My Lords, with the leave of the House, I shall now repeat a Statement. The Statement is as follows:
“With permission, Mr Speaker, I should like to set out to the House today how the Government propose to make further progress towards the fair and equal society that we want to see.
“I am pleased to announce that we are today publishing our key proposals for the Equality Bill in a document entitled Framework for a Fairer Future. Copies are available in the Vote Office.
“For us, equality is a matter of principle; it always has been. As the Prime Minister set out on Wednesday in his announcement on social mobility, we want to address the serious inequalities that still exist. Addressing these inequalities and creating a fairer society are important for three reasons. First, fairness is important for the individual. No one should have to put up with discrimination. Secondly, fairness is important for our society. A society that is equal and fair is one that is more at ease with itself. Thirdly, fairness is important for our economy. An economy that sees no one pushed to the margins or excluded brings the widest pool of workers to employers. Diversity makes us outward-facing and helps us to compete in the global economy.
“The first equality law was brought in by a Labour Government more than 40 years ago. Progress has been made to outlaw discrimination against you if you are black, if you are a woman, if you are lesbian or gay, if you are disabled or if you are older. But though progress has been made, inequality and discrimination still persist. Men who work full time still earn 40 per cent more per hour than women who work part time. Though more disabled people are now working than ever before, a disabled person is still two and a half times more likely to be out of work. If you are black or Asian, you are less likely to be in work and, if you are in work, you are more likely to be earning below the level of your qualifications. Homophobic bullying still blights the lives of most lesbian or gay young people and it is still perfectly lawful to tell someone, ‘Sorry, you’re too old’, to refuse anything from healthcare to insurance.
“The Bill and package of measures that I will outline to the House today represent a radical shift in our approach to fighting unfairness and breathe fresh life into our equality agenda. Our package of measures includes the Equality Bill that we promised in our previous manifesto, secondary legislation and action by the new Equality and Human Rights Commission. We expect everyone—the public sector firms that do business with the public sector and companies in the private sector—to play their part.
“On pay, at the current rate of progress, it will take another 80 years before women are paid the same as men. It is impossible to tackle discrimination when it is hidden. That is why we want a new era of openness when it comes to pay so that women can see, in their own workplace, just how much more men get paid than they do. Just as every school has to publish its exam results, so that parents can see, and every hospital has to publish its waiting lists, so that patients can see, I want employers to report on key equality issues such as gender pay, so that their employees can see. This will put the spotlight on pay unfairness, which we all know goes on but which stays swept under the carpet.
“Under its legal duties to promote equality, the public sector will lead by example, but 80 per cent of people are employed in the private sector, where the pay gap is double that of the public sector, so we must have progress on fairness in the private sector. We will do that in five ways, through the fact that 30 per cent of all companies do £160 billion-worth of business with the public sector and by considering how public procurement can be used to deliver transparency and change. The Equality Bill will outlaw clauses in employment contracts that prohibit employees from disclosing their pay to one another. Where an employer has been found to have unlawfully discriminated, we will provide for the employment tribunal to be able to make a recommendation applying not just to the successful complainant but to everyone in that workplace. The Equality and Human Rights Commission will conduct inquiries under its legal powers into sectors where most progress needs to be made, starting with the financial services sector. We are going to tackle sexism in the City. Through a new kite-mark system, we will challenge companies to report on equality.
“We expect that business will equally regard reporting on its progress on equality as an important part of explaining to investors, employees and others the prospects for the company. We will review progress on transparency and its contribution to the achievement of equality outcomes and, in light of this, consider within the next five years using existing legislation to achieve greater transparency in company reporting on equality.
“Many people still seem to think that it is perfectly acceptable to discriminate against someone because they are older. It is not and, with the number of people over 85 set to double over the next 20 years, it makes no sense. People are not over the hill at 60 to be either refused insurance or discriminated against in healthcare. We will lay down in the Equality Bill duties on the public sector to eliminate age discrimination and promote equality for older people. We will take powers to outlaw age discrimination in the provision of goods and services. We will need to allow for a transitional period for changes to be made to comply with the law before it comes into effect, but work is already under way, and we will consult on making provisions to bring the new law into force more quickly in those sectors that are ready to comply with the law.
