is and to look at the difficulties within its own proposals.
Perhaps I may take two points of substance from the report and the debate. One, which is in the substantive report prepared by Sub-Committee B, is on how there can be a distinction between executive and non-executive directors. There is none in English law, as I understand it. To meet the obligations being suggested by the Commission, it would be necessary to introduce one. The other, which I think did not get considered by the committee—although I am prepared to stand corrected on that—would be on the relations between subsidiary companies and the main company. The proposals from the Commission bear on the main quoted company, so one could have a situation where it was entirely compliant but where every single subsidiary had a ridiculously skewed structure without apparently breaching the proposed obligations. I mention those only as points of example on the substance of the matter.
Given that there has been strong support on what might be termed the constitutional or procedural issue about the reasoned opinion, I think I can turn my remarks to those of the noble Lord, Lord Pearson of Rannoch. His views on the European Union are perhaps well known to the House; he is, shall we say, not too keen on it. By extension he may therefore be, and is reasonably entitled to be, sceptical as to the use of a reasoned opinion procedure. He asked me first a specific question, which I will do my best to answer, on the progress of this proposal. As I understand it, as of yesterday the score among national Parliaments was 7:7. If we were to accept this Motion, those wishing a reasoned opinion would take a short-head lead on the matter. Whether the magic number of 14 would be reached in time to trigger the formal yellow card is of course still open to speculation and by no means certain.
I should perhaps explain to the House for completeness that it is complicated by the fact that roughly half the Chambers or the Parliaments of the member states are unicameral and the other half are bicameral. In fact, one requires to produce a third of 14 votes, one of which will come from the other place and one of which will come from our House, whichever way we choose to cast our decision or to abstain from doing so, which amounts to not playing a reasoned opinion. That is the state of play on this particular matter.
There is one case so far in what is still a relatively untried procedure—and the noble Lord, Lord Pearson, referred to this—in relation to the Monti issue and the right to strike, which has resulted in the Commission withdrawing its proposal on the presentation of a reasoned opinion. I just say to the House and to the noble Lord by way of advice that, whatever view he may take on the merits of this procedure, it is the best weapon we have. To borrow a motto from another context, we should either use it or lose it. I think it is right that where the circumstances so well set out in the report and by the noble Baroness, Lady O’Cathain, demonstrate the argument, we should say so. It is our constitutional duty to say so; that is what tonight’s debate is about.
As far as I am concerned, I am relaxed and very much support the committee’s approach for the issuing of reasoned opinions as and where they are appropriate. If passed tonight by the House, this would be the fifth reasoned opinion which this House has issued. I claim no credit for the fact that two of those would have been in the past three weeks. Equally, I do not wish to speculate that we are likely to produce a strike rate of anything like that amount. It very much depends on what comes forward from the Commission, but it is important.
I also point out to the noble Lord that when he suggests that the Commission might, in some cynical way, retire from this and come back with the same thing in a different form, in my view the formulation of policy within Europe is not a binary exercise—is neither one thing nor another. It is very much a matter of influencing opinion. The fact that, if this Motion is carried tonight, eight Parliaments within the European Union have said, “Hang on a minute—we are not happy about this”, is a very important political factor in the circumstances.
Finally, from the meetings I have had with colleagues in other countries, I think that there is a growing interest and appetite among national Parliaments to rebalance the policy debate, both within the remit of the Lisbon treaty and anyway because of the size of the European Union and the complexity of the issues it deals with. Picking up the points that the noble Lord, Lord Elton, made, we need to look very seriously at irredentism by the centre. We need to make sure that things that do not have to be decided by the centre—even if they are desirable as objectives—can be dealt with by the member states and by a process of dialogue and iteration rather than by the imposition of a centralised solution. It is on that—the constitutional issue, rather than the merits of women on boards or greater diversity generally, where I think there is a unanimous view across the House—that we should concentrate tonight.
Disability Services
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Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Boateng, for securing this debate and the opportunity that he has provided for us to discuss the important issue of how to ensure that all members of society, from all backgrounds, are able to access the services and support that they need.
I am grateful, too, to Scope and the Equalities National Council for the central report that we are debating today. It brings to the issue a great deal of detail and much needed information about the black and minority ethnic communities in particular, and the difficulties that they face in receiving the support that they require.
A wide range of topics has been raised in today’s debate, but what underpins much of what noble Lords have said is that we must provide policies and services developed and delivered based on the individual.
In responding to the debate, I shall provide some context and talk first about the Government’s equality strategy. As a country, we have come a very long way over the past 50 years, but too many people’s life chances still depend on who they are or where they come from. Our equality strategy set out our vision for a strong, modern, fair Britain built on two key principles: equal treatment and equal opportunity for all. We are moving away from the identity politics and categorisation of the past and instead focusing on equal opportunity for everyone—most importantly, recognising individual needs.
