Second Reading (Continued)
My Lords, let me be clear: it is a fundamental principle of the Christian religion that all human beings are of equal and infinite worth in the sight of God. This Bill seeks to address the many occasions when that fundamental principle is violated. That is an objective which I share and which the Church of England, by law established, supports wholeheartedly.
Sadly, this Bill before us is like decorating a Christmas tree. Everyone has his or her own idea about how to do it. Some favour strict colour co-ordination and others glorious variety. I myself am a Primate of glorious variety.
One cannot legislate to promote equality without constraining freedom to some extent, and because human freedom is both immensely precious and immensely vulnerable, we must proceed with great care. I am concerned that this Bill is built on an impoverished understanding of society. As the right reverend Prelate the Bishop of Ripon and Leeds recently said in this House, we would have a much richer sense of who we are, and a better chance of tackling inequality, if we understood ourselves less as a society of strangers or atomised individuals and more as a community of communities. Individuals’ rights to equal treatment only get us so far.
I am a great supporter of this country’s record in fighting discrimination. Britain was well ahead of the rest of Europe in opposing discrimination on the grounds of colour, culture, religion, sexuality and ethnicity, and that is to its credit. It recognises that black people like me and other minority ethnic people have to be visible before they can fully participate, and that difference in ethnicity must be celebrated and not suppressed. You do not get equality by concealing difference, but, sadly, when this Bill turns to the question of religion and belief, it appears to take a different line. You will never overcome unequal treatment on grounds of religion or belief by silencing the expression of religion in the public square. That would be the imposition of one set of beliefs—the many “-isms”—on all others. I fear that this danger lies below the surface of the Bill and undermines its key objectives, which I wholeheartedly support.
I shall be more specific. In paragraph 2(8) of Schedule 9, the definition of employment “for the purposes of an organised religion” fails to reflect the way in which members of the church and many other religious groups understand their faith to be the bedrock of their lives. It will mean that churches and other religious communities can require an employee to observe particular standards of behaviour or not engage in certain types of conduct that are contrary to Christian teaching or their particular religious beliefs only when their work,
“wholly or mainly involves … leading or assisting in the observance of liturgical or ritualistic practices of the religion, or … promoting or explaining the doctrine of the religion”.
There are several problems with this. The movers of the Bill may be of the view that archbishops and other clergy work only on Sundays, but if one looks at my diary, you will find that most of my days and evenings are not filled with preaching or taking services. The same would go for most clergy and ministers and, I am sure, for leaders within other religious communities as well. The exemption is flawed even on its own terms.
At the height of the floods in Cumbria, I visited Cockermouth, Workington and Keswick. A major part of the relief effort in those places was being carried out by Churches Together, with Christ Church, Cockermouth, as the hub of the activity. The church had been converted into a relief centre and the rector, Reverend Wendy Sanders, and members of the churches did outstanding work which made a huge difference to the whole relief programme. They were, of course, providing help and care to all people, regardless of faith or no faith. How would the Bill classify this activity? Would it come under “liturgical or ritualistic practices” or “explaining the doctrine of the religion”?
However, my main objection to the Bill is this: we are told that the Bill is intended simply to harmonise existing antidiscrimination laws, yet we find that the provision made in 2003, for religious bodies to employ people who share their faith, is being significantly narrowed by the wording which I have just quoted. It does not reflect the reality of how churches work and it goes way beyond harmonising existing law. There is a danger here of legislation by stealth. We need to hold the line where it was set in 2003.
The Bill is in danger of combating religious discrimination by treating all religions as the same. Neutrality between beliefs is one thing, but imagining that one size fits all is the quickest way to an unfair and monochrome society. The noble Lord, Lord Lester of Herne Hill, illustrated this when he dealt with Clause 148, saying that you cannot just do it that way. You may end up finding that one size fits no one.
Not enough attention has been given to the different ways in which prejudice, unfairness and discrimination operate. We need some subtlety in order to distinguish the different ways in which prejudice and unfairness happen. In a community of communities, members of different groups will honestly disagree about what is good, what is right and what is true. By looking at equality through the prism of competing individual rights, the Bill runs the risk of silencing the fair expression of different positions, not just silencing words but preventing people living integrated lives where words and deeds go together. In many cases, the Bill appears to require Christians to separate what they believe from how they express those beliefs, as if integrity of life and faith were of no consequence. That cannot be right in my book.
As I said earlier, the Bill has become like a Christmas tree that has had too many baubles added to it and is now in danger of falling over. Schedule 9 is a bauble too many. We need to find a better way to balance these different sorts of equality so as not to put at risk the precious freedoms which underpin our way of life in this country.
I am reminded of the story of a plane that got into trouble flying across the Atlantic. The captain asked the permission of the passengers to open the hold and dump all their luggage into the ocean. “Yes, yes, yes”, they all cried out and it was done. Thirty minutes later the captain said, “We are still losing altitude. We must get rid of your hand luggage”. They cried out, “Of course”, and it was done. An hour later, the captain said, “We still need to lose more weight. Fifty people will be safely dropped in the water with their lifejackets. The airline operates an inclusive equal opportunities policy and we shall now put it into operation. We shall use the alphabet to guide us. A—are there any Africans on board?”. Silence. “B—are there any blacks on board?”. Silence. “C—are there any Caribbeans on board?”. Silence. A little black boy turned to his father and said, “Dad, who are we?”. The father replied, “We are Zulus!”.
This Bill aspires to great things. I would love to say “Yes, go for it” but, as it stands, I cannot. At the minimum we need to look again at how the exemptions for religious bodies are framed. It is a grave error to set up competing rights and then, by stealth, trump some of them. Like the noble Baroness, Lady Warsi, I beg that Schedule 9 paragraph 2(8) should be amended in the direction of the 2003 Act. If not, it should be deleted from the Bill. The rest of the Bill has much to offer and its main objective ought not to be sacrificed at the altar of “one size fits all” in matters of occupational requirements.
My Lords, I apologise. I mistook the timing and I am sorry.
I declare in interest as a commissioner on the Equality and Human Rights Commission.
This Bill is extremely important. It merits the all-party support which has been demonstrated very clearly. It is part of a journey towards ensuring that we live in a fair society where everyone can feel good about themselves and have an opportunity to participate on equal terms and feel they can reach their potential. They should not face barriers over which they have no control—barriers due to prejudice and discrimination. In the United Kingdom, we have made some good progress in tackling many of the most blatant examples of discrimination; individuals and organisations now know that those who perpetuate this type of discrimination can be brought to account. However, chronic disadvantage and inequality persist, as we have heard. Half of disabled people are out of work and a Bangladeshi woman is six times as likely to be unemployed as a white woman. A child’s postcode at birth is a reasonable predictor for their lot in life as an adult and our choices and chances in life are still to a great extent determined by our origins. This is not simply the product of ill will on the part of either individuals or organisations; it is a systemic bias and, while people may win individual victories here and there, progress will be slow at best and will depend upon those who make great sacrifices in order to take their cases through the courts.
The real challenge is to achieve a wholesale shift in attitudes, looking at how to improve our systems and structures in order to give everyone a fair chance. This is what the Equality Bill will enable us to do. That is why the duty on the public sector is of such importance. The Bill spells out that organisations must look at the evidence and examine their processes, finding ways of delivering for everyone, regardless of race, gender and the other strands of fairness in which they can live equally.
I turn to age discrimination. I welcome the measures outlined in the Bill to ensure that providers of goods, facilities and services—such as high-street shops, sports clubs, holiday resorts and doctors—treat older people fairly and equally. One example is that it is currently legal and normal practice for insurance companies to refuse to quote based solely on a person’s age. This means that some healthy and active older people find it difficult or impossible to travel abroad to visit relatives, regardless of what might be justifiable estimates of risk or experience. There are examples in other sectors of discrimination against young adults. Older people are also denied access to some health services, such as mental health care. One in four people over 64 has a diagnosable and serious mental illness and half of those will suffer from depression. Of those with depression, 2.5 million receive no treatment whatever. One in three of us who reaches 65 will die of dementia. The Bill will ensure that dementia is recognised as a health issue as well as requiring social care.
Some issues, however, remain outstanding. For example, the mandatory retirement age will put age discrimination legislation on an equal footing with the other equality strands and make the law simpler and clearer for both employee and employers. We need this to be achieved in the lifetime of this Parliament. Being forced to stand down from a job because of your age rather than your ability is one of the most blatant forms of discrimination that older people face.
I agree with the noble Lord, Lord Lester, that homophobic bullying in schools must also be addressed and be part of this Bill. I agree with the noble Baroness, Lady Warsi, that the Bill must address the real causes of inequality and ensure real and genuine outcomes. It is your Lordships’ role to ensure that that is built into the Bill.
I am anxious that this Bill, which is so important, does not get lost. We could try to make it perfect by debating it for a long time. It was subject to a lot of consultation in the discrimination law review. If we lose this Bill, whatever Government are elected at the next election, it will take several years before we get another opportunity like this. Measures in the Bill, which is better than some of us feared, have also been subject to amendment, particularly regarding disability. It is key therefore to ensure that the measures pass, subject to your Lordships’ careful scrutiny, but not at the risk of running out of time.
The Bill will help us to celebrate differences and to value others, both for themselves and for the contribution they can make to society. We all need to pull together at a time of great economic difficulties. The Bill deserves our wholehearted support.
My Lords, I welcome and support the introduction of this Bill, which not only harmonises all the current pieces of legislation but also provides new principles further to progress equality across all strands, as disadvantage and inequalities still exist.
I congratulate all those who have had the responsibility for pulling this Bill together and for overcoming the complexities and anomalies of the legislation currently on the statute book and so making it easier for everyone—individuals, service providers and employers—to understand their rights under the law.
As chair of the Women’s National Commission, an interest I declare, I and the commissioners have had the privilege of discussing aspects of the Bill with a great many stakeholders, the vast majority of whom are genuinely supportive of the outcome of this Bill. I do not intend to set out the case for the Bill, because my noble friend the Leader of the House did that so well, but I should like to look practically at some of the key aspects of the Bill, starting with the three clauses that were inserted in the other place. The new provision for dual discrimination in Clause 14, which addresses people experiencing discrimination because of a combination of characteristics, is opposed by the CBI which believes that the inclusion in the Bill of the clause is burdensome for employers. However, its arguments are not valid, either in substance or in principle. What is important is precise legislation to deal with discrimination that people experience.
The new Clause 40 responds to concerns about pre-employment health questionnaires which effectively allow employers to weed out candidates with medical conditions, including HIV. As chair of the Independent Advisory Group for Sexual Health and HIV, this is of particular concern to me. While the new clause is helpful, in that it provides a clearer pathway to a tribunal for people with disabilities, it still does not preclude employers asking questions and discriminating against applicants on health grounds. Thus there remains the “fear of discrimination” factor that many people affected by HIV or mental illness have highlighted.
I greatly welcome the Bill making it unlawful to treat a woman unfavourably because of maternity and pregnancy, but until the noble Lord, Lord Lester, spoke I had not appreciated that under Clause 84(c) it will be legal for a school to expel a student on the basis of her pregnancy. I ask my noble friend for clarification, because surely that cannot be right. Also on schools, it is alleged, as the noble Lord, Lord Lester, and the noble Baroness, Lady Greengross, said, that Clause 82(10) will allow schools to harass pupils on grounds of gender re-assignment, religion or belief, or sexual orientation. There is considerable evidence of this. School pupils are a captive population in the classroom, so surely they must be protected even more. This clause has caused great concern among the people involved, and I fail to understand what good purpose is served by allowing it to remain unamended.
As my noble friend said, the importance of the public equality duty cannot be overstated, but, in working the new duty, it is important that the beneficial aspects of the gender duty are not lost in harmonisation. The gender duty has provided a legislative framework for women to hold public bodies to account, and, as women invariably make up the majority across all the equality strands, it is vital that a gender perspective is prominent across all the grounds.
Clause 148(5) is particularly important in that compliance with the duties involves treating some people more favourably than others. This is a counter to the widespread misconception that equality means treating everyone the same, which has had a detrimental effect on women-only services. However, for the new duty to be effective there has to be greater awareness and understanding of how it will work.
The public sector, as has been said, spends £175 billion a year on goods and services. As the CBI says, public procurement is a useful lever to promote equality and other social goals. That is absolutely right. It can also lead to good pay practices, which brings me to the question of pay. As other noble Lords have said, after nearly 40 years of the Equal Pay Act, the gender pay gap remains, but the elimination of the pay gap relies on a package of measures: pay audits, transparency, representative action and hypothetical comparators.
On mandatory pay audits, views differ: from those that oppose to those that call for their instant introduction. Clause 78 attempts to balance those two views, and although I support it in principle, I should say to my noble friend that 2013 is an awfully long way off and a tighter timetable may be needed.
Currently 30 per cent of employers insist on a secrecy clause in employment contracts. The introduction of transparency and the right to discuss one’s pay with a colleague are important and can make employers consider their pay structure before an equal pay claim is made. However, I again ask my noble friend for a definition of “colleague”. Who is included in the clause? It is impossible to achieve equal pay, particularly for women in low paid, undervalued work, unless there is a comparator in the same employment who is treated differently. Again, I must ask why equal pay is the only area of discrimination law in which a hypothetical comparator cannot apply.
While the Bill helpfully extends the role of employment tribunals to make recommendations in discrimination cases that benefit the whole workforce, it goes only part of the way. Representative action has been demanded for many years. I appreciate that the Ministry of Justice is looking at this issue, but this should not preclude the inclusion of representative action in the Bill.
