Enterprise and Regulatory Reform Bill
Debate between Jo Swinson and Kate Green
Jo Swinson
I thank my right hon. Friend for his intervention. He speaks with passion on equality issues and has done so for many decades. I know that he speaks from the heart on this matter. I also understand the strength of feeling on this issue that he and I have heard expressed by activists in our own party and from many other corners.
Ensuring that the EHRC reports on the aims set out in sections 8 and 9 of the 2006 Act means that it will be able to capture the situation more meaningfully over time by reporting every five years and monitoring its key equality and human rights duties.
Retaining the general duty in section 3 requires a consequential amendment to ensure that the word “groups” in the general duty is defined effectively. The amendment that we propose therefore reinserts the parts of section 10 of the 2006 Act that define the term “groups” for the purpose of the Act.
I turn now to Lords amendment 37, which relates to caste, and amendments (a) to (d) that the Government tabled today. In our previous debate on this matter, I made it clear that the Government recognise that caste prejudice occurs in the UK. Even if that happens at a low level, such prejudice is unacceptable and must not be tolerated. I also said that, although we remained unconvinced that there was sufficiently compelling evidence to require the introduction of legislation, the Government were not averse in principle to introducing legislation, should it become clear that that was the appropriate solution to the severity of the problem.
Strong views have been expressed in the other place on this matter. In the light of those views, we have reconsidered our position and agreed to introduce caste-related legislation. However, we need to ensure that any legislation that we introduce will have the desired effect. We therefore propose amendments in lieu of Lords amendment 37 that will impose a duty on the Government to exercise the power in the Equality Act 2010 that would make caste an aspect of race for the purposes of the Act. We think that that option, rather than the amendment proposed yesterday in the other place, is the best way forward.
As has been discussed in this House and in the other place, the issue of caste is very complex. Many people have voiced the opinion that our understanding of the relevant issues would benefit from some form of consultation to ensure that all the pertinent considerations are identified and, where possible, taken into account. Converting the order-making power in the 2010 Act into a duty will ensure that the Government legislate to incorporate caste protection into discrimination law. It will also give us an opportunity to undertake consideration, possibly through consultation, on whether any other factors, such as the need for specific caste-related exceptions, need to be introduced at the same time that caste is given legal protection. One example that has been raised is that we would not want monitoring forms to demand that people say which caste they are from, because we want to see such a characteristic gone from society and do not want to perpetuate it. Ensuring that there is proper guidance, and that we legislate sensitively, is therefore important. We will all welcome the opportunity of a little time to ensure that it is got right. That will help to ensure that the legislation is focused and robust and addresses all the relevant factors.
I turn to the slight tweak to the motion, which now includes a provision enabling review of the duty and the effect of the order once the Act, as I hope it will become, has been on the statute book for five years and periodically thereafter. That picks up on the concern expressed in recent debates that, because caste is inherently an undesirable concept that we want to fade away, we do not necessarily want to be stuck with references to it on the statute book, given that that will no longer be necessary once, as we all hope, the concept has disappeared from UK society. The hon. Member for Stretford and Urmston (Kate Green) said in a letter to me at the end of last week:
“Given that we are all united in our desire to see caste as an identifier in the UK erode over time, it would also be possible to put in place a timetable for statutory review to establish at what point the measure could be withdrawn if caste discrimination has become a thing of the past.”
That point was also picked up by Baroness Thornton in her closing remarks in last night’s debate. The new provision addresses those concerns by introducing a review and sunset clause.
Kate Green (Stretford and Urmston) (Lab)
I am very pleased indeed that the Government now accept the importance of retaining the general duty. I must say that I was surprised that the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) argued that that had always been the position of his party, given that only the other day the Minister, who is also a member of his party, argued the exact opposite. None the less, we are prepared to welcome repenting sinners to the fold.
As the Minister is well aware, there was widespread concern in civil society and across Parliament at the prospect of repealing the general duty. I pay particular tribute to the noble Baroness Campbell on her championing of the retention of the duty both in the House of Lords and outside Parliament. I also pay tribute to the Minister for heeding the concerns that have been expressed.
The Minister has said in the past that section 3 of the 2006 Act is of symbolic importance. That is right, and symbolism is important, but perhaps even more importantly, it is a powerful statement of our values, aims, approach and ambitions for equality and human rights. I am pleased that that strong message and that underpinning of what equality and human rights mean to us will remain at the heart of our equalities legislation.
