Marriage (Same Sex Couples) Bill
Baroness Thornton Excerpts(12 years, 9 months ago)
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Lord Waddington
My Lords, I agree entirely with my noble friend Lord Phillips. We are talking about two types of union which are entirely different: different in the way in which the union is manifested, in the obligations that flow from that union, and in the sanctions that can be obtained if one party defaults.
At Second Reading my noble friend Lord Jenkin missed the point entirely, which is very rare for him. He did not think that lumping together these two unions was redefining marriage, and said that it was not going to redefine his marriage. With respect to my noble friend, that is not the point. What about those coming up to marriageable age who are contemplating whether to marry? Might not this mishmash of traditional marriage and the union of two people of the same sex, with the accent no longer on family, make some people wonder whether to go ahead? What will they feel when denied the opportunity to have a traditional marriage?
One of the strangest assertions I have heard during this debate is that marriage will be strengthened if we go ahead with this Bill. There is not a jot of evidence to support that proposition; in fact, all the evidence is to the contrary. Some of us may have heard Dr Patricia Morgan when she—
Baroness Thornton
Since the noble Lord thinks there is not a jot of evidence that marriage will be strengthened by this Bill, what evidence does he have—apart from his assertion—that this Bill will put people off getting married?
Lord Waddington
I was just getting to the experience of other countries, and it does seem that some people have been put off. Dr Patricia Morgan produced evidence to show that since gay marriage was introduced in Spain in 2005, the decline in heterosexual marriage has been precipitous. It has been just the same in Holland since 2001, and also in Scandinavia. There is not one example of this change going ahead and marriage increasing. The result has been exactly the opposite.
Baroness Butler-Sloss
My Lords, I, too, am a trustee of the Marriage Foundation, which I should say is totally neutral on this subject. In any case, I am speaking personally.
To pick up a point made by the noble Baroness, Lady Williams, about children, when I was a family judge I tried cases where I placed children with gay couples, male or female. I had the utmost confidence that those children would be extremely well brought up. Nothing that we are discussing today, or indeed in this Bill, leads me to believe that whatever a same-sex couple’s relationship is called would have anything to do with the excellent way in which very many children are brought up by lesbian and homosexual couples. That is my own personal experience, sitting as a judge.
I did not speak at Second Reading; I thought that 90 speakers were enough. Like others, I have received more than 100 letters which my secretary has so far replied to, and many more e-mails. It might interest the House to know that 98% were opposed to this Bill, but the 2% in favour were also extremely persuasive. Listening to the earlier speakers, it seems clear to me that the word “union” will not be treated by those seeking marriage as the equivalent of “marriage”, for the reasons that have already been given. Since it is clear that this Bill is going through, it is time for us to try to find the best way forward.
Those who support the Bill are—to use the colloquialism—hooked on the word “marriage”. That we have to accept, but the Government need to recognise the strength of feeling of those who are opposed to the use of the word “marriage” simpliciter as recognising the marriage of couples of the same sex. We must find a middle way. I strongly support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, because this House urgently needs to seek reconciliation and find a compromise, as the noble Lord, Lord Phillips of Sudbury, said earlier. Somehow we have to allow the word “marriage” and somehow we have to distinguish between different sorts of marriage.
As the noble and learned Lord, Lord Mackay of Clashfern, has pointed out—and I aim to say in later amendments to this Bill—this is a question of equality but it is not a question of uniformity. You cannot have uniformity in this Bill together with what you get in the marriage of opposite-sex couples. One only has to look at Part 4 of the Bill, as the noble and learned Lord, Lord Mackay of Clashfern, has done, to see that there are differences. There is nothing wrong with differences in equality. As the most reverend Primate the Archbishop of Canterbury said at Second Reading, there is a danger of equating equality and uniformity in this Bill.
I cannot see how Amendment 2 can be objectionable to people. The “marriage” word is used and those who are in any marriage are equal, but the amendment recognises that there are differences. You cannot say that marriage for same-sex couples has in any way a lower status than marriage for heterosexual couples has. For goodness’ sake, at the end of the day we are legislators, if I might respectfully remind the House, legislating for what people on the ground will actually be doing. As the noble Baroness, Lady Shackleton, pointed out, there are all sorts of marriages: those who wish to marry; those who are already married—I have to confess that I have been married for very nearly 55 years, and to the same man; and marriages for the second or third time. We have to recognise this, but we also have to recognise that there is a difference, and although the noble Baroness, Lady Noakes, talked about different sorts of marriage, the different sorts of marriage that she mentioned were actually between male and female, because in those days they could be nothing else; they were all male-female.
This amendment would be a compromise in an otherwise deeply divisive Bill. I have to say to those who have been talking about the children, particularly the noble Lord, Lord Carlile, that perhaps most important of all—
Baroness Thornton
I should like to ask the noble and learned Baroness a question. I have wanted to ask this of other members of your Lordships’ House who were speaking about the matter of calling a same-sex marriage a same-sex marriage rather than distinguishing it from what people are calling a traditional marriage. What is the noble and learned Baroness’s view about the fact that anyone who has a same-sex marriage would have to identify their sexuality by definition? Why should they have to do that?
Baroness Butler-Sloss
You have to recognise the truth of it. The most reverend Primate pointed out the importance of truth. It is different. We have to look at some stage, as the noble and learned Lord, Lord Mackay, pointed out, at how we deal with the children of a couple who cannot have their own children as a couple.
Baroness Thornton
I beg the noble and learned Baroness’s pardon, but in other parts of our legislation—in our equalities law—we protect people from having to declare their sexuality, because we think that that is the right thing to do. It is not a question of the truth or not the truth.
Lord Aberdare
My Lords, I had not intended to intervene in this debate, but I will make two brief points. First, I am very uncomfortable with the references we have heard to a new definition of marriage. As I understand it, the aim of the Bill is to enable same-sex couples to share in the existing understanding and status of marriage. My understanding of my marriage is not primarily gender-based; it is based on the fact that I love my wife and wish to stay with her for the rest of my life. That has nothing to do with gender.
Secondly, I would love to find a compromise—I am a compromising sort of person, and I very much welcome the recognition of my noble and learned friend Lady Butler-Sloss that the word “marriage” is essential in whatever we end up with—but I find it extremely hard to imagine any compromise that would not formalise the idea that there are two different forms of marriage. Therefore, I tend to agree with the noble Lord, Lord Alli, that it is either one thing or the other.
Baroness Thornton
My Lords, we have had a long and interesting debate about the definition of marriage and about this group of amendments. I accept fully that noble Lords are, with the best of intentions, trying to find a way through. However, we on these Benches think that the effect of all the amendments in this group would be the same. All, in different ways, seek to enshrine in law a distinction between what is referred to as “traditional marriage” or “matrimonial marriage” and the new, statutory definition of marriage that will be created under the Bill, which encompasses the union of both opposite-sex and same-sex couples. Whether those who tabled the amendments intended to or not, they were in effect making two classes of marriage. Trying to find different definitions—and in some cases, I fear, jealously guarding the word “marriage” for heterosexual couples—suggests that one form of marriage is inferior to another and that flies in the face of the Bill.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, was quite right in his remarks, as were other noble Lords, including the noble Lords, Lord Dobbs and Lord Black, the noble Baroness, Lady Richardson, my noble friend Lady Turner, the noble Baroness, Lady Shackleton, in her excellent speech, the noble Baroness, Lady Noakes, and the noble Lord, Lord Carlile. They all appreciated that while those who tabled the amendments have a strong personal belief about marriage, in some cases rooted in their religious faith, their amendments would undermine the purpose of the Bill.
It is important to make a distinction between something that has the effect of undermining a belief or an idea and something that undermines an individual’s ability to hold such a belief. I find it difficult to believe that, when the Bill becomes an Act and same-sex marriages are a routine matter, as they will be, the noble Lords who have been so nervous today will feel that something important or precious has been removed from their faith or their strong belief in marriage.
Article 9 of the Convention on Human Rights clearly enshrines an individual’s right to freedom of thought, conscience and religion. We must be absolutely clear in our protection of these rights. The Bill seeks to do that. The Bill does not in any way undermine those rights for individuals in relation to their belief about the appropriate nature of marriage. As the noble Baroness, Lady Richardson, said, its purpose is to provide for the state to recognise equally the relationships of couples, regardless of whether they are between members of the same sex or of opposite sexes, who wish to make a loving and lifelong commitment to each other.
By inserting a distinction between same-sex and opposite-sex marriage back into statute, whether by describing one as a “union”, as Amendment 1 would do, or as matrimonial marriage requiring special privileges, as Amendments 46 and 57 do, or by setting up a separate register, we would undermine the purpose of the Act, which is to remove the distinction in law between same-sex and opposite-sex relationships. Therefore, we on these Benches have no sympathy with, and do not support, any of the amendments in this group. I ask noble Lords not to be seduced by what I regard as the lethal combination of the noble and learned Lord, Lord Mackay of Clashfern, and the most reverend Primate the Archbishop of York. The way they described what they wish to achieve was seductive, but it would have the same effect on the Bill.
Lord Mawhinney
I think that the noble Baroness suggested that my amendment was designed to undermine the Bill, although I explicitly made clear that it was not. What would she think about giving ordinary members of the public the assurance that they can use certain phrases, by putting them in the Bill, to protect themselves against undue political correctness? My amendment has nothing to do with the substance that she has addressed so far in her speech.
Baroness Thornton
I think that noble Lords’ concerns about free speech will be addressed at a later stage in Committee, in the next group of amendments but one. I am certainly happy to address those concerns. This group of amendments is about the substance and purpose of this Bill. The Government have addressed the freedom of speech issues; indeed, they are covered in this legislation and in the legislation that is already in existence.
Baroness Thornton
Is the noble Lord aware that the Equality Act 2010 does all of this? I recommend that he reads the guidance that accompanies that Act. The legislation received cross-party support in this House. It is a carefully balanced Act that already offers all the protections that the noble Lord mentioned.
Lord Dear
The point I would make is that the Equality Act is shot through—I am sorry, I shall retract that. The Equality Act attracts a mass of legislation in which actions are taken against individuals who are said to be in breach of the Act. These amendments will put into statutory form the words,
“worthy of respect in a democratic society”.
I suggest that they will cap off a large number of those actions. Putting it in simple terms, the Equality Act is not proving to be as watertight as it was first imagined to be.
Baroness Thornton
Would the noble Lord care to tell the House what he thinks is a reasonable limit to the view that that gentleman should express? For example, if one substituted the word “black”, would that view then be reasonable? The policeman is publicly expressing his feelings about something. What does the noble Lord think is a reasonable way to do that? What would he think if, for example, he had used “black” instead of “same-sex marriage”? It seems to me that there must be a limit to what our public servants can express and cannot express. I would be interested to know from the noble Lord where he thinks that limit sits.
Lord Singh of Wimbledon
I am happy to answer that point. Any freedom of speech should be open. It should be there, but it should not be the freedom to denigrate anyone. That is the boundary. You can express an opinion, but if you denigrate other people that is wrong.
Lord Stoddart of Swindon
My Lords, it is absolutely necessary that some of these amendments should be on the Marshalled List. They have been discussed at length today and will be discussed further. But the fact remains that there is a perception that people will be restrained from expressing their views about marriage as a result of this Bill. The correspondence that I and many others have received show that there is a very considerable concern that people will be denied the freedom to criticise same-sex marriage when this Bill goes through—I say “when this Bill goes through” because it quite clearly will go through. Therefore, it is right and proper that this House should ensure that there are proper provisions to ensure free speech. There have been instances where free speech has been guaranteed by Ministers but not carried out by people in other walks of life and other areas of employment.
People are also concerned at the speed with which this Bill was introduced and is being rushed through Parliament. They feel that there has been insufficient public discussion of this very important Bill, which alters parts of our constitution, and that it is being rushed through and their views are not being properly taken into account. After all, we must recognise that the percentage of gay couples is 1.5% and therefore 98.5% of the population has to be taken into consideration as well. If people disagree with this Bill, they must be able to express their opposition after the Bill has been passed without fear of being dismissed or otherwise harmed by their employers or having a policeman knock at the door because they have made some off-the-cuff remark.
Baroness Thornton
My Lords, we have had another interesting and informative discussion.
I wonder how much confusion there is about the fact that when we disagree with each other, that is okay; that it is okay to disagree with each other quite vehemently; and that it is all right to express those vehement disagreements. Our view on these Benches is that the law recognises that that is exactly right. It took me back to the passage of the Equality Act 2010, when the interventions of the noble Lord, Lord Lester, made precisely the point that needed to be made about the protections that existed. Those protections do exist. The fact that they are tested from time to time, and that people on both sides do silly things with them from time to time, does not mean that they are not valid protections; they are very valid protections indeed.
We believe—and the Commons agreed in its debates—that there is no need for additional protection under the Equality Act 2010. It is not necessary. There is already protection for people’s religious beliefs in law, which encompasses views about marriage. It would also be invidious, because it would make the only specific belief that has protection under this part of the Equality Act one that defines marriage as being between a man and a woman. I will return to that.
