My Lords, I am deeply proud and privileged to introduce the Equality Bill to this House. A standard accusation against Governments who have been in office for some time, of whatever political persuasion, is that they have run out of ideas, run out of proposals and run out of steam. This Bill clearly shows how wrong that is in the case of this Government; this is a radical Bill, a Bill brimming with ideas, a Bill with measures for the benefit of people across the United Kingdom. It is a Bill this Labour Government are proud to bring forward.
Before I discuss the Bill, I would like to pay tribute to the person who has done most to bring this Bill about. This Bill simply would not exist without the drive and determination of my right honourable friend, the Leader of the House of Commons, Harriet Harman. At a time of extraordinary difficulty for the other place, my right honourable friend has, with a single-mindedness of purpose and an astonishing degree of commitment to the ambitions and ideas that the Bill encompasses, and to the people whom the Bill will manifestly help, fought to bring this Bill to this House. I commend and thank her and my right honourable friend the Solicitor-General, who has so ably supported her for all that she has done for this Bill and the cause of equality.
In this House, I will lead the ministerial team on the Bill, supported by the Attorney-General, my noble and learned friend Lady Scotland, and by my noble friends Lady Thornton and Lady Crawley. I look forward to the debates we are to have. I also thank very much many Members across the House, including the Front Benches of the parties opposite, key Cross-Bench Peers and my own noble friends for the constructive discussions we have had on the Bill and the issues involved in it before it reached the Floor of this House.
I want to do three things in my opening remarks to this Second Reading on the Equality Bill: I want to set out the Government’s case for the Bill; to lay out the broad structure of the Bill; and to detail some key issues in the Bill.
This country and, indeed, the party on these Benches have a proud record of legislation against discrimination. In the 1960s, we legislated against race discrimination; in the 1970s, against sex discrimination and for equal pay; in the 1990s, against disability discrimination; and, in the early part of this decade, we had legislation protecting against discrimination at work because of age, religion, belief and sexual orientation, first at work, and then in the provision of services and the exercise of public functions.
That range of legislation over 40 years has inevitably resulted in a legislative structure that is complex, inconsistent and often difficult to understand. For instance, different protections apply to different personal characteristics and different rules and tests apply to quite basic concepts—for example, the Race Relations Act contains two separate definitions of indirect discrimination. Although we are confident that our legislation properly transposes the relevant EU directives, its implementation has often resulted in subtly different provisions in the same areas of activity, depending on whether or not European law applies. That is because in many cases our domestic legislation preceded equality legislation in Europe and influenced its content, but the legal effect is not identical so a kind of retrofitting has been necessary in many areas. A major policy intention of this Bill is to harmonise and bring together all the existing equality legislation in one place: nine major pieces of legislation and various subsidiary instruments.
The Government believe that this will make the legislation much more accessible and straightforward. As a result, it will be easier for employers and service providers to understand and comply with their responsibilities and employees and customers will be more aware of their rights. We expect that more straightforward law will also enable the Equality and Human Rights Commission to draw up simpler practical guidance. The commission is starting out on this process even now. I would also like to draw the attention of noble Lords to the Explanatory Notes to the Bill, which have been drafted in a way that is intended to bring out as clearly as possible the effect of the various provisions, using practical examples to illustrate what the law will mean in practice.
If the Bill only consolidated the law, that would be beneficial but it goes much further than simply bringing together the existing law. It also strengthens it in ways that will benefit very many people. We need to strengthen the law because, despite the progress made in combating discrimination, inequality still persists. We have inequality of pay between men and women, with the latest gender pay gap put at 22 per cent; if you are disabled, you are two and half times more likely to be out of work than a non-disabled person; there is a 15.5 per cent gap between the rate of employment of black and ethnic minority people and the average employment rate; and Muslims have the lowest employment rates of all religious groups, with only one in four Muslim women and three in five Muslim men aged 16 to 64 in employment. There are continuing instances of discrimination because of someone’s age; for example, a retailer assuming that older people are incapable of signing a contract without a younger person present to explain the details to them. One in five lesbian, gay or bisexual people has experienced homophobic bullying at work and nearly half of transgender or transsexual people do not use public, social or leisure facilities for fear of discrimination.