We are pleased by the Government’s acceptance of the vote in the House of Lords last night, and we will accept their insistence on disagreement to Lords amendment 36, on monitoring. However, I issue a word of caution to the Minister, which Baroness Campbell raised when the amendment was proposed. It is important that the Government take care to ensure that the EHRC does not simply monitor its own actions but that its role in holding up a mirror to the whole of society on progress on equality and human rights is properly cemented and protected. Ongoing monitoring and reporting enabling that is important, as is the EHRC having the resources necessary to do that properly.
We are pleased that the Government have now accepted the need for legal protection against discrimination on the grounds of caste. Everyone agrees that caste has absolutely no place in our society, and that if there is even one case of such discrimination, proper action must be taken and there must be proper access to redress. The Minister is well aware of the strength of feeling on the matter—she alluded to it in her remarks. I pay tribute to the common effort across Parliament among the parties and with Cross Benchers to reach this point. I especially want to place on record again our gratitude to the noble Lords Harries and Avebury and, of course, my noble Friend Baroness Thornton, who have done a tremendous amount to bring us to this point.
I understand the offence and hurt that the very notion of caste causes. As the Minister said, it is important that nothing we do in the House entrenches caste in our society. Rather, we must help to move forward in a direction that leads to its eradication. In recent weeks, the Opposition have been bringing people together to discuss the right way to do that in the context of what is, as the Minister said, a complex subject. I venture to suggest that we have already done more in three weeks than the Government have done in three years.
Enterprise and Regulatory Reform Bill
Debate between Jo Swinson and Kate Green
Jo Swinson
The EHRC’s objectives are clearly outlined in sections 8 and 9 of the Equality Act 2006. As I have said, although section 3 of the Act and the general duty paint a broad overarching vision, they do not focus specifically on equality, diversity and human rights as outlined in sections 8 and 9, which is what the EHRC needs to focus on day to day.
The House should remember that the commission will still have the responsibility and duty to promote understanding of equality and diversity; to encourage good practice in relation to equality and diversity; to promote equality of opportunity; to promote awareness and understanding of rights under the Equality Acts; to enforce the Equality Acts; to work towards the elimination of unlawful discrimination and harassment; to promote the understanding of the importance of human rights; to encourage good practice in relation to human rights; to promote awareness, understanding and protection of human rights; and to encourage public authorities to comply with section 6 of the Human Rights Act 1998. Therefore, the EHRC duties that remain are significant and wide-ranging—its remit is wide and it has a huge amount of work to do—but they are not the broad, overarching and rather more vague aspirations outlined in the general duty.
Kate Green (Stretford and Urmston) (Lab)
I am disappointed that the Government are resisting Lords amendment 35. Is the Minister aware of the fact, and does she agree, that the general duty has considerable symbolic importance? Following the debate in the House of Lords, the EHRC this week acknowledged that symbolic importance as an indication of the emphasis we place on equality of opportunity.
Jo Swinson
I understand the hon. Lady’s disappointment and the arguments put forward in the other place. She is right to an extent that the debate has become largely symbolic. In a sense, I would argue that it has become purely symbolic. If we were writing the 2006 Act from the beginning and that long list of equality and human rights duties that I have just outlined, people would not say, “Those duties are not sufficient.” Everything that the EHRC wants to do can be done under the existing duties, so she is right that the debate is to some extent symbolic. I do not believe that our measure will have an impact on the day-to-day work of the commission.
Enterprise and Regulatory Reform Bill
Debate between Jo Swinson and Kate Green(11 years, 7 months ago)
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Jo Swinson
I have already outlined various circumstances in which there is a range of questions with many sub-sections. We are saying that it is helpful for business and employees to discuss these issues and to be able to provide information. However, this provision is placing requirements and fears on businesses, and the disproportionate costs that they are facing in complying with it represents a total cost to business of nearly £1.5 million a year. That is a significant cost that we should not take lightly.
Individuals can seek information from an employer about an alleged breach of the 2010 Act without relying on this provision; they can request that information verbally or in writing. Of course, it is in businesses’ interests to respond to reasonable requests of this kind, because the courts would still be free to draw inferences from any employer or service provider’s refusal to answer questions or from answers that seem evasive.