It is worth saying that Amendment 19 would make a particular viewpoint on marriage, which could be held by people with or without religious beliefs, the only belief that was expressly protected from discrimination on the grounds of religion or belief, elevating it above any other belief. This could have exactly the opposite effect to that intended by the noble Lord, Lord Singh, since a person who believes that the definition of marriage as being between a man and a woman is wrong would also be protected. Therefore, it may do exactly what the noble Lord does not want it to do.
As I said during the debate, the Equality Act 2010 is a carefully considered piece of legislation, which balances the rights of one protected group against those of another. Sexual orientation and religion or belief are both protected characteristics under the Equality Act, meaning that it is illegal to discriminate against someone on the grounds of their sexual orientation or their religion.
The Equality Act already takes care to provide protections for the beliefs of those with a religious faith, including on issues of sexual orientation and marriage. For example, guidance accompanying the Equality Bill, states:
“In the case of Ministers of Religion and other jobs which exist to promote and represent religion, the Bill recognises that a church may need to impose requirements regarding sexual orientation, sex, marriage and civil partnership or gender reassignment if it is necessary to comply with its teachings or the strongly held beliefs of its followers”.
It is completely clear that the law already exists to protect those views and their expression. Religion and belief are protected characteristics under the Act. It means that we cannot be discriminated against for holding or expressing those beliefs. On these Benches, we did not think that the government amendment was necessary, as my noble friend Lord Alli mentioned, but we understand that the Government are acting in good faith on a commitment made by a Minister in another place. Therefore, we accept that the Government are bringing the amendment forward with the best of intentions and that it certainly does no harm. If it gives people peace of mind, that is only to be welcomed.
I will not go through the rest of the amendments because I suspect the Minister will do that extremely well—and it is nearly dinner time.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have spoken in this very important and helpful debate. May I say first that I am grateful to the noble Lord, Lord Alli, for repeating what I said at Second Reading? The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman. It is their right to express that belief and the Bill does nothing to change that. I am also grateful to the noble Baroness, Lady Thornton, and my noble friend Lord Lester for what they said about the Equality Act protecting people who have a range of religions beliefs but in this context hold the belief that marriage should be between a man and a woman and are free to express that belief. It is important that I continue to make that clear.
I also recognise, however, that people are looking for reassurance and want to know that it is perfectly legitimate to continue to hold the beliefs that they have always held, and that they will not be in any way disadvantaged because of these beliefs—or, indeed, that it would be unfair for people to criticise them in any way, although clearly it is free for anybody to express an opinion that is contrary to that view.
As the noble Baroness, Lady Thornton, mentioned, the Government are bringing forward an amendment to the Public Order Act. I will speak to that in a little more detail when I take the amendments in turn. We felt that it was important for us to do this as we recognised the need for assurance and because it was possible to make that amendment to the Public Order Act without causing any detriment to anybody. We really do understand that people are looking to us for assurance.
The amendments have clearly enabled us to explore issues of conscience in relation to the Bill, and it is right that we should do so. Let me start with Amendment 5, which was moved by my noble and learned friend Lord Mackay of Clashfern. He seeks to explore how the Bill could impact on those seeking appointment to a public office—such as appointment to the board of a non-departmental body. The amendment seems to be based on the premise that, should the Bill be enacted, anyone expressing a belief that marriage should only be between a man and a woman might somehow be excluded from appointment to public offices.
I can reassure noble Lords that this is certainly not the case. This Bill is not about forcing people of faith to change their religious views, practices or teachings about marriage. The belief that marriage should be between a man and a woman is, and will continue to be, mainstream and entirely lawful. Indeed, the Bill explicitly makes clear that such a belief is legitimate and mainstream through the specific protections it provides to ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so.
Public appointees, like anyone else, are and will remain free to express their religious or philosophical beliefs as long as this does not affect their ability to do their job.
Marriage (Same Sex Couples) Bill
Baroness Thornton Excerpts(12 years, 9 months ago)
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Baroness Thornton
My Lords, I am pleased to be here and that I heard the noble Lord, Lord Forsyth, coming over the hill as cavalry in aid of the noble Lord, Lord Dear. It is an honour to give the opposition winding speech on this Second Reading debate in your Lordships’ House. I am not envious of the task that the Minister has in answering the substantial and passionate debate that we have had for the past two days. My noble friend Lady Royall outlined most eloquently in her opening remarks the reasons why Labour is supporting this Bill and the Government, but as in the Commons there will be a free vote. I shall not repeat all of her arguments.
When we are contemplating something new, I always think that international comparisons are helpful. Last month this House supported making caste discrimination part of our legislative equality framework. In doing this, and persuading the Government and the Commons that it was the right thing to do, we were blazing an international trail of which we should be proud. Today, we are not being so adventurous, because we are proposing that the UK will soon join those countries that have now signed same-sex marriage into law. They are Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Portugal, Norway, Spain, South Africa, Sweden, Uruguay and now France.
I offer my congratulations to Vincent Autin and Bruno Boileau on their marriage last week. It was historic for being the first same-sex marriage to take place in France following President Hollande’s signing of the legislation into law. First and foremost, it was a momentous day for this couple, who on that day made a loving and lifelong commitment to one another before their friends and family, just as I and many in this House have done over the years.
The objections to the Bill to bring same-sex marriage on to the statute book seem to fall into two or three categories. There are noble Lords who are uncertain that freedom of religion will be respected by the Bill. To them I say that the Government have built huge safeguards into the Bill, which, it is widely agreed, will do the job. The most reverend Primate and the right reverend Prelates who have spoken have woven brilliant theology and arguments against the principle of same-sex marriage, but as the noble Baroness, Lady Neuberger, my noble friend Lady Mallalieu and others have said, the state’s concept of marriage has been ever-evolving. It has long since diverged from religious teaching. They have not managed to unpick the locks, so to speak.
While lawyers can always find something to disagree about, I would encourage those noble Lords to read back the speeches of the noble Lord, Lord Pannick, and my noble friend Lady Kennedy of The Shaws, who have explained the strong assurances that legal security is provided by the Bill. Some concerns have been raised by noble Lords about the position of teachers and faith schools in reconciling their views of marriage with the new reality. My party is confident that the current law achieves the right balance in securing the right of faith schools to educate pupils in a way that is sensitive to the law of the land and also to students, some of whom may be gay or have parents of the same sex. I may never use these words again, but I agree with the evidence that Michael Gove gave to the scrutiny Committee stage in the Commons. However, it is right that these issues will be tested and scrutinised by this House in Committee, because it is right that these questions and concerns are allayed.
There are those who say that the Bill is in some ways anti-democratic, that it was not in manifestos, that there was no Green Paper—and, they add, let us rubbish the consultation—and they ask why it was not a Private Member’s Bill. The noble Lords, Lord Norton and Lord Kerr, covered the constitutional points, and I agree with their analysis. We have to look at the strength of feeling in favour of the Bill in the Commons. It is remarkable that the majorities at Second Reading and Third Reading were so large. It may serve the opponents’ purpose to suggest that some kind of secret Whip was applied, but I am with the noble Lords, Lord Cope and Lord Bates, about the whippability of such an issue.
Many MPs thought very hard about the Bill and had serious discussions with constituents before deciding how to vote, but each MP made a decision alone about whether to support it, and so must we. Rarely as parliamentarians do we have the opportunity, by the words that we use and the votes that we cast today, to affirm the equal respect that we have for our fellow citizens regardless of their sexuality and the equal respect that we have for their long-term and loving relationships.
We have also had a bit of scaremongering. Scaremongering to further an argument in which you passionately believe is a legitimate debating ploy, but noble Lords are wise and experienced enough to recognise scaremongering when they see it. We can safely say that the noble Lord, Lord Tebbit, won the award for this one. In a short and sharp intervention, he managed with his usual skill to provide a scare for almost everything, including compulsory promotion of homosexual marriage and artificial insemination of the heir to the throne.
Lord Tebbit
Clearly, the noble Baroness has the answer to all questions and is going to tell me the answer to the question that I asked about the heir to the throne.
Baroness Thornton
Yes, goal. I am happy to say that it is the Minister who answers the questions here.
The noble Lord, Lord Dear, also did quite well in the old scaremongering field when he said that some 8,000 amendments might be required by this legislation. I thought that that was remarkable and checked whether it is true. I am pleased to reassure the House that this seems not to be the case. The noble Lord seems to have confused the fact that there are indeed 8,000 references to marriage within the total library of legislation, without the need to amend them all. Furthermore, it is clear from discussion with the Bill team and reading the Bill that Clause 11 and Schedule 4 deal more than adequately with his concerns. I am sure that the Bill team will be happy to explain this to the noble Lord in due course.
Other noble Lords feel uncomfortable with what they see as a departure from traditional marriage. I do not doubt that this is how they feel, but I ask them to reflect a little deeper on those feelings. Is it habit and familiarity that make change uncomfortable and unsettling? This was referred to by the noble Baroness, Lady Jenkin. The Minister noted that we all move at a different pace when faced with change. As the noble Lord, Lord Deben, put it so eloquently, major social changes do not happen when the majority align themselves; they have almost always happened when a minority has stood up for what it believes to be right, put it to the public and in the end proved that it is right.
Unfortunately, some who profess to believe in equal rights for everyone, regardless of gender, race and sexual orientation, find it difficult fully to escape prejudices ingrained over many years when homosexuality was said to be at worst an abomination, or at least something to be very quiet and discreet about because it bordered on the shameful. To noble Lords who are finding the idea of same-sex marriage difficult to come to terms with, I make a plea that they should listen to their heart and indulge their generosity of spirit. Having heard the deeply personal speeches of the noble Lords, Lord Browne and Lord Smith, my noble friends Lord Alli and Lord Collins, the noble Lord, Lord Black of Brentwood, the noble Baroness, Lady Barker, and the noble Lord, Lord Carlile, it would be hard not to be moved—and it would be very hard-hearted not to support same-sex marriage.
The noble Lord, Lord Faulks, asked me a direct question: would my Government have brought in this legislation? Given that we brought forward all the equalities legislation between 1997 and 2010, and given the presence of my noble friend Lord Alli over my shoulder, how could I say otherwise? It is the personal testimony not just of noble Lords who have faced discrimination and struggle because of their same-sex relationships, but of all noble Lords who have spoken of the love and strength they have found through their partners, civil partners, husbands and wives, that should secure our resolve to reject the amendment of the noble Lord, Lord Dear, and proceed with the Bill. I speak of my noble friends Lady Royall, Lord Brooke of Alverthorpe, Lord Young of Norwood Green and many others.
For many, marriage is the glue—my noble friend Lady Mallalieu called it the superglue—that binds together relationships and gives those in them the strength to face life’s challenges. To have the opportunity to extend this privilege to all couples who want to make that commitment is something that we must now embrace and celebrate as a means to a stronger and more loving society.
I look forward to the Bill receiving a Second Reading today and to getting on with the Committee stage, where I hope we will make progress with many of the issues raised by my colleagues and by noble Lords across the House. We on these Benches will look at pension rights, transgender couples, about which my noble friend Lady Gould spoke so passionately, and humanist marriages, which were referred to by the noble Lord, Lord Birt, and which we are keen to see introduced. Therefore, I urge the House to vote against the amendment of the noble Lord, Lord Dear, and to see the Bill through to its next stage. For the sake of clarity, if noble Lords support the continued passage of the Bill, the Lobby to go into is the Not-Content, and I look forward to seeing many of them there.
Enterprise and Regulatory Reform Bill
Baroness Thornton Excerpts(12 years, 11 months ago)
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Baroness Thornton
My Lords, I will make some very short remarks because the noble Baroness, Lady Campbell, and the noble Lord, Lord Low, have more than adequately explained why we find ourselves in this rather unfortunate position—I agree with the noble Baroness, Lady Campbell—of asking the Government to look again and asking another place to take this back.
It is important also to say that one thing has changed since we discussed this in Committee and on Report. That is that the EHRC has given this matter some further reflection. I congratulate the noble Baroness, Lady O’Neill, because it is a sign of the maturity of the organisation that it has changed its view on this matter at least a small amount. I will read out a statement that was issued, and that is about the only thing I will say. The statement about the repeal of Section 3 on its website says:
“However, the debate in the Lords and commentary by parties have underlined the importance which is attached to the general duty. Many people clearly believe that, both in terms of the perceived mission and role of the Commission, and the coherence of the legislation, it is valuable to retain the general duty. Unless the government can provide additional robust reasons for removing the general duty in the current situation, our analysis suggests the case for removing the Lords’ amendment in the Commons has not been made. The Commission therefore continues to support retention of the general duty and maintaining the position established by the Lords”.
We know from the previous debates and from listening very carefully to what the Ministers in this place and in the other place have said that there is actually no robust case for the repeal of the general duty. Your Lordships’ House took that view by a majority of over 50 when this was discussed on Report. I put it to your Lordships’ House that the one thing that has changed is in favour of the retention of the general duty, and I hope that the Minister will now weigh this issue in the balance and agree to leave Section 3 in place. Indeed, if the Government wish to review Section 3 or any other part of the equalities legislation then that should be done with prior consultation and the involvement of the Joint Committee on Human Rights. We on these Benches do not believe that that is desirable or necessary, but if it were to be done it should be done in a proper way, not as part of a Bill that addresses regulatory burdens on business and enterprise.