“On disability, too, we need to be able to see who is including disabled people in their workforce and who is shutting them out. That way, we can see who is making progress year on year, compare comparable organisations, learn from the best and challenge the worst.
“We need to make further progress on fairness. That is why we will legislate to give more scope for employers, if they want to increase the number of women or black or Asian employees, to take positive action. This will help the police, for example, who want to make more progress on diversity because they know that they can be most effective when they reflect the ethnicity of the communities that they serve. To allow progress on women’s representation in the House of Commons to continue, we will extend the permission for all-women shortlists for parliamentary selection until 2030. We will consider with the Commissioner for Public Appointments whether a specific power to encourage diversity for public appointments within her remit would assist her in this task.
“Next month I will publish a further paper setting out our proposals in greater detail and over the coming months there will be a continuous and determined programme of further action, which will include considering whether there is a case for representative actions to employment tribunals, working out whether we can toughen the law to give redress to people who suffer discrimination on multiple grounds and working with the trade unions to strengthen the excellent and pioneering work of trade union equality representatives in the workplace.
“This package will see us make further progress towards a fair and equal society. A single statute to replace the complex web of legislation that has grown up over the years will make it easier for people to see their rights and understand their obligations. The Equality Bill will be written in plain English alongside the necessary legal language.
“In the past, when Labour has brought in laws to promote equality, they have been controversial. I hope that now, in the 21st century, there will be agreement that we must all play our part in making this country fairer”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement made in another place. It is disappointing that, once again, a Statement should have been made in the other place after the Government had already given briefings to the press. I was dismayed to see the headline splashed across the Daily Mail this morning proclaiming, “Women More Equal Than Men”. That headline was generated, I would say, by the Government’s briefing, which has set the wrong tone right at the outset of an extremely important and sensitive debate. Once again, the Government’s departure from convention in their pre-emptive media strike threatens to jeopardise this serious agenda. I am grateful to have my chance to respond to this Statement in the place where these proposals should have originated: Parliament.
The Equality Bill will be welcome legislation. Consolidation of equality legislation is important because it hits at the heart of the problem. To ensure level-pegging, people need to know where the pegging is. A streamlined approach is surely the way forward and I look forward to working with the noble Baroness in improving the legislation, when it arrives. Together we can move towards a more equal and fairer society.
This Bill has been a long time coming. It was a manifesto commitment in 2005. We have been told today that there will be another announcement in a month’s time. I am concerned that we are simply being reminded today that the Government have not forgotten about their commitment to equality. This is crucial legislation, which could be a big step forward, so why have the Government taken so long to make this crucial stride?
We welcome the broad thinking behind the proposals to tackle age discrimination, but the lack of detail on implementation and exemptions is baffling. Discrimination against a person on account of their age is abhorrent. We strongly support fair provision of services for older people and we need to make sure that the proposals will genuinely benefit them. Age discrimination proposals will have a serious impact on the health service, yet, once again, there is little detail in the Statement. Can the noble Baroness explain how age discrimination proposals would affect not just the planning of services but decisions about the treatment of individuals? I am sure that your Lordships’ House will bring much experience and expertise to this issue, because this Chamber has certainly never discriminated on the ground of age and recognises the wisdom that comes with age.
The true impact of proposed equality legislation will be in the practical workability of the detailed proposals. Without further information, we cannot assess the real impact of the Government’s proposals. For example, the Minister noted in her Statement that the Government would use procurement contracts as a way of increasing transparency with regard to the pay gap, but how will this work? The implication seems to be that, if the figures are bad, a company will not get the business. What is the Government’s clear position on this?
The noble Baroness mentioned in her Statement that employment tribunals will be able to make wide-ranging recommendations when an employer is guilty of discrimination. What exactly does this mean? We have a firm position on this. We have proposed compulsory pay audits for employers who are found guilty of discrimination. Are the Government adopting our position? Does the Minister have a different solution, or is it simply empty rhetoric?
It seems that we are in danger of these proposals becoming a noble gesture. The diversity targets for government departments might have been met with applause but, after a decade of opportunity, the Government have failed to meet their self-imposed targets. The pay gap in the Treasury is 26 per cent. Only 31 per cent of senior civil servants are women. The Ministry of Defence is the worst: only 13 per cent of its top jobs are filled by women. The Government have claimed that the Equality and Human Rights Commission will conduct inquiries into sectors where progress needs to be made. It seems clear to me where it could start. When will the Equality and Human Rights Commission be invited into the Treasury or the Ministry of Defence? If the Government are really committed to taking a firm stand on equality, they should lead by example and get their own house in order first.