Good though our record has been, we need to do more. That is what the Bill before the House today does. The structure of the Bill is broadly as follows. Part 1 places a new duty on key public bodies to take account of socio-economic inequalities when making strategic decisions. Part 2 contains the key concepts on which the Bill is based: the protected characteristics such as age, disability, race etc; and definitions of prohibited conduct such as direct discrimination, dual discrimination, discrimination arising from disability, harassment and victimisation. Part 3 prohibits discrimination and other unlawful conduct in the provision of goods, facilities or services and the exercise of public functions. Part 4 prohibits discrimination and other unlawful conduct in connection with premises. That would typically relate to landlord/tenant situations. Part 5 prohibits discrimination at work. It also contains the Bill’s main provisions on equal pay as well as on publishing gender pay-gap information and making pay secrecy clauses ineffective.
Part 6 prohibits discrimination in education. Most of these provisions simply carry forward existing legislation. Part 7 prohibits discrimination in clubs and associations, including political parties. The Bill extends protection against discrimination in mixed clubs, for example of men and women. In such cases, it will not be lawful to treat some members less favourably than others, but the Bill does not abolish single-sex clubs or other clubs for people with a shared characteristic —for example, the Women’s Institute, gay clubs or clubs for people of a particular race or religion.
Part 8 prohibits other forms of conduct, including helping someone or instructing someone to discriminate. These provisions are mostly carried over from existing legislation. Part 9 covers enforcement by courts and tribunals, including the wider power to make recommendations. Part 10 is about discriminatory terms in contracts and collective agreements. Again, these provisions are basically carried over from existing legislation. Part 11 sets out the public sector equality duty and contains provisions on positive action. Part 12 is about disability and transport. This is, I think, the Lady Chapman memorial part. It covers taxis, private hire vehicles, buses and rail vehicles. Its main effect is to make such means of transport accessible to disabled people. These provisions are also mostly carried over from existing provisions in the Disability Discrimination Act. Part 13 contains additional provisions about reasonable adjustments for disabled people in premises. Part 14 includes general exemptions. Noble Lords should note that the schedules deal with exceptions and reasonable adjustments in the various fields such as work, services, education and premises. Finally, Part 15 provides a number of general powers, including a power to harmonise the Act in future with measures required under future EU legislation.
I now turn to those issues within the structure of the Bill which seem likely to be the main areas of interest. Essentially, these are all measures to strengthen the current legislation. I begin with the new socio-economic duty in Clause 1. This duty is about ensuring that public bodies systematically and strategically take account of people who are poor and disadvantaged when they are making fundamental policy decisions. It is not intended to be a magic bullet that will do everything, but we believe that it will help, when combined with other measures that the Government have taken and are taking to help narrow the gap between rich and poor. I am pleased to say that the Bill was amended on Report in the other House so that this duty now also applies to Scottish as well as Welsh and English bodies.
On age, the Bill prohibits, for the first time, age discrimination in the provision of goods and services and the exercise of public functions. The relevant clauses are Clauses 4, 28 and 195. Even at the time of the Equality Bill 2005 there were calls for this to be done, and of course the Government are aware of the ever-increasing proportion of older people in the population and the need to ensure that they are treated fairly. The Bill provides this new protection which will ensure that people are not treated unfairly because of their age—for example, in receiving financial services, or in health and social care. Of course, we do not want to wipe out age-related concessions, rules and benefits that cause no harm—for example, free TV licences for the over-75s, winter fuel allowances for pensioners or free bus passes. All these things will continue and the Bill contains a power to make appropriate exceptions by means of secondary legislation. The Government have already sought views about exceptions that might be made.
The Bill also contains an expanded and integrated public sector equality duty. The relevant clauses are Clauses 148 to 156. We currently have three equality duties requiring public bodies to have due regard, when carrying out their functions, to the need to eliminate discrimination, promote equality of opportunity and foster good relations between different groups in relation to race, gender and disability, but these three duties are all slightly different and, consequently, public bodies have to meet different requirements that do not match up with each other. The Bill strengthens the law by bringing them all together and expanding them to cover, in addition, sexual orientation, age and religion and belief, and to apply fully to gender reassignment. This duty is all about providing better all-round services to the community and all its diverse members. It is not about favouring certain groups over others. I believe that this equality duty will be one of the most effective ways of combating institutional discrimination and putting the public sector at the forefront of efforts to secure equality.