Lord Lloyd of Berwick
My Lords, the Minister has not advanced this evening any of the arguments that she advanced at the beginning of January for repealing Section 3 of the 2006 Act. I will therefore leave those arguments on one side.
Instead I will turn to the arguments advanced by the Minister in the other place. He asserted boldly that Section 3 of the 2006 Act should be repealed because it was not a core purpose of that Act. With great respect, that is exactly what it was. Section 3 was in a sense the core purpose of the 2006 Act, that purpose being to bring together for the first time in legislation equality rights with other fundamental human rights. The specific duties under Sections 8 and 9 were to be the means of bringing about that core purpose. That was the very point made by Professor Sir Bob Hepple in his report. He said that Section 3 is important because it states for the first time what he called the “unifying principle”. It is most unfortunate that the Minister in the other place, when he came to his reply, did not reply to that argument or to any of the arguments advanced in the other place; sound arguments and convincing arguments, they were all, unfortunately, left aside because there was no time to deal with them.
There is a hint, elsewhere in what the Minister said, that Section 3 is undesirable because it would, as it were, take the commission’s eye off the ball to the exclusion of the important duties under Sections 8 and 9. There was never much danger of that. In any event, the commission has now made it clear, if I am right, that it would now welcome the retention of Section 3. If that be so, surely we should leave it at that.
It is not often on these occasions that we should resist the view of the House of Commons at this stage of ping-pong. However, the Government have not given one single solid reason why we should repeal a provision that both Houses were in agreement on as recently as 2006. As I have said, the Minister did not deal with any of these arguments in his reply. We should give him another opportunity of doing so, and another opportunity to the other place to see if they agree with those arguments or not. For that reason, I will vote for the amendment in the name of the noble Baroness, Lady Campbell.
Baroness Thornton
My Lords, do I sense that the House would like to move on? I think that is probably the right thing to do.
Baroness Flather
I would like to speak, and the noble Lord, Lord Dholakia, wants to speak. We have been waiting for our chance.
Baroness Thornton
My Lords, I thank the noble Baroness, Lady Flather, for her remarks and I would not for a moment dare to have stopped her contribution to this debate.
The principle that we are discussing remains as simple and straightforward as it was when it was debated in 2010, in Committee on the Bill and on Report. The question is: how do we give legal protection to the victims of caste discrimination? That was reflected throughout the debates in the Commons and this House. It is the case that there is a lacuna in our equality legislation, and surely it is our responsibility to ensure that this form of discrimination, however few the cases are—even if there were only one—has redress under UK law. We do not need any more research to tell us that there is caste discrimination and that it needs a legal remedy.
On these Benches we have been doing what the Government until very recently had signally failed to do over the past two to three years. We have discussed the matter with and made ourselves available to all the groups that have an interest, including those who have reservations and are opposed. I remind the House that it is only because the noble and right reverend Lord, Lord Harries, raised this matter in Committee that the Minister agreed to meet the anti-caste-discrimination groups after refusing to do so for more than two years.
We accept that the Government have some ground to catch up on in the implementation of this legislation and, in the spirit of the cross-party support for this cause, we would like to help them to do so. I am particularly grateful for the constructive dialogue that I and my colleagues in the House of Commons have had with the Alliance of Hindu Organisations, the ACLC, the Sikh Council and the British Sikh Consultative Forum, among others, as well as the Anti Caste Discrimination Alliance and the Dalit Solidarity Network.
I know the House will agree that it is important to put on the record that this is not about vilifying an entire community. Caste discrimination is not specific to any one religion but to residual social and cultural practice, and I hope that the Minister will agree with that. We believe that it is vital that this amendment is carried today and sent back to the House of Commons, because if we do so I am sure that the next stage will be one of negotiation about how, not whether, we deal with caste discrimination.
There are two reasons for that. First, only if we pass this amendment again will the Government realise that the serious matter of caste discrimination has strong cross-party support led by distinguished parliamentarians from all parts of this House and the Commons. Secondly, there is evidence, as the Minister’s remarks revealed, that the Government are considering their position again. We believe that the House of Lords reaffirming its view on this matter will help in that process and permit a discussion on how to move forward. This is the invaluable role that the Lords can play in such matters.
Since the House last discussed this matter, we in the Labour Party have been addressing the matter of implementation with the wide range of different groups that I have already mentioned. We wrote to the Minister over the weekend with our views and offered support, help and co-operation in the implementation of this legislation.
Coming from Bradford, I know that the south Asian communities are among the most enterprising and fair-minded in the UK, and that those community leaders who first arrived in Britain in the 1960s and 1970s do not need any lectures from us on the evils of discrimination. Yet, just because discrimination is perpetrated by a very small number of individuals, that is no reason not to have legislation.
Although I start from a different position in relation to legislation from some of the organisations that I have mentioned, I believe that we are all united in the view that if legislation goes ahead, and we hope it does, we must ensure that the process of implementation is right so as to prevent the entrenchment, rather than the eradication, of caste distinctions in British society.
As soon as this legislation is passed, we think that before the clause is enacted the Government need to commit to conducting a consultation on the interpretation of the term “caste”, which should be set out in guidance or secondary legislation. This would allow time and space to deal with the genuine concerns that have been raised, such as ensuring that this is not interpreted as religion-specific.
The Government should commit to setting out guidance or secondary legislation that employers or public bodies should not seek information about caste identification, nor must there be any requirement on individuals to disclose their caste. We know that this is possible with sexual orientation and we suggest that that holds the way forward. The goal must be to eliminate, not increase, the number of people being identified by caste. Therefore, if the legislation proceeds, we ask that Ministers seek to underpin the guidance with that principle.
This consultation detail and guidance needs to be in place before the new law is enacted. We are therefore happy to support community suggestions that there should be a delay in the implementation of the new clause for perhaps one year, possibly two, after the Bill receives Royal Assent.
We have suggested that the Government should consider a timetable for a statutory review of the clause. There is a clear consensus and commitment across all communities to work to eliminate caste divisions in the UK and ensure that the UK remains, as one individual put it, “the great leveller that it is”. If it comes to a point where caste distinction has become a non-issue in the UK, we should recognise that legislation may not be needed any more, so perhaps there should be a review in 10 to 15 years from commencement.
I think the Government have not thought through their Talk for a Change education programme. It must not be a project that aims to better inform individuals about caste in a way that increases the awareness and use of caste as an identifier and divider. Will the noble Baroness clarify that the Government’s purpose is to facilitate initiatives within communities to address existing residual discriminatory practices?
The Minister will argue that the Government want to consult first on whether to provide legal protection, which I think is the point of her remarks. The Government have come a long way in thinking about this, but we part company from them because we believe that we need to pass this amendment now, to get the legislation on the statute book, and then to resolve the issues that flow from that. That is why we again support the noble and right reverend Lord, Lord Harries, from these Benches.
I regret that the noble Lord, Lord Deben, has, as it were, decided to cave on this matter, although I accept that he has made great threats to the Government, which I am sure they are taking on board. He is right that this is a question of trust. The Government have had two years, almost three, to deal with this issue and have done nothing at all until this moment. I wonder what guarantee can be given by the Minister, other than legal protection, about taking this issue forward; her remarks leave it open to doubt whether the Government are prepared to do so. If this House does not keep the Government’s feet to the flame on caste discrimination, we must fear that it will be kicked into the long grass again and that nothing will happen. I hope that the Minister will agree to this amendment today. If not, I hope that the House will again support the noble and right reverend Lord, Lord Harries, and a move to discuss implementation in a way that achieves the goal of eliminating caste-based discrimination.
Baroness Stowell of Beeston
My Lords, I am very grateful to all noble Lords who have contributed to this debate. There have been some important and powerful speeches tonight, as there have been at all stages of the passage of this Bill. I will do my best to respond to most of the points that have been raised but will try not to take too much time, so forgive me if I do not go into great detail.
First, in response to the noble and right reverend Lord, Lord Harries, I will just clarify something that I said which he picked up on. The Government are not suggesting that we should replace the word “caste” with the word “descent”. That is not something that we are proposing; I raised it purely to highlight that it that had been raised by others in the course of this debate.
Several views have been expressed in the Chamber this evening. The noble and right reverend Lord, Lord Harries, questioned a comment I made that some people do not want to be defined by caste. He argued that that should not lead to a decision that we should not recognise caste in law in order to protect against discrimination. I will make a couple of points in response to that. First, over the past couple of weeks in the discussions that the Government have had with different bodies, it has been made very clear to me while attending those meetings that some people do not want to be defined by caste and are worried that caste legislation would allow that. In response to the noble Baroness, Lady Flather, the person who made that point most forcefully to me was a woman from the Hindu community.
It was interesting and illustrative that the noble Lord, Lord Singh, made the point that caste is absolutely not a feature at all in the Sikh religion. The noble Lord, Lord Parekh, said that caste is something that can be recognised across a wide range of different faiths. Indeed, the noble and right reverend Lord, Lord Harries, talked about this being something that can be found in the Christian faith. There are clearly, just in the debate that we have had this evening, several views being expressed in this regard.
International Women’s Day
Baroness Thornton Excerpts(13 years ago)
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Baroness Pitkeathley
My Lords, it is always a huge pleasure to take part in this debate. I, too, am grateful to the Minister. As ever, I am in awe of the amount of experience, passion and expertise which Members of your Lordships’ House bring to the subject. This far down the batting order—we have had quite a few sporting metaphors today—it is difficult to think of anything new to say, but I just want to say a bit about public service.
All my working life has been in public service. I have never worked in the private sector. I have worked for local authorities, for the NHS or in the voluntary sector. Because I know what a hugely fulfilling experience this has been, I am concerned, even appalled, by recent reports about the fact that the number of women in British public life is plummeting; that there are fewer women now in senior positions in the judiciary, the arts, education, finance, the Civil Service and government than 10 years ago. Nearly 40 years after the Sex Discrimination Act and despite a huge influx of women into professions such as law and medicine at the lower end, as we have heard today, the glass ceiling for senior positions remains very firmly uncracked.
I count myself extremely fortunate to be able to sit in a legislature without standing for election, because of the peculiar institution that is the House of Lords. I know that it is ironic that I am saying that we should have more representation of women when I sit in a House that has only 21% women and, although we have many bishops, no women bishops, as the marvellous maiden speech of the right reverend Prelate has reminded us. It is of concern to me, and should be to all women, that we are 51% of the population, but only 22% of the House of Commons and a bit over 21% here.
A high point came in 2008 when Gordon Brown appointed Jacqui Smith as the first female Home Secretary. Before the Labour Government in 1997, only 40 female MPs had ever held ministerial office. By the time that Government ended, that had risen to 80; indeed, at that time women held a third of all ministerial posts. Currently, I am sad to say, many departments have no women Ministers at all, in spite of the ambition of the Prime Minister, which we have heard about several times.
Of course, many of the institutions that have promoted women have been abolished: the Equalities Office, the Women’s National Commission, to name two; and of course the Equalities and Human Rights Commission has been amalgamated with other institutions.
It bothers me greatly, as I know it does other noble Lords, that there is a perception that the battle for equality was won a while ago—by my generation, perhaps—but it is simply not true. Some people might say that it does not matter but I contend that having an 80/20 split rather than a 50/50 split has a damaging effect on our political life and on our social and cultural life as well.
Why do we find ourselves going backwards? One reason might be lack of leadership from the top. We still have a female Home Secretary, and other women do very well in some branches of industry, but the fact that there are so few sends a message to other women. Is the treatment by the media of women in public life harsher than it is for men? I contend that it is and that may also put women off.
The hours here and in the other place are not family-friendly, as we know. They are better than they were, especially in the House of Commons. The House of Lords is notorious for starting a debate on family-friendly hours at 10.30 pm. In fact, I think that the noble Baroness, Lady Thornton, was due to make her maiden speech in that debate.
Baroness Pitkeathley
We do a little better than that now, but perhaps not all that much better. Perhaps the image that politics is an inherently sexist arena—recent events may have reinforced that image—is also not welcoming to women.
We have also heard that it is hard to give up power. Power largely resides in the hands of men, who understandably want to retain it. Inadequate childcare is certainly a factor. A recent survey shows that two out of three local authorities are failing to fulfil their statutory obligation to provide childcare, despite the progress that the Minister mentioned. If the lack of support in the childcare area is a factor, how much more this is true of women who have caring responsibilities for older or disabled relatives.
It is in all our interests to enable those women, many of them over 50, to remain in the workforce. We need them to provide care but also to be able to continue to combine caring with paid employment. Their contribution to the economy is vital in both roles but we must also ensure that the caring role does not of itself lead them to live in poverty or build up poverty for the future because of a lack of pension contributions or savings. I am pleased to say that, yesterday, Carers UK launched an inquiry into caring and family finances, examining the costs of caring and the impact that caring has on the ability to work, with the aim of influencing policy in this area.
