Enterprise and Regulatory Reform Bill

Lord Ouseley Excerpts

Wednesday 14th November 2012 Lords Chamber

[Lord Ouseley]

My Lords, I shall focus my concerns on the equality aspects of the Bill. I welcome the statements made by the noble Baronesses, Lady Campbell and Lady Dean, and the noble Lord, Lord Low, in support of the provisions that I shall refer to—namely, Clauses 56, 57 and 58.

The noble Lord, Lord Lester, said that we have some of the best equality legislation across the whole world. The UK can rightly and justly be proud of the legislative framework that has been created since the mid-1970s to tackle inequalities essentially about race, gender and disability, and more recently the enactment of more coherent equality legislation incorporating a wider range of protected characteristics that has enabled us to enhance that framework. However, the implementation of equality policies and the enforcement of our laws have been patchy to say the least. Parliament passed legislation with a clear definition of unlawful discrimination, enabling it to be challenged, to make equality of opportunity more accessible and above all to promote good relations between different groups of people with one or some of the protected characteristics that make up our diverse society.

This reform Bill reminds me of what I would call a rollback Bill. It almost takes us back to some of the darker ages of poor employment practices by employers. It should be an opportunity to consolidate the progress made to date on the equality front by encouraging more of the practices that have worked for our society, employers and employees while seeking to improve outcomes where appropriate. Instead, we have before us in these clauses another attempt to dismantle the equality infrastructure that has been built up—the architecture for which was expertly and carefully crafted by the noble Lord, Lord Lester of Herne Hill, starting some four decades or more ago. He has continued to devote himself to protecting human rights and fighting for equality legislation and its enforcement.

As someone who has had the privilege of running large, medium and small organisations as well as a small business, I support unequivocally the eradication of unnecessary and time-wasting bureaucratic burdens. I also appreciate the necessity of information gathering for scrutiny, analysis and monitoring purposes as part of efficiency, effectiveness and accountability in any organisation’s operations. In so far as they relate to the Equality Acts of 2006 and 2010, Clauses 56, 57 and 58 fail to achieve the balance necessary to remove bureaucratic burdens and retain fairness, particularly in the context of the respective rights of employers and employees.

Whether by intention or not, the Bill would remove the rights to reasonable redress for employees who have been treated unfairly, restrict access to justice and render the EHRC impotent at a time when prejudice and hatred are on the increase. The Government’s own Equalities Office report, Changing Attitudes to Equality, indicated as much. When we look at the data and statistics on hate crime, there are huge concerns. At the same time, the Government are imposing employment tribunal fees and cutting legal aid and the funding of advice agencies. Above all, with the ethos associated with this particular Bill, they are encouraging employers to ignore equality legislation, abandon good and best practices and become cavalier in how they treat their employees.

Virtually everyone involved in equality work has told the Government that these clauses will have an adverse impact on our society and have the potential to damage race and community relations in Britain. It is disheartening to know that the Government blatantly ignored their own consultation results, which indicated only minority support for their proposals. Surely the minimal perceived benefits for employers through these clauses would be worthless if there was deteriorating social and community cohesion to contend with.

The EHRC’s general duty and its duty to promote good relations are fundamental to the core purpose of the 2006 Equality Act. On that, I agree with my noble friends Lady Campbell and Lord Low of Dalston, and disagree with the noble Lord, Lord Lester. If the EHRC does not undertake such promotional activity purposefully and with statutory underpinning, who else will do it? Many public bodies, voluntary organisations and businesses seek to pursue their activities purposefully with a view to achieving inclusion, equality, fair treatment and good relations—all contributing to better social cohesion. However, they have had help, support, prompting and occasional coercion from the various statutory bodies when they existed to yield the positive benefits from such actions.

During my stint as chair of the Commission for Racial Equality, which preceded the recent legislation in 2006 and 2010, we relied on the Section 71 provision of the Race Relations Act 1976 to apply—in elastic and creative ways—what was then a more limited concept to identify and challenge exclusion, prejudice and bias in any organisational practices. The duty was also used purposefully to assist the commission in enabling people from different backgrounds to achieve greater interaction, better mutual understanding and secure improved relationships. I note that in a recent parliamentary briefing, the EHRC states that,

“these changes are unlikely to have a significant adverse impact on its work.”

I do not know if it said that to satisfy the Government to ensure its survival, particularly in the light of all the massive reductions that it has already experienced in its budget and which will continue to decimate the organisation and its capacity to do anything useful or purposeful. On the one hand, I agree with what it says, because it failed to use the provision in the way that it was intended. A light-touch, invisible regime was not what was envisaged or needed. The previous Government were as culpable for this failure as this Government. On the other hand I disagree with it, because it is an outrageous thing to say and demonstrates a serious incapacity to lead on such a dynamic, creative and central concept and achieve collaboration across employers and organisations to secure the success intended and required.

In Clause 57, repealing the provision for third-party harassment, there is no evidence that the third-party harassment provisions are a burden on businesses—none at all. Why should employees be unprotected from harassment by customers, clients of their employers or others who come on to their employers’ premises? I read in the London Evening Standard only last night an interview with the chairman of Chelsea Football Club, Mr Bruce Buck, who himself is a lawyer. He stated that his club complied with this provision to provide its players with additional protection from harassment. Employees have a right to be protected in relation to all the protected characteristics; and employers benefit from having a defence against a harassment claim if they can show that they took all reasonable steps to prevent or deal with the alleged harassment.

Clause 58 would repeal the questionnaire procedure provision. It is quite incredible that the Government could even attempt to justify this proposal. There is no appetite for it—it will not save money. Yes, it will remove the employers’ requirement to answer relevant questions about their policies, procedures, practices and decision-making, but it will also create more problems for them as a consequence, as they return to that era of hiding behind bad and discriminatory habits. This repeal proposal is opposed by 83% of consultees, including the judiciary. It is ridiculously short-sighted, restricts access to justice and will deny both parties the opportunity to review the relevant information and conclude earlier in the process on the relative merits and weakness of a case before going further with any justified or unnecessary litigation.

In conclusion, I plead with the Government to reconsider these reforms. They bring little or no benefit to employers as perceived or intended. The current provisions are hardly burdensome. The evidence shows that there are more benefits to the workplace environment, to our society as a whole and to promoting fairness and equality if they were retained and applied with greater urgency and in ways which many employers and organisations can already demonstrate bring benefit to the workplace, employers and employees.