On procurement, Clause 154 will ensure that public bodies use public procurement to contribute to the delivery of their equality objectives. Currently, public spending on goods and services, often in the private sector, amounts to around £220 billion per year. It seems only right to expect that this significant amount is used in a way that supports these broader social objectives.
On pay, the Bill contains important provisions that are designed to increase pay transparency. Nearly 40 years after the Equal Pay Act, we still have a gender pay gap. The Government believe that unless you can see a problem, it is impossible to tackle it. That is the reason why the Bill, in Clause 78, contains a power to require employers with 250 or more employees to publish gender pay gap information. The Government intend in any event to use their specific powers under the public sector equality duty to require public bodies with 150 employees or more to publish such information, not only about their gender pay gap but about the proportion of their staff who are from ethnic minority communities and the proportion of their staff who are disabled. The Government intend to bring in these requirements for the public sector from 2011.
For the private and voluntary sectors, which account for 80 per cent of employment in this country, the Government have said that the intention is first to encourage voluntary publication of gender pay gap information by the larger employers who would fall within the ambit of the power. The Equality and Human Rights Commission has been working with the CBI and the TUC on a methodology for collating and publishing the figures, and I am hopeful that agreement may be reached on this issue. However, if sufficient progress on publishing is not made by these private and voluntary sector employers by 2013, the Government have made clear that they will use this power to require such transparency. We believe that gender pay gap publishing will be a significant step towards reducing the gender pay gap. Women who want to join a business or public organisation have a legitimate interest in knowing whether their potential employer has a gender pay gap, and prospective employers will need to take note if they want to attract the best talent.
Also on transparency, the Bill makes clauses in employment contracts unenforceable if they stop people discussing their pay with colleagues. The Equal Opportunities Commission found in 2004 that 22 per cent of employers imposed employment contracts with such restrictions. This is not a means of requiring employees to broadcast their earnings to one and all but a sensible measure to help an individual find out what he or she is being paid compared with someone who is doing similar work, and to bring an equal pay claim if necessary.
On positive action, there are existing positive action provisions in current legislation, but these apply to different protected characteristics in different ways. The Bill extends what action is possible and covers all the protected characteristics in Clause 157. The Bill also extends the scope for positive action by employers when deciding whom to recruit or promote, at Clause 158.
Most of the attention has focused on Clause 158, which allows employers to appoint a member of a disadvantaged or under-represented group where they are as suitable for the job as somebody else. This provision has been much misrepresented by some sections of the press as a means of favouring women over men in job applications regardless of merit, for example. That is not the case at all. There is no automatic favouring of a person with a particular characteristic over anyone else. Instead, the purpose of this provision is very much to encourage employers to make the most of a diverse workforce.
As well as simplifying the existing provisions allowing training and encouragement of under-represented groups, Clause 158 itself allows, but does not compel, employers to recruit a person from an under-represented group in their workforce when choosing between otherwise equal candidates for recruitment or promotion. Take the example of a primary school wishing to recruit. We all know that there is a relatively low proportion of male teachers in primary schools, and we all also know that it is good to have male teachers as role models for young boys. If a primary school had two or more candidates as qualified as each other for a post and one of them was male, the school could choose him on the basis of making its workforce more diverse, without the risk of a challenge. I acknowledge that there have been some misunderstandings about what this provision does, but it is in fact a very sensible, and in some ways quite modest, provision which reflects developments in European case law in this area.
The Bill also provides stronger provisions on enforcement, in Clause 123. It will enable employment tribunals to make recommendations, in a wider range of discrimination cases that benefit the whole workforce and not just the victim of discrimination. Tribunals can already make recommendations, but currently only in relation to the individual who has brought the discrimination case. In 70 per cent of cases, that person will have left the firm with which he or she has been in dispute, so no recommendation can be made. That leaves a rather unsatisfactory state of affairs. On the one hand, the rest of the workforce may face continuing discrimination and, on the other, the employer may face further claims. The ability to make recommendations means that lessons can be learnt from the case and unfair practices can be addressed. As a result, they could help to lessen the likelihood of future cases. Recommendations will not be directly enforceable but may be taken into account in subsequent relevant cases. I believe that this is a sensible and proportionate measure all round.