So far as public service goes, we must ask: what can we do about it? We can get better leadership from the top. We can stop rubbishing the idea of public service. Too often we hear that civil servants are interested only in bureaucracy. We must talk up public service.
We must have parity on interview panels, because we tend to appoint or choose people in our own image. Having appointed dozens, probably hundreds, of people in my time, I know that men tend to oversell themselves while women go the other way and undersell themselves. In that regard, increasing the self-confidence of women is all-important. Those of us who have been reasonably successful in public life owe a duty to our daughters and granddaughters to build that confidence so that the whole of society can benefit.
Baroness Thornton
My Lords, I congratulate the noble Baroness, Lady Stowell, on initiating this debate, and particularly congratulate the right reverend Prelate the Bishop of Coventry on his great maiden speech. We look forward to more speeches from him as time goes on. My maiden speech was referred to in this debate. I have to say, it happened not just to me but to the noble Baronesses, Lady Uddin and Lady Miller of Chilthorne Domer. We all made our maiden speeches about family-friendly working hours at 10 o’clock at night. Indeed, my children were in the gallery in their pyjamas watching me at the time.
We have had some brilliant speeches today. I am particularly drawn to the comments by the noble Baroness, Lady Heyhoe-Flint, about barriers to women in sports and clubs, being stuck in the car park, and so on. It reminded me of an experience I had about 30 years ago when I decided to throw my hat in the ring for selection for a by-election in Bradford, which is where I am from. I turned up to one of the selection meetings at a working men’s club. I was the only woman who was being seen. All the men walked in to take part in the meeting, but I was not allowed to walk in—I had to be signed in by the secretary of the club, because women were not allowed to be members. I am happy to say that I doubt whether that goes on in working men’s clubs these days.
International Women’s Day is a day for celebration, there is no doubt of that, and I am sure that noble Lords and the Minister will all be joining women across the world in singing “One Woman”, the International Women’s Day song which will be launched tomorrow. It is a musical celebration of women world wide, featuring more than 20 artists from across the world. Unlike the Minister, when the first International Women’s Day was launched by the United Nations in 1975, I was at the London School of Economics and the women’s group there had a party to celebrate it. However, I do not remember much about it.
As the Minister said, thousands of events will take place not only tomorrow but throughout the month of March to mark the economic, political and social achievements of women. As has already been mentioned by noble Lords, the theme which has been declared by the United Nations for 2013 is, “A promise is a promise: time for action to end violence against women”. In 2012 the theme was, “Empower rural women: end hunger and poverty”. In fact, every year since 1975 there has been a different theme. Parliaments and countries can choose their own theme for International Women’s Day, of course. In 2012, the European Parliament used a theme around equal pay for work of equal value. We can be proud of the 400 events in the United Kingdom. As my noble friend said, the United Nations website indicates that the UK is the most active country in the world in terms of celebrating International Women’s Day. It could be that other countries have not bothered to send in what activities are taking place, and certainly I am in favour of a few flowers being presented.
We can be proud of the role played by the UK on the international stage, and particularly of our role in the creation of UN Women, the United Nations entity for gender equality and the empowerment of women. When it was founded, the United Nations took an historic step in accelerating the organisation’s goals on gender equality and the empowerment of women. I am particularly proud that during the time I was in government with Harriet Harman and as part of the equalities team, we were key to the promotion and establishment of UN Women. In fact, on one occasion I had a tiny part to play. I was sent to an international women’s event and my job was to lobby some of the leading women from around the world to persuade them to persuade the United Nations to cough up the money to establish UN Women. That lobby included Ellen Johnson Sirleaf, the president of Liberia. I have to say that she was one of the most impressive people that I have ever met in my life—and of course she was completely solid on the objectives we had in mind. I also congratulate the Government on the fact that they have continued to support and fund UN Women; indeed, according to the annual report which I read recently, they have increased their contribution.
It is certainly true that the United Nations has made significant progress over many decades in advancing gender equality through landmark agreements such as the Beijing Declaration and Platform for Action and the Convention on the Elimination of Discrimination Against Women—CEDAW—which was referred to by the noble Baroness, Lady O’Neill. It is also true to say that the United Kingdom is represented at all these bodies by cross-party groups of women. It is to the credit of this country that whichever Government are in power, they have undertaken to take representative groups of women to all of these events. I know that many of my noble friends have taken part in them over the years, particularly my noble friend Lady Gould.
In the Labour Party we are proud of the historic role we have played in supporting gender equality over the years. That support goes right back to the days of supporting the family allowance being paid to women. Moreover, Votes for Women was part of our original platform when we were founded as a party. We have supported all the equality legislation since the Second World War: the Sex Discrimination Act 1975, the Equal Pay Act 1970, maternity rights and domestic violence legislation, the Equality Acts 2006 and 2010; and support for women at work and parents with children. As my noble friends Lady Nye and Lady Pitkeathley mentioned, we have the best record of any UK political party in terms of women’s representation with more women MPs than all the other political parties put together. We have near-equal representation of women and men in the devolved bodies, and many women representing their local communities on councils up and down the country.
I have absolutely no doubt that the two Ministers seated opposite me are totally committed to the representation of women in their parties and that, along with their colleagues, they have worked and endeavoured over the years to try to increase the representation of women. Indeed, I know they have done that because I have spoken about this to women in other political parties over many years. But the fact remains that if our political parties are left to their own devices in their selection processes—I include my own in this—predominantly, they are going to select men. That is why the Labour Party went down the road of all-women shortlists, and that is why in our target of 80 seats for the next general election—this is set out in a document that we published last week or the week before—half of the selections will be made from all-women shortlists. That is because we are determined that we should have a Parliament that represents the electorate and is at least 50% women. However, we cannot do that on our own. We need the other political parties to take positive action. I do not enjoy the fact that we force our constituency Labour parties to pick women candidates, but the reality is just as I have said: if left to their own devices, all but the most progressive will select men as their candidates, whether consciously or unconsciously.
Do we really believe that women are any less capable than men as politicians? I will just point to the fact that our all-women shortlist system has delivered a more representative and stronger Parliamentary Labour Party with a new generation of talented women MPs. I mention Rachel Reeves, Gloria De Piero, Stella Creasy, Bridget Phillipson and Luciana Berger. All of them were selected on all-women shortlists and I would dare anybody to suggest that they are second-class candidates or second-class representatives of their communities; of course they are not. It shows that positive action works. The challenge I would like to pose to the other political parties is that they have to take action if we are going to hit the target of 50% women in our Parliament.
I should like to raise two other matters because although this is a time for celebration, there are a couple of things that we need to look at. The first concerns older women—and I include myself in the group. We are a generation of active older women who have led very different lives from those of our mothers. We are the first generation, if you like, who have been doing it all. We have had jobs and we have brought up families. Some 71% of women aged between 45 and 64—I am towards the upper end of that group—think that employers offer too few opportunities to older women when recruiting staff. In 1983, only 13% of older women thought that. We live longer and we are in better health than our mothers were at our age. However, this group is losing out the most from the Government’s pension changes because they will have to continue working longer than they expected. This generation is angry about being regarded as “past it”, being overlooked for responsibility and promotion, and being prioritised for redundancy. Some of us are very annoyed that the wisdom and experience of older women are not valued in the same way as they are for older men. That is exemplified by the portrayal of older women on television, as we all know.
These women—I include myself—are holding families and communities together, a point made by the right reverend Prelate. We pick up the pieces. We look after the grandchildren because childcare costs are going up. We care for our elderly relatives as social care services are shredded. We are the ones being stretched in every direction. It is time that public policy caught up with this generation of older women. In the Labour Party we have launched the Commission on Older Women, chaired by Harriet Harman MP, to investigate the policy implications for women in their fifties and sixties and what they are facing, and to look for longer-term policy solutions. The commission will focus on older women in the workplace, older women and their caring responsibilities, and older women in public life. All I can say is: watch this space, because I think that the commission is going to produce some interesting results.
I turn now to the earlier end of women’s lives and the position of younger mothers. The noble Baroness, Lady Stowell, said that the Government have helped women, are positive about them, and are doing a great deal for them. In some senses they are, but I think we need to look at the objective evidence because some of it points in the opposite direction, particularly for young mothers. David Cameron promised to lead the most family-friendly Government ever, but since this coalition Government came to power, new mums have been among the hardest hit by the coalition’s tax and benefit changes. From April this year, the Government will restrict maternity pay to a 1% annual increase and by 2015, in real terms, this cut in maternity pay will effectively be a £180 “mummy tax” on working women, on top of the additional cuts being faced by new mums. Nationally, up to 1.2 million people, including previous children and dads alongside mums, will be affected by the mummy tax each year. We estimate—this is from the House of Commons Library so is almost certainly true—that 210,000 new mums will be hardest hit by this cap. That is why the Labour Party is launching a campaign for this International Women’s Day and for Mothering Sunday called “mums not millionaires”. At the same time as the Government are cutting taxes for people earning over £1 million, the figures compiled by the House of Commons Library confirm that the lowest-paid new mums will lose £1,300 during pregnancy and the baby’s first year, and a further £422 from cuts to child benefit over the same period. This is not a women-friendly agenda. As we celebrate this day, we should be looking at the facts and figures and not just the words and exhortations.
In conclusion, I join with everyone in the House in this celebration of women, their achievements and the progress they have made. However, as my noble friends Lady Massey and Lady Crawley said, this is a long road that we tread. As the noble Baroness, Lady Afshar, my noble friend Lord Mitchell and the noble Lord, Lord Black, said, this is a very tough road indeed for millions of women across the world. We should not forget that it was through political activity—sometimes militant political activity—that women won the vote and have made possible the progress that we celebrate today.
I make no apology for the political nature of my speech. If women do not push hard in every area, we will not make progress. Progress may sometimes be noisy and many millions of women have had to be very brave over the centuries. On International Women’s Day, we should remember with gratitude all those women to whom we owe so much.
Enterprise and Regulatory Reform Bill
Baroness Thornton Excerpts(13 years ago)
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Baroness O'Neill of Bengarve
My Lords, I begin by declaring an interest as the chair of the Equality and Human Rights Commission. I have appreciated the arguments made on this by many noble Lords, including many noble friends. I can say only a limited amount from the position that I occupy, but I should at least remind your Lordships of the position that the commission has taken on the removal of Section 3. This is not a new position since I became chair, but one that was already taken when my predecessor Trevor Phillips chaired the commission. It is summarised in one sentence. It is not a sentence of high enthusiasm, but it states the balance of the issues. It says,
“on balance, the Commission concludes that the changes currently proposed are unlikely to have a significant adverse impact on its work”.
That is partly because other sections still preserve the wider duties, but it is also because the very task of an equality and human rights body is, by its nature, aspirational. That is to say, nobody goes into this domain without profound aspirations for respecting the human rights of each and every one of us in this country and their equal treatment.
Baroness Thornton
My Lords, I am greatly honoured to follow the lead offered by the noble Baroness, Lady Campbell, and all the speeches that have been made today. When you are on the Front Bench, it is always easy to put your name to amendments but on this occasion I felt that it was very important that the Government heard the voices of the Back Benches of your Lordships’ House. I felt—as has been proved to be the case—that people would feel passionately that the Government are in the wrong place and that Section 3 should not be removed.
I have two questions for the Minister. The first partly follows the remarks made by the noble Baroness, Lady O’Neill. It concerns the recent briefing from the EHRC, which states that, on the one hand,
“that the inclusion in its founding legislation of a unifying principle to bridge equality and human rights is important”,
but that, on the other hand, perhaps the answer to the dilemma of Section 3 would be a simpler purpose clause which described the commission,
“as the national expert on equality and human rights”,
and the strategic regulator for equality. It is not quite the poetic and aspirational language in the current legislation. Do the Government regard this intervention at this stage of the Bill as helpful or not?
I think that it muddies the water quite considerably. It adds force to the argument put by the noble Baroness, Lady Campbell. Let us be clear, the Government started by wanting to delete the section completely for reasons which the noble and learned Lord, Lord Lloyd, has demolished. However, if they want to change it and if the EHRC is suggesting that it should be changed, this is surely not the place to do so. This has to be a matter of great consideration and discussion among all the different organisations and across both Houses of Parliament. That was the import we gave Section 3 at the beginning in 2006. I suggest that the latest intervention by the EHRC on this matter serves only to underline the case that we should not go down the route proposed by the Government.
My second question is why does not one single stakeholder organisation—I apologise for that phrase, but I cannot find a better one—agree with the noble Baroness and her Government? Why does she think that Sir Bob Hepple has given the advice that he has about Section 3? Has she had discussions in the past month with the bodies which care about this matter? If so, what is the outcome of those discussions? Given that the Government are in absolutely no doubt that all these organisations are concerned about this and do not want this change to happen, have the Government had discussions with them? Have any discussions influenced their position? I hope that their position will be that they will accept this amendment. Certainly, from these Benches, we are adamantly opposed to the deletion of Section 3. If the noble Baroness, Lady Campbell, decides to test the opinion of the House, we will be with her.