Kate Green (Stretford and Urmston) (Lab)
I am sure the Minister would accept that in many businesses there is an imbalance of power between an individual employee, who might be in a non-unionised workplace—a small business—and the employer, who, after all, is paying that employee. The employee may therefore be reluctant to upset their employer, and the statutory questionnaire procedure at least means that the employee can look to a formal external process to try to elicit information.
What assessment, if any, has the Minister made of the costs and savings in court time? Notably, many of the 83% of respondents in favour of the existing procedure were members of the judiciary, presumably because it makes for a simpler court process when cases do go to tribunal.
Jo Swinson
I thank the hon. Lady for her intervention. Some of the previous Government’s reforms were introduced, ostensibly, to try to reduce the number of cases coming to tribunal, but they have not that effect at all. We have seen a mushrooming in the number of cases at tribunal, which has resulted in a huge backlog. That is no good for employers or for employees, as the stress of waiting for a tribunal preys heavily on people’s minds. The other measures in the Bill are taking firm and important steps to encourage conciliation at an earlier stage to try to reduce the number of tribunals, and to consult on ways in which we can have a rapid resolution so that fewer cases come to tribunal. Those things will do what she suggests is helpful; we all agree that we want to reduce the number of tribunals, but those are the right ways in which to address the concerns, rather than having lengthy and cumbersome questionnaires for businesses. We have therefore concluded that this obtaining information procedure is disproportionate, and our amendment would repeal it.
Jo Swinson
We have heard from various Opposition Members that the EHRC was functioning fantastically.
There are many ways in which the EHRC could improve. We are making a variety of changes to it, but we remain committed to this organisation and to improving it. Just this morning, we had the pre-appointment scrutiny hearing for the new chair, Baroness Onora O’Neill, which is a positive step. I am optimistic about how the organisation will move forward and improve its governance, which is badly needed.
Kate Green
The Minister is right that improvements were needed in the governance and management of the EHRC. Opposition Members have not disputed that. However, to confuse that with changing its legislatively provided remit is simply not being clear, as that is a very different point of principle. Nobody is saying that the organisation could not be run better. What Opposition Members are querying is the need to cut away the ground from under its feet by changing its very purpose.
Jo Swinson
I appreciate that Opposition Members are exercised about this issue, but it is not something that the organisation itself is exercised about, as is evidenced by the quotations from the general counsel in the Committee hearing.
A range of organisations responded to the consultation and gave their views on the change in the general duty. The Association of Chief Police Officers said that the general duty is
“broad in nature, open to wide interpretation and is more in the nature of a vision statement”.
The CBI said that it is
“too vague and creates unrealistic expectations”.
The Gender Identity Research and Education Society said:
“There is no essential specific legal function”.
I particularly like the way in which we managed to unite two organisations that are not usually in agreement—Stonewall and the Evangelical Alliance. The Evangelical Alliance said:
“It’s impossible to achieve and could lead to all kinds of unsatisfactory political interpretations”.
Stonewall said:
“We are not clear that the Commission has made a sufficient case for the retention of Section 3.”
I accept that many Opposition Members think that this change means that the sky is falling in, but the EHRC and its stakeholders do not concur with that viewpoint.
We are reducing the frequency with which the commission is required to publish reports.
Kate Green
Absolutely. That is also true in the public sector. In my constituency, a major public sector institution is even now working with the Equality and Human Rights Commission to marry up its human resources practices and its service delivery. That demonstrates exactly the kind of strong institutional body that we want and that we ought to be protecting and promoting today.
My hon. Friend the Member for Hayes and Harlington mentioned the concerns that Opposition Members have about the framework agreement that covers the operation of the commission, its relationship with Government and, crucially, its independence. There are worries that the combination of the changes to the framework agreement and the fact that it will report only every five years, as opposed to every three years, as now, will seriously weaken its independence and the balance between the independent commission and the Government Equalities Office, which I think is still within the Home Office, although I am happy to be corrected by the Minister if it has moved.
Kate Green
The Minister is indicating that it has moved. We are concerned that the balance of power and influence in determining strategy has shifted from an independent commission to an internal Government body. In the context of the international A-grade status, that is a cause of concern.
Kate Green
That is absolutely right. It is also important to recognise that in an employer-employee relationship, there is an imbalance of power, even in many of the smallest businesses. One thing that the statutory questionnaire procedure helps to do is redress that power imbalance—that has been specifically noted in European directives as one of the purposes of such procedures. It is a regret that Ministers have decided that that protection for employees should be removed.
