Equality Act 2010 (Specific Duties) Regulations 2011

Baroness Royall of Blaisdon Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, my noble friend Lord Waddington’s amendment would not prevent the passing of these regulations. It is an amendment that regrets a certain result from the present situation; that is all. That is well expressed in a press release that the Equalities and Human Rights Commission issued on 11 August. It applied for leave to intervene in the cases to which the noble Lord, Lord Lester, referred. It said then:

“If given leave to intervene, the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief”.

The commission has withdrawn that as a result of representations made to it, which does not entirely increase my confidence in its independence, but that is what it said originally. That is really what my noble friend’s amendment expresses; it seeks not to change what the regulations are proposing but simply to express a concern that may be taken into account in whatever emerges in future.

[Baroness Royall of Blaisdon]

My Lords, I rise to express concern about the draft regulations being moved by the Minister, to speak against the amendment moved by the noble Lord, Lord Waddington, and to support the amendment tabled by the noble Lord, Lord Low of Dalston.

I say to the noble Lord, Lord Waddington, that I speak as someone who is proudly married—for 31 years today—but who strongly supports the Equality Act and the regulations that flow from it. I am proud of the Act and of the fact that those on all Benches in this House supported it when it was a Bill in this House.

The duties that we are discussing today are critical in delivering the public sector equality duty that is enshrined in the Equality Act 2010 to provide better all-round services to the community and all its diverse members. The purpose of the duties was explained carefully by the noble Lord, Lord Lester. Contrary to the views expressed by the noble Lord, Lord Waddington, and others, I believe that as a result of three rounds of consultation the duties appear to have been watered down and therefore fail to deliver the main objective to ensure the better performance of the general duty by public bodies. It is difficult to understand how a single objective can enable a public authority to meet the range of its equality duties, and I would be grateful if the Minister could explain this point more fully.

As noble Lords will recall, the Equality Act 2010 brought together existing equalities legislation, with its specific equality duties, and added additional equalities-specific protected characteristics, as the Minister explained. Concern was expressed at the time that the new duties would be less robust, and I think this is precisely what has happened. The regulations before us are a step back from the level of specific equality duties that public authorities are currently used to under provisions on race, gender and disabilities. Yet there is evidence that the existing specific duties, which are more specific than those that we are being asked to approve today, have been useful in assisting public bodies to make progress with equality. The noble Lord, Lord Low, has given tangible examples of the ways in which specific equality duties are being used to improve outcomes, both for disabled people and school pupils, and as we have heard, positive outcomes for pupils include better access to facilities, feeling valued, developing higher aspirations, and narrowing gaps in performance and participation in sport.

In the wake of the disturbances this August, I suggest that these outcomes have become more, rather than less, important. The purpose of specific duties is to give proper guidance to public bodies whose main job is often not about equality but rather about healthcare, education, recreation, et cetera, but all these bodies want to improve the delivery of their services in a way that has equal outcomes for all. I must say to the noble Lord that I am not saying sameness for all, but equal outcomes, which is a very different thing. Despite the Minister’s assurances—

[Lord Tebbit]

My Lords, it was the noble Baroness’s Government who decreed that the upper ranks of the Civil Service should be representative of the community that it serves. I take it from the way she nods that that is her view. Surely we do not want 15 per cent of near illiterates and 10 per cent of near innumerates in the higher ranks of the Civil Service? Should we not have a more subtle way of deciding these things than passing over able candidates in favour of less able ones, for the first time since the 19th century?

[Baroness Royall of Blaisdon]

My Lords, I do not think that the Act suggested that people should be appointed if they are not properly qualified, or that the best person for the job should not have it. The Act said that there should be equal opportunities, so that whether you are black, white, disabled, yellow, orange, gay, lesbian, or heterosexual, you should have equality of opportunity, and the best—

[Baroness Oppenheim-Barnes]

My Lords, the Act refers specifically to protected definitions of people. The very word “protected” means that they are going to be treated more equally than others.

[Baroness Royall of Blaisdon]

No, my Lords. It defines certain disadvantages, but it does not mean to say that some people are more equal than others. We are not in an Animal Farm situation. We are saying that every individual has their intrinsic worth as a human being, and that they should be treated in an equal manner and given equality of opportunity. That is what I believe we are all—or most of us—agreed upon in this Chamber.

[Lord Lester of Herne Hill]

My Lords, the word “protected” simply means those protected against discrimination in those categories. However, it seems to me that the noble Baroness was giving a very narrow interpretation, which may be why she agrees with the noble Lord, Lord Low. May I try to say what I think the regulations mean? Regulation 3 says that each public authority,

“must prepare and publish one or more objectives it thinks it should achieve to do any of the things mentioned in paragraphs (a) to (c)”,

but that does not mean, in my judgment—no doubt the Minister will want to respond to this—that if they publish only one objective, that is sufficient.