The Bill will have an important effect, through its definitions of direct discrimination and harassment, of providing protection for those who, while themselves not possessing a protected characteristic, are associated with someone who does—for example, by being a carer. That reflects the recent so-called Coleman case of a mother of a disabled child who claimed protection under the relevant EU directive on the basis that while she was not disabled she was associated with a person who was. The European Court of Justice agreed that the relevant directive applies in such cases and the Bill has been drafted to deliver that protection. We have gone slightly beyond implementing the court’s judgment. In practice, the Bill will protect carers who look after, for example, elderly people as well as disabled people against direct discrimination or harassment by their employer or a service provider.
The Bill will provide a new protection, Clause 14, against discrimination because of a combination of two characteristics, which we call “dual discrimination”. The Government identified a gap in the existing law, where, for example, a black woman may face a type of discrimination because of her race and sex combined, which a white woman or a black man does not. People will still be able to bring claims based on a single characteristic—the new clause does not prevent that—but the Bill will close a gap by also providing protection against dual discrimination. In this way, it will provide additional protection for people who face discrimination and disadvantage because of stereotypical attitudes or prejudice when, at the moment, it can be difficult or impossible for people to get the remedy that they need. It is important to note that protection against dual discrimination does not limit in any way the number of claims that could be made on individual grounds. Any of seven protected characteristics can be combined to form the claim of dual discrimination.
The Bill makes important improvements in protection for disabled people. In the other House, a new Clause 60 was added to deter employers from inappropriate use of “pre-employment questions” about disability. This amendment, like a number of others already mentioned, was directly in response to concerns raised during scrutiny in the other House; that is, employers were unfairly screening out disabled people right at the start of the application process, without giving them a chance to compete fairly.
A further improvement in disability protection is Clause 15, which is intended to restore the protection for disabled people that was provided prior to the Malcolm judgment. Disabled people should be protected not just because of their disability itself but also because of something arising as a consequence of their disability. For example, a pub landlady might refuse to serve a man who has had a stroke, as she thinks he is drunk because of the way in which he speaks. He is not refused service because he has had a stroke, but because he has slurred speech, which is something arising as a consequence of his disability.
Finally, the Bill requires landlords to make reasonable disability-related changes to shared areas in residential premises, such as entrance lobbies, when they get a request from a disabled tenant or occupier—Clauses 36 and 37, and Schedule 21. Such changes would be at the expense of the requester.
I should like briefly to deal with some of the myths about this Bill. It will not force gay youth workers on the churches; it will not abolish Christmas; it will not force employers to employ black women; it will not do middle-aged white men out of a job; it will not ban the wearing or display of religious symbols; it will not force councils to support gay clubs; and it will not provide tax-free breaks for scientologists.
One further accusation has been levelled; that the Bill has not received sufficient scrutiny before coming to this place. I have to disagree, although I can see that noble Lords opposite disagree with me. The Bill was scrutinised and reported on by the Joint Committee on Human Rights. Ministers gave evidence to the Work and Pensions Select Committee which reported on the Bill and to which the Government responded. The Public Bill Committee held four evidence sessions with around two dozen representatives and a wide range of stakeholders. It also interviewed Ministers. The committee then scrutinised the Bill for a further 38 hours, discussing more than 300 amendments. The Bill then had its Report stage which lasted a further five and half hours. This is considerable scrutiny, and rightly so, because this is an important Bill which consolidates and simplifies a mass of legislation. It is a Bill with real benefits, not just for a particular group for whom equality legislation can be a vital resolution of difficulties facing them, but for the population of the country as a whole in areas like extending provisions against discrimination on grounds of age.
I look forward to future debates on this Bill in your Lordships’ House, not least because I recognise and pay tribute to the huge expertise and knowledge that exist on all sides of the House on the subject. I look forward to engaging with that expertise and to learning from it. This is a Bill with considerable ambition and wide potential benefits that will have a real impact on people’s lives. It is a Bill which, I believe, will command widespread support. I beg to move.
My Lords, what a pleasure it is to stand up today and welcome this Bill to your Lordships’ House. On a personal level, it is a privilege to be leading these Benches, supported on the Front Bench by the noble Baroness, Lady Morris of Bolton, and the noble Lord, Lord Hunt of Wirral. I am proud that we have a better gender balance on our team than the Government have. This is an area of law which I have been involved in for most of my life, and around the Chamber I see noble Lords with much experience and expertise which should ensure a detailed and lively debate.