The statutory questionnaire procedure promotes efficiency in the workplace—cases can be abandoned or issues clarified early—but the fact that the judiciary has come out in the Government’s consultation largely in favour of it suggests that it also leads to efficiencies in the courtroom and the tribunal, because the issues will have been well analysed and distilled. Given the many pressures being brought to bear on employment tribunals, I would have thought that the Government would want to give serious consideration to the cost-effectiveness of the statutory questionnaire procedure in respect of tribunals.
These highly regrettable measures have been thrown into the legislation at the eleventh hour. It appears that they are more a sop to the prejudices of a small number of business organisations rather than a recognition of any business hostility to legislative provisions that have existed for many years.
Finally, I should mention what is happening to the general landscape of places where people can go for redress and advice. My hon. Friends have mentioned the ending of the commission’s grants programme to the voluntary sector; changes to its helpline provision; and the ending of its ability to offer conciliation services in non-employment matters. As the Minister well knows, that is happening against a backdrop of swingeing cuts to legal aid funding and to local authority funding for advice organisations. Those who have suffered discrimination or injustice now have real difficulty even to get to the means of presenting and taking their case. I would understand it if the Minister argued that that is not exactly the EHRC’s core function if it were not for the fact that all other provision of such advice and information is being dismantled. It is extremely difficulty for the Minister to argue that there is no need for the EHRC to provide such a service when the same service is being removed from every possible place where people in need might look for it.
The Opposition are distressed and saddened by the proposals in the Government’s new clauses and amendments. We are concerned that they speak either to Government Members’ intrinsic hostility to the concept of equalities and the landscape to protect them, or to a casual dismantling of provisions that work extremely well. We are concerned that the signal sent to wider society is a negative one—the suggestion is either that equality is a job done, which it plainly is not, or that it is no longer important, even though there is agreement across the House that it is very important.
I hope the Minister takes the opportunity to think again this afternoon about some of the Government’s proposals, but I can absolutely assure her that if that does not happen, the subject will be a matter of live debate in the House of Lords. Their lordships take a great interest in equality and social justice and will be very concerned about provisions that appear to weaken the institutional infrastructure to protect and promote equality. I look forward to many more robust arguments. I hope that, in the end, the provisions will be seen as damaging and that they will be withdrawn, so that we will be able to move forward as an exemplar country in our commitment to equality and our determination to make continuing progress.
Jo Swinson
Although this debate has not been as consensual as the previous one on insolvency measures, I recognise none the less that Members have raised genuine concerns, on which I hope to reassure them.
Various Members referred to the Second Reading debate and, in particular, the question that the hon. Member for Stretford and Urmston (Kate Green) posed to my right hon. Friend the Secretary of State, who said that there were no proposals, at that point, to bring forward the measures in the amendments today. Of course, in June, when Second Reading was undertaken, a consultation was under way, so we did not have firm proposals at that point. My right hon. Friend said, though, that there was nothing to stop people proposing amendments, and since then, of course, the consultation has ended. In answer to the hon. Lady’s specific question about the consultation, I can say that the Government published their response on 10 October. She is right that the Government Equalities Office has moved, following the reshuffle, and is now housed in the Department for Culture, Media and Sport, where the Minister for Women and Equalities is also Secretary of State.
I can provide a range of clarifications. The shadow Secretary of State asked about the scope of equal pay audits, in particular, and whether they would apply only to private organisations. I can confirm that they will also apply to public sector organisations, so it will be the case for all employers, although we must bear in mind the moratorium on additional burdens on micro-businesses until 2014. It is certainly not our intention, however, to limit its scope to the private sector.
The hon. Member for Vale of Clwyd (Chris Ruane) made a helpful intervention pointing out the unfortunate increase in disability hate crime. It was helpful because it reminded us of the issue. I share his concern, and he should not be under the impression that such concern is limited to the Opposition.
Jo Swinson
The change made in 2007 was made for the specific reason that has been mentioned, and that was what was replicated in 2010, but in any event, I reiterate what I said earlier about the fact that significant protections remain. This is not to say that by removing the three strikes test there is no remaining protection for people, so that employers do not have to have regard to ensuring that their employees are not harassed at work; rather, employers retain a common-law duty of care to their employees, and they will still need to ensure that they do not fall foul of the Protection from Harassment Act 1997.