I believe that this approach is very much in line with the recommendations in the report that we have been debating today that services delivered locally should follow person-centred principles, delivered in ways that take into account the needs of individuals, utilise community resources and are responsive to the local community.
I shall focus on the disabled strategy. Part of our commitment to removing barriers is about enabling disabled people to fulfil their individual potential and, by right, play a full role in society. As a country, we have a strong record of provision for disabled people. Here I am talking not just about this Government but about this country in the past. We are a world leader for both disability rights and independent living. The recent OECD statistics have shown that UK spending on disability as a proportion of GDP is nearly twice the OECD average—more than the US, Germany, France, Italy, Spain and Japan. This Government are proud of that and will ensure that the money that we dedicate to disabled services supports those in the greatest need, as well as in ways that are important to all disabled people: providing them their right to live independently, and to have greater opportunities to work. On that point in particular, in the spending review we have protected the annual budget of £320 million for specialist disability employment programmes. These programmes focus on removing barriers to work and supporting those with extra needs to work. In saying that, I recognise the point made by my noble friend Lady Browning about the challenge that this presents for some people.
Our aim is to open up more opportunities for all disabled people, and although government should provide the strategic leadership needed to achieve this aim, we cannot do it alone. In answer to a point made most recently by the noble Baroness, Lady Thornton, but also by many other noble Lords, we are working across government and with disability organisations to develop plans for action and mechanisms for monitoring progress which we will publish in the spring. As part of that, we are working and consulting with the widest range of disability groups, such as Include Me Too, the Afiya Trust and the Equalities National Council. We are making sure that the voices of BME disabled people are heard and have input to our disability strategy and, importantly, to the action plan that will flow from it. As part of this, we are setting up a new partnership—a disability action alliance— to bring disabled people and their organisations together with public, private and voluntary and community organisations to help shape and deliver what disabled people want.
I have already referred to the Equalities National Council, as have other noble Lords, and it is the joint authors of the report that we are discussing today. It and others are working with us to establish the alliance and have already identified some potential actions for us to take forward. These include, for example, building on the work they are doing to mentor BME prisoners with mental health conditions. If I may, I shall use the particular point about mental health conditions because I think that it helps illustrate our approach to quite a wide range of different areas. I am sure that noble Lords will understand that I am not able to respond on those areas in great detail.
The ENC is working with the Office for Disability Issues on the Disabled People’s User-Led Organisations programme and has been awarded £25,000 to create an ambassador programme. As part of that programme it will raise the profile of good mental health experiences and positive outcomes and help reduce the stigma attached to mental health conditions. The plan is also to give disabled people the confidence to approach mental health services earlier and be treated by GPs and community health teams before they reach crisis point, where interventions are more traumatic and punitive.
The noble Lord, Lord Ouseley, spoke at some length about the issue of mental health and BME people. He raised a number of issues, but on his specific point about excessive detention of BME people under Section 136, we are developing a programme of work with the police to improve the experience of people who are removed from a public place to a place of safety by police using Section 136 of the Mental Health Act. We will make sure that this takes account of BME people and that the solutions suggested are evaluated for any differential impact on BME groups. From the briefing that I have had in preparation for today’s debate, I am aware that there is quite a lot going on in this area. So, if I may, I will send the noble Lord a follow-up, because I think that I can provide him with some more information which I hope will serve to address some of his concerns.
The noble Lord, Lord Boateng, the noble Baroness, Lady Masham, and indeed many other noble Lords, raised the point about language barriers in a wide range of contexts. We recognise that English language skills are fundamental to people’s ability to participate in our society, to break down barriers and to do the everyday things that we all take for granted—and just basically to get on. It is important that we are clear about the distinction drawn between the automatic translation of public authority documents and the training that is available and the services that might be provided to people with specific translation needs. People refer to comments by my right honourable Friend Eric Pickles, but he was talking about automatic translation of public authority documents and the fact that they can be expensive and entrench segregation. That is separate from the specific issue of translation and cases in which someone has an individual need.
The Government have provided more than £8 million to 35 English for speakers of other languages providers, mainly in FE colleges in areas of England where there is the highest demand. The Government fully fund this provision for those on jobseeker’s allowance and employment support allowance in the work-related activity group. Under this general heading of translation, my noble friend Lady Berridge raised the issue of language barriers in the provision of PIP—the replacement for DLA—and what guidance was being given to the service providers. As she was kind enough to give me advice warning of that, I am able to respond to her in a bit more detail. I hope that my answer to her question will help give an indication of our approach to other noble Lords who raised the same point but in a different context.
We have committed to making the assessment process as accessible as possible to those with communication barriers. We have built this into our contractual arrangements with both assessment providers. They will make letters and other materials available in other languages on request, and will meet any reasonable request to accommodate claimants with additional requirements, such as provision of interpreters. If an additional requirement is identified on the day of the consultation then the provider will rearrange the appointment.