I am sure I am not the only one who feels that the Bill has been a long time coming. We first heard of the Government’s intentions to bring in a single Equality Bill in their 2005 manifesto. We then waited until June 2008 for Harriet Harman to outline the Bill in the Commons, and until March 2009 for the Bill to be published. It will only be in 2010, at the sad end of a Government on their last legs, that we can hope to see a single Equality Act. Nevertheless, let us hope that this long period of delay has served only to whet the appetites of noble Lords for the scrutiny and debate which such a large and complex Bill will necessarily require, and in which your Lordships’ House is so effective. I hope that the waiting has increased the anticipation and enthusiasm for the positive provisions which the Bill brings forward.
We are pleased, in particular, with the fact that the Bill will be used to consolidate the existing large amount of equality legislation. At the moment there are nine pieces of equality legislation, more than 100 regulations and more than 2,500 pages of guidance and codes of practice. It is of the utmost importance that if these pieces of legislation are to work and help improve the situation, both employers and employees understand their rights and responsibilities. Legislation on the statute book is all very well but good intentions will come to nothing if they cannot be translated into action and protection in the wider world. We therefore support the simplification and consolidation, which is the main thrust and purpose of the Bill.
It is sadly the case that, even today, many people in Britain face discrimination because of their race, religion, gender, sexual orientation, age and background. Let me give a few short examples. According to figures from the Office for National Statistics on 12 November 2009, the mean pay gap between men’s and women’s average hourly wage for full-time work was still 12.2 per cent. We acknowledge that a lot of work has been done to reduce the gap but it remains far too high. Another example is shown by a recent survey by Rethink, the leading national mental health membership charity, carried out on more than 3,000 mental health service users. They found that half of respondents felt they had to hide their mental health problems and 41 per cent were put off even applying for jobs because of fear of discrimination from employers. There must be real action to bring this and other forms of inequality prevalent in our society to an end. We therefore look forward, as we have for some time, to working closely with the Government to help the Bill on to the statute book.
I have already spoken about our support for the consolidation that the Bill will effect. We also support the major extension that the Bill introduces; namely, outlawing age discrimination. We support those clauses so long as—I am sure that the Minister will agree with us—legitimate businesses are still protected. As we move forward into Committee we shall look for reassurances which I hope the Minister will be able to give.
There are parts of the Bill, however, with which we are disappointed. Despite the extremely long time that the Government have had to hone and perfect it, we are still looking at a piece of legislation that represents, for many who were hoping for a great Equality Act, a missed opportunity. Despite the fanfare from the Government, who claim to want true equality, meritocracy and fairness, we are concerned that the Bill will not address the real issues and root causes of these problems.
The Minister for Women and Equality trumpeted the Bill’s arrival in another place by saying that it was,
“a good, timely and strong Bill that will make our country a fairer and more prosperous place for all its people”.—[Official Report, Commons, 11/5/09; col. 564.]
All would, I think, agree with her here. However, it is unfortunately true that this is very easily said but less easily carried out. We on these Benches think that it is important to ensure that there are real outcomes. We are not satisfied with impressive rhetoric and good intentions backed up only with empty promises. One cannot simply legislate for equality; the merits of a responsible Government's intentions can only really stand on their results. We are worried that some of the Bill’s proposals will once again merely represent expensive box-ticking and bureaucratic processes that, however well intentioned, will cost much but achieve little.
The Government’s proposals to deal with the gender pay gap, for example, would enable Ministers to make regulations requiring all private and voluntary sector firms employing more than 250 people to report their gender pay gap figures and to face possible fines of £5,000 for failing to do so. We are worried that this blanket approach, restricted not just to businesses found guilty at a tribunal, will place a large burden of cost and bureaucracy on businesses at a time when they need the most help. Furthermore, we are concerned that it will not do enough to address the problems at the heart of the issue.
We see now that the Government have conceded that implementing these proposals might be costly, bureaucratic and difficult. There is some speculation that we might see proposals limiting the application of the regulations to companies with more than 500 workers rather than the original 250. I look to the Government for clarification. We are delighted that they appear to have taken on board some of our concerns and recognised the potential difficulties in their proposals.
Nevertheless, the strategy of simply raising the threshold for gender pay gap audits does not seem the obvious solution. Are the Government suggesting that the size of the company correlates with the size of the gender pay gap? If so, can they produce any evidence of it? Further, we see once again that the date for publication of the metrics has been pushed back. Can the Government confirm that we will see the metrics in January before we enter Committee?