In conclusion, I shall refer very briefly to two other issues. The first issue relates to positive action. The value of a diverse workforce is beyond question and is accepted by employers. These provisions will not only promote positive action but clarify the current confusion arising from the existing plethora of different rules about when positive action can be used. It would be a retrograde step if the principle of this clause were not accepted. The second issue relates to a purpose clause. Although the Government do not support the idea that a purpose clause is needed in this Bill as it was in the Children Bill, such a clause at the beginning of the Bill that stated the goals and fundamental principles would be a useful tool for those who apply the law in practice. It would prevent misinterpretation of the legislation, thereby strengthening protection for all groups. For that reason, I ask the Government to reconsider the matter and think about a purpose clause.
I have been able only to scratch the surface of some of the clauses of this important Bill. I have raised a number of queries which the Government may not feel able to respond to positively, but this Bill is not about rhetoric but about a real, practical advancement towards equality. I fundamentally believe that, in the name of equality, it is crucial that the Bill is carried in its entirety, and I wish it a speedy passage through your Lordships’ House.
There are many issues in this Bill, but I intend to concentrate on two: religious freedom and the process of scrutiny of the Bill.
The noble Lord, Lord Lester, stated that faith is not an immutable characteristic. This is untrue, particularly in my case. I know that I could never change my faith, and there are many millions with the same view. Let us not forget that many have gone to the stake for it over the ages. This is the time of year when our country’s Christian heritage is most obvious. Many of us will participate in carol services and other services, proudly watching grandchildren, children and godchildren taking part in nativity plays, all celebrating the great news of the birth of the saviour Christ.
This country recognises the unique place of the Christian faith in its national life not just at Christmas but every day. There are many examples of this, including daily prayers here in Parliament, memorial services around the country, and church schools, which continue to be popular with Christian and non-Christian parents alike. However, the Christian majority in this country is renowned for being the vast silent majority. Our voice is not strong enough and is not heard often enough. We certainly punch way below our weight. This struck me forcibly on Sunday when I read the interview with the most reverend Primate the Archbishop of Canterbury in the Sunday Telegraph. His observations were wholly accurate. He said:
“The trouble with a lot of government initiatives about faith is that they assume it is a problem, it's an eccentricity, it's practised by oddities, foreigners and minorities … The effect is to de-normalise faith, to intensify the perception that faith is not part of our bloodstream”.
The right reverend Prelate the Bishop of Winchester warned recently that Britain is increasingly becoming,
“a cold place for Christians”.
The past 12 months alone have seen several disturbing cases of Christians suffering unjust treatment for their religious beliefs. They have been mentioned in the press and include a nurse suspended for offering to pray for a patient, a Christian care home stripped of £13,000 of public funding by Brighton council, and a hostel support worker suspended for discussing Christian beliefs with a colleague. Many more, of course, go unreported. What do these cases have in common? The Christians involved have all suffered in the name of “equality and diversity”. Supporters of this agenda may have noble intentions, including a desire to protect Christians, but it is now apparent that all too often it becomes a tool for punishing them.
Equality laws have created some of the worst injustice. The case of the Christian care home in Brighton, which I have just mentioned, was motivated by the 2007 sexual orientation regulations. These same regulations have forced several Roman Catholic adoption agencies to close; yet these are the very agencies that accounted for one-third of all voluntary sector adoptions. Their contribution to our society has been huge.
Christian principles have woven the fabric of our democracy: the belief in the unique worth of every person, freedom of religion, freedom of association and freedom of speech. The rule of law in this country is based on the principle of equality in the eyes of God. Parliament and the judiciary have upheld these principles for centuries. All our constitutional freedoms have developed from Christian principles. Throughout history Christians have been at the forefront of humanitarian efforts. We heard about the most reverend Primate the Archbishop of York going to Cumbria and sorting out problems for people involved in the floods. That is not religious preaching or liturgy; it is pure humanitarianism.
Christians have also been at the forefront of establishing education and welfare projects in all parts of the world, and have led the way in the abolition of slavery. All this is real equality. In our own age, Christian groups are working so hard to free trafficked women and those who have been forced into prostitution, as I have already said in a debate in this House. Why are Christians being increasingly marginalised in Britain in 2009? Poring over the evidence, I have no doubt that the equality and diversity agenda lies near the heart of the problem.
Yet today we are considering this huge, all-embracing and cumbersome Equality Bill. This is the biggest piece of equality legislation ever put before Parliament, and in the current culture I fear that it could serve to make things worse. I believe that, for Christian freedom, it is the single most damaging Bill to come before the House in my 18 years as a Member.
I am deeply concerned about another aspect affecting this Bill; namely, the scrutiny process. In 18 years the scrutiny of legislation in the Commons has diminished significantly, and I am not the first person to make that statement. There was a problem with the Coroners and Justice Bill there when murder was not even considered. Despite what the noble Baroness the Leader of the House said—that the Bill was well scrutinised in the House of Commons—five and a half hours on the Floor of the House to have both Report stage and Third Reading together does not equate with good scrutiny. The Bill caused uproar in the Commons. The Government appeared to renege on an offer to discuss with the opposition parties how much time would be given to debate the Bill. Just one day was allocated for the remaining stages despite more than 200 amendments having been tabled. As a result, the guillotine fell part way through the second of seven groupings, before the Minister had even begun responding to the debate.
More than half of over 200 amendments that had been selected by the Speaker went undebated. Only those in the first group actually got a response from the Minister at the Dispatch Box. Even today, on the first occasion that I have taken part in a Second Reading debate, we have been asked to limit our contributions. This is a Second Reading debate, not a timed debate. I believe that there is some ulterior motive in all of this. Last week a meeting was held by the Leader of the House and the Minister, the noble Baroness, Lady Thornton, at which groups concerned with the Bill were told not to put down amendments, not to provoke long discussions and not to make interventions, because the Government wanted to curtail the Committee stage of the Bill.
May I continue? I shall write to the noble Baroness.
Apparently the Government have been advised by the Whips that a Bill of this size should require eight or nine Committee days, but they want to cut it down to four or five. I believe that that is totally unacceptable. We will not be able to hold our heads up in terms of scrutinising Bills by pandering to the Government's perfected art, shown in the Commons, of limiting scrutiny. In the interests of avoiding further undermining of Christianity in this country and avoiding injustice, I beg noble Lords to stand their ground and put down as many amendments as they feel they need to do for the Committee stage.
We are dealing with the vital issue of religious liberty and free speech. In addition, I believe that the Bill puts a huge, expensive bureaucratic burden on business and charitable organisations, which, at a time of severe recession, is inexcusable. I ask your Lordships to think seriously about this. The other place does not appear to care about ever-increasing bureaucratic regulation.
Some of the Bill's provisions are not controversial and are widely supported, yet in my view any positives in the Bill are surely outweighed by the negatives I have discussed. The problems I have mentioned so far are caused by existing equality law. So even if the Bill confined itself to consolidating current law, it would not enjoy my support. The examples of adoption agencies and care homes show that the present law is unjust and must be remedied. The Bill continues that injustice. In debates on the earlier 2005 Equality Bill I moved amendments to protect freedom of conscience for those in business. The Government disagreed, and Schedule 23 to the new Bill continues the policy of giving no protection in this area.
However, the present Bill goes much further. Part 11 introduces public sector equality duties so all-encompassing that the implications could be vast. What are public bodies going to make of a duty to promote religion and a duty to promote sexual orientation? As we have heard from the noble Lord, Lord Lester, even the BBC and Channel 4 have voiced fears. The Bill would drastically limit the freedom of churches and religious organisations to choose to employ people, as the most reverend Primate the Archbishop of York has said. It significantly narrows the existing exception which allows churches to refuse a post to those whose lifestyles are incompatible with Church doctrine. It could mean that churches are left without protection even for clergy posts. Leading employment lawyer and author John Bowers QC confirms this position. The Church of England, the Roman Catholic Church and many other religious groups, not only Christian, are very alarmed. Losing the right to choose a church minister who shares their beliefs would strike at the heart of freedom of association for religious believers. The exemption which has existed until now must be maintained.
The implications of the Bill are far too great for it to be rammed through Parliament before the impending general election. I fear that this is the hidden agenda of the Government in view of the comments I have already alluded to concerning the restriction of amendments.
On careful reflection, I believe that equality is morphing into an ideology hostile to the Christian faith. I accept that many Members of this House never intended this to happen, but at grass roots level the equality and diversity agenda is causing increasingly severe problems for Christians in many walks of life; at work and at school, in the media and in the public sphere. The evidence therefore shows that we must make major amendments to the Bill to meet these concerns, or call a halt to it altogether until a solution is found.
Noble Lords will forgive me if I set the record straight. Every meeting I have in this House is open and transparent. I would not do anything of which I was ashamed. We are not trying to ram this Bill through. There is no hidden agenda. I have had a series of meetings with noble Lords on all sides of the House. I have explained that, if noble Lords wished to have a Bill—and the vast majority in this Chamber do—timing is extremely tight. I do not wish to curtail scrutiny. I have never said that noble Lords should not put down any amendments which they wish to put down. I have merely pointed out that, if they wish to have the Bill, they should not put down amendments that bear no relation to the Bill; they should focus their amendments very carefully. I am not ramming the Bill through; I am not seeking to curtail any scrutiny.
I must say to the noble Baroness the Leader of the House that I have nothing but admiration for her. The way it was reported to me was: not to put down amendments which might be not tangential to the Bill. Perhaps there has been a misunderstanding. I shall go back to my source and find out. I do not want to impugn anything like this on the noble Baroness the Leader of the House, but it was part of a very serious conversation I had and I will give you chapter and verse.
My Lords, the need for stronger, clearer, more comprehensive and more easily enforceable equality legislation is pressing. Without it, we cannot address the equality gaps that hold so many people back. I warmly welcome this Bill. I think it could genuinely transform opportunities over time. I look forward to working with Ministers—very speedily—and noble Lords to ensure we end up with a new legal framework that delivers better outcomes for all protected groups.
There are several measures in the Bill that I particularly welcome. My top three are probably using public procurement to drive forward equality as part of the new single equality duty, the provision for regulations extending protection against discrimination in access to goods and services and the inclusion of protection against discrimination by association and perception.
Disabled people often experience multiple forms of oppression and disadvantage. I know that sometimes I am not sure whether I am discriminated against because I am a woman or because I am a disabled person. Many others struggle against other forms of disadvantage arising from ageism, racism, sexism and heterosexism, so I am also pleased to see recognition of multiple discrimination in this Bill, even if it probably does not go quite as far as I would like. At the moment, it involves just two dimensions.
I am very much in favour of an integrated approach to equalities. After all, it is why I joined the first board of the Equality and Human Rights Commission. Realising the vision of an integrated commission has proved an uphill struggle. We now need to replace the myriad of legislation, addressing different forms of discrimination —an even more complex task than putting together the commission, so it will not be easy. Nevertheless, great progress has been made on this front during proceedings in another place, but we still have some way to go with respect to the protection afforded disabled people, and it is now that I will turn to review these little conundrums that need to be sorted.
As the Bill passes through its various stages in the House, I hope that noble Lords will share my desire to ensure that the effective gains secured in the Disability Discrimination Act in the 1990s are not lost in translation in the Equality Bill. My major concern is that this may be the case with the public sector duty to promote equality. Clause 148 says that public bodies should seek to meet the different needs of all the protected groups. Fine. But then it says this may involve treating some people more favourably than others. Noble Lords need to remember that what is permitted in relation to the more favourable treatment of disabled people is vastly different from the more limited forms of positive action permitted for other groups. If this is not made abundantly clear in this Bill, the upshot could be at best, huge confusion and, at worst, public bodies rescinding on some of their positive measures on disability equality.
I shall now hand over to the noble Lord, Lord Williamson, as the usual channels have agreed that he can help me out with the rest of my speaking notes.
My Lords, with the agreement of the House and at the request of the noble Baroness, Lady Campbell, I continue her speech.
The current disability equality duty is clear and much more directional. It says that public bodies must meet disabled people's different needs even where this involves more favourable treatment. Only by restoring this fundamental provision can we be assured that disability equality is safe within a single duty. Many public sector organisations have said how useful this format has been when drawing up their disability equality schemes, and that it has been the reason for their successful implementation. I am pleased to note that the Joint Committee on Human Rights is in full agreement on that point. Let us not reel back on this in this Bill.
I must also sound the alarm on provisions in the Bill on reasonable adjustments for disabled people. The DDA is absolutely clear that it is unlawful for a service provider to charge a disabled person for making a reasonable adjustment. The classic case that noble Lords will remember is that of Bob Ross v Ryanair, a case that the Disability Rights Commission supported back in 2004. Ryanair tried to charge Mr. Ross £18 for use of a wheelchair to get from check-in at Stansted airport to the plane. The DDA was so clear on this point that the principle of not charging was readily confirmed by the Court of Appeal. Providers of goods and services such as Mr O'Leary need this sharp clarity, which is currently missing from the Equality Bill. I have been told not to worry because the relevant Code of Practice will clarify this point. Service providers will be told it may not be lawful for them to pass on the costs of reasonable adjustments, the clarity therefore being lost. This is just not good enough. Disabled people need to know where we stand. There must be no regression.
The Bill also creates the potential for regression on reasonable adjustments for exams and in immigration, when a new exception is proposed. It could lead to disabled people with serious illnesses being denied entry to or leave to remain in the UK. They could risk being deported back to countries where conditions may be life-threatening. This is in contravention of the most basic human rights and cannot be right.