[Lord Lester of Herne Hill]

I do not think I know the difference, since I am asking a question. The question that I am asking, if I may be permitted to do so, is whether the Minister—

[Baroness Royall of Blaisdon]

I am not the Minister.

[Lord Lester of Herne Hill]

I am so sorry. I meant to ask whether the noble Baroness, looking at the wording, accepts that there would be a judicial review, or something worse, if one were simply to do what she suggests.

[Baroness Royall of Blaisdon]

My Lords, these are questions for the Minister. I am just putting my views as the spokesperson for the Opposition. I go back to what I was going to say, about transparency. The Government rightly stress the need for transparency and accountability. However, it is difficult to understand how these can be enhanced when the public and public sector employees will not be able to compare the equality performance of similar bodies because the information will not always relate to the same issues or be measured in a standard way. Access to data is crucial, but it is difficult to interpret those data if they are not given in a standard way. Therefore, it will be more difficult for public authorities and those they serve to discover and understand what good practice is. There is a possibility that there will be a new postcode lottery. The Government have failed to provide clarity with these regulations. It could well be that the burden on public bodies will increase in some way. As the Council for Disabled Children says in its excellent briefing,

“the requirements should be clear to all public bodies who are required to comply with the specific duties. This purpose is better served by making these requirements explicit in the Regulations rather than leaving public bodies open to challenge because ‘implicit’ requirements have not been made clear to them”.

I have to say that I fundamentally disagree with the amendment tabled by the noble Lord, Lord Waddington, in relation both to freedom of religion and conscience and to burdens and bureaucracy. I must also disagree with the noble Lord, Lord Campbell of Alloway, who is in many ways my noble friend. During the passage of the Equality Bill we debated these issues long and hard and they were subject, as he rightly said, to amendments. The noble Lord, Lord Waddington, was wrong when he made the arguments at that time and he is wrong now. I am grateful to the noble Lord, Lord Lester, for pointing out the difference between the law of the land, which I believe is correct, and mischievous misinterpretations of that law, of which there are undoubtedly many. While I respect that around this Chamber we have different views, I am concerned that perhaps some of the voices opposite are those of the modern Conservative Party. I know that some on my Benches will disagree with me on that.

When we debated the Equality Bill, there was wide agreement on all Benches that the Bill—now the Act—was the right way to address discrimination and advance equality of opportunity in our tolerant British society. I believe that that is still the case. The noble Lord, Lord Waddington, says that specific regulations would be a burden on the public sector. However, I remind him that good regulations serve an important purpose. In this case it is to ensure that systematic inequalities can be challenged so that all members of our society can live and flourish without discrimination. The noble Lord dismisses the importance of equality of outcomes, whereas I suggest that outcomes and opportunity are equally important.

The noble Lord, Lord Low, is right to stress the need for the general equality duty to produce tangible and positive outcomes. I fear that the regulations have been weakened to such an extent that the outcomes will be neither tangible nor positive. In the other place, the Minister made a commitment to review the duties in two years’ time. That is very welcome, but I ask the Minister to confirm that such a review will take place and to provide further information about a timetable for it. How will the evidence be gathered? Will the review be based on progress towards the aims set out in the general duty, rather than simply on the aspects covered by the specific duties, and will it be public? I also ask the noble Baroness for a clear commitment that the specific duties will be amended if the review reveals that public bodies have not made sufficient progress in eliminating discrimination and advancing equality of opportunity.

The equality duty should be one of the most effective ways of combating institutional discrimination and putting the public sector at the forefront of efforts to secure equality. Contrary to what the noble Lord, Lord Waddington, said, in this seemingly fractured society I believe that issues relating to equality and discrimination have assumed greater importance and that regulations to define the specific duties are vital to delivering the general equality duty. As I said earlier, I would be very happy to support the noble Lord, Lord Low, should he wish to vote on his amendment.

[Baroness Verma]

My Lords, I will deal with the points raised by my noble friend Lord Waddington and the noble Lord, Lord Low, separately, but I will begin by dealing with my noble friend’s amendment. I recognise that he speaks with passion and that he has been consistent in his arguments. I stand here as somebody who may not be absolutely in tune with everything on the subject of equality, but I do know the outcomes of discrimination and inequality. I think, therefore, that what we are doing here today is helping to address those issues. While there may be Members among my noble friends behind me who think that we have gone too far, I say to them: ask the people who do not have access to those opportunities and you may get responses that are difficult to take if you have never had to undergo such discrimination yourselves.

My noble friend has made clear his concerns about the issue of religious freedom.