These proposals are in danger of being half-baked. For example, the Government’s position on positive discrimination needs further clarification. Can the noble Baroness explain how far this would extend? Would an employer who felt that their organisation would benefit from more white men be able to discriminate in favour of them? Would, for example, the head teacher of a primary school staffed only by women be able to discriminate in favour of a man under these proposals?
The Equality and Human Rights Commission covers religious discrimination, yet there is no mention of this in the Statement. Indeed, when the Statement was debated in another place, the Minister ignored the issue and failed to answer the question. We are fortunate to have another chance to ask that question, which it is essential that the Government answer. Will the Equality Bill include religious discrimination, or is it the case that what was hailed as a priority by the Government when Mr Blair was Prime Minister has now simply slipped off the agenda?
I come back to the tone of the equality debate. Ministers have used phrases such as “empowering the resentful”. Is it any wonder that the headlines were so negative this morning? Where is the positive and sensible approach in that kind of language? The language is important because it changes the tone of approach and thus the chance for success. This is what will frame the proposals—in Parliament and in public—and be the bedrock for any future progress.
After all these years, after manifesto commitments and press releases, the Government are in danger of missing the opportunity that this proposed legislation presents because of their obsession with being seen to be doing the right thing, rather than actually doing the right thing. They could be introducing a revolutionary approach to equality today, announcing legislation that promotes fairness and diversity and building a positive and sensible framework and coalition. In what should have been the biggest step towards a fairer society in decades, the Government have merely stumbled out of the blocks.
The Bill has noble intentions, but the noblest of intentions should not be dashed by partial policies and divisive politics. In such a highly sensitive area, the details are crucial, as is communicating them in a positive and sensible way in accordance with convention. This is a chance for cohesion and fairness. This is an opportunity firmly to entrench the British sense of fair play. The Government should rise above party politics. I hope that the Minister will join me in endeavouring to achieve the noble intentions behind the Bill with a renewed commitment to a positive and thorough way forward.
My Lords, I am grateful to the Minister for early sight of the Statement in the other place. I entirely agree with the noble Baroness, Lady Warsi, that we should rise above party politics. If one leaves out the bits of her speech that were full of party politics, highly partisan and very cross, there were positive aspects of it which I have never heard a Conservative—or shadow—Minister make. That is extremely welcome.
This House has very special expertise, some of which is held by noble Lords sitting here, in tackling inequality and promoting comprehensive, user-friendly equality legislation. All the strands, as we now call them, of discrimination are very well represented in this House.
The noble Baroness, Lady Young of Hornsey, has asked me to express her great regret that she cannot be here this afternoon. I mention her in particular because she and I, along with others, are going to form a cross-party—and beyond-party—group to work in this House to help the Government in both Houses to make this legislation effective. The criteria by which we will judge it are as follows. First, whether the Bill will contain clear, consistent standards. It needs to consolidate the existing law to make it more user-friendly and accessible. Secondly, we will look at whether the regulatory framework is efficient. There needs to be an effective, efficient and equitable regulatory framework aimed at encouraging voluntary and easy steps to promote equality. Thirdly, we will look at whether the remedies are accessible. People should be free to seek redress for the harm that they suffer as a result of unlawful discrimination through procedures that are fair, inexpensive and expeditious. The remedies should be effective in achieving widespread change.
We will look with particular care, as the noble Baroness, Lady Warsi, did, at the proposals on equal pay. I declare an interest, because I have represented, among others, the Equality and Human Rights Commission in the pending cases, known as “Redcar”, dealing with the problems that afflict local authorities as a result of past failures to accord equal pay. There is broad consensus among all experts that the Equal Pay Act, which Barbara Castle introduced in 1970, whereby employers had five years before it became effective, has proved ineffective and unworkable.