I am confident that we can address those outstanding issues within the limited time frame that we have to secure the Bill, which is truly a landmark for equality.
My Lords, it is a privilege to follow the noble Baroness, Lady Campbell of Surbiton.
I welcome this Bill, which presents us with the opportunity to tidy up and consolidate and put equality legislation on a safer footing. The past 11 years that I have spent in your Lordships' House have been an extraordinary journey. I pay tribute to this House for the conscious choices that we made in that journey. For me, it started off pretty badly with that age of consent debate—some of you may remember. It was a terrible and at times very wounding experience. But every subsequent step that we have taken towards equality we have taken voluntarily, in this House, in partnership with the other place. We have worked together in this House for equality for women, racial minorities, religious groups, people with disabilities, the elderly and, particularly for me, the gay community. It is a journey of which I am incredibly proud but, more importantly, for which I am incredibly grateful.
In front of us now is a choice. We can build on this tradition and help the Bill find safe passage on to the statute book, or we can use the Bill as a mechanism to refight the battles of the past. I appeal to noble Lords—and I am sorry that the noble Baroness, Lady O’Cathain, is not in her place—not to reopen those debates that we have worked so hard to resolve over the past decade. I ask noble Lords not to use this Bill in a destructive way but to use it to heal and not to divide.
I give notice to my noble friends on the Front Bench of two significant provisions that I shall seek, with the support of others, to add to the Bill. The first concerns civil partnerships. This week marks the fourth year since the first civil partnerships were formed; over those four years, civil partnerships have been a huge success and even their fiercest critics cannot deny the overwhelming benefits that they have brought to the gay community, gay men, lesbians and the wider community as a whole. With your help, I want to reverse the current ban on civil partnerships taking place on religious premises. It is wrong to ban civil partnerships from churches and religious institutions. Equally, it would be wrong to force churches and religious institutions to host civil partnerships against their will.
As many noble Lords are aware, a number of religious organisations would like to host civil partnerships, such as the Quakers. This House has a tradition of standing up for religious freedoms. It must be a matter for churches and religious organisations to decide for themselves but, having decided, the law should not stand in their way. I hope that I shall have the support of these Benches, both Front and Back, of the Benches around the House and, in particular, of the Lords Spiritual, in achieving this endeavour. I seek only to heal; I do not seek to divide.
I do not mind what we call it. I have heard marriage described in many ways in itself.
The second issue that I wanted to raise relates to one class of people who are not protected from employment discrimination because of their sexuality. I also welcome the refinement of the employment regulations contained in the Bill. In crafting our legislation all those years ago, noble Lords may remember that we allowed one exemption, and one exemption only. That exemption was for the clergy. This is not an attack on the church, but I do not believe that anybody should be sacked from or persecuted in their job or vocation because of their sexuality. I understand the controversial nature of some of what I am proposing, but persecution is persecution, and we should have done away with the persecution of priests a long time ago.
Will the noble Lord accept that the stance churches take on this matter is, if you like, sexually neutral? It is about the longstanding belief held in Christianity and other religions that sexual relationships appropriately belong within marriage—there is an equal intolerance towards heterosexual as well as homosexual sexual relationships on behalf of faith communities: it is not specific to a particular sexual orientation.
I hope the right reverend Prelate will accept that you cannot sack a heterosexual for having an affair outside marriage—they are protected against employment discrimination—whereas exemption here is simply on the basis of sexuality. That is the point I am getting to.
I hope to table an amendment to frame such a debate.
I look at this Bill, and I see possibilities—the possibilities that Martin Luther King talked about in his “I have a dream” speech. You may recall he said that one day he could see,
“the sons of former slaves and the sons of former slave owners”,
“at the table of brotherhood”.
I am a descendant of the sons of former slaves, and I know there are descendants of the sons of former slave owners among us. In this Chamber perhaps we can create a table of brotherhood. In this place, we do good, and we have done over the years.
Martin Luther King went on to say that he hoped that his children could live in a nation where they were judged,
“by the content of their character”,
and not by the colour of their skin; I would add gender, sexuality, age and disability. This Bill is all about that: being judged on the content of our characters. Judge us on who we are and the way we behave. This is an opportunity to make that dream come ever closer to reality. It is a chance to take one step in a journey together; to finish this work, in this Parliament, with a display of the same spirit I have seen over the last 11 years. It is with pride and gratitude, and with hope and great optimism, that I welcome this Bill.
My Lords, I shall resist the temptation to follow the noble Lord, Lord Alli, down the delicate path upon which he walked. At the outset, I would like to apologise to the noble Baroness, Lady Royall of Blaisdon, for the fact that I was not in my place when she started her speech. I am so sorry—I should have been, but I was inadvertently delayed.
My intervention today relates to one specific part of the Bill and the effect which it may have on one company: Saga. Its business has been built on what is somewhat unattractively called a “niche market”. This means that it provides a range of services to a certain group of people—in Saga’s case, to more than 2.5 million people who are over the age of 50. I suppose that your Lordships would expect me to declare an interest in being over 50. Indeed, if I did so perhaps I could truncate the issue by declaring an interest for most of your Lordships, too. I do not have a financial interest to declare because, regrettably or stupidly, I have not availed myself heretofore of Saga’s services.
Saga happens to be adversely affected by the way the Bill is drawn at present. People are generally happy to see special offers tailored for specific age groups, such as discounted tickets for cinemas or theatres, concessionary rates for hairdressing and so forth—as a matter of fact I found a hairdresser who gave me a reduced rate because I was over 25 or something like that. All sorts of cruises offer special discounts for the over-55s—there is another opportunity for your Lordships. Various hotel chains offer discounts to older people. The Government have followed suit, and have given enhanced ISA allowances for the over-50s. They also give public transport concessions, such as senior citizen railcards and national free bus passes. Senior citizens—and I am lucky enough to be one—would be sorry to see these benefits go. This principle is not new. It is accepted by those who provide the facilities, those who accept them, the general public and the Government, but the Bill as it stands has the effect of banning the marketing of group holidays for particular age groups.
The Government have said that they are considering making exemptions. The Explanatory Notes accompanying the Equality Bill say that exemptions may include holidays for particular age groups. Another publication, Equality Bill: Making it Work, issued in June this year, said:
“On balance, we believe that there is a case for allowing age-targeted group holidays to remain lawful”—
what a fearful expression, but there we are. There is a great case for that. This is all good stuff, but it is difficult to imagine any reason why they should not remain lawful—unless it was in the mind of some bureaucrat looking for unjustified uniformity.
In another place, the honourable and learned lady, the Solicitor-General, said:
“they are exactly the exceptions that we want to make”,
“we will not put it in the Bill”.—[Official Report, Commons, 2/12/09; col. 1203]
I cannot understand why these exemptions should not be written into the Bill. If they are not, on the day on which the Bill comes into force, all services which are confined to the over-50s will become illegal.
One might say that one solution would be for Saga to cater for under-50s, as well as the over-50s, and then it would cover everything. However, it would then be catering for a market in which it has no experience. Presumably the price to those who are in the market in which it does have experience will go up, as the company will have to accommodate the costs of participating in a market in which they have little or no expertise.
Your Lordships may be pleased to know that Saga understands older people. This is not an advertisement, it is just a fact. It insures many drivers who are over 100; the oldest lady taking Saga’s insurance went to Italy to celebrate her 100th birthday recently. That is quite something—there is hope for your Lordships and all of us yet. That is the market which Saga insures, and in my view it is wrong,—indeed, unbelievable—that it might find itself on the wrong side of the law after the passing of this Bill, just because the Government say this is an equality Bill, and therefore everyone, apparently irrespective of the arguments, must be equal.
I wish to ask the noble Baroness the Leader of the House whether she will be good enough to bring forward an amendment to the Bill which will make it perfectly clear that providing special facilities for people who are in the over-50s age group will not be an offence. It seems so obviously sensible and reasonable—characteristics in which the noble Baroness abounds so fully—that I very much hope that she will agree to do this.
My Lords, it gives me great pleasure to thank the noble Baroness, Lady Royall, for introducing the Bill. I declare an interest as a commissioner of the Women’s National Commission, which agrees wholeheartedly that the Bill is necessary, although it may not be sufficient.
Much has been said about tackling the root causes of gender inequality. There is a vast amount of academic literature which already addresses the root causes of gender inequality. I have previously put its ideas forward in this House. The root cause is the fact that women are seen as inferior bearers of labour. That is because they offer domestic labour free of charge and therefore, when they offer the same labour in the marketplace, it is considered to be unskilled. I am well aware that the consideration of wages for housework is not likely to be acceptable, so perhaps we should move on from root causes to giving women rights. If we do not have rights, we cannot exercise those rights. It may be that when we have rights, their exercising is complicated, but without them we are nowhere. I am very grateful that we are at least being given the opportunity to be treated equally by employers, and that the responsibility for transparency rests with employers, and not necessarily with employees.
I particularly welcome the inclusion of religious discrimination in the Bill. I declare an interest as the honorary president of the Muslim Women’s Network UK. The difficulty so far has been that religions—that is, the adherents of a faith—have been discriminated against without fear of prosecution. The reason for that is that particular categories of people are classified by their faith. I was born a Muslim and do not see Islam as a jacket that I can change every day; it is what I was born with and probably what I will die with. Therefore, it is not a choice that I make consciously.
However, I have lived, very sadly, through an intense period of Islamophobia. More than once I have been asked to choose between being a Muslim and being British. I did not choose to be a Muslim; I was born a Muslim. I chose to be a British person. I regard it as a huge privilege to have been allowed to be a British individual. Had I lived in Iran, I think my fate would have been rather different at this stage of my life. I am grateful to be British but I cannot be British by choosing not to be a Muslim. Therefore, when the adherents of a faith are, as a category, unprotected by the law, perhaps we need to take action. This bridging action is most welcomed by Muslim women who, as has been repeated, are the group that is least likely to access equality.
It is important to bear in mind that, for those who practise their religions, the provision of facilities such as a prayer room or clean washing spaces is not an unusual requirement. It will not particularly hurt the employers, and it would help Muslim women to see themselves as welcomed in the workplace as Muslim women. I very much welcome this inclusion.
I would like to see these provisions extended more to the informal labour market, particularly part-time workers. Given the welfare provisions as they stand, most mothers of children under the age of three do not have easy access to full-time free childcare. Therefore, they cannot offer full-time employment. They can only work for the hours when their children are being looked after. The majority of women who are suffering are part-time workers in the informal sector. They are, as yet, not included. However, I heed the advice of the noble Lord, Lord Alli, and I would not press this. I hope that, at some point, these views will also be considered.
My Lords, it is a pleasure to follow the noble Baroness, who made a very important speech which merits rereading after the debate. I add the ritual acknowledgement that there is a certain lack of gender balance on these Benches—exactly the opposite of the government Front Benches, as was pointed out earlier. You cannot win.
I also thank the Leader of the House for her introduction to the debate, which was particularly helpful and gracious. I was grateful for her assurance that there was no proposal to abolish Christmas. Given her duties in the House this week, she may also be grateful that Christmas is not being abolished this year.
During the course of this debate and consideration of the Bill, there will be expressions of concern on behalf of churches and faith groups. We have already heard something of that. Indeed, I have engaged in it a little with the noble Lord, Lord Alli. The first point that he raised is worthy of discussion but he would need to take into account also the ban on civil marriages being held in religious bodies. It would have to be taken in the whole. Some sort of permissive arrangement for faith communities is certainly worthy of careful discussion. I am sure that I can say that from these Benches.
I express some regret that the religious aspects and reservations have come to the fore too quickly. So much of the Bill stands in the broad stream of Christian and Judaeo-Christian ethical thinking: the dignity of the individual created in God’s image; the care for the stranger in the midst in the Old Testament; and the transcending of cultural and racial barriers in the New Testament, such as when St Paul spoke of the Church as being open to Jews and Greeks, slaves and the free, male and female, because Jesus Christ was Lord and saviour of everyone without partiality. Such ideas received a strong puff of wind in the Enlightenment. What we are discussing today can be seen as part of a great historical movement towards greater equality in society that includes the development of democracy, the abolition of slavery, universal suffrage, free access to education and healthcare, and so on. We can all be grateful for the benefits of these huge advances in society and the dignity and rights of individuals.
Clause 1 is significant in this regard. It places a duty on a range of public bodies, including the Government of the day, to take strategic decisions with a view to reducing the inequalities of outcome that result from socio-economic disadvantage. This programmatic opening clause is carefully phrased, with a focus on addressing the inequalities of outcome, rather than the underlying socio-economic inequalities themselves. I think an earlier speaker spoke of narrowing the gap between rich and poor, but that is not quite what the clause says. It deals with the outcomes of the inequalities in economic terms.
Research now overwhelmingly links poorer outcomes to underlying inequalities in wealth and income. The recent book The Spirit Level by Richard Wilkinson and Kate Pickett sets out the evidence in a compelling way. Yet our recent experience over 30 years has been of a growing divide between rich and poor, which even 13 years of a Labour Administration have not reversed, although it has, I think, more or less maintained the position that it inherited. The financial crisis of the past two years can be seen as directly linked to the growth of excessive inequalities in salaries and bonuses, both within the financial sector and between the financial and other sectors.