Baroness Stowell of Beeston
My Lords, this has been an important debate and I am grateful to all noble Lords who have contributed. We have covered an important matter about which we all feel strongly. We all want a society based on equality of opportunity which respects human rights. I pay tribute, as I did in Committee, to all noble Lords who have worked hard in this arena over many years. I especially pay tribute to the noble Baroness, Lady Campbell, not just for everything that she has done but for the very open and straightforward manner in which she and I have discussed her amendments at various stages of the passage of this Bill. I really am grateful to her for that.
A lot has been achieved since we last debated this issue. We have appointed new commissioners and the commission’s budget has been announced. I will come back to these points later today when we debate the accountability of the commission in the final group of amendments. First, I shall be absolutely clear about what this Government seek to achieve via this Bill. We want a strong and independent Equality and Human Rights Commission which promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as for being a strategic enforcer of equality law.
Under the leadership of the noble Baroness, Lady O’Neill, who is respected and renowned the world over for her evidence-based approach, we are confident that the commission’s work will be respected, but in order for her, her board and its successors to determine their priorities and agree a coherent strategy, we must first be clear on the purpose of the commission.
The commission has done some good work since it was established in 2007—most recently, the inquiry into the home care of elderly people and the disability harassment inquiry, among other things, which were referred to by the noble Baroness, Lady Hollins. Let me be clear: removing the general duty would not prevent this kind of work taking place in the future. I will explain in a moment why that is the case. However, we also have to acknowledge that the commission has not been universally acclaimed as a national institution. Indeed, it has been criticised for the way that it has been run. Poor financial management resulting in qualified accounts was the most serious evidence of its failures.
In the past couple of years things have started to improve. Indeed, the past two sets of accounts have been clean and substantial savings have been made. I pay tribute to all those who played their part in that, which includes several Members of this House. However, when an organisation seriously underperforms, it would be negligent not to understand what caused those problems and take steps to put things right. As most successful leaders, whether they are in business or politics, will testify, when things go wrong in an organisation it is often because the organisation lacks clarity of purpose. Indeed, they will argue that for any organisation to be successful, it needs clarity of purpose.
The general duty is not a core purpose. It is a statement with which we all agree, but it is not a purpose. As I said in Committee, that statement for the general duty includes the requirement that:
“We must encourage and support the development of a society in which: People's ability to achieve their potential is not limited by prejudice or discrimination. There is respect for and protection of each individual's human rights”,
and goes on. If the statement were enshrined exclusively in statute and described as the commission’s general duty, that would imply that the commission is responsible for encouraging and supporting the development of such a society on its own.
I know that the noble and learned Lord, Lord Lloyd of Berwick, questioned my reasoning, but I stand by it. The Government’s argument remains that several institutions—Parliament, the Government, other public sector organisations, business and everyone—are collectively responsible for achieving the kind of society that that general duty sets out. Having such a wide-ranging and unrealistic general duty would make it harder than it should be for the commission to prioritise its work. That would be the case for any organisation given that general duty.
The noble Baroness, Lady O’Neill of Bengarve, made clear in her contribution the commission’s view of what the Government are proposing, and I am grateful to her for that. She said that while the commission lacks enthusiasm in the language that uses for the Government’s proposals to remove the general duty, it none the less acknowledges that it would not impact significantly on its work. She also agreed that that general duty is aspirational, the nature of the Equality Human Rights Commission is for it to be aspirational and that that is not required to be set out in statute.
The noble Baroness, Lady Campbell, the noble and learned Lord, Lord Lloyd of Berwick, and other noble Lords referred to the memo from Sir Bob Hepple and questioned the unifying link that Section 3 provides between equality and human rights. The commission can perform its functions under its duties in respect of equality under Section 8 and of human rights under Section 9, so that any unifying link between these two concepts provided by the duty is not essential. As the commission made clear in the briefing distributed at the end of last week, it sees the general duty as symbolic rather than practical.
The Government are clear that the commission’s core purpose is to promote equality and to protect human rights. These duties are set out in Sections 8 and 9 of the 2006 Act. They are supported by a suite of enforcement powers in that Act, such as conducting inquiries and investigations, issuing compliance notices or entering into agreements with organisations and instigating or intervening in judicial reviews or other legal proceedings.
Lord Cormack
My Lords, I strongly support what has been said. As my noble friend Lord Deben, with whom I do not always agree, made his powerful and convincing speech, I could not help but remember a conversation I had with my father—who loved India and travelled there often before the Second World War—in 1947, 66 years ago when India became independent. I thought of that conversation, too, when the noble Baroness, Lady Flather, was addressing us a few moments ago. My father said, “India will have its independence, and I hope that that will mean the end of the caste system”.
As a young boy of seven, I had not a clue what he was talking about. He sat me down and explained the plight of the untouchables, which had moved him many times in his visits to India. Here we are, 66 years on, and there are people not only in India but in our own land who do not have the protections for which my noble friend Lord Deben and others have argued so articulately this afternoon.
A few months ago, we had a fine debate introduced by my noble friend Lord Popat, who is sitting on the Front Bench now. It was to commemorate the 40th anniversary of the admission of the Uganda Asians. From all sides of the House, people spoke with passion, conviction and affection for the way in which that community adapted and adopted itself and enriched us all in the process. It was right that we should pay our tributes. But is it not sad that there are still 400,000 in this country who do not enjoy the full protection of the law in the way in which the Ugandan Asians rightly do?
I very much hope this afternoon that the House will not need to divide. I hope that it will carry this amendment by acclamation. If there is any chance at all of the Government not being able to accept the amendment, I hope—and here I repeat what I said in an earlier debate and echo what the noble Lord, Lord Alton, said—that at the very least, my noble friend the Minister will think again and come back at Third Reading. If she cannot do that and does not feel that she can discuss with senior colleagues in the Government the need to do that, the House has a duty incumbent on it to strike a blow—brief but effective.
If we wanted to be convinced of the need for that, we need only reflect on the words of the noble Lord, Lord Lester, a few moments ago when he talked about the expense of going to law. Do we wish to create a situation where the only way of seeking redress of the basic grievance of not being treated equal is to go to law? No, we do not. If the amendment cannot be accepted and if there cannot be a promise to come back at Third Reading, I hope that it will be carried.
Baroness Thornton
My Lords, it was with enormous pleasure and humility that I put my name to this amendment on behalf of these Benches. It is true what the noble Lord, Lord Lester said. In 2009-10, I attended a meeting of hundreds of Dalits and their organisations and found myself completely convinced that there was a gap in the law. Our equality legislation did not cater for this group and it was something that we needed to resolve. That is all that is before us today.
I thank the movers of the amendment and I particularly want to thank the noble Lord, Lord Deben, because I thought his speech was extraordinary. All we want and all that we need to do is to add “caste” to,
“colour, nationality or ethnic or national origins”,
under the race characteristic of the equality legislation. It is not actually a very big thing to do, but it is a very important thing that we have to do today.
Lord Sheikh
My Lords, I am grateful for the opportunity to contribute to the debate and thankful to the Government for introducing this Bill, which will support British businesses in cutting unnecessary costs and red tape, boost consumer confidence and help to create more jobs.
I wanted to speak briefly on the amendment of the noble and right reverend Lord, Lord Harries, relating to the inclusion of caste when considering cases of discrimination. This is not a new debate; indeed, when the Equality Act was published in 2010, a specific provision was included to allow for caste to be added as an aspect of race at a later date. Later that year, the National Institute of Economic and Social Research undertook an extensive government-commissioned study into the prevalence and severity of caste discrimination in the United Kingdom and concluded that it does in fact occur in many of the areas covered by the Equality Act, such as education and the workplace. That led me to conclude that government action is indeed required as a matter of some urgency.
As a man with Indian ancestry, I am all too aware of the deep-rooted prejudice and unfair treatment that results from allowing the caste-based system to persevere. The Minister may be aware of the religious concept of untouchability, whereby certain individuals are declared untouchables due to their perceived association with impurity and pollution. As a result, they are ostracised and isolated from the rest of society in order to protect and preserve the quality of the majority.
In particular, across much of south Asia, the Dalit community has suffered greatly from this deep, ingrained form of discrimination. Dalits are a community considered so lowly in the social hierarchy that in some circles they are in fact excluded from the caste system altogether and completely segregated by social customs.
Historically, in countries such as India, Dalits have also been physically separated from the rest of society, housed outside the main villages and entitled to perform only the most menial of jobs. This horrendous social mentality still prevails in some rural communities, although thankfully it is becoming less common. Today, the Indian constitution outlaws discrimination based on caste and provides for the reservation of seats in the House of the People and the states’ legislative assemblies for those who have been historically disadvantaged due to the caste system. There are also programmes to promote and provide educational and employment opportunities for those such as Dalits. Many people in this country will be completely unaware of the existence of such a caste system and its history in suppressing minorities here. This is why it is particularly important that we acknowledge the potential extent of the problem in the United Kingdom.
I was instinctively drawn to support this amendment. Following further reading and a highly reassuring discussion with the Minister this morning, I am now very much aware of how seriously the Government are taking this matter. They have been very clear that nobody should suffer prejudice because of their caste, and as such have developed the Talk for a Change programme to work with the communities affected by this discrimination. As with so many of the most deep-rooted cultural ills, education and awareness is the key to prevention and this is exactly the approach this programme will take. I also appreciate that there will be a political focus on the Hindu and Sikh communities where the problem is most prevalent. Such assertive action is extremely welcome and is necessary both in the name of protecting vulnerable individuals and in maintaining our reputation as a country that embraces progressive and tolerant attitudes.
The Government have also been clear that they have no plans to remove the provision contained within the Equality Act which allows for caste to be included at a later date. This again reassures me that they are maintaining a flexible approach to tackling this problem and were we to enforce the type of legislation called for in this amendment we would simply be pushing against an open door.
We must realise that, as a nation which has so proudly and successfully championed the fusion of a diverse range of minority communities with modern-day Britain, we have inevitable responsibilities. These responsibilities should be seen as challenges to relish; ways in which we can assist our new communities and help them to integrate better into what many see as the mainstream of British life.
Our Prime Minister has made the point that Britain is open for business, and I believe that furthering our commitment to fairness and equality in our boardrooms, offices and factories can only serve to make us an even more attractive nation to do business with. I believe that the Government share this sentiment and I look forward to following the progress of the Talk for a Change programme.
If a Division is called, I shall certainly vote not-content.
Baroness Turner of Camden
My Lords, I have no desire to add to the two very detailed contributions that have just been made to this debate. However, I fully support the amendment. I am opposed to the abolition of the questionnaire procedure. I cannot understand why the Government are proceeding down this path. As has already been indicated, the questionnaire procedure saves money by deterring ill founded litigation. Most of the consultees, including the British Chambers of Commerce, were opposed to it while surveys have shown that none of the businesses questioned raised concerns about the questionnaire procedure. Quite honestly, there is no evidence at all that the questionnaire procedure is a burden on business. As far as the trade union movement is concerned, the TUC is totally opposed to the abolition of the questionnaire. I hope that the Government, having listened to the two previous noble Lords, will agree that this is not the path to go down and will not proceed with the abolition.
Baroness Thornton
My Lords, I was very happy to put my name to this amendment from the noble Lord, Lord Lester. He spoke with great passion and authority about this issue at Second Reading and has done so again to explain why this amendment is so important. In terms of practical equalities on an everyday basis, this is probably the most important amendment we are going to discuss today because it is about how ordinary people can start to challenge whether they have been discriminated against.
As the noble Lord, Lord Lester, and my noble friend Lady Turner have just said, there is no evidence that this procedure is being used as a fishing exercise. Case law makes clear that businesses and other respondents are not required to answer questions which are disproportionate and that a poor response would not automatically lead to a finding of discrimination. Indeed, the Government’s impact assessment fails to provide any empirical support for removing this so-called regulatory burden on businesses. The questionnaire procedure facilitates access to justice. It helps both parties to assess where a claim lies and enables them to reach an early settlement where appropriate. It is therefore crucial that the Government should not repeal Section 138 of the Equality Act 2010.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords for their contributions today on this matter. I start by repeating what I said in Committee on this measure: our proposal does not impact on the substantive rights of those who believe that they have encountered discrimination. It does not deny people access to justice or reduce the remedies available to those who have experienced discrimination. It simply replaces an out-of-date system with a simpler and fairer approach for all. Let me be clear: we want a process that commands confidence from all the parties likely to be involved in discrimination cases.
Before I go any further, I will respond to a point made by the noble Lord, Lord Ouseley, about legal aid. He suggested that it was being denied, making it harder for people to bring claims. Legal aid continues to be available in discrimination cases.