In other areas we can see no real proposals for change but just, sadly, political game playing. Part 1 introduces a socio-economic duty on specific public bodies to take into account how their decisions might help reduce the inequalities associated with socio-economic disadvantage. In Committee in another place, the Government defended the fact that this proposal was tacked on to the Bill at the last minute by saying that,
“it is not the solution; of course it is not, because the problem is entrenched and difficult. However, what is the harm of it?”.—[Official Report, Commons, Equality Bill Committee, 21/9/09; col. 130.]
Let me repeat that. The Solicitor-General defended this section of the Bill on grounds no stronger than that there would not be any harm in it. This is not the way to create legislation. It creates headlines and little else. We therefore cannot support it.
We also feel that the socio-economic duty risks placing potentially onerous duties on public bodies for very little return. The Government have lumped together discrimination on the basis of socio-economic disadvantage and the disadvantage itself as the same problem. They are not the same. For a failing Government nearing the end of a Parliament, that is perhaps unsurprising, as it is far easier to legislate for cutting back the weeds of some forms of socio-economic discrimination than it is to attempt to pull out the root causes of disadvantage. But surely the Minister must acknowledge that it is only through the latter that we can really hope to provide any form of real and lasting solution to this problem.
There are also areas within the consolidated sections which we will hope to concentrate on and assess fully. We will hope to look at the Government’s attitude to exemptions for roles within organised religion. Without going into too much detail now, there are concerns that paragraph 2(8) of Schedule 9 does not transfer provisions that were already enacted but narrows them in a way that was never intended. We will seek reassurances, in this area and others, that the Government are not changing the law where it only intended to consolidate.
I look forward to leading these Benches as we debate these issues and others in Committee in January, and I hope very much that the Government will approach the Bill in the same spirit as we are. It is crucial that the Bill leaves this House with real improvements that will bring about real improvements in people’s lives.
I am concerned by the delay in the Bill to date—while the Government have allegedly been perfecting it—as I am by the lack of adequate time for scrutiny in another place, where only one day was set aside for both Report and Third Reading. The majority of amendments were not debated before the Bill came to your Lordships’ House. The Minister will be aware of the number of complaints regarding procedure. This culminated in Mr Douglas Hogg’s reminder about the suggestion made by the noble Lord, Lord Rooker, that when so much of a Bill has not been debated, a certificate should be sent to the other place identifying the parts that have not been properly debated or even debated at all. Can the Minister inform us whether any such certificate has been received, and if so, whether it will be circulated? We need sufficient time for effective scrutiny, attention to detail and analysis. All are keen to see this Bill on the statute book, but why have the Government left their flagship Bill until the last possible moment? Surely they can see that the way in which they have chosen to bring forward the Bill will make it more difficult to achieve a properly scrutinised Equality Act.
I am sure I speak for all of us when I say that we hope that the Government are ready to rise to the challenge and to work closely with us in ensuring that we get an Equality Act in 2010. However, I must say that we cannot support legislation simply for the sake of making the Government feel better or look good. We want to make sure that the Equality Bill lives up to the hype and that it is worth the wait for real people with legitimate concerns. We will therefore have little patience with any parts of the Bill that demonstrate only a political point or the maxim of “where is the harm in it?”. Instead we want real, practical and helpful legislation that addresses the root causes of problems and provides solutions for suffering people. There is little appetite for legislation that professes to fix all problems but in reality addresses few. Our role in this House must be to make sure that this legislation lives up to the fanfare and the years of waiting, so that we have an Equality Act of which we can be proud and which is not a missed opportunity. We on these Benches look forward to ensuring that that is the case.
My Lords, we are very grateful to the Chancellor of the Duchy of Lancaster for her full explanation in her important and impressive speech. As I made clear in the debate on the humble Address, we warmly welcome the Bill. It is a long-standing and core objective of the Liberal Democrats to promote equality of opportunity on the basis of individual worth and merit and to combat unjustifiable discrimination wherever it exists. We hope that our scrutiny of the Bill will help to ensure that effective measures are put in place to eliminate discrimination—measures which are not bureaucratic or opaque and which address real problems and achieve tangible benefits for all. We hope that such measures will ensure that the benefits outweigh the burdens that any legislation necessarily imposes.