It seems that, for all its provisions, many of which are to be welcomed, the Bill skirts around the most fundamental issues of inequality in our society. Its sheer size should not deflect us from its limitations. Has any previous Bill had Explanatory Notes running to more than 1,000 paragraphs? If you gave the most reverend Primate the Archbishop a bauble for his Christmas tree for each paragraph, it would have 1,002 baubles on it. Paragraph 80 of the notes refers to,
“the ordinary user of the Bill”.
Who will be the ordinary user?
The underlying problem is that it concentrates too quickly and too excessively on the rights of the individual, essential as these are. There was an interesting interchange in the recent debate on the humble Address, to which the most reverend Primate the Archbishop himself alluded, between the right reverend Prelate the Bishop of Ripon and Leeds and the noble Lord, Lord Lester, who I am pleased to see is in his place. The right reverend Prelate said:
“The Equality Bill is grounded in a view of society as a collection of individuals with rights but fails to take account of the needs of communities to flourish. That can quickly lead to an authoritarian imposition of an individualistic understanding of difference rather than a celebration of plurality in society”.—[Official Report, 26/11/09; col. 492.]
The noble Lord, Lord Lester, responded that EU law is,
“based on the rights of individuals, not of groups”.—[Official Report, 26/11/09; col. 502.]
Perhaps, but that does not mean that it is necessarily correct. We have not just replaced the divine right of kings with the divine right of particular aspects of EU law, particularly as we frame our legislation here.
I say that because there has been too much emphasis on individual freedom in the economic realm that has led to the growing inequalities of socio-economic outcome over the past 30 years, which are now more and more clearly documented. Societies that overemphasise individual freedom and rights, as opposed to responsibility, duty and communal rights, simply generate a growing underclass, well evidenced in the growth of the prison population and all the problems coming from that. The interplay of individual rights with the rights of other individuals and the broader rights of society and the socio-cultural and religious communities in society, will occupy us at a number of points as the Bill makes its passage.
I conclude with one example that has not been mentioned so far—it has not received much attention, which illustrates the point. I refer to the provisions in relation to those who are undergoing, or who have undergone, a change of gender. Society holds different views about the basis for gender reassignment, and there are different views in some of the faith communities.
Noble Lords will not be surprised to hear that the Church of England cannot quite make up its mind, and it is left to individual bishops to decide whether a transgender person can be accepted for ordination. There are conscientious and sincerely held beliefs on different sides in this matter. As a society overall, the current anti-discrimination provisions seem to have been in a proper balance, but the Bill extends the legal protection to those who claim either an intention to transgender or to have done so without any recourse to medical advice or supervision. I speak as someone who accepts the possibility of gender dysphoria and the treatments that professional psychiatrists and medicine can offer. I know from personal and pastoral experience how distressing it is for somebody to have a sense of being in the wrong gender, but I do think that society as a whole has a right to expect that anyone who seeks legal recognition in a new gender should have followed proper medical assessment and advice. Anything less seems to be open to abuse. It is not that. It should not be just a matter of individual decision of individual rights.
I look forward to the Committee stage of the Bill.
My Lords, the main thrust of the Bill is commendable but I wish to raise two points, both of which are necessary for a free and democratic society. The first is the need to protect the interests of Christians and the Christian church. Secondly, we should ensure that elderly people have the freedom to enjoy holidays with those of a similar age, an issue to which the noble Earl, Lord Ferrers, referred.
With regard to the former, noble Lords will no doubt be aware of the recent interview given by the most reverend Primate the Archbishop of Canterbury, reported in the Daily Telegraph on Saturday. I shall not go into the detail of the interview but I understand and appreciate the points that he made. I and many others have heard it said that the Christian celebration commemorating the birth of Christ, which we are now nearing, should cease and that the period should be described as a “customary holiday”. I do not accept that. Neither do I believe that the Christian church is a problem; in fact, it is a solution for many of the country’s difficulties. Therefore, I shall support any amendments that are tabled that will ensure that Christians can express and demonstrate their Christian faith without the threat of being in danger of arrest. Christianity is not to be marginalised in this country.
My second point—again I mention the noble Earl, Lord Ferrers—is one with which I have some difficulty. because the Government support the exception to which I shall refer, but unfortunately they will not include it in the Bill. The exception is to allow certain businesses that provide holiday services to place an age limit on group holidays and to provide holidays catering for people of a particular age, which of course I come into. Holiday companies, such as Club 18-30, which I do not come into, and Saga, which I do, continue to target specific groups, allowing niche marketing by age. In another place, the Solicitor-General agreed that purpose. She said:
“They are exactly the exceptions that we want to make”.—[Official Report, Commons, 2/12/09; col. 1203.]
It is better to have these matters ironed out and included in the Bill than to have to wait for an uncertain period and an uncertain outcome for British businesses such as Saga. I cannot understand why the Government are so hesitant, as they have already made their view plain. The June 2007 consultative paper, A Framework for Fairness, states:
“We must not have in the Bill unintended consequences of prohibiting positive benefits for either younger or older people, such as youth clubs or clubs for older people … or concessions and discounts which help younger or older people”.
That was followed in June 2008 by the Command Paper, Framework for a Fairer Future, which restated that the Equality Bill would,
“not affect the differential provision of products or services for older people where this is justified—for example bus passes for over-60s … or group holidays for particular age groups”.
The Bill, however, has the effect of banning the marketing of group holidays for particular age groups. The Explanatory Notes mention that exemptions “may” include holidays for particular age groups. In June 2009, in yet another consultative paper, Equality Bill: Making it Work, the Government consulted on their repeated intention; stating:
“On balance, we believe that there is a case for allowing age-targeted group holidays to remain lawful”.
Why not put on the face of the Bill exactly those exemptions that the Government recognise are important? Why should businesses have to wait not quite knowing when this will come, if at all? Saga’s 2.7 million customers over 50 would be grateful to know that the Bill will allow them to be able to continue to receive the services that they currently receive.
My Lords, for anyone committed to equality the whole of this Bill is extremely important. Personally, I will be keeping an eye on a range of issues in which I have a concern, including, but not limited to, civil partnerships and the impact of religion generally. In the short time available to me this evening, I will focus on only one issue, which is discrimination on the ground of caste. I and others will table amendments that will add this form of discrimination to discrimination on the grounds of gender, disability, race and so on.
Discrimination on the ground of caste is one of the historic evils of humanity, similar in many ways to discrimination on the ground of race. This has been recognised by people from William Wilberforce to the present Pope. The Indian constitution is exemplary in recognising this; indeed, in 2008 the Prime Minister of India, Dr Manmohan Singh, described such discrimination as a “blot on humanity”. However, in practice it remains a terrible blight.
According to Hindu thought, there are four traditional caste groups, which correspond to the different traditional occupations but which are linked to birth and kinship groups. Outside those groups are what used to be called the “untouchables”—today they are termed Dalits—who are shunned and forced into the most menial tasks. For example, vast numbers of Dalits are manual scavengers, forced to scrape up and collect human excreta with their hands. There is now, I am glad to say, a growing worldwide campaign against this form of discrimination.
As we know, many people from India have migrated to this country. Therefore, two questions arise. First, how many Dalits are there in the UK? Secondly, is there evidence that they are discriminated against here, as undoubtedly they are in India? The issue is complicated by the fact that so pernicious is the caste system that it has permeated even those religions that have a strong doctrine of the equality of human beings and in which the caste system has no religious basis, such as, sadly, Christianity, Sikhism and Islam. In this country, for example, according to the 2001 census, there are 336,000 Sikhs, though the true figure is reckoned to be nearer 500,000. Of these, 167,000 are thought to be Dalits. The figures for Hinduism are more difficult to arrive at, but it has been estimated that as many as 1 million people could be adversely affected by the caste system in this country. That is a very significant number of people.
One study, which was done by the Hindu Forum and carried out over only two weeks in August, with only 19 respondents, agreed that caste discrimination was present in Britain but said that it was confined to private social practice. However, the Hindu Forum and the Hindu Council do not speak for the Dalit communities, who are regarded as untouchable by those who accept the caste system.
I urge the Government to look again at the recent report by the Anti Caste Discrimination Alliance, Hidden Apartheid—Voice of the Community: Caste and Caste Discrimination in the UK. This was a reputable academic study, undertaken by a professor of law and a director of the Centre for Community Research, with outside legal advice; it was a thorough study, involving a lot of people over a long period.
The report shows that discrimination has seeped out of the private sphere into issues of employment, education and healthcare. I will give a few examples. In the field of employment, a bus company operating in Southampton had to reorganise its shift system so that a “lower caste” driver would not have to drive with a “higher caste” inspector. Similar issues arose when drivers were being tested. Another person said:
“Caste came up in the college on a daily basis and you would find that people would group together. The name calling happened every day … You think there is something wrong with you—why am I being treated very different?”.
At school, there is very strong evidence of children being called “chamar” or “chuhra”, which are derogatory terms akin to terms of racial abuse of black or Pakistani people.
In the provision of services, a good number of people complained about intrusive questioning about the caste that they belonged to, with the result that when they revealed that they were Dalits they were rejected in some way. For example, a woman in Coventry was not given care in accordance with her care plan because it was due to be given by a “higher caste” woman who refused to help her shower.
These are just a few quick examples from a very thorough survey. Of those surveyed, 71 per cent identified themselves as being Dalits; 58 per cent of these said that they had been discriminated against because of their caste and 37 per cent said that this had happened on more than one occasion.
In the other place, the Government indicated sympathy for this issue but said that they remained uncertain about the evidence. I suggest that the evidence put forward by the Anti Caste Discrimination Alliance is more than enough to show that discrimination is a reality and needs to be made illegal. The evidence adduced there is certainly as compelling as that which convinced the Government in relation to transgender and transsexual issues. The Anti Caste Discrimination Alliance report, as I mentioned, was a serious study undertaken by academics and it deserves to be given serious weight.
In October this year, the UN High Commissioner for Human Rights, Navi Pillay, said:
“The time has come to eradicate the shameful concept of caste”.
He called on the international community to come together,
“as it did when it helped put an end to apartheid”.
There are 270 million Dalits in the world. We in this country can play our part, with the international community, in ensuring that caste discrimination at least has no place at all in our own society. When appropriate amendments are brought forward to ban discrimination on the ground of caste, they will receive support from all sides of the House and I very much hope that the Government will be sympathetic.
My Lords, I, too, commend the Government for bringing forward another instalment on the long road to equality. It was some 44 years ago that this nation made a date with destiny with the Race Relations Act 1965, which was followed by the Race Relations Act 1976. Both Acts pledged the nation to the twin pillars of the elimination of discrimination and the promotion of equality of opportunity. Both Acts combined law enforcement on the one hand with community development on the other and set Britain on the road to equality. To coin a phrase, we sealed the deal with the British people. While the Explanatory Notes to this Bill are extensive, and my reading of it is incomplete, I cannot recall any reference in the Bill to contributing to the building of a strong, diverse and stable community. I support the call for an overall purpose clause to the Bill.
Today we consider a Bill that, we are told, is intended to bring together the various anti-discrimination laws and their subsequent amendments, which is to be welcomed. The Bill also promotes the notion of a socio-economic public duty, but these duties are not the panacea to all our social ills. For some time, public duty has already been provided in our anti-discrimination laws. Following the Stephen Lawrence inquiry, the Race Relations (Amendment) Act 2000 imposed a number of proactive responsibilities on public authorities, which are commonly known as general race equality duties. We owe it to the legacy of Stephen Lawrence that, however inconvenient, we do not dilute or roll back these steps, which are positive tools in the struggle to eliminate discrimination and promote equality. The problem with this new section of the Bill is not a lack of public duty but a lack of enforcement of that duty, a lack of sanctions and a lack of real remedies.
That said, the principle of consolidation is welcome because the Bill raises a number of key issues, one or two of which I shall touch on as time permits. First, there is the interpretation of “equality”. In the proposed legislation, Ministers embrace equality in the language of fairness, but one person’s fair is another person’s unfair. Fairness is a subjective concept and it has been used as a second-rate substitute for the one word that really matters in this debate—equality. We must build a society where we enjoy the right to be different and, just as important, the right to be equal.
The Race Relations Act 1965 and the legislation that followed it were described by one of the Act’s architects as having real backbone. Underpinning those Acts was the recognition that victims of discrimination must be empowered to seek and pursue justice through remedies in the civil courts or, indeed, industrial tribunals. The new provisions of the Bill—I emphasise “new provisions”—lack real teeth. There is no clear route to equality or justice and some would say that that means very little credibility. Frankly, the new provisions, to coin a phrase that I have just used, lack a legal backbone. Individuals will not be able to pursue legal remedies for breaches of their statutory duty; they will have to seek judicial review proceedings if the authority does not deliver in respect of its strategic decisions. Equality and justice should be about simplicity of access to the law, not about scaling the hurdles of bureaucracy.
Digging deep for some positive strands in the new section of the Bill, I welcome the inclusion of age within the scope of the public sector duty. Sadly, the Bill does not outlaw the practice of enforced retirement at the arbitrary age of 65. Why do the Government not use the Bill to outlaw a practice that discriminates on those grounds? It is also to be regretted that there is a total absence of any protection for those under the age of 18, which could mean that children who suffer discrimination do not enjoy the Bill’s protection.
Gender pay transparency is yet another concern. Only public sector employees, for whom there is a target figure, will enjoy the opportunity of annual detailed reporting. I cannot understand the distinction between the public and private sector obligations here. Eighty per cent of all employees are in the private sector—the vast majority in small and medium-sized enterprises—and their employers are asked to report only on a voluntary basis. However, it is at that level of employment where the growth in the number of women employees really exists. In my view, a voluntary reporting scheme will take us no further forward in the battle to get equality in respect of women’s pay.