Our concerns are with the nature of the statutory mechanism around Section 138 of the Act, and the particular combination of features—an unlimited scope for request of detail concerning a possible complaint, a short deadline for response and the tribunal’s power to draw pejorative inference from the response or lack of it—which employers and businesses feel really back them into a corner. This process started off, as my noble friend Lord Lester said, over 40 years ago with the intention of a straightforward question and answer procedure. In 1975, the then Minister described it as a way of enabling the complainant to obtain simple, basic information on which to decide whether to start a case. Noble Lords might compare that sentiment to actual, although, of course, anonymised, examples of the sort of questions that are nowadays put to employers. Here are a couple: “Please specify the number of employees who have requested, applied for or been invited to transfer to another department within the 18 month calendar period prior to” whatever date; “Please explain how many of those transferred had raised grievances whether formal or informal, prior to their transfer.”
At times the number of supplementary questions runs to 40, 50 or even 100, all of which employers, including small employers, often feel required to answer within eight weeks or face a tribunal case where they are already handicapped by the inferences which the tribunal may draw under the statute. It is, therefore, not surprising that many businesses feel that the balance has shifted too far in favour of the claimant. The repeal that we propose will address this and, together with the non-statutory arrangements that we are working on, will make for a fairer and simpler process, as I said before, for all involved.
My noble friend Lord Lester said that no court, tribunal or legal practitioner had ever suggested that the procedure is abused. I am happy to write to my noble friend about this because we believe some legal practitioners would certainly disagree with his statement that no abuse occurs. I hope he will not mind if I follow up on that in writing rather than trying to respond today on the Floor of the House.
When we debated this in Committee, some noble Lords doubted my contention that,
“not one single employer or business organisation told us that they saw value in the questionnaires”.—[Official Report, 14/1/13; col. GC 136.]
Indeed, that has been challenged again today by my noble friend Lord Lester and the noble Baronesses, Lady Turner of Camden and Lady Thornton. I find that a bit surprising because I thought that the letter I sent to the noble Baroness, Lady Thornton, on 8 February provided the evidence for that statement. Indeed, I noted in that letter the alienation of employers and other companies from the view expressed frequently in debates on this clause that the obtaining information process benefits business as well as individuals by weeding out unmeritorious claims. In support of this, I refer to one particular response which sums up the employer view: “The information we send in response is rarely if ever used subsequently in the case, but does require us to undertake a considerable amount of work obtaining and collating the requested information.” It is a matter of concern that what is seen in Parliament as a major benefit of the procedure—its usefulness, on occasion, to both parties as a prevention mechanism—is in reality simply not shared, or even recognised, by respondents to the questionnaires.
Despite this, I emphasise that we are not trying to do away with the concept of pre-claim disclosure. We do indeed note the claim of those arguing in favour of retaining these provisions that pre-claim disclosure can on occasion be helpful to all concerned. That brings me to what we propose to put in place of Section 138 of the Equality Act. I underline what I said in Committee about the value we see in encouraging a pre-claim dialogue and exchange of information. Our early conciliation provisions in the Bill are intended to achieve just that and will provide the right sort of platform to help establish the basic facts to determine if discrimination has occurred. However, even if parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding—
Baroness Thornton
“Equality Act 2010: Equality Impact Assessment
(1) The Equality Act 2010 is amended as follows.
(2) In section 149 (public sector equality duty), after subsection (6) insert—
“(6A) A public authority shall make the following arrangements for compliance with the duties under this section—
(a) assessing and consulting on the likely impact of its proposed policies on the promotion of its duties under this section;(b) monitoring its policies for any adverse impact on the fulfilment of its duties under this section;(c) publishing the results of such assessments and consultations as are mentioned in paragraph (a) and of such monitoring as is mentioned in paragraph (b); (d) ensuring public access to information and services which it provides; and(e) training staff in connection with the duties imposed by this section.””
Baroness Thornton
My Lords, Amendment 76 concerns equality impact assessments and would reinstate statutory requirements to undertake them as part of the public sector equality duty. An equality impact assessment involves assessing the likely or actual effects of policies or services on people in respect of disability, gender and racial equality. While equality impact assessments are not legally required, they have been widely adopted as an effective and efficient means for public authorities to undertake proper consideration of equal opportunities. They are described by the authorities that use them as,
“a positive force for the delivery of real equality”.
Moreover, case law suggests that these assessments provide robust evidence documenting how decisions were reached. Indeed, case law has confirmed that to have due regard to equality, a public authority needs to gather sufficient information about the impact on equality, give such information proper consideration at a formative stage of decision-making and consider whether any negative impact can be eliminated, mitigated or justified. Authorities are also advised to have some kind of audit trail to show that the actions they took comply with the duty. Therefore, while it is true that the courts have never held that there is a requirement to complete a written equality impact assessment or that having an equality impact assessment itself is sufficient to show compliance with a duty—especially if it has been completed with a purely tick-box or form-filling mentality—the main components of a good-quality, substantive equality impact assessment process are what the courts have held to be necessary in order to have due regard to equality.
It does not help to ensure public authorities’ compliance with their duty to have the Prime Minister and other government Ministers simply dismissing equality impact assessments as wasteful, bureaucratic and unnecessary exercises. Rather than calling time on equality impact assessments, as the Prime Minister did at the CBI conference in November 2012, we believe that these vital assessments should be enshrined in legislation. We therefore call for an additional amendment to be made to the Enterprise and Regulatory Reform Bill that would require public authorities to assess, consult, publish and monitor the likely impact of proposed policies.
This becomes even more important when, days after the announcement of a review of the public sector equality duty by the Secretary of State, Maria Miller, the Prime Minister announced that public sector organisations will no longer be required to undertake equality impact assessments as a means of fulfilling their obligations outlined in the public sector equality duty. Instead, these important assessments have been dismissed as unnecessary.
Repeated government announcements about equality law being burdensome red tape, the declaration of the Prime Minister at the CBI conference, and the dismissal of equality monitoring by the Communities Secretary Eric Pickles as unnecessary, intrusive and a waste of taxpayers’ money, fuel our concerns about the removal of these assessments. Indeed, I was reflecting that it would be nice if this Government actually made some positive announcements about equality impact assessments and how they are necessary to judge the impact of how public money is spent and used. Just saying, as the Prime Minister did, that,
“We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff … so I can tell you today, we are calling time on equality impact assessments”,
seems to me to be a somewhat facile assessment of what is a useful public sector tool.
It is notable that the review of the public sector equality duty comes after the Government were criticised by the EHRC for failing to abide by the requirements within it. Furthermore, despite its membership including four Conservatives, not one Labour politician has been appointed to the steering committee that is reviewing this. Will the Minister tell us when the steering group looking at the public sector equality duty is due to report? My understanding is that it has been further delayed and that it will not now report until the summer. How is the steering group conducting its inquiry and who is it inviting to talk to it about the public sector equality duty?
Will the Minister also comment on a recent blog for Liberal Democrat Voice by the BIS and Equality Minister Jo Swinson? She seemed to imply that the duty has actually held policymakers back from properly considering equality. She said:
“As Liberal Democrats, we do not think equalities should be about ticking boxes and regulatory hoops—it’s too important to be relegated to an administrative duty. Advancing LGBT, gender, disability and race equality will only be achieved by putting equalities at the heart of every department”.
She is right about that, but you also need to see the effects of the policies you are pursuing.
The Minister needs to address two issues. First, if you do not have an equality impact assessment, how will you assess the effect of the work of public authorities? Secondly, if the body that is reviewing the public sector equality duty reports back that it does not think it is necessary, what will the Government do with that information? Are we going to find ourselves at the end of the summer in a situation in which the Government completely stop looking at the impact of any of their policies, spending commitments and decisions on factors such as age or gender, or on any of the different groups, such as LGBT people, covered by equality legislation? I am at a loss to know what direction the Government think they are taking with this so-called regulatory reform. I beg to move.
Baroness Hussein-Ece
My Lords, I, too, support this amendment, to which I have added my name, as it seems to me there is an awful lot of misinformation regarding the benefits of having an equality impact assessment as part of the public sector equality duty. The noble Baroness has just mentioned tick-box exercises and bureaucracy, and described how this provision can be seen as a burden. However, it is an important tool and has been successfully used to assess the impact of public services and of government policy on vulnerable people. For many decades this was not the case. I cite my experience of working in a health authority before the public sector equality duty came into force, when it was very much up to the relevant health authority to assess whether different sections of the community or different groups received the same level of service, whether they could access that service and, indeed, whether the service was even appropriate. The public sector equality duty has gone some way to ensuring that vulnerable people, who are not always able to articulate the fact that they are not accessing a service or not benefiting from public services, are catered for and is an important way of ensuring that services are tailored to the local community. As I say, it has achieved some success.
I am not going to defend in your Lordships’ House every aspect of the way that this provision has been implemented. Of course, there is always room for improvement and greater accountability, and the amendment tries to address that. However, we must ensure that equality and the right of access to services is open to all, regardless of who they are or their background. Concerns have been raised about the way in which the steering group that has been mentioned has been established to review this issue. There does not seem to be a lot of transparency in the way that the review will conducted. There is also a lot of concern about the independence of the group given that everybody on it seems to be from a political party. I know that there is somebody from the Liberal Democrats on it but I have had no contact with that person. I would like to know how the group will take evidence and evaluate whether equality impact assessments should be changed or, indeed, removed. I, too, would like more information about this steering group which has been charged with this very important task.
As I say, the duty encourages proactive action to close equality gaps in health provision for different ethnic and other groups, and to ensure that services meet the needs of those who use them. It provides an important evidence base to support provision that is effective and efficient and ensures that services provide value for money, so it has served an important purpose. I hope that the Minister will accommodate some sections of this amendment and will look at equality impact assessments as a way of assisting the provision of services as opposed to being detrimental to them. I declare an interest as a commissioner of the Equality and Human Rights Commission when it instigated a review of the Treasury’s compliance with the duty as regards the 2010 spending review. The public sector equality duty can make a huge difference if applied purposefully, and was seen by people in the Treasury and, indeed, by people in government as a helpful thing to do. Aspects of that spending review, such as its impact on women and minority groups, might not have been considered, so the duty was seen as a positive and helpful measure. I hope that the Minister will say how she thinks we may continue on a positive note by rolling this out.
Baroness Stowell of Beeston
I am grateful to the noble Baroness for her clarification, and I am sorry if I misrepresented her position on the steering group.
The noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred to the membership of the steering group. I say clearly that its members have been selected because of their experience and knowledge around these issues, and it is not intended at all to be a politically representative body. The steering group represents the main delivery public sectors of policing, education, health, local and central government. It can use their expertise to shape the scope of the evidence-gathering and develop the final recommendations. As the noble Baroness, Lady Thornton, said, we have extended the timetable to June from the previous announced date of the end of April at the request of the chair and the steering group to help to ensure that the review and its recommendations are robust.
The evidence-gathering for the review began in January and includes a series of round tables, involving a wide variety of experts, to gather evidence on how the duty is operating. The first round table involved voluntary and community sector organisations such as the Equality and Diversity Forum, the Stephen Lawrence Trust and Age UK. The second involved lawyers from across the public sector. A further six round tables are planned, including with inspectorates, private sector contractors and senior decision-makers. The work will include site visits to public bodies, for example to a police force or a school, to examine the experiences of different individuals within an organisation. The work will also include the commissioning of qualitative research, which will be conducted independently—as is always the case in these matters—through a series of in-depth interviews with public bodies. We will be inviting evidence from organisations and individuals about the operation of the duty, which should provide insight about public bodies’ experiences of working with the duty. We are also analysing written evidence in the form of existing literature, case law and international comparisons. We are therefore approaching this review with an open mind and gathering evidence from numerous sources to get a comprehensive picture of how the duty operates in practice.
The noble Baroness, Lady Thornton, asked how we would respond once the work is complete and the steering group produces its report. As I am sure she would expect me to say, it is far too early for me to speculate on how we will respond. However, given that we have set up the review and given it the remit to roam and consult as widely as it is doing, we will clearly take the report seriously and are looking forward to receiving it.
The equality duty and supporting regulations provide sufficient safeguards for holding public bodies to account, and introducing a further legal requirement for an equality impact assessment will not add anything material. Furthermore, the timing is not right when we are taking stock of how the current legislation is operating in practice. As I have said before and to make absolutely clear, this is a review of how that responsibility is operating, not whether public bodies should have due regard for equality. I hope that I have been able to give the noble Baroness more information about the review, and I am grateful for that opportunity.
Baroness Thornton
My Lords, I thank my noble friends Lord Harrison and Lady Prosser, and the noble Baroness, Lady Hussein-Ece, for their comments. I also thank the noble Lord, Lord Deben, who, as ever, made pertinent comments.
The response from the Minister was actually very helpful. We do not agree and I would obviously much prefer that the equality impact assessments were mandatory. There is no question that that would work better. However, while the Minister may not have given much comfort to her noble friend Lord Deben in what she said about the way she sees the public sector equality duty and impact assessments working, I found the Minister’s response useful and helpful, and I will read her comments in greater detail.
As to the public sector equality duty review, it was useful and reassuring to know that the review is ranging far and wide and taking evidence from a range of bodies. The Government would have been wise to make the review more balanced, given that politicians from different councils are taking part. It would have been useful to have had a Labour person on the steering group, but that does not mean that the outcome will not be useful. I am also reassured that the review is taking time to get this right.