We welcome the Bill as an important practical measure to rationalise the existing mass of discrimination legislation and to strengthen and improve the law as it stands for the benefit of everyone. We are glad that the Official Opposition also support the Bill. Our colleagues Lynne Featherstone MP and Dr Evan Harris MP sought in the other place to improve the Bill and to remove some of its blemishes but obtained hardly any concessions. We shall look to the Government to be more open-minded during the Bill’s passage through this House.
For our part, we will seek to avoid tabling unnecessary amendments or to prolong discussion. If the Bill is to pass before the general election, there will be a need for unusual discipline on all sides, including my own. We will help to ensure that the Bill completes its passage in this House with all deliberate speed. Some improvements are needed. We have already raised many of our concerns with Ministers and their advisers and we are grateful to them for being readily available and willing to reflect on them. Ministers are very fortunate to have such an outstandingly able public Bill team.
The Bill has taken far too long to be conceived and its birth pangs have been painful, in part because of the hostility of some Ministers in representing what they regard as the best interests of commerce and industry. The politics of business have led to some weaknesses in the Bill, which we will seek to remove, notably in tackling the serious and persistent problem of unequal pay for women. Where the pay gap is caused by direct or indirect sex discrimination, some of the provisions on equal pay are incompatible with EU legislation and our own case law, notably in defining the comparisons that may be made and the scope of the employer’s defence.
It is in the interests of employers and workers to take positive action to eliminate sex discrimination in the workplace, including discrimination in pay, and to have efficient procedures for dealing with discrimination cases in the tribunals. Too many employers prefer to leave the problems to be addressed, if at all, in individual legal proceedings and are hostile to collective remedies and positive duties that are designed to give systemic remedies for systemic discriminatory practices. Such discrimination wastes the talent and ability of its victims. It is unjust and bad for the economy. If left unattended, it results in the accumulation of problems that eventually have to be remedied at huge cost to the rest of us.
The problem arises not only in the public sector. It is more than 20 years since the Law Lords’ decision in Hayward v Cammell Laird, in which I appeared as counsel for Julie Hayward. The noble and learned Lord, Lord Goff of Chieveley, warned employers and trade unions then of what he described as the absolute need to ensure that the pay structures for various groups of employees include no element of sex discrimination, direct or indirect.
Unfortunately, the Bill’s provisions on equal pay are weak and ineffectual. Given the failure of employers to implement the principle of equal pay for women for so many years, it is not sufficient to rely on a future obligation for only very large employers to introduce transparency into the workplace to help to address the differences in pay between women and men. We should give incentives to employers to carry out proper job evaluations and to work to eliminate sex discrimination in pay, rather than relying only on the possibility of more transparency and the threat of litigation to promote equal pay for women.
Political tactics have led to the inclusion of some provisions that should not be in the Bill, notably, in Part 1, a public sector duty on socio-economic inequalities that would, as we have heard, compel public authorities when deciding how to exercise their manifold functions to,
“have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage”,
taking account of any guidance issued by a Minister of the Crown. This so-called duty is a vague and unworkable exercise in political window-dressing that attempts to suggest that Labour alone is concerned to reduce socio-economic inequalities. The breach of this duty would not give rise to a cause of action in private law, but its presence in the Bill could give rise to politically motivated attempts to use judicial review to challenge a wide range of decisions by already overburdened public authorities, diverting energy and attention from the serious problems of discrimination, victimisation and harassment that the Bill is designed to tackle. Therefore, like the Official Opposition, we cannot support Part 1 of the Bill.
Another example of a vague, unworkable and, in this case, dangerously divisive provision is the way in which religion and belief have been included in the public sector equality duty in Clause 148. It would oblige a public authority, in the exercise of its functions, to have due regard not only to the need to,
“eliminate discrimination, harassment and victimisation”,
“foster good relations between persons who share a relevant protected characteristic and persons who do not share it”—
that is, the characteristics of age, disability, gender reassignment, marriage, civil partnership, race, religion, belief, sex and sexual orientation. Clause 148 treats each strand in exactly the same way. However, religion and belief are not the same and should not be treated as identical.
Religion and belief are not about immutable characteristics such as age, disability, race, gender and sexual orientation. They are about matters of faith—or lack of it—and the practices of those who share a particular faith. One person’s faith may be another person’s blasphemy. Even within the Christian churches, passionate differences are not unknown. There are conflicts between the right to religious freedom and the right to be protected against sexual orientation discrimination. The place of religion in public policy is disputed by many in our plural, secular society.