We are told that the procurement budget is some £220 billion. It seems to me that this gives us a real chance to make a difference in respect of discrimination on any of the grounds named in the Bill. I would take a blunt instrument to this: if you are found to discriminate, you should not enjoy the benefit of government contracts. The Americans take a simple view: it is called “contract compliance”.
We need to recognise that, if we are to take the road to true and lasting equality, we must ensure that we have the tools to finish the job. Discrimination is not just another social evil; it is a disease that devalues its victim, corrupts its perpetrators and attacks the moral fabric of our society.
My Lords, I generally support the Bill. I was born in 1962, so I do not qualify and shall not be rushing to enjoy, the benefits of Saga, and I doubt whether many over-50s will be rushing to take part in Club 18-30 holidays. Putting that to one side, I was born into what could be described as an “either/or” society: you were either black or you were British; you were either gay or you were decent; and you were either disabled or you were working. I have lived much of my life in such a society, even with the implementation of the Bills referred to by previous speakers.
The importance of this Bill is that it ushers in an “and/and” society—a society in which it is possible to be black and British, to be a Muslim woman and British, and to have a disability and contribute fully to the economy. It seems to me that that is the important point of the Bill and it is why I welcome the idea within it of multiple discrimination: we accept that we must see people as multiples in society and not just as either/ors.
I also welcome the socio-economic discrimination part of the Bill, although I note the concerns of previous speakers that it does not carry enough teeth. In my work with Turning Point and on estates around the country where public services have been commissioned without due regard to the socio-economic impacts and the ensuing discrimination, I can see the impact not just on the individuals in those places but on the generations born to those individuals. We know how difficult it is to move from an estate, from a family where there is unemployment or from a situation where you have not gone to the right school or where the public services have not taken into account the need to balance out socio-economic discrimination. I would rather start here with an expression of the public duty to provide a reversal of the inverse care law and do something about socio-economic discrimination than not start at all. However, I, too, should like to see teeth in the Bill. The “so what?” factor rides high in that statement. What happens if the duty is not adhered to?
At a time when the BNP has appeared on a BBC licence fee-funded station, using the freedom of speech to frighten the life out of a significant minority of the community, I should like the Leader of the House to say a bit more about what is missing in the Bill. In my view, what are missing are the duties of the publicly funded broadcasters, the Arts Council, museums and others to support fairness and equality in society.
For me, the Bill is not just about race, religion, disability or sexual orientation, important as those are; it is also about the future economy of this country. In his 2001 report, Shamit Saggar pointed out that 70 per cent of the increase in the working population will be from black and minority ethnic groups by the year 2020. Some people do not like that fact, but it is a fact. It is as obvious as gravity. If we want a population and an economy that will look after our elderly and provide us with new ideas, economies and businesses, then we cannot afford to discriminate on the grounds of race, disability or sexual orientation. To do so costs us. It is not just a moral imperative; it is an economic one.
I should like to know more specifically about the fears expressed by previous speakers, particularly those of a Christian religious faith. I am from, and take part in, a Christian community, as do my family. I have not heard expressed in that community the fears that have been expressed in this Chamber, and I would like to know more. I believe that most fears are imagined. Some of the fears were expressed during the passing of the Race Relations Act 1976 and the 1964 Act. I am not dismissing the fears but we should examine them logically and see exactly where they lead us.
I do not want to keep you any longer. I am concerned that the issues about the scrutiny of the Bill will lead to delay, which would lead to a dismantling of the Bill at a future time. That would be a real shame. We have a once-in-a-lifetime opportunity to put on the statute book an all-encompassing and/and anti-discrimination Bill, and I urge us to do so. Scrutiny should not mean delay. The people outside this House who are discriminated against on a daily basis deserve a Bill that speaks to them as individuals and as members of our society and community. We should pass this Bill as quickly as possible.
My Lords, although I am generally supportive of the Equality Bill, it is disappointing that it fails to tackle some of the unnecessary discrimination in employment. I speak to two specific issues in that context. First, there is the exception that permits organisations with a religious ethos to discriminate in employment when they are working under contract to provide public services on behalf of the state. Secondly, there is the possible discrimination against teachers in state-funded faith schools.
I am grateful to the noble Lord, Lord Lester, for his incisive analysis of the problems of religion and belief as defined and deployed in the Bill, which I need not elaborate. Nor will I contest the assertions of the noble Baroness, Lady O’Cathain, except to say that as chairman of the All-Party Humanist Group, I only wish that I could share her belief that secularism is advancing across the UK. That is certainly not my impression.
The wording of the “work exceptions” for employers with a religious ethos, which permit them to discriminate in their employment on religious grounds, have been harmonised in the Bill. The new definition of exemptions for religious employers in the Equality Bill clarifies the present law by stating that any requirement that an applicant or employee must be of a particular religion or belief must be “an occupational requirement” and,
“a proportionate means of achieving a legitimate aim”.
This applies to all employers, including those with an ethos based on religious belief, and is to be welcomed. However, as the Bill is drafted, the exceptions described would apply even when a religious organisation is working under contract to a public authority to provide a public service on its behalf.
By extending the exception in Schedule 9, paragraph 3, of the Bill to religious organisations working under contract to provide these public service, the Bill could potentially subject a large number of posts currently in the public sector to religious tests. This could, for instance, provide favourable employment prospects to small numbers of religious believers. Conversely, it could rule out large numbers of posts for those with the wrong religion or with none. It could threaten the employment or promotion of staff transferred under a contract from the public sector employer to a religious one.
There is no good reason for allowing religious organisations performing public functions on behalf of a public authority to apply religious tests to their jobs. These concerns are shared by trade unions, the British Humanist Association, progressive religious organisations and others, including the parliamentary Joint Committee on Human Rights, which in its recent report on the Equality Bill stated:
“We are concerned about the status of employees of organisations delivering public services who find themselves as employees of organisations with a religious ethos who have been contracted to provide the public service. They have a right not to be subjected to religious discrimination on the basis of the ethos of the contracting organisation if they are otherwise performing their job satisfactorily”.
I ask the Minister to agree that the extension of Schedule 9, paragraph 3, is not satisfactory, and that it puts the jobs and job prospects of potentially thousands of public service workers at risk if their work is contracted to an organisation with a religious ethos.
Having expressed these concerns about the exceptions made for organisations with a religious ethos, I register our continuing concern about the ability of faith schools to discriminate against staff. There is no present need even to demonstrate the occupational requirement in order to discriminate on grounds of religion. In practice this means that a voluntary-aided school can impose religious requirements on all teaching posts and can also take religion into account in promotion and pay decisions without ever needing to show that the teacher being discriminated against needs to perform any religious role at all. Furthermore, any teachers in a voluntary-aided school might be dismissed or sanctioned for conduct incompatible with the tenets of the religion of the school, which could cover a wide and disputed range of conduct.
We anticipate that the tolerant majority of faith schools would not use the full extent of their powers to discriminate in employment. Indeed, many faith schools employ many teachers with many different beliefs. However, the reality is that those staff have few legal rights if they are discriminated against on religious grounds. This is surely not a satisfactory situation. The Bill could be amended in ways that would permit faith schools to discriminate by religion against employees but only according to the same rules as other organisations with a religious ethos.
I conclude by asking the Government to look again at these matters, which could restrict jobs to workers of the right religion, a requirement that, by definition, the majority of citizens can never meet.
My Lords, the noble and right reverend Lord, Lord Harries of Pentregarth, has already spoken most eloquently about caste discrimination. I add my voice to it as well. I do not think that I will do as well as him, but I will bring something different to my speech: a personal experience and knowledge of this heinous practice. In doing so, I hope that I may try and convince your Lordships that caste discrimination exists in this country and that it blights people’s lives in the same way as all other discrimination.
It is very difficult in many ways to describe what constitutes a caste. The noble and right reverend Lord, Lord Harries, gave the traditional view that there are four castes. Well there are four castes, but it is not just about that. It is about the practice of discriminating against a person who is not of your own caste. Sometimes this can even happen among the people of the higher castes. The highest caste will discriminate against the one lower; that one will discriminate against the one lower and so on and so forth. It is a practice that needs to be examined and, if possible, tackled.
When I was a child, caste was very much part of our lives. As we are of the third class—the merchant class—we had to have a Brahmin—the highest caste—to cook our food because if someone from a higher caste came to our house, they would not eat our food because we were not of the same caste as them. We had two kitchens: one where meat was cooked and another where a Brahmin cook prepared food. I grew up expecting people to demand that food be cooked by someone from their own caste.
The Indian constitution was formulated by a wonderful lawyer called Dr Ambekar, who was from the lowest caste. He was very anti-caste. He added provisions to the constitution saying that people should not be discriminated against on the basis of caste. He also outlawed one other very dreadful practice; the practice of dowry. Asking for a dowry is outlawed in the constitution.
Laws are made but people do not follow them. The constitution is not followed so the caste system exists. The saddest part is, as the noble and right reverend Lord, Lord Harries, said, that it has been extended to other people and other religions in the Indian subcontinent. To me, it is very sad to find that the Sikhs now have four temples in every town, each one being for a different caste. That is appalling because the founder of the Sikh religion said, very categorically, that they are all brothers and sisters.
Islam says its followers are all brothers—it talks only about brothers and not about sisters. They do not call it caste, but Biradari, or Jati, or some other name and people will not marry into another caste. To me, that is very sad.
Many Christian converts in India were from the lower castes who thought that conversion was a way of getting out of the caste system.
My Lords, on a point of clarification, when the noble Baroness refers to discrimination on the basis of caste or to the brotherhood in Islam, is she referring to that as a cultural practice or as a religious practice? If it is religious, what is the religious basis for it?
My Lords, it is not a religious practice. I refer to it only as a cultural practice for Muslims from the Indian subcontinent. I have been to Pakistan four times and, the first time I went there, I was shocked to learn that people did not marry outside what they considered to be their caste. I refer to that and not to the Muslim religion. The Muslim religion does not recognise the caste system and it does not exist in other parts of the Islamic world.
Christian converts came mainly from the lower castes who thought they could escape the caste system, but everyone treated them as lower caste. You cannot escape simply by calling yourself something different.
The lower castes were mentioned in a schedule to the constitution, so they became known as the “schedule castes” and now we call them Dalits, which means downtrodden. They have asked for that name. People from the Indian subcontinent have come to this country and have brought these customs with them. It is a social and cultural custom, not a religious custom, and it is not stratified as it used to be. People are being discriminated against in this country because of that. When immigrants come to another country they do not change. If change comes in their own country, they do not change when they leave their country. I believe that if this very comprehensive Bill is intended to root out all remaining discrimination, it ought to tackle that form of discrimination as well.
There is also verbal abuse and people who do not receive the same pay. I used to be a teacher and I know there is abuse in schools. The Christian boys got very short shrift from the others. I know very well what goes on and I beg your Lordships to consider this as a serious issue and to find a way to root out this dreadful practice in this country.
My Lords, I greatly welcome the Bill and see it as a tribute to the Government’s commitment to equality. The Bill does a number of things that are long overdue. It comes as a climax to a long struggle for equality, which began nearly 45 years ago. As time is limited, I shall concentrate on those aspects of the Bill which puzzle me and where I would like some clarification and possibly some reinforcement. I have six points.
Given the provenance of the Bill and the fact that women constitute 51 per cent of our population, the Bill has much to say about gender equality. I welcome that, but I would have thought that measures similar to those proposed for gender equality might be introduced for other characteristics; for example, pay audits refer mainly to women and have nothing to say about the disabled or the ethnic minorities. There is a provision in the Bill for a women-only shortlist but no provision whatever for ethnic minorities or for the disabled or others. Women enjoy only 19 per cent of the representation in the House of Commons, which certainly needs to be rectified, but the representation of ethnic minorities is less than 2 per cent. I would have thought that the same arguments made about gender representation should also apply to ethnicity and other areas.
My second point is a simple one. As is widely acknowledged and was repeatedly emphasised by Tony Blair when he was Prime Minister, the ethnic minorities are inadequately represented in the higher echelons of the Civil Service, the judiciary, and among chief executives of NHS trusts and other public bodies. Many of us had hoped that the Bill would propose some way of rectifying that situation. So far I have seen nothing in the Bill that will do much to rectify that gross under-representation of women and ethnic minorities in the upper echelons of the Civil Service and the judiciary.
My third point concerns placing a positive duty on public authorities to promote equality of opportunity, to counter disadvantages and to foster good relations. The duty, as formulated in the Bill, remains rather vague. There is no provision to monitor public authorities. The Bill says that the Government will make proposals later for specific duties, possibly in the form of instructions or secondary legislation. I hope that they will bear in mind the need to give real bite to the general positive duty to promote equality of opportunity and to foster good race relations. However, it would greatly help if there were some kind of monitoring provision and provision for equality impact assessment in the Bill.
I have the same feeling concerning the need to tackle socio-economic disadvantage. Tackling that is a public policy issue and the law can only do so much but we should ensure that it does everything it can. Public authorities are required to show that they have taken into account the differential socio-economic impact of their policies and that the course of action they propose to take will deal with those differential impacts. Placing the duty is not enough. We also need to ensure that public authorities are required to publish alternative strategies by which they try to identify what impact different strategies will have and that those strategies deal with socio-economic disadvantages. There is no use simply putting the duty in formal terms, unless there is a backup mechanism of some kind.