For those with long memories or long lives, this House made a contribution in 1983, when Mrs Thatcher’s Government were compelled by a Luxembourg court ruling to introduce equal pay for work of equal value. Something remarkable happened in this House at that time, and I shall leave a copy of the debate in the Library for those who care to read it. In the Commons, the late Alan Clark, in a somewhat inebriated state, introduced the regulations and, I am afraid, made an idiot of himself. When the regulations were introduced here in the Lords, Lord McCarthy introduced an amendment, which was passed by this House, believe it or not, supported by, for example, Baroness Seear, the noble Baroness, Lady Lockwood, and many others who are still alive. The amendment stated that the House,
“believes that the [equal value] regulations do not adequately reflect”
EC law. That is the basis on which the regulations were passed. In the course of that most remarkable debate, Lord Denning, who had dealt with many equal pay cases, said that although the EC law was clear,
“We have suffered a large number of headaches in order to understand that statute”—
the Equal Pay Act—
“Its tortuosity and complexity is beyond compare. No ordinary individual can understand it. We in the Court of Appeal had the greatest difficulty”.—[Official Report, 5/12/83; col. 901.]
He went on to explain that the whole procedure was so tortuous, complex and unworkable that it made equal pay a dead letter.
I have read the Statement and the accompanying summary with great care. I do not understand how it has come about—against the wishes, I am sure, of the right honourable Harriet Harman and equality Ministers—that there is to be no obligation placed upon private sector employers, unless they are involved in public procurement, to carry out equal pay audits. It is all very well to talk about Kitemarks, but I remember the words of the late Archbishop William Temple, who once famously said, “Whenever I intend to travel on the Underground, I intend to buy a railway ticket—but the fact that there is a ticket collector at the other end just clinches it”. Without a complete, radical and proper overhaul of the nonsense introduced, I am afraid, by the Conservatives in 1983 on equal pay, we will not achieve it. Nothing in the Statement indicates that there will be that radical overhaul.
I wish to raise one or two other matters. There needs to be collective machinery for eliminating discrimination in collective agreements. Obviously there need to be representative actions, whereby if some 1,000 employees seek equal pay or non-discrimination they do not all have to bung in separate pieces of paper and they can be gathered together in a comprehensive way.
Obviously, multiple discrimination needs to be tackled, as has been done in Canada, for example. On age discrimination, of course we all should welcome the intention to extend the law to goods and services; but I do not understand why the Statement refers only to the need to “take powers” to do so, instead of saying, “We are going to extend age discrimination legislation now”. I do not understand the reference to “a transitional period”. It will be at least a year and a half before the Bill becomes law. That seems quite long enough to bring the age discrimination legislation into force.
The noble Baroness, Lady Warsi, referred to religion. The single public duty which will involve promoting equality and tackling “disadvantage” is welcome, but there are great dangers in treating religion in exactly the same way as ethnicity or gender. I say this in front of three very distinguished right reverend Prelates, who will know exactly what I am talking about. Religion is an issue. People with a faith and those who do not believe in God at all are covered by the notion of religion and belief, or the lack of it. The idea that a public authority is meant to decide to look at “disadvantage” related to religion or belief, or the lack of it, and then do something about tackling it, is horrendous, because one person’s religion is another’s blasphemy. Setting one religion against another and calling on public authorities to grapple with that would be wrong.
I want to make it clear, as I have done already to Ministers, that you cannot have a one-solution-fits-all approach that treats religion as identical to ethnicity or gender. There are similar problems relating to sexuality. Asking people about their sexuality raises privacy issues, in the same way as asking about their religion. I very much hope that these issues will be dealt with when we get to the details.
I thank noble Lords for the welcome that has been given to the Statement. I endorse what both noble Lords have said: that this House has a special task when we consider these proposals in detail—not just because we are wise and old, but because we have a unique collection of expertise which will make our debates on this Bill particularly vital and significant.
I welcome the words of the noble Baroness, Lady Warsi. She said that this was an opportunity for fairness and she was quite right. In the other place the Minister invited the Opposition to work closely with the Government in making this legislation as effective and as principled as possible. I extend that invitation. I would particularly welcome the noble Baroness’s help if she were able to get Conservative newspapers to take a more positive line on the great benefits that we are offering in this Statement.
On the specific questions, I begin with age discrimination. This is an enormously significant day, not least for this House and for particular colleagues who have spent a great deal of their professional lives and personal commitment encouraging us to arrive at this point. The public duty on age discrimination will challenge a culture in which older people are often seen as invisible and worthy only of second-class services. We will see a significant change in the culture of the health service. We must see that. In response to the noble Lord, Lord Lester, we need a transitional period, because we are challenging health services to look at the way they work from top to bottom in relation to people with chronic and acute illnesses who occupy so much of the concern of the health service. However, the public duty on age discrimination will come into force immediately that this Bill comes into force; but we must work with the industry to ensure that services can be delivered properly.