Given the information that the noble Baroness has provided to the House, I am happy, at this stage, to beg leave to withdraw the amendment.
Baroness Hussein-Ece
My Lords, I shall not keep the House too long as the noble Baroness, Lady Prosser, has given such a comprehensive introduction to this group of amendments, to which I have added my name. There are just a few points that I should like to add.
The steps outlined in the amendments are, as I see it, enabling. They enable the commission to fulfil its mandate more effectively and to achieve more balance between independence, accountability and transparency. They build on recent developments such as the first pre-appointment hearing of the commission’s chair, as was mentioned.
I declare an interest as a commissioner of the Equality and Human Rights Commission until last December. I am all too well aware that the commission is very keen to advance its relationship with Parliament and to have the ability to work across government departments. As has been said, the current arrangement has acted as a hindrance and has not oiled the wheels, so to speak, to enable the commission to work more effectively with other government departments—something that it should be doing. It has the responsibility to work with all departments across government, given its wide-ranging remit. The current arrangement of going through the Government Equalities Office has limited this to an extent. I see the commission’s responsibility for assessing how the Government comply with, for example, domestic and international equality rights obligations as a positive development and a strengthening of its relationship with Parliament.
At Second Reading, I said that setting the budget is so important that it needs to be done in a more timely, transparent and effective way. I was at the budget-setting process last year. I remember being at a board meeting in February when the commissioners still had no idea what their budget would be from 1 April. That is not satisfactory or acceptable, and it needs to be addressed. Taking these amendments on board would go some way to addressing this and making sure that the commission becomes more transparent and accountable and is allowed to function. We talk about a red tape challenge, but it goes both ways. There has been a lot of red tape attached to this commission from its inception. It has almost been bound and gagged at birth and has not been allowed to function properly. This is a way of releasing it to an extent, while keeping some important checks and balances in place.
Baroness Thornton
My Lords, I agree completely with the noble Baroness, Lady Hussein-Ece. I have written down “micromanagement by the Government Equalities Office is a bit of a red tape challenge that the Government could probably do well to look at”, so our thoughts were heading in the same direction. I see this group of amendments as continuing the positive discussion that we had in Grand Committee, where the Minister started to explain where the Government were going and what the direction of travel was. I see this group of amendments as part of that process and discussion, and I congratulate my noble friend Lady Prosser on her introduction.
What we are essentially addressing here is how the EHRC can deliver its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations, how it can best do that and how it can be independent in doing so. It seems to us that parliamentary accountability would provide the commission with that appropriate independence from Government to fulfil its role impartially. I hope that the Minister will accept something that I said in Grand Committee: this is not a means of stopping the Government setting the overall policy direction on equality matters. Everybody accepts that that is the Government’s job. However, it means that our Commission for Equality and Human Rights, apart from anything else, has the necessary independence to from time to time be critical of the Government and hold them properly to account.
Baroness Stowell of Beeston
My Lords, as I said in response to the first debate this afternoon, the Government want a strong, independent Equality and Human Rights Commission that promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as a strategic enforcer of the law. Clearly, we also value its “A” status and want it to retain it. We are committed to strengthening its accountability to Parliament and, in responding to this debate, I hope I can demonstrate what progress we are making.
I start with the appointments. As already acknowledged by the noble Baroness, Lady Prosser, and others who have contributed to the debate, the appointment of the new chair of the commission, the noble Baroness, Lady O’Neill, was for the first time subject to pre-appointment scrutiny by the Joint Committee on Human Rights. That is a move that the Government welcome. In January, we appointed six new commissioners and, with the appointment of the new chair, we believe that the new board marks the start of a new era for the commission steering it in a new strategic direction. We want to see the commission go from strength to strength. We are open to discussing with the Joint Committee on Human Rights how it can be involved in future appointments.
Since the debate in Committee, the Joint Committee on Human Rights has been in touch with my honourable friend the Minister for Women and Equalities, Helen Grant, who is the Minister responsible for the commission. The JCHR has set out its plans to work with the commission to strengthen the commission’s accountability to, and co-operation with, Parliament and, in particular, with the JCHR itself. I am aware that the JCHR seeks to work with the EHRC to develop a protocol of collaborative working strategies to improve accountability. I certainly echo the sentiment expressed in my honourable friend Helen Grant’s reply to the letter from the chair of the committee. We welcome the non-legislative approach taken by the JCHR, and following this exchange of correspondence, which was circulated to noble Lords before today’s debate, I understand that at the request of the chair of the Joint Committee on Human Rights a meeting will take place soon. To reiterate: there is ongoing dialogue between the commission and the JCHR to the effect that the noble Baroness, Lady Prosser, has argued for in her amendment.
I reassure the House that the commission’s annual report and accounts are already laid before Parliament, as well as its strategic plan and its reports on progress. With respect to the commission’s budget, since Committee, and as I referred to earlier today, we have published the outcome of the comprehensive budget review. This review, conducted in partnership with the commission, sets out the agreed level of funding adequate for the commission to fulfil its functions. As the noble Baroness, Lady O’Neill, said, the review agrees a budget that will allow the commission to,
“continue as an effective organisation in all our roles”.
Furthermore, as my noble friend Lord Lester mentioned in Committee, the commission’s founding legislation includes an obligation for Ministers to make sure that it receives reasonably sufficient funding to fulfil its functions. That will continue. As such, we do not believe that it is necessary for Parliament to set directly the commission’s budget.
The vast majority of public bodies are set up in a similar way to the Equality and Human Rights Commission, and that is because it is not practical as a general rule for Parliament to provide the level of day-to-day support often required. To agree a budget with an organisation requires quite a lot of ongoing detailed discussion to reach an agreed amount. That is not something which usually lends itself to the work of a Select Committee. My noble friend Lord Deben, who has a good deal of experience with this, made that argument during Committee. It is worth pointing out that, unlike most other such bodies, there is no power for Ministers to compel the commission to do anything, so in terms of the process by which it agrees its budget, it does not set a budget to ensure it fulfils something that it does not want to do.
Moving on to the framework document, officials are working with the commission to put in place a new, improved framework by the end of this month. While I cannot go into the detail as this work is ongoing, I can assure noble Lords that officials are working to ensure the commission’s independence is not compromised by the need for it to be accountable. The noble Baroness, Lady Prosser, and others referred to the ICC’s view of the commission’s accountability to Parliament. It is quite right that in 2010 the ICC, as part of its special review, suggested that it might be sensible for the Government to consider increasing the level of the commission’s accountability to Parliament. Our view is that this is being achieved through the steps we are taking, some of which I have just outlined. I should also make clear that the commission was accredited as an “A”-rated institution without any change in its reporting arrangements. My point is that its “A” status was conferred on it as it is currently constituted, so it already exists in the way that it is constructed. I am aware that the commission will be considered at the next meeting of the ICC’s sub-committee on accreditation in May. As I stated in Committee, we have a constructive dialogue with the chair of the ICC and this will continue.
Media and Creative Industries: Equality
Baroness Thornton Excerpts(13 years, 1 month ago)
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Baroness Stowell of Beeston
The noble and learned Baroness raises a very interesting point and I would find it hard to disagree with what she suggests. I will certainly take back that recommendation to the department.
Baroness Thornton
The issue of older women in the media has already been raised by the noble Baroness, Lady Gardner, and she is quite right. I am sure that this House appreciates that the new generation of older women in the media does not fancy the idea of being written off and regarded as past it when they are 60, 50 or even 40. Can the Minister go into more detail about how the Government intend to monitor this situation and what they intend to do about it?
Baroness Stowell of Beeston
The system of monitoring that I referred to in answer to my noble friend Lady Benjamin’s Question, which the broadcasters are in discussion about at the moment, will include age as well as ethnic diversity. It is up to the broadcaster to gather that information and to make it transparent. We share the principle of transparency, which is why we have introduced the Think, Act, Report initiative about diversity in the workplace more generally.
Enterprise and Regulatory Reform Bill
Baroness Thornton Excerpts(13 years, 2 months ago)
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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.
Enterprise and Regulatory Reform Bill
Baroness Thornton Excerpts(13 years, 2 months ago)
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Baroness Thornton
My Lords, in opposing Clause 57 standing part of the Bill, I thank the noble Lords, Lord Lester and Lord Low, and my noble friend Lady Turner for supporting me in doing so. Clause 57 seeks to repeal Section 40 of the Equality Act 2010. Section 40 makes an employer liable for repeated harassment of their employees by a third party, including customers, clients and service users. The liability is triggered only if an employee has suffered such harassment on three or more occasions, the employer knew of the previous incidents and the employer has failed to take reasonable, practicable steps to prevent its recurring. The Government have stated that there is no real or perceived need for this protection but we believe that that simply is not true.
I am grateful to Thompsons Solicitors, who specialise in such matters, for their views and for a copy of the evidence that they submitted to the GEO as part of the consultation on this matter. What is clear from their considerable experience is that the majority of such claims are settled before a hearing happens, which is all to the good. Thompsons point out in that evidence:
“The government’s logic for repealing the provision is contradictory. On one hand the consultation states that the provision is a burden on business and on the other hand it states that it is only aware of one case in England and Wales where a claim relating to this provision was determined at an employment tribunal hearing”.
Given that the provision has been in place for all protected characteristics for less than two years, the Government are not in a position to make an assumption about the effectiveness of the provision within such a short period. Neither do we understand the logic that just because there are not many claims relating to this provision, it is somehow bad law.
It is not in the interests of society to remove from employers the responsibility for protecting workers against harassment from third parties. Workers should be entitled to carry out their duties and engage with third parties without fear of harassment. Do we really want workers to be exposed to harassment on the grounds of one of the protected characteristics without having the force of statutory protection from such harassment? For example, surely a nurse treating a patient should be entitled to expect protection from their employer against harassment by that patient on one of the protected grounds. Losing the provision would be inconsistent with the equality directive, as per EOC v the Secretary of State for Trade and Industry, in that the directive sets out associative protection. This would lead to further litigation. Can the Minister confirm that this is indeed the case? Even if it could be argued that the current legislation goes beyond the requirements of the directive, to amend the legislation by removing the provision would breach the non-regressive provisions of the directive—that is, the equality and recast equal treatment directives. Could the Minister please say whether this is true?
Is there a need for Section 40? We would argue that, yes, there is. A 2008 study by the University of Warwick for the NUT, of 2,575 teachers across 13 local authorities, found that one-third of the respondents experienced threats on at least a monthly basis. A survey for the NAS/UWT found a similar third of teachers suffered prejudice-based harassment and bullying. The EHRC has also found evidence of the prevalence of third-party harassment and its impact, demonstrating a widespread need for the law to provide protection. The people most likely to be affected by the abolition of this provision are some of the most vulnerable and poorly paid people, who are least able to defend themselves. For instance, a recent report on the treatment of care workers by clients comments:
“A survey of public sector social services staff found ethnic minority staff had experienced racist verbal abuse from service users; inappropriate questioning of their authority by users or relatives; users not wanting to be touched by them or asking to be dealt with by a White person (most frequently occurring in the user’s own home); and physical attacks perceived to be racially motivated. Inappropriate remarks from colleagues were also experienced”.
Thompsons say that they have advised and represented unions and union members in third-party harassment claims. With their kind permission, I will mention two such cases. The first involves three claimants who were constantly racially abused by patients in a mental health hospital where they worked as nurses. The perpetrators were two individuals on the same ward. The claimants requested to work shifts where they would not be in contact with the two individuals. The employer refused to change the claimants’ shifts or to take any action against the perpetrators. The claims were settled prior to a full hearing for £3,000 for each claimant, with an undertaking from the NHS trust concerned that action would be taken to protect the claimants from further acts of harassment.
Thompsons also report that their transport union clients are regularly asked to advise when members have been subject to racist abuse by passengers. The TUC certainly asserts that the introduction of Section 40 of the Equality Act has already led to a step change among employers, with actions undertaken to make it clear to service users that harassment of their staff will not be tolerated. Moreover, there may be hidden costs to business for not prioritising action against third-party harassment. Harassment can have a significant effect on the physical and mental health of the workforce, and be a major cause of work-related stress, affecting work performance and absence levels.
The proposed repeal of third-party harassment provisions has been introduced following the Government’s Red Tape Challenge. However, there is no publicly available evidence of concerns being raised about them during the first stage of the challenge. When the Government asked specifically for views on prohibited conduct, not one of the 214 of those who responded opposed the third-party harassment provisions, and a number specifically supported them. When the Government consulted specifically on third-party harassment, 71% of those who responded were opposed to repeal. Moreover, due to the familiarisation costs associated with the change in legislation and the minimal savings to business that are expected as a result of the repeal, the Government’s own impact assessment calculates that this repeal will be an additional burden to business, and not a saving. The assessment admits:
“Provisions for third party harassment may have had a wider impact on reducing discrimination in the workplace, outside of specific third party harassment claims, so the repeal may lead to more instances of workplace discrimination”.
At Second Reading in the House of Commons, Ministers gave a categorical assurance to my honourable friend Kate Green MP that this Bill would not be used to take forward proposals as featured in the Beecroft report on employment law, relating to employer liability for third-party harassment.