My fourth point has to do with the fact that disadvantage and discrimination occur for a variety of reasons and in a variety of ways. There is direct and there is indirect discrimination, but as the Macpherson report pointed out, and as the report that I was privileged to chair on behalf of the Runnymede Commission pointed out, discrimination can also occur through the culture of an organisation, through the attitudes of its members, unwitting prejudices, thoughtlessness and stereotypes—in other words, a kind of sexism or racism which is built into the practices and procedures of the organisation, which shapes its culture and results in discriminatory or disadvantageous treatment. I should have liked the Bill to have moved beyond simple forms of direct and indirect discrimination and to tackle ways of organisational culture.
I want to move, briefly, but importantly, to the complicated notion of positive action and the situation where it can be regarded as lawful. Positive action, as it is defined in the Bill, is, in some form, already lawful and many organisations practise it. It seems to imply that, where people are equally qualified, you might take into account the fact that someone belongs to a particular gender or a particular race. However, there is a different way in which the problem can be conceptualised.
Take a hospital. The example given is of a school where all the teachers are women and we are thinking of a male teacher as a role model. Let me give a slightly different and less hackneyed example and a real one. Take a hospital whose obstetrics and gynaecology department is all-male. Many women would like to be seen by a female gynaecologist, but there is none. A vacancy occurs. We have two candidates, a male and a female, with equal medical or academic qualifications and equal professional experience. The woman doctor could be appointed, either as a form of positive action, or by simply saying that the needs of the organisation require that her gender is an important part of the qualification itself. In other words, what is called positive action here is not simply an add-on in a situation where there is equality of qualification or experience, rather it is built into the structure of the assessment criteria themselves, so that she is appointed because she has an additional qualification, by virtue of her gender, which others do not have.
My last point has already been made and has to do with the procurement policy of the Government. They spend somewhere between £175 billion and £220 billion per year on goods, facilities and services supplied by the private sector. This is a very powerful weapon by which to ensure equality. This is what the Americans did in the 1970s and 1980s in a very big way. This is what was also proposed here when the GLC was in swing, in the form of contract compliance. The Bill needs to provide clear guidelines as to how the procurement policy or contract compliance is to be executed, there should be rigorous monitoring so that the policy is not misused and it must be enforced as powerfully as it can be.
I have expressed some doubts and reservations about the Bill, but that was simply in the hope that we take them into account, and as and when another opportunity arises to propose a Bill, perhaps we might be able to go back and take these points into account. I have no wish to put down amendments on any of this, because the Bill is extremely important and nothing should be done to delay its passage through this wonderful House.
My Lords, I wish to address the impact that the Bill will have on the professions of law and medicine and in particular the position of women and ethnic minorities in those professions. By virtue of Schedule 19, the NHS is a public authority for the purposes of Clause 145 and therefore it will have a duty to advance equality of opportunity between men and women, a subject in which I have a special interest. I chaired for a year a Department of Health committee which produced a report this October entitled Women Doctors: Making a Difference. This initiative arose because of two factors relating to equality. One is that the majority of students starting to study medicine is now and has for some time been female. The other is the need to retain and use to the full the value of the medical workforce, given the expense of training and the cut in hours imposed by the European working time directive, which has made full utilisation harder.
Both men and women medical students need and deserve to have a work-life balance, but the profession of medicine is exceptional in the demands it makes of doctors, especially women. Other professions have long hours, anti-social hours and a demand for continuity on the part of the person receiving the services, but in none is it as intense as in medicine. There have been many reports into the best way to keep women doctors in and at the top of the profession. My report was different in two respects. It focused on remedies, not reasons, as the ground had been well covered, and its thrust was to get women back to full-time work, assuming they want it, while admitting that there will always be periods in the woman doctor's life when she has to train or work less than full time, because of child or elder care. So we focused on returning and retaining; we examined the difficulty women doctors seem to experience in getting into leadership positions, focusing on fair nominations to committees, mentoring and the need to share the limelight in the royal colleges and journals. We looked at flexibility in terms of hours and place in order to facilitate it and we spent a great deal of time examining childcare.
There is one big gap in the otherwise admirable ideology underlying this Bill, and it relates to the position of women, the protected characteristic of the female sex. While in relation to other protected characteristics, such as race, the law seeks to remove barriers, in the case of women and the disabled it may be more subtle: making reasonable adjustments. It is not sufficient to say to women that they are free to get on with it, any more than it is to the disabled. The ramp, or helping hand, has to be put in place. In the case of women, that is childcare. There will never be true equality in the workplace until there is national, affordable, indeed subsidised childcare in all its varieties.
We expect women at one and the same time to occupy half of all top positions, to earn the same salaries as men and yet to be good mothers. It is regarded as a valid life choice to abandon work and stay at home once children are born, with all the risks that that choice entails if the male partner leaves the home, or the career ladder is left behind. The only way to square the circle in medicine and other demanding professions is to enable the woman both to be a good mother and a good professional in relation to her patients by enabling childcare. When a typical man goes to work, he is provided with a secretary and a computer; when a self-employed man entertains potential clients, he gets tax relief. A typical working mother would like and has more need of a child carer and tax relief on that. The childcare costs that she incurs at work are necessarily so incurred. The tax that it is proposed should be recovered from bankers would be well spent on extending childcare vouchers. A parliamentary staffing allowance for MPs, if it continues to exist, is as validly spent, if not more so, on a child carer than on a secretary, and many women would support me in saying that the childcare is the more essential. Promoting equality without the infrastructure is only half the battle.
I now turn to law, where I declare an interest as chair of the Bar Standards Board regulating barristers. I was dismayed to see Clause 45, which singles out the Bar, with one or two others, for special treatment in the area of equality. There is no need for Clause 45. The Bar put together an equality and diversity code as far back as 1995. The noble and learned Lord, Lord Neuberger, issued a famous report on equality and access at the Bar, which laid out a blueprint which has been faithfully followed to encourage diversity and inclusion within the legal profession. Considerable work has been done by the Bar in relation to school visits and in engaging students at all universities. The Inns of Court spend £4 million in supporting students, and as far as pupillage goes, 23 per cent of new pupils are from black and other ethnic minority backgrounds. There is no case for singling out the Bar. The only problem with the legal profession is the Government. Their desire—
My Lords, I declare an interest as a barrister. I wonder whether the noble Baroness is aware that the provisions she is talking about were put into the race and sex discrimination Bills and had the support of the legal profession for good reason.
I am grateful to the noble Lord for his intervention. My express intention in saying this is that I do not think that Clause 45 is necessary because of the great advances that the Bar has made. It makes it look as though the Bar has not made them. The biggest threat to young barristers is the Government’s cut in legal aid in the crime and family areas where young women and black and ethnic minority practitioners are strongly represented and would expect to earn a living, albeit a modest one, doing family and criminal work. The cuts in legal aid are the factor that will most impact on the possibilities for advancement of young women and black and ethnic minority barristers at the Bar. The Bar itself is taking every possible step to help them forward, and I would wish that Clause 45 be regarded in that light. I know it has been brought over from other legislation, but its presence is now superfluous.
My Lords, it is a pleasure and a privilege to take part in this debate, although I missed the early part, for which I apologise. It is fascinating to find that in answer to the question, “Are we in favour of equality?”, there is not a voice that would say, “No”. However, I had not conceived of the range of inequality, but I listened with attention.
No one has worked harder than the Leader of the House recently and no one deserves a good holiday over Christmas more than she does. I shall give her a Christmas box: I do not intend her to say anything at all about what I say, except that it was a good speech, that she enjoyed it and that she will listen to what I have to say in Committee.
Declarations have been made. The House is well aware of my lifelong commitment to the Co-operative movement. I shall use this opportunity to remind the House that the Co-operative movement is an early example of an institution that practised equality. In 1844, when the Rochdale pioneers started, and for the next 160 years, the criterion for being a member of a co-op was one member, one vote. When it came to the sharp end—members of a board of directors—you could stand. I remember more women than men at the large parliaments of the Co-operative movement, and I know they played a full part. We practised equality, not discrimination, more than many a private company’s board of directors. Last night, we heard that the SSRB has not a single woman member. That is a shame and regrettable. However, we are bringing attention to these things.
I have been a member of this House for 25 years and was in the other place for 10 years. I shudder to think of the awful debates in which people who had a deep-rooted objection or a passionate belief in an issue used the opportunity to get it out of their system. I listened and wondered how people could be so bigoted in their reaction to other people.
The Bill tries to produce a single body of legislation instead of it being all over the place. It may succeed. Time will probably be the biggest enemy of the people who want to see the Bill doing something. I have been a trade union member all my life. The TUC has pointed out the benefits of the Bill. It requires public bodies to take account of socio-economic disadvantage when taking strategic decisions. No one can object to that. It improves protection for disabled people and their carers. No one can object to that. In this House and in the other place, I have seen the march of disabled people—that is not quite the right phrase—but the wheels of the wheelchairs grind exceedingly slowly. I have seen the gradual place taken by blind, deaf and disabled people in this place and the other place. It is to the credit of Parliament and its Members that they have been willing to do this. The public ought to be grateful.
The Bill allows employers to take positive action in recruitment and promotion and extends protection from indirect discrimination to, and clarifies the definition of, gender reassignment. It includes enabling powers to introduce specific equality duties relating to the public sector. Those who have studied the Bill more closely than I have will acknowledge that these things are there, but there will still be hundreds of amendments, mainly not to take out, although we have an interesting point about what needs to come out of the Bill: Clause 45. However, a lot of people will say that they agree with what the Bill says, but it does not go far enough or extend to their special interest. The Minister and her colleagues will have the difficult job of possibly agreeing in principle with everything that has been said. However, there are limits on what can go in to the Bill.
I listened closely to the speech by my noble friend Lord Macdonald, who spoke on behalf of the British Humanist Association. As a member of it, I agree with every word he said. No doubt, there will be amendments. Like many other noble Lords, I received a brief from the Equality Trust. I had never heard of it until I got its brief. With a Bill of this kind, people have been waiting in the dark for parliamentary action to take place, and then they spring out, and we find that they are there. I liked what it said. It said that the Bill includes a requirement that public bodies have regard to the desirability of reducing socio-economic inequalities when making strategic decisions. It goes on to talk about the benefits that could come if a small amendment was made to the Bill. It says, but we do not know, that it would halve the homicide rate, reduce mental illness by two-thirds, halve obesity, imprison 80 per cent fewer people, have 80 per cent fewer teenage births, increase the proportion of the population who feel that they can trust others by 85 per cent and allow us to become significantly more environmentally sustainable. That is if we get economic equality.
No one round here would disagree with the fact that, however wage structures have been made and whatever society has done, there is no such thing as economic equality. There are various slogans; for example, equal pay for equal work. We are all aware of them and agree with them, but this is the place that can do something about it. I am sure that the Government will have something to say that may inhibit my enthusiasm for what has been said. All I will say to the Minister and her colleagues is that I do not envy them their task not only in having to listen to a great many briefs which are coming forward from many places, but also in trying to satisfy people against a timescale. I wish my dear friend the Leader of the House well.
My Lords, without doubt we are engaged on hugely significant legislation and it is a privilege to be taking part. In view of the range of topics in the Bill, the richness of experience in your Lordships’ House and the time, I want to concentrate only on the bits of the Bill that refer to carers. I declare an interest as vice-president of Carers UK.
I welcome the provision to extend protection against discrimination and harassment to someone who is associated with a disabled person, which in effect will give carers new rights in the workplace and in the provision of services. Your Lordships will be aware that, until now, the Disability Discrimination Act has applied only to disabled people. However, following the case of a Carers UK member, Sharon Coleman, against her employer, the European Court of Justice ruled, as my noble friend the Leader of the House mentioned, that the European framework directive did not specify that the person discriminated against had to have a disability themselves in order to be protected against direct discrimination and harassment. In introducing this provision through the Bill, the Government are implementing this ruling in British law, but they are going further than that. I congratulate the Government heartily on extending the protection to the provision of goods, facilities and services. That is a very welcome step.
Carers are a hidden but substantial minority of our population. They constitute about 6 million people in the United Kingdom, a number that is set to rise considerably. However, until the Coleman judgment and this Bill, carers have remained one of the very few groups against whom it is possible to discriminate. So it is not surprising that there is much enthusiasm for this Bill in the carers’ movement and a commitment to making the law work for carers.
Clause 13 is the heart of the Bill as far as carers are concerned. It is good to see that the definition of direct discrimination is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic or because the victim is wrongly thought to have it. It is currently unlawful to discriminate against or to harass someone because they are linked to or associated with a person who is of another sexual orientation, race, religion or belief. But the same protection has not so far fully applied in respect of disability, age, sex or gender reassignment. The inclusion of protection against this type of discrimination, which follows the case of Sharon Coleman, is very much to be welcomed, as is Clause 14.
Clause 14, which refers to multiple discrimination, includes protection against discrimination because of a combination of two relevant protected characteristics. Currently, for example, more women than men are carers, which may mean that female carers are discriminated against in the workplace both because they are a woman and because they are a carer. However, we should remember that male carers, who are in a minority, may also suffer discrimination. For example, a male carer may be denied flexible working because the employer underestimates the nature of his caring role, where female employees with children are allowed to work flexibly. Certainly, carers from ethnic minority groups may face discrimination because of both their caring role and their ethnicity. That could be based on racial stereotypes and on attitudes about carers and it could lead them to be treated differently from a white carer or a non-carer from the same ethnic minority. The multiple rule is most welcome.