On pay, I listened closely to what the noble Lord said. He has extraordinary experience on this issue. We want to make sure that transparency on pay audits is our most effective weapon. We want to abandon gagging orders whereby, extraordinarily, people are unable to discuss their pay with their colleagues. On pay audits, to which the noble Baroness, Lady Warsi, referred, we have issues to address in our public service, not least the Treasury. Using the new instruments for the first time will give us real power.
In terms of the private sector, there is an argument for incentives rather than a single sledgehammer. Throughout the whole range of instruments, we will get procurement, quality and higher standards that we can promote and demonstrate. We will be able to achieve the sort of outcomes that the noble Lord wants.
My Lords, we will certainly review what will happen in the private sector, as my noble friend said in the other place today, in terms of the way pay audits are put into force. We will monitor that closely.
The noble Baroness, Lady Warsi, asked whether positive discrimination would mean that white males would be discriminated against and under what circumstances? She cited the case of the head teacher. The important thing that we are trying to do here is to give employers who need to be able to address under-representation an opportunity to do so without fear of being sued. We are not imposing quotas; we are not imposing criteria. This will be permissive. It will not mean that people with fewer qualifications or experience will not be promoted over others but it will mean that there will be more fairness, so that employers can address the problem of under-representation when they have two candidates of equal merit. Equal merit is very important.
In relation to religion, in this country we have groups of communities, which, because of their religion—as much as their ethnicity—find it difficult to access services. There will for the first time be a public duty in relation to religion. I am thinking particularly, for example, of Muslim women, who are sometimes not comfortable accessing health services. Without going into the argument that the noble Lord raised—I am sure that we will have time to do so in future—we are particularly interested in challenging the culture that does not take account of these sorts of differences and the way in which they impact on parts of the community. That is essentially what we want to achieve.
Both noble Lords raised the issue of procurement. We are committed to using the leverage that public procurement offers to promote equality in the private sector. The detail of how we do that will clearly be subject to further consideration and consultation. However, it can and should contribute to the delivery of equality objectives. My time has run out. I am happy to expand on those answers when Back-Bench Members raise additional questions.
My Lords, I start by saying how delighted I was to hear the Government’s announcement. As a member of the Equality and Human Rights Commission, I welcome many aspects of the announcement, and particularly the fact that there will be a single public sector duty, covering all strands that the commission covers; the promotion of equality through public sector procurement, as has been mentioned; and the simplification and transparency that will be guaranteed. However, in these very few minutes, I will concentrate my brief remarks on the aspects relating to age.
As the noble Baroness has said, I have spent most of my adult life campaigning for older people to be recognised as citizens who are equal to younger adults, not as a different and separate species. Persistent and endemic age discrimination has meant that that has been the reality for most old people, although that is largely unrecognised in our society. This shift in policy is historic. I am sure that older people across the country will celebrate when they feel the difference that this should make to their everyday lives, particularly if the legislation is strong enough to guarantee that. Arbitrary decisions—for example, in healthcare where blanket decisions are often made rather than those based on individual diagnosis and prognosis—will no longer happen. Where travel opportunities, access to credit and many other opportunities to purchase goods and services, or participate in activities, are denied arbitrarily in this regard younger people take them for granted.
I understand that the Government intend to phase in the implementation of the goods, facilities and services legislation. With Age Concern and Help the Aged, I am anxious to know what this means. Which sectors will be subject to the legislation first, what will be delayed and when will the end point for implementation be reached? These facts are crucial, as any delays will affect older people more than the young, for obvious reasons. They do not want to miss the pleasure of enjoying any benefits that this legislation should bring them because they have already departed this life.
Dignity, feelings of self-worth, acceptance on equal terms with others and being valued and judged fairly and realistically—not on the basis of stereotypes and biased views—can transform the lives of many older people and ensure that they feel they are full citizens of this country. I hope the Minister can reassure me on the timing of these measures.