In conclusion, I put the following case to the Minister. A employs B. C interacts with B during the course of their employment. C harasses B on the basis of a protected characteristic—race, sex, sexual orientation or disability. A either fails to take adequate steps to minimise the risk of harassment—policy signage, risk assessment, preventive steps and so on—or fails to do so after being specifically alerted to C’s behaviour and prior to a repeat of it. B and C could be a nurse and a patient, a nurse and a family member, a receptionist and a customer, benefits agency staff and a claimant, a taxi dispatcher and a customer, a teacher and a parent, a warehouseman and a delivery driver, a guard on a train and a passenger, a council officer and a service user, a member of an MP’s staff and a constituent and so on.
A third-party harassment provision saves tribunal time and focuses employers’ minds. It also ultimately saves legal costs. Other legal avenues—direct race discrimination or sex discrimination claims, for example—are not available. Establishing that the employer is responsible for the harassment by allowing or failing to prevent a hostile environment at work is time-consuming and difficult. Good employers who are prepared to take reasonable steps to protect their staff from abuse have nothing to fear from the current provisions. Will the noble Baroness please explain to the Committee how such a matter might be resolved without this part of the legislation?
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 Thornton
My Lords, I had hoped that the noble Lord, Lord Lester, would have been with us today to move this Clause 58 stand part debate, which stands in both our names and those of the noble Lord, Lord Low, and my noble friend Lady Turner. Unfortunately, the noble Lord has been struck down. He has been in touch with me and the Minister about the fact that he is unable to be here and I am sure that the Committee will wish him a speedy recovery.
Noble Lords may recall that at Second Reading the noble Lord, Lord Lester, spoke with passion about the importance of this clause and his commitment to making his Government change their mind. I expect that between now and the next stage of the Bill that is exactly what the noble Lord will be doing, supported by other noble Lords, including those on these Benches.
Clause 58 repeals the question and answer procedure. The impact assessment states:
“Section 138 of the Equality Act 2010 requires a Minister of the Crown to prescribe forms in order that a person who thinks that they may have been unlawfully discriminated against, harassed or victimised, can obtain information from the person (employer or service provider) they think has acted unlawfully against them”.
This procedure has been a vital part of ensuring access to justice for victims of discrimination since our first discrimination and race relations Acts were passed nearly 40 years ago. Information obtained through this process is intended to help an individual understand why he or she was treated in a particular way and whether they have a legal basis for making or continuing a claim in court or a tribunal.
In the Government’s own Red Tape Challenge, not one concern was raised on the questionnaire procedure. When the Government then issued a specific consultation on questionnaires, that too provided little case for change. Around 80% of respondents opposed abolition of the questionnaire procedure. There is no evidence to support the Government’s claim that these questionnaires are used for fishing exercises.
Case law makes it clear that businesses and other respondents are not required to answer questions that are disproportionate and that a poor response should not lead automatically to a finding of discrimination. Instead, the question and answer procedure is widely regarded by employers and employees as valuable. There is anecdotal evidence that it helps individuals to access evidence at an early stage that can lead to an early clarification of the issues and, if the case proceeds to a tribunal, to greater efficiency in the tribunal proceedings. Indeed, judges and tribunal members regard this procedure as a useful way of establishing the facts and clarifying the issues in contention. The questionnaires have also been known to prompt a quick resolution either through an early settlement or by demonstrating that no discrimination took place, helping to prevent unnecessary proceedings.
The current question form guides claimants to set out their allegations of discrimination in a clear way. This allows the person responding to understand what is being alleged and to provide an explanation of what happened. The absence of a structured standard form may result in some claimants issuing proceedings where they would not otherwise, increasing costs to tribunals and businesses alike. Moreover, removing the standardised structure of these forms, which most businesses are already familiar with, may place some onerous demands on businesses dealing with discrimination claims. Indeed, the Government’s own impact assessment fails to provide any empirical support for removing this “regulatory burden” on business.
Moreover, the financial assessment, which finds a net benefit of just £800,000 to businesses from implementing this measure fails to take into account both the non-monetary costs to the individual employees, who may be further marginalised by the retraction of their employment rights, and the additional cost to businesses and individuals of finding other means by which to obtain information in disputes.
The Discrimination Law Association, whose members comprise lawyers, advice workers and trade unionists supporting victims of discrimination said that,
“without the kind of information which individuals can only obtain through written questionnaires under Section 138, in many cases it will be almost impossible to prove discrimination”.
Indeed, without the questionnaires, an individual who suspects they have been discriminated against will have to institute formal proceedings before they can seek disclosure of documents from the employer. From summer 2013, it will cost £250 to issue a discrimination claim and a further £950 for a hearing. Many victims of discrimination will never bother to seek justice and that will give unscrupulous employers a green light to discriminate at will, I would suggest.
The questionnaire procedure facilitates access to justice, helps both parties to assess where a claim lies and enables them to reach an early settlement where that is appropriate. Therefore, it is crucial that the Government should not repeal Section 138 of the Equality Act.
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 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
Disability Services
Baroness Thornton Excerpts(13 years, 2 months ago)
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Baroness Thornton
My Lords, I start by thanking my noble friend Lord Boateng for bringing forward this debate. I asked a Question about this report in the House when it was first published, so I am very pleased that we have been able to have this debate today. I congratulate Scope on an excellently researched report.
Almost everything that can be said about the importance and urgency of this issue has been eloquently said by most noble Lords; indeed, the noble Lord, Lord Low, has pretty much stolen my thunder. I intend to ask three questions about the report, and I am putting them in the context of what the Government are doing to their equality strategy at present, which was also alluded to by the noble Baroness, Lady Hussein-Ece. The Government’s review of the public sector equality duties and equality impact assessments has the potential to undermine the framework for making progress in this area, and we need to be quite clear about that. Indeed, that might answer some of the questions that the noble Baroness, Lady Berridge, had when she was wondering why this might have become a party political issue. While it ought not to have become a party political issue, this is possibly the crux of why it has become one.
Scope has been very concerned about the potential shift within government to a more watered-down commitment to assessing equality implications as a crucial part of decision-making. The noble Lord, Lord Low, referred to the fact that the Prime Minister said to the CBI that the Government were calling time on equality impact assessments, and indeed a statement from the Minister at the DCLG just this week has said that that department is informing local councils that equality impact assessments are not mandatory. That is the unhelpful context in which this discussion is taking place.
If we see a diminution in the commitment to monitoring, consulting and impact measurement, that also needs to be seen in the context of the impact of the welfare reforms that the Government are pursuing with regard to disabled people. Here is just one fact: disabled people have seen a drop in income of £500 million since the emergency Budget of 2010, and recent reports have shown that cuts have ranged from £200 to £2,065 in a typical disabled household over the past year.
Despite widespread criticism, the Government have refused to monitor the impact of their welfare reforms as they are implemented in order to understand how they affect disabled people and their families and mitigate any adverse impacts where possible. Impact assessments should consider not just aggregated impacts from one specific policy but the cumulative impact of several policies on individuals and their families. It is in that context that I pose my three questions.
First, the Government’s Fulfilling Potential—Next Steps White Paper, on their approach to the forthcoming disability strategy, emphasises the need to build better linkages between government departments and agencies to work together to achieve shared objectives for disabled people facing multiple disadvantages. Will the Minister confirm that this will include the development of a joint implementation plan between the Office for Disability Issues and the Government Equalities Office as well as other government departments, as recommended by Scope?
Secondly, following criticism from the United Nations Committee on the Elimination of Racial Discrimination, what plans do the Government have to implement a national race equality strategy? What plans do they have to ensure that the overlaps between different equality characteristics in future equality impact assessments are recognised, given that the needs of BME disabled people are not easily captured in a system designed to assess only one single equality characteristic? Can the Minister clarify the means by which the Government will assess the equality implications of their proposed policies on protected groups, including disabled people, in the light of the Prime Minister calling time on equality impact assessments?
Thirdly, does the Minister agree that in the light of this debate, the public sector equality duty, which is currently under review and includes the race equality duty, is as vital now as it has ever been and should not be equated with bureaucracy and red tape, as the Government are so often seen to do?
Gender Balance among Non-Executive Directors (EUC Report)
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Lord Wilson of Tillyorn
My Lords, I, too, will speak very briefly and not delay the House too long, partly because I am a relatively new member of Sub-Committee B, at least in its present incarnation; I was a member of a previous incarnation some time ago.
The inquiry into women on boards was the first one that I attended as a member of the present Sub-Committee B and it was a very impressive process. The evidence, witnesses and written submissions that came before us were all very thorough, and everything pointed very clearly in the direction in which the committee itself reported. In other words, it is highly desirable to have more women on boards. It is an underutilised resource. Efforts must be made to increase the number of women on boards. In the UK this is happening steadily. There is no sustainable case for doing anything further by legislation rather than by encouragement. Indeed, most of the female proponents of more women on boards very strongly did not want that to happen. For me, it was a very interesting learning process.
With regard to this directive, the Commission is surely right in saying that it is desirable to have more women on boards. It is an underutilised resource, which is putting it rather mechanically, but it is absolutely true. But it is very strange indeed that the Commission goes on to say two contradictory things. First, it argues—although the arguments against have been quite strong—that there is a direct and positive advantage simply to having more women on boards, rather than the more subtle version that a good company gets women on boards and it is successful because it is a good and open-minded company. At the same time the Commission argues that we need a European-wide directive because there will be some countries that do not want to put themselves at a disadvantage by having more women on boards. It is a bit difficult to square that particular circle.
I do not think that the Commission’s proposals really stand up. Of course, what we are discussing this evening is whether they offend against the rule of subsidiarity. The points have all been made by others so I will not labour them. It seems absolutely clear that European-wide legislation does not add an advantage and that such is the diversity within Europe, with different types and structures of boards, that one size fits all simply does not meet the need of the moment. Therefore, I, too, support the recommendation of the noble Lord, Lord Boswell, that we should put in a reasoned opinion saying that what the Commission proposes offends against the procedures for subsidiarity.
Baroness Thornton
My Lords, this is the second debate we have had about this issue. I realise that this is the second report, which deals with a different matter, but it is important that we recognise that as we debate the need for gender balance in positions of leadership in business, this Parliament and this Government should acknowledge their own failings in this area. We have no room to be self-satisfied. With just 22% of our current MPs being women, and just four women—that is, 18%—in the Cabinet, we are on a long road.
Baroness O'Cathain
I thank the noble Baroness for giving way. This same argument came up before. This has nothing whatever to do with the place of women as non-executive directors on boards of listed companies. The opposition spokesperson in the other place went that way in his opening statement as well but then came firmly down against quotas and for the reasoned opinion.
Baroness Thornton
If the noble Baroness would let me continue, she may find that I will do the same, but there should be no complacency about this matter. That was the only point I was making; and I am sure that she would agree with that. I was about to pay her a great compliment, so perhaps she would like to wait for that, too. It is late, and I do not intend to speak for very long. My honourable friend in the other place was right to raise the issue. The subject of gender balance is important, but we have an underrepresentation on company boards in other respects, which we also need to address. The fact that only 5.7% of FTSE 100 directors are drawn from ethnic minorities is, I think, a problem. That is not the first time that that has been mentioned.
As I have said in the House before, we welcome the report of my noble friend Lord Davies on women’s representation on boards. My noble friend has made it clear that there is a moral imperative to change the state of affairs. There is a very strong case for that. We on these Benches also believe that we should regulate or legislate only as a last resort, but we should not rule out the need to take further action if we do not reach the target set by my noble friend, which we all seriously support—25% of female representation on boards by 2015. I acknowledge that we are on the right trajectory to get there, but more action will be needed.
I congratulate the noble Baroness, Lady O’Cathain, on two things. The first is the excellent report that we discussed in November; and the second is her personal role in encouraging women to come forward to positions of responsibility, not just on boards but in other places. In all my time in your Lordships’ House since 1998, I have seen her as a very good example of what women can and should aspire to and could achieve. Whether we reach those aspirations through the Davies report will become clearer during the next year. We will probably need to return to the subject towards the end of this year, to see where we are and what further needs to be done.
I will not rehearse what action has been taken by the Commission at European level, but a point that I have raised with the noble Lord, Lord Boswell, is that the problem that I have with these Motions is not to do with the arguments about the draft directive and the committee’s reasoned opinion, it is to do with how we in the UK should work constructively in other ways to advance the cause of equality in company boardrooms along with our European partners. We must be very careful not to send the message through this action today that it is in any doubt that we should be doing that.
The Under-Secretary of State for Women and Equalities, in her response to the House of Lords European Union Committee, said that she agrees that the European Union has an important role to play in improving the representation of women on boards. If that is the case, I hope that the Government will say how that should happen, how we should give a lead and what our involvement should be. That debate presents a golden opportunity—although Viviane Reding has raised the issue in the way that she has, we should not get drawn down the road of European protocol and subsidiarity. We have to say what we need to say, but we should also make it clear that the UK wishes to be in the forefront of debate in achieving greater equality in this matter.