Let me mention discrimination in the provision of services. Many carers rely extensively on health and social care services because of their own health problems and to provide care for the person they look after. They often have problems accessing appropriate and affordable services. These practices are often discriminatory. For example, both health and social services assumed that a woman with a broken leg would be able to rest it, despite the fact that her husband was in the terminal stages of cancer and required 24-hour care from her. She was eventually provided with support, but it was too late. I am sorry to say that she was left with lasting complications and constant pain from the broken leg.
As to direct discrimination in employment, discrimination against carers can take many forms. At its most blatant, carers can be fired or demoted because of their caring role. I must mention the carer who went to a job interview with a local authority employer to be told that he should reapply for similar positions after his wife with MS had died because then he would be in a better position to take up a post. I should point out that some of the questions that used to be asked of women with children—many of your Lordships, or I should more pertinently say “your Ladyships”, will remember questions about their responsibilities and how committed they were to their work and so on—are now targeted at carers. It is very important that this part of the Bill is also pursued.
Having given a warm welcome to those parts of the Bill, I must now mention what I believe is missing. Carers are not currently protected against indirect discrimination. The wording of Clause 19 ensures that protection is extended only to disabled people. For example, if a carer is forced to leave a job because the employer operates a shift pattern with which they cannot comply because of the provision of services locally, they would not be protected and have recourse to the law. Such indirect discrimination should also be unlawful and I hope to hear the opinion of the Leader of the House on that.
I also believe that carers should have the right to reasonable adjustments in their desire to demand and expect flexible working, a view that is supported by the Work and Pensions Select Committee. I believe that more provisions should be made for that. I wish the Bill extremely well and a speedy passage through the House.
My Lords, I, too, very much welcome this Bill. Having grown up piecemeal over 45 years and more, equality law has become an overgrown and impenetrable jungle spread over more than 100 pieces of primary and secondary legislation and thousands of pages of guidance and statutory codes of practice. It is inaccessible to rightsholders, employers and service providers alike and is overdue for consolidation, rationalisation and simplification. Some wish that it could have been even more streamlined than it is and consisted of something much more like a framework Bill setting out the purpose and principles of the legislation in a manner that would have been easier for the general reader to grasp, leaving much to regulations and guidance, along the lines of the Bill introduced by the noble Lord, Lord Lester of Herne Hill, in this House a few years ago. But we have the Bill that we have. However you look at it, it is clear that it will deliver a legal regime that is a great improvement on what we have.
The Government have made clear their commitment to ensure that the Bill provides at least the same level of protection as current law and that, in the jargon, there is no regression. They have largely done a good job. They have listened to concerns expressed by colleagues in another place and have made further welcome changes. But that does not mean that the Bill is incapable of improvement. Without wishing to be unduly parochial, but simply because it is what I know most about, let me say that aspects of the Bill remain of concern to disabled people. Having said that, I should add that the Disability Charities Consortium, which represents the larger disability charities—I declare my interest as a vice-president of RNIB and an officeholder in a number of other disability charities, all of which are declared in the Register of Interests—is clear that it wants the Bill and is not fazed by the bureaucratic burdens that have been alleged. I shall therefore be anxious to facilitate the Bill’s passage into law. However, that does not absolve us from our duty to subject it to proper scrutiny and I shall be seeking further changes designed to address the concerns to which I have alluded and which I will outline further. I feel sure that, with reasonable give and take, we can arrive at a solution that we can all live with. For today, I will content myself with simply touching on a few of the disability community’s priorities for improvement.
Before I do that, it is only fair to mention some of the things in the Bill that are particularly welcome to disabled people. I particularly instance here: the provision that makes it clear that, where a defence of justification is available to claims of discrimination, that defence must be objectively grounded; the establishment of a single threshold for the point at which the duty to make reasonable adjustments is triggered, though some slight tweaking of the wording may still be required here; the elimination of confusing variations in the definition of discrimination as it relates to disability; and, perhaps most welcome of all, the reversal of the Malcolm decision which threatened to wreak so much havoc with the concept of disability-related discrimination.
As for the points where I feel that changes are still necessary, I will just mention half a dozen or so. The noble Baroness, Lady Campbell, has already mentioned three of them so I shall be very brief. First, there is a need to ensure that the public sector equality duty reflects the distinctive nature of disability discrimination as fully as current legislation does. In its desire to establish a common conception of discrimination that goes across all strands, the Bill does not adequately reflect the asymmetrical nature of rights and duties as between disabled and non-disabled people. If we fail to get this right, we risk regression.
Secondly, there is the public sector duty itself. As the noble Baroness, Lady Campbell, pointed out, this does not yet have the precision that the disability equality duty has had for disabled people, which has been such a welcome feature of the Disability Discrimination Act 2005 and has been welcomed by service providers as well since it gave them much more clarity as to what they needed to do to address systemic discrimination against disabled people.
Thirdly, as a frequent flyer, I am particularly concerned about the regression in the Bill’s failure to retain the provision in Section 20(5) of the DDA that the cost of reasonable adjustments may not be charged to the disabled person. The definition of “reasonable adjustment” takes account of the service provider’s ability to bear the cost, so there is no hardship to service providers in retaining this provision. I hope that we will be able to see it back in the Bill.
Fourthly, the Minister will be aware of the uncomfortable history in which qualifications bodies have misguidedly chosen to demonstrate their commitment to standards that we all share by taking measures that disadvantage disabled people. They have lost the confidence of many disabled people by doing so. Clause 96 of the Bill explicitly authorises an exam system that disadvantages disabled candidates and says in terms that minimising this is merely desirable, not necessary. The wording does not sit comfortably in an Equality Bill. The Government is usually such a champion of the life chances of disabled people and their foundation on basic qualifications that I hope very much that we will be able to move this issue forward through a process of discussion.
Fifthly, there is an unfortunate gap in the duties between the DDA and the special educational needs framework. That needs to be addressed. I feel a bit guilty about this as, when we considered this matter on the Disability Rights Task Force, which prefigured the creation of the Disability Rights Commission back at the end of the 1990s, I was concerned to preserve a clear dividing line between the two systems so that they should not get confused with each other. I have to confess that it has not worked out in practice. Schools’ current duty is to use their best endeavours to secure provision and they are exempted from the duty to provide auxiliary aids and services as part of the reasonable adjustment duty under the DDA. This has given rise to a gap in provision as a result of the way in which the rights framework and the SEN framework do not mesh with each other. Removing schools’ exemption from the duty to provide auxiliary aids and services would mean that the rights framework placed on schools a clear responsibility to ensure that all their pupils could access the curriculum and fill the gaps that have grown up in meeting the practical needs of disabled children.
Finally, there is one omission from disability legislation that must now be corrected. What ramps are to wheelchair users, large print and other forms of accessible information are to blind and partially sighted people. There are 2 million of us and, with an ageing population, that number is increasing year on year. Large print is easy to produce now, yet even eye hospitals fail to provide it for appointment letters and even intimate matters like test results. Older people are resigning themselves to simply stopping reading. This is neither necessary nor acceptable. It is also a perfect example of where the law should be judged against the outcomes that it produces and not merely against its procedures. I will therefore be tabling an amendment in Committee to introduce an explicit duty to provide accessible information.
I welcome the Bill and look forward to constructive discussions in Committee designed to resolve the few important issues that remain.
My Lords, I, too, welcome the Bill and I believe that it was changed for the better in the other place. I am among those in the Chamber who have been campaigning to combine the many discrimination laws into a single act for more years than I care to remember. As a former trade union official, I know how this harmonisation will make life simpler and strengthen protection for those relying on the Bill to improve the lot of some of the most vulnerable in our society.
Like other noble Lords, certain parts of the Bill are more important to me than others, but I shall not outline these tonight because of the time. Rather, I shall concentrate on queries and comments that I have about the Bill. My first comment is about the approach to gender discrimination in pay and contractual terms—vital issues for trade unions and their members. The Bill replicates the existing provisions of the Equal Pay Act 1970 and this for me is extremely disappointing. The Government are missing a great opportunity to improve on the Equal Pay Act. They could have overhauled what is currently a complex, time-consuming and costly legal process to close the gap between men’s and women’s pay by allowing a hypothetical competitor to be used. Secondly, in relation to the new public sector duty proposals, I would welcome more details of these in the Bill, most especially the inclusion of the requirement for public bodies to consult their recognised trade unions on these issues. This would certainly pave the way for better industrial relations.
My two most important queries relate to women bishops and to equality representatives. I will start with women bishops and I place on record my thanks for my briefing from the Women and the Church task force. WATCH has anxieties about the Bill. It believes that within the Equality Bill, the Church of England may need to claim exemptions under Schedule 9, concerning gender, for two reasons. First, some Episcopal appointments may only be open to men who do not ordain women. Secondly, does Paragraph 2(6) of Schedule 9 mean that those opposed to female bishops and/or opposed to male bishops who consecrate them may be exempt from the Act under this non-conflict clause? When I read the clause, it made me wonder if it really should be removed from the Bill altogether because it appears to give a licence to any group that wishes to hold the Church, or indeed any other religious body, to ransom when such a body is considering changing its stance on issues of gender, sexuality, et cetera. I would welcome the Minister’s response.
I should be grateful if the Minister could clarify these issues, because WATCH believes that the best future for the Church of England will include women and men as bishops without any discrimination between them in terms of functions, responsibilities for care or geographical territory. As a member of the Church of England, I support this view, hence my raising these points today.
I know that the TUC and the Government have fairly recently discussed equality representatives. The Government have identified a clear business case for promoting equality and diversity in the workplace, including enhanced profitability, attracting and retaining talented staff to fill skills gaps and, importantly, more productive employees who are selected, trained and promoted because they are the best people for the jobs. I am surprised, therefore, that the Government have not sought to recognise the valuable contribution already made by union equality representatives by using this Bill to place them on the same statutory footing as other union representatives.
Equality reps are trained to advise and inform union members about equality matters in the workplace, such as the right to request flexible working, equal pay and protection from discrimination, which are all relevant to this Bill. They complement and enhance employers’ efforts to engage with workers by fostering a shared level of trust between workers and between workers and managers, supporting the efforts of the employer to deal more effectively with issues that individual workers may find difficult to discuss. At present, equality reps often operate outside the collective bargaining process and, although there is no obligation on an employer to consult with equality representatives, many employers do, because it helps them to deal with sensitive matters; for example, between special interest groups. Working with employers, equality representatives can assist in monitoring and assessing the impact of employment policies on different groups to ensure that measures are put in place to avoid discrimination. Avoiding discrimination reduces the employer’s exposure to costly and time-consuming employment tribunal claims while encouraging healthier, happier and more productive employees.
Representatives already receive considerable support from unions to perform their role in the workplace. However, those who are not given paid time off to perform their role are not able to be nearly as effective. Paid time off means time off that is “reasonable in all the circumstances” in order to undertake training relevant to their role and to perform their functions, in line with the ACAS code of practice on time off for trade union duties and activities. Once the Equality Bill comes into force, the pressure on equality reps to give advice and support to employees who fall into one or more of the equality strands protected under the new Act will dramatically increase. Without a right to statutory facility time, the burden of managing workplace disputes between competing interest groups will fall squarely on existing human resources teams and managers.
The TUC would like included in the Bill proposals to give equality reps the same rights to paid time off for training and carrying out their duties as those currently enjoyed by shop stewards, and union learning and health and safety representatives in workplaces where the union is recognised for collective bargaining purposes. The TUC will publish a full report in early January 2010, illustrating the important contribution made by equality reps and why statutory backing should be incorporated in the Bill. I give due notice that I shall place an amendment to include equality reps in the Bill. I look forward to the debates ahead.
My Lords, I start by declaring an interest. When one sees the Bill’s protected characteristics, including gender, marital status, age, religion or belief, disability, race and so on, one could perhaps, like most of your Lordships, declare multiple interests. However, I have carried out some training for members of the Catholic Bishops’ Conference of England and Wales through my company, Cumberlege Connections, and I am aware of its concerns about the Bill. It is on the implications of the Bill for religious belief that I shall speak, as have, I know, many other noble Lords, including the noble Lord, Lord Lester, my noble friend Lady O’Cathain, the most reverend Primate the Archbishop of York, the right reverend Prelate the Bishop of Chester and the noble Lord, Lord Davies of Coity.
I start by stating where the Catholic Church stands on human rights. All forms of unjust discrimination are wrong. That principle goes back to the New Testament. It is the inescapable consequence of a belief in the innate dignity of every human person, as created in the image of God. However, the church, like the drafters of the Bill, recognises that we can and should take account of differences between people where these distinctions are properly based and not simply a matter of prejudice. Accommodating difference and the needs of minorities is surely one of the key tests that distinguish a genuinely liberal democracy from one which is oppressive. Anti-discrimination law, protecting religious beliefs as much as other characteristics, should not be framed in such a way that it prevents those very beliefs being put into practice, but that, I fear, is exactly where the Bill takes us.
A matter of grave concern to many religious bodies is the definition of employment for the purposes of religion in paragraph 2(8) of Schedule 9. Such employment is relevant only if it “wholly or mainly” involves leading or participating in formal liturgy,
“or promoting or explaining the doctrine of the religion”.
It is only if a post meets that definition that the employer can legitimately make a requirement relating to sex, transsexuality, marriage or civil partnership, divorce or sexual orientation.