My noble friend also asked whether residential care homes will adapt to reflect the ageing demographic of BME disabled people and of those who cannot speak English or who have English as a second language. I will write to her specifically on that point. However, it is worth emphasising—and again, I hope that this point will give noble Lords wider comfort—that through the Health and Social Care Act 2012, for the first time ever, there are specific legal duties on NHS commissioners and on the Secretary of State for Health concerning health inequalities. That is something that exists now that did not exist before.
Many noble Lords raised a point which is in the Scope report regarding whether the Government should develop a race equality strategy. We know that particular issues can be exacerbated by race and noble Lords have pointed to some of them, including educational attainment, unemployment and ageing, as we have just been discussing. We do not think that dealing with these problems is easy, but we believe that the best way to make progress is to tackle the root cause and not the symptoms. That requires a new approach and a single equality strategy—one that is based on underlying principles and that moves away from treating people as groups or “equality strands” and instead recognises that we are a nation of 62 million individuals. In saying that I am reinforcing what I said at the beginning and what underpins most of what has been said today—that what we are looking for in our approach to all these issues is individual attention and being able to treat people in that way.
This approach not only requires but forces joined-up work across government and requires us to focus on the problems that an individual is facing. Perhaps I can give noble Lords just one example under the heading of employment. We have done a lot in south London where our Jobcentre Plus provision is working with a group in Brixton to support work experience candidates. In Birmingham, where more than 83% of the population is from a minority ethnic community, Jobcentre Plus and the city council have formed a co-designed project with a range of BME community groups to support local people.
It is worth me putting on record that the number of ethnic minority people in employment is more than 3 million for the first time ever, which is 380,000 higher than the figure in spring 2010. Claims for JSA have fallen faster among young black men than for any other ethnic group over the past year.
The noble Baroness, Lady Thornton, the noble Lord, Lord Boateng, the noble Lord, Lord Low, and my noble friend Lady Hussein-Ece all referred to equality impact assessments. Let me be absolutely clear on this. The Equality Act was designed to ensure that the needs of people are taken into account when we change or develop and implement a new policy or service. Impact assessments cannot and must not be a tick-box exercise. Completing these forms has never been a legal requirement. Having due regard to equality when forming policy and services is the legal responsibility on all public bodies; and that is not changing. Neither is the requirement to be able to demonstrate that it has happened.
What we are reviewing, because I believe that we owe it to everyone to keep strengthening our approach in this area, is how the public sector duty operates. We want to ensure that it is delivering, as effectively as it can, what all of us believe in and want: equality, fairness and the elimination of discrimination as policy is made and services designed.
Several points were raised by noble Lords which I will do my best to get through quickly now, although I know that I will have to follow up several of them in writing. If I fail to address them now, I will of course ensure that I follow them up afterwards.
I start by referring to a point made by the noble Lord, Lord Boateng, about a meeting between Ministers, the EMC and Scope. To be honest, I am somewhat confused here, because I have been advised that the Minister for Disabled People met both organisations last autumn. I will find out what has happened there and, obviously, follow up in writing on that point.
My noble friend Lady Browning talked about local commissioning and suggested that I provide some explanation about what is happening in that area for the benefit of all noble Lords. That I will do. In doing that, I hope that I can address the specific points raised by the noble Lord, Lord Macdonald, about dystonia.
My noble friend Lady Benjamin referred to sickle cell. Again, I will certainly look into that after the debate and follow that up in writing to her. My noble friend Lady Tyler and the noble Lord, Lord Patel, in particular, among other noble Lords, talked about disabled children and the impact on those from the BME community. They referred to the Children and Families Bill. As that comes from the Department of Education, which is not a department that I work with, let me look at what is expected in that area and I will of course follow up.
I draw to a close. Another point made in the course of today’s debate was about role models and how we inspire people. Reference was made to young people. The noble Lord, Lord Boateng, and others referred to the Paralympics and the whole atmosphere and culture created out of that fantastic event back in September. I remember clearly, just as we led into the Paralympics, the noble Baroness, Lady Grey-Thompson, saying that she was concerned that because there would be fantastically successful, brilliant and able Paralympians who would win medals, we should not give the impression that all disabled people could do so. For me, what was so important was that the Paralympians were role models not only to disabled people and people who have a great interest in sport; they were fantastic role models to all of us. We, the able-bodied, those of us who do not face barriers that other people face, should reflect on what we could achieve if we approached life in the way that many of them do.
We are working as a united Government to break down barriers of disability, race, religion, gender, age and social background. We are taking a personalised approach to enable people to reach their potential, rather than assuming that one size fits all. We believe that that mechanism best responds to individual needs, local circumstances and, in our view, is what works best to achieve the equal society that we are all striving for.
We have had a good day. I have listened and learnt a lot. I am grateful for this opportunity to share some information about what the Government are doing. I look forward to your Lordships holding me and my colleagues in government to account for delivering on that vision regularly over the rest of the Parliament.