My Lords, no one knows more than the noble Baroness, Lady Greengross, about how complex our health and care services are. It is important that the changes that we make, whatever they are, are the right ones and that we help the people we intended to, without unintended consequences.
The health service has done a lot of work already, in relation to an ageing society and chronic conditions—we have the framework for older people and so on. We are now working very closely with them to address these issues, as they are doing. I cannot give a timetable, but I assure her that we have a sense of urgency about this. It is right, just and sensible that we are deliberately phasing this in, but that does not mean that in the interim nothing will happen. I believe that a great deal will happen. These are not signals that we are sending; they are an intent to act. The sort of work that we are doing already in health and social care to change practice, culture and challenge the way things are done, means that we will, I hope, see changes very soon. I look forward to working with her to make sure that the work we do with other stakeholders is well understood, well communicated and as effective as possible.
My Lords, I thank the noble Baroness for reading the Statement and for her later words on particular aspects of religion. Will she ensure that the wider needs and doctrinal sensitivities of the faith communities are borne in mind, when legislation concerning equality is being considered?
Yes, my Lords, it is extremely important that we continue to work closely with all the faith communities. Apart from duties on religion, there are many issues as we progress our work on equality which will have a direct bearing on faith communities. I make that pledge in all conscience.
My Lords, I thank the noble Baroness for repeating the Statement and welcome it. As a founding disability rights commissioner, I have a long-standing interest in equality issues. I look forward to participating in the debates on the Bill when it is brought forward. I hope to also participate in the cross-party group of the noble Lord, Lord Lester.
I will confine myself to a couple of questions. As has been observed, there is a particular expertise on these issues in the House. It will, therefore, have a particular role in debating and passing the Bill. Can the noble Baroness tell me whether there will be opportunities for pre-legislative scrutiny, which many people have been anxious to see? Mr Trevor Phillips, some months ago, spoke about the Bill as being pro-fairness. I hope that the Minister can confirm that the integrity of existing anti-discrimination legislation will be maintained, without being watered down. In particular, can she confirm that the integrity of the disability equality duty, involving disabled people in assisting authorities to implement it, will be retained in the Bill?
My Lords, I am very grateful to have been prompted by the noble Lord, Lord Low, to say how much I welcomed the statement from the noble Lord, Lord Lester, that an all-party group of critical friends will be set up to help us make sure that this legislation is the best of its kind. We propose to introduce a single duty across all protected grounds and we are very much committed to that. It will make so much sense in view of the morass of legislation that we have on equality at the moment. There are no fewer than nine pieces of legislation, more than 100 pieces of subordinate legislation and 2,500 pages of guidance on the EHRC website.
In that process we are not weakening existing protection for disadvantaged groups and, especially, not for disabled people. We recognise already that the disability duties have had a very positive effect, for example, in requiring public bodies to involve disabled people when designing and delivering services. I can give the noble Lord every assurance that, because the specific duties will be subject to further consultation, we will work very closely with stakeholders on the way that that is worked out in practice. We want them to be as robust as possible.
We have had a very long consultation process on this Bill. Within the next month, we will bring forward our full response to that, which will be the precursor to the Bill. The pre-legislative scrutiny may still be under consideration, so I cannot give a definitive answer on that point at the moment.
My Lords, I, too, welcome what has been announced today, but I have a query. Age and equal pay are very much a theme. However, we still have no mention of pensions. Of course, by a previous ruling of a court, pensions are part of pay. As age and pay, including pensions pay, are involved, will there be a hard look at the annuity problem? Still there is a discriminatory practice between the amounts paid for the same pot of money to women and to men on the grounds that women are assumed to live longer than men.
My Lords, the question raised by the noble Baroness is extremely sensitive and very important. We will not deal with that degree of detail in the Equality Bill, but I can assure her that the issue is alive and flourishing in this House, and there will be opportunities to address it.
My Lords, can the Minister provide assurance that in those fields where the workforce is mostly female, which applies to most of the health service, where feminisation of the workforce has been noted, we will be able to avoid a reverse discrimination? In teams which include many young women, it may be considered better to appoint a man as a way of getting around maternity leave and the other aspects that go along with the employment of younger women who may be in their fertile years.
My Lords, I can repeat what I said in relation to the broader question about how we intend to address issues of under-representation. The overriding criterion, which does not change in this Bill, is that people applying for jobs are, and should be, appointed on merit.