Clause 148(3) explains:
“Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic”—
that is, religion or belief—
“and persons who do not … involves having due regard, in particular”,
to their needs. These provisions are unworkable and divisive. Clause 10 explains:
“Religion means any religion and a reference to religion includes a reference to a lack of religion … Belief means any religious or philosophical belief and … includes a reference to a lack of belief”.
The Bill quite properly does not define religion, which includes new as well as traditional religions and their different sects.
I know of no cogent and compelling evidence to show that these provisions are needed to tackle a serious social problem. I do not understand how a public authority can be expected to operate these provisions or how they will be protected against unreasonable and well publicised claims and criticisms by those dissatisfied with policies and practices. The quarrels within and about the Church of the Holy Sepulchre will be insignificant compared with what may happen if the Bill is not amended. How can it be appropriate and compatible with equality and freedom of religion for a public authority to have to take account of the needs of Muslims compared with Jews or Christians, or of Muslim women compared with Sikh or Hindu women, or of atheists, agnostics and humanists compared with believers in a theistic religion, or a non-theistic religion such as Buddhism, or followers of a new religion such as Scientology? These are examples of legislative overreach and I hope that the Government will agree to prune Clause 148 where it is overinclusive.
There is also the problem of the potentially adverse impact of Clause 148 and other provisions on the editorial independence and freedom of expression of broadcasters, such as the BBC and Channel 4. They have drawn the problem to the Government’s attention and we seek an assurance that appropriate amendments will be introduced to deal with this.
There are also examples where the Bill is underinclusive. It fails to cover homophobic bullying in schools, except where it amounts to discrimination rather than harassment. I hope that the Minister will explain exactly how the Bill and other measures will tackle this serious problem effectively. We need to be sure that the Bill will ensure that those responsible for our schools are required to stop homophobic bullying, to take measures against the bullies and to ensure that the victims have effective remedies.
The Bill provides no remedy where a school discriminates against a teenage girl who becomes pregnant, even though it is clear that European convention law requires a remedy to be provided for discrimination against pupils in schools. I have written to the Solicitor-General about this and we hope for a positive reply from the Minister this evening.
The right to equality between spouses is a fundamental right protected by Protocol 7 to the European Convention on Human Rights. Forty-six countries have signed that protocol and 42 have ratified it. The UK has not done so, but it committed to doing so in the 1997 White Paper, Rights Brought Home, and has reiterated the commitment subsequently. Before the UK can do that, Parliament has to abolish or amend family law provisions incompatible with the right to equality between spouses. I have listed these in a Question for Written Answer published yesterday. I hope that the Minister will tell us that the Government will introduce appropriate amendments in the Bill together with amendments to equalise the position of civil partners in respect of housekeeping allowances.
On racial discrimination, I hope that the Minister will be able to confirm that the reference to race in Clause 9 should be interpreted and applied in accordance with the UN Convention on the Elimination of All Forms of Racial Discrimination, by which the UK is internationally bound. On age discrimination, we hope that the Government will ensure that the outmoded default retirement age of 65 is abolished during what remains of the lifetime of this Parliament. As for disability discrimination, we need to be satisfied that the Bill involves a progressive approach, as it probably does.
On the interaction between religion and sexual orientation discrimination, we have concerns about the exemption permitting discrimination in state-maintained faith schools beyond what is permitted for charities and businesses where the principle of proportionality applies. The European Commission has given two recent opinions that UK equality legislation does not give sufficient protection against discrimination on the grounds of sexual orientation and disability. I have asked the Government to make those publicly available so that they may be considered by the House in our debates on the Bill.
Provision is needed on positive action, as the Minister explained, because promoting equality may require more than treating different individuals in the same way as each other and may require the accommodation of difference. The need to take steps to correct conditions of disadvantage that arise from discrimination may require taking special measures of general application. I stated those principles in my own Equality Bill, which I introduced as a Private Member’s Bill. We need to ensure that the measures for positive action are limited only to what is appropriate and necessary to meet legitimate aims in accordance with the principle of proportionality.
I have concentrated on areas in which we seek changes, but nothing that I have said should take away from the fact that we warmly welcome the Bill and will do our best to ensure that it is safely delivered.