Let me turn to the Equality and Human Rights Commission. I am glad that we are not assuming, on both sides of the House, that the position was perfect under the last Government, and I welcome the comments that various Opposition Members have made to that effect. It is worth bearing in mind that we had significant concerns, as did many of the stakeholder organisations, about the EHRC’s ability to fulfil its core duties. On human rights, for instance, Liberty said:
“We have…watched the turbulent”
history
“of the EHRC with some disappointment…The EHRC has a vital statutory duty”
to defend human rights, and
“notwithstanding considerable staffing and other resources, this is a duty which it is yet to fulfil.”
The Equality and Diversity Forum expressed concern that the human rights inquiry was
“the only visible work EHRC has done that is explicitly concerned with fulfilling its duty to promote respect for human rights.”
The Public and Commercial Services Union listed human rights debates from which it said the commission was absent due to a
“failure to communicate its role effectively”.
In addition, concerns were expressed by the Joint Committee on Human Rights, so there was indeed a problem with the basic statutory duties that are the core functions of the EHRC not being properly undertaken previously. That is why our amendments seek to focus the duty and make it crystal clear that that is the priority.
Kate Green
The hon. Lady has mentioned a number of organisations and their concerns about how the commission was fulfilling or failing to fulfil some of its core responsibilities, but does she not accept that not one of the organisations she has named—neither Liberty, the Equality and Diversity Forum nor the PCS—has called for a reduction in the commission’s remit? What they have called for is improvements in governance and management, some of which, I accept, we are now seeing.
Jo Swinson
It is certainly the case that there is wide agreement that improved governance and management are necessary. Much of that has been happening, which is definitely to be welcomed. However, this comes back to whether we should have a legal duty—something that is tightly drawn and focused—or something that is more akin to a mission statement or vision statement. The purpose of a legal duty is about something being manageable and achievable, and although the duty that the shadow Secretary of State read out described what we would all want to achieve, it would be ambitious for a Government, with all the resources available to them, to say that they would achieve them, let alone for a solitary organisation to try to achieve such a wide range of ends, albeit good ones.
Jo Swinson
The shadow Secretary of State does not surprise me greatly when he says that he is not convinced by our arguments today. This was never going to be the most consensual of debates. He is now asking me to look into a crystal ball, but I am clearly not going to make any predictions for the future. I will, however, say that the EHRC is a vital body that is hugely important to our equalities protection. We are conducting a zero-based review to ensure that it can undertake its functions in a more focused way, and that is what we will continue to do.
The hon. Member for Stretford and Urmston mentioned the potential risk to the A-rated status of the EHRC as a human rights body. We are in discussions with the international co-ordinating committee on this, and we want to address any concerns that it might have. We are determined to ensure that we have an A-rated and highly respected human rights body. The hon. Lady also asked about the framework document and suggested that it could undermine the independence of the institution. In fact, it has been agreed on between the commission and the Government, and it sets out specifically that the commission must be
“free to exercise its statutory functions free from ministerial interference or undue influence.”
Kate Green
I am grateful to the Minister, and I note that assurance, but does not the framework document imply that the function of the EHRC is to deliver the Government’s equality strategy? That does not exactly speak to its independence.
Jo Swinson
As I have said, the framework document is absolutely independent. The commission should be
“under as few constraints as reasonably possible in determining its activities, timetables and priorities”,
and it should not be regarded as the servant or agent of the Crown, or enjoy any status, immunity and privilege of the Crown. Those words are very clear.
I agree with the hon. Lady that there is much more to do on equality. This is in no way “job done”. She outlined the scandal of the remaining pay gap, which we are committed to addressing. I would point out, however, that we were left with a 20% pay gap in 2010 after 13 years of a Labour Government. So before the Opposition get too holier than thou, they should show a little humility. It was not “job done” after they had been in government. We need to work together to ensure that equalities are driven forward, and that these situations are improved. In addition, on the issues the hon. Lady raised around racial inequality, social mobility and the sort of action we are taking through the pupil premium will certainly help. I welcome her support for equal marriage, and I would note again that the previous Labour Government did not do anything about it for 13 years.
We are deliberately making sure that the EHRC is improved in respect of its management. We have made significant progress at the EHRC: we have a permanent chief executive appointed, and as I said, the pre-appointment scrutiny hearing took place this morning for the preferred candidate for its chair. Ministers will, of course, properly consider the report before formally deciding whether to appoint Baroness O’Neill. We have had two clean sets of accounts laid before Parliament—