We are not debating here whether different religions should choose to make such distinctions. There are well established matters of clear belief and doctrine which religious bodies have held, in some cases for millennia, and which they are fully entitled to hold under Article 9 of the European Convention on Human Rights. All we are considering is whether the right of the religion to exercise that choice should be restricted by law to the narrow range of posts covered by the definition in paragraph 2(8) of Schedule 9.
Under the current Employment Equality Regulations 2003, there is no definition of employment for the purposes of an organised religion. An employer may therefore lawfully apply a requirement related to sexual orientation, first, so as to comply with the doctrines or, secondly, because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.
The same tests are in the Bill and seem to strike the right balance. So why do the Government feel that they now need to define employment for the purposes of religion? What is the mischief that this new provision addresses? I understand that officials have indicated that it has been introduced because the existing provision was being grossly abused in some cases. If so, I would have thought that courts would have no difficulty in making a judgment on the facts as to whether the plain meaning of the regulation was being abused and ruling accordingly.
What the Government have done in introducing this restrictive definition, however, is create a very narrow class of persons to whom the provision applies. It covers only those whose time is wholly or mainly spent on leading or participating in formal liturgical practices, or promoting or explaining the doctrine of the religion. As the most reverend Primate said, it takes no account of pastoral or representative functions, or of any of the myriad activities carried out to meet the functions of a religious body. Any post where liturgy and doctrinal explanation were not the whole or main tasks would have to be open to a person of any sex, marital status, transsexual history or sexuality, whatever the beliefs of the religion. It would be unlawful to reject an applicant or take action against a person in post, however grave the scandal caused.
What would this mean in practice? If a man employed as a Catholic diocesan marriage care co-ordinator abandoned his family and his wife in a well publicised and scandalous divorce case to remarry in a civil ceremony a woman with a similar history, he could not possibly have any credibility in the function in which he was employed. Yet any action the diocese took against him as a result would be unlawful.
I am not arguing that a religious body should have the right to refuse any form of employment on the grounds of sex, marital status and so on. Churches can and do employ builders, accountants and architects where there is no genuine occupational requirement to be a member of the religion, never mind any question of their personal circumstances. I am arguing, however, that in a number of significant posts—which may be occupied by people who are ordained, consecrated, religious or lay,—it is right for a religious employer to require that their lives are not manifestly in opposition to the teachings of the religion and the beliefs of its followers. Is that too much to ask?
However, the Bill does offer a crumb of comfort. The Explanatory Notes reassure us that the definition, narrow as it now is, will at least permit the Catholic Church to require that a priest be a man. I am afraid to say, however, that the Bill will not even achieve that. I do not know whether those who drafted the Bill actually stopped to talk to a Catholic priest, but the only priests I can think of who spend their time wholly or mainly either engaged in leading liturgy or in promoting or explaining doctrine will be the staff of seminaries or those with catechetical roles. The definition simply will not do as a description of the work of most priests.
I took a diary of a priest at random. He has spent 21 hours on the definition that is in the Bill. If one considers all the other activities, as the most reverend Primate was saying, such as private prayer, social engagements with parishioners, dealing with callers at either of his church offices—he has two—administration and finance, school visiting, paperwork, hospital visits, appointments, visiting the sick and other pastoral activities, they add up to over 60 hours a week. This is not a job description, it is a vocation: a way of life in the service of others.
Finally, this is not a matter that is of concern to the Catholic Church alone: 11 other religious groups wrote to the Minister for Women and Equality in November, stressing their very real concerns. I hope the Leader of the House will, on reflection, see fit to bring an amendment before your Lordships in Committee to remedy this defect. If not, I suspect amendments will need to be tabled from other sources to remove this unnecessary and discriminatory definition.
My Lords, my first thoughts when reading the Equality Bill were, “Haven’t I been here before? Isn’t this already the case?”. On rereading the Bill, however, I became persuaded that readdressing the issue is not only necessary but overdue. One of the great dangers is assuming that checks and balances are not only in place but that they are working. They are not. More than that, the scope of inequality today is wider than ever and includes issues such as civil partnerships, race, sexual orientation and age. All have implications which are more complex than ever and which require further scrutiny.
I congratulate the Government on taking these issues further and making a Bill fit for the 21st century. Harriet Harman earns our praise for the dogged manner in which she seeks to counter discrimination. Incidentally, I also praise the outstanding version of the Bill—its “easy read” format. I was in the gallery of the other place when Harriet Harman presented the Bill. She, too, paid tribute to the easy read, saying that it made the Bill available to everyone, including those with learning difficulties. She added that she had found it useful and helpful. We all chuckled a bit at that. It was a lovely moment but we knew what she meant.
It is also right to look at the Bill with European eyes. Equality legislation owes much to the European Parliament and the Commission. While in the 1990s they tackled problems on a pan-European scale, we learnt from each other, copying the best practices levelling up—not levelling down. Much of the work of the Bill before us today owes its starting point to its progress in Brussels.
What difficulties do we still have? Secrecy and opaqueness are the twin enemies of equality. As long as employers or authorities can hide behind the veil of secrecy, challenges are almost certainly impossible. We may think we are getting a raw deal but getting proof is a real obstacle. The Bill takes this on board and provides a framework which helps to overcome these problems.
In the short time allotted to me today, I wish to focus on what to some might seem an obscure area; namely, sport, where equal opportunities and participation are a far-off dream. Let me flag up some problems and in so doing acknowledge the help that I have received from Sport England, the Commission for the Future of Women’s Sport and the Central Council for Physical Recreation.
Let us look at some facts. Only one in eight women take part in sport, while one in five men do. The gap is widening. Why so few women? The list of my reasons would include lack of confidence, lack of childcare, transport costs and a lack of friends to go with. It a great pleasure therefore to tell your Lordships that Sport England has set new targets for 1 million more people being active in sport by 2012. Within that, a new initiative called Active Women is targeting £10 million from the National Lottery. It aims to get more women into active sport from what it describes as disadvantaged communities where participation in sport is particularly low.
Alongside this, all the major governing bodies within the CCPR are responding to this priority area. My own chosen sport of tennis is particularly friendly to lifelong participation, both on court and off. I am living proof of that. Volunteers are essential in all sport, and women can play a huge part in setting up the framework for sporting participation. We have thousands of junior players in tennis and thousands of active veteran players, but we lack women between 16 and 35 for some pretty obvious reasons. We can do much better in coaxing them back to sport, which they played at school and then forgot. All sports are tackling this gap. It is a real gender gap and the Government have prioritised this as a target group. Getting mums off the touchline and into the game, into officialdom, into all areas that enhance sport are good and reasonable objectives.
Dame Tanni Grey-Thompson recently headed a commission to look at the future of women’s sport. She and her commission did an excellent job. She highlighted the fact that the dominance of men in the hierarchy of sports administration and leadership is nothing short of scandalous. Only one in five members of the boards of national governing bodies is a woman. Even worse, a quarter of all sports have no women at all on their board. There is still a macho culture in sport, and women’s participation in national and local sport is almost totally ignored by the media. It is a disgrace.
Sport is at last waking up to its shortcomings, and you might ask why that is important. It is important simply because sport offers so much in health and happiness, and the role of the female in the family dictates so much the activities of her children. It is a fact that if the mother is involved in sport, the children are 80 per cent more likely to be involved, too.
I apologise for straying off piste, but I had to demonstrate that equality in all corners of our lives is imperative if we are to give all citizens a fair and full life without discrimination and unfairness. I wish the Bill good fortune. It has so much to commend it. It will serve to remind those in sport of their failings; it will at last offer men and women a proper chance to share equally in all aspects of sport; and it will help to challenge existing discrimination. As such, it is most welcome.
My Lords, my own portfolio is international development. Many men, and especially women and children, around the world would give a great deal to be protected by a Bill such as this. However, this Bill has been a long time in coming, and I pay tribute to my noble friend Lord Lester, whose tireless work and own Bill helped to give birth to this one.
The lateness of the Bill means that we have to be very disciplined in dealing with it. Our colleagues in the other place have done a great deal to get the Bill to where it is today, and I commend their efforts. The noble Baroness, Lady Warsi, said that this is a missed opportunity, but she certainly did not spell out how any Conservative Government, should they be elected, would improve on this. Rather, her few points seemed to seek to weaken the Bill. If the Tories welcome this as they say they do, they will need to demonstrate that.
Is this Bill needed? We have heard much evidence of inequalities in our society. Let me give you one more example. Let us look at what has become our bank, the RBS. It is 70 per cent owned by us—a figure that is soon to rise to 84 per cent. There are 12 members of the board. Not one of them is a woman. There are 22 people on their executive and management committees, of whom only two are women. How in the 21st century can that be the case? How can anyone doubt the need for an equality Bill when you see this sort of thing? How dare they operate like that? This Bill may not deal with that, but it may help people to get to a position where this is less likely to be the case. As the noble Baroness, Lady Afshar, said, the Bill is necessary, if not sufficient.
To the Bill. We still have a number of crucial areas of concern, despite the best efforts of Lynne Featherstone and Evan Harris, my colleagues in the other place. We on these Benches have rigorously and strictly prioritised, given the time constraints. The first area that we wish to address is equal pay. The pay gap between men and women remains wider than 20 per cent. The Bill has not made pay audits mandatory. It surely must. I was the chair of Women Liberal Democrats in the early 1990s, and I remember arguing for mandatory pay audits, drawing on experience from Canada. At that time, my own daughter was a baby. Now she is 16, and it will not be long before she launches into the world of work. Time passes, and this issue has not yet been adequately addressed. Others have worked for many more years on this.
One of our absolutely key areas is homophobic bullying in schools, as my noble friend Lord Lester has said. We also wish to address the Bill’s failure to forbid discrimination by religious service providers on the basis of sexual orientation, and the extent to which the public sector duty in Clause 148 includes religion. My noble friend Lord Lester has outlined all these, and I will not add to his remarks here. I also seek clarification of two areas on behalf of my noble colleague Lord Avebury. He has already raised them with Ministers, and when he is fully recovered from his recent ill health he will take them forward, unless we get satisfactory assurances. I am very glad to see him here this evening.
The first issue that my noble friend will be raising is on caste, a subject which has been very ably discussed by the noble and right reverend Lord, Lord Harries of Pentregarth, and the noble Baroness, Lady Flather. Discrimination is persistent, as we have heard, and severe in south Asia. It would be a miracle if, in the relevant communities in the UK, those practices had vanished, and the noble and right reverend Lord, Lord Harries, indicates that they may well have expanded. The Solicitor-General recognised this and suggested improving the Bill, and she asked the Equality and Human Rights Commission to complete research on this area quickly. Can we be assured that it has been asked to do this? We have heard both replies—that it has not; or that if it has, such research will not be finished while the Bill is before us. Therefore, it is clear that we need to take this forward.
My noble friend will also be taking forward the anomaly that Scottish Gypsies are not entitled to the same protection as their counterparts in other parts of the UK. We welcome a letter from the Solicitor-General expressing sympathy on this and saying that a recent employment tribunal judgment has declared that Scottish Gypsy Travellers are a distinct ethnic group and discriminated against, and are therefore covered by the Bill. However, as that judgment is being appealed, we must put this into the Bill.
On the positive side, I am extremely glad to see that the Bill enables stronger positive action, and I would like to highlight its importance in the political sphere. Personally, I enormously welcomed Labour's women-only shortlists. I fought hard in my own party for the zipping that we implemented for the European elections. We now have six women MEPs and five men.
Positive action is compensation for discrimination that exists. I trust that all political parties will seize this opportunity to ensure that their parties are more representative in all respects. It has been extremely striking that the Bill has been pushed forward particularly by women in the Commons. Over 50 per cent of the speakers today are women, even though only 20 per cent of Peers are women. This Bill could help move things forward.
The Bill is very welcome and we should not let it fall. Therefore we must be extremely disciplined. To facilitate that, the key areas that I and others have mentioned must be addressed. We appreciate how much work the noble Baroness and the Bill team are putting in to address Peers' concerns. Despite the wishes of the noble Lord, Lord Graham, clearly they will not have a peaceful Christmas. Let us see what can be addressed before we get to Committee so that we can expedite the Bill and get it into law.
My Lords, I am aware that I am in danger of bowling a googly tonight by what I have to say, because the current legal framework is not without deficiencies, omissions and anomalies. I am also aware that introducing nine major pieces of legislation, 100 statutory instruments and 2,500 pages of guidance over a period of over 40 years is not the best method of achieving a coherent legislative landscape. I can see that, from a lawyer's perspective, the urge to tidy things up must be irresistible, and I am sure some will relish the prospect of a mightily increased case load.
The discrimination experienced comes from many different kinds of conditioning, so I trust that you will bear with me if I say that harmony, symmetry, alignment and simplicity are understandable virtues, especially when casting the net so wide and trawling so deep, at least in the public sector. The noble Lord, Lord Morris of Handsworth, touched on some of the things I was about to discuss, so now I will just confine myself to a few words and a few questions.
Is what is proposed in the Bill likely to effect better outcomes than the situation today, imperfect as that is? Will the Bill have the necessary bite to give an individual who is the victim of a discriminatory act redress before the civil courts or at a tribunal? Put bluntly, I think not. To give some telling examples, I ask: will it reduce the eight times more likelihood of a black male than a white male being stopped and searched by the police? Will it reduce a black person having a one-in-16 chance of obtaining a job interview compared to a one-in-eight chance for a white person? Will it add to the five students from the Afro-Caribbean community, 80 per cent of whom are aged 24 and under, to this year's intake of 3,000 students at Oxford? If not, how will they get justice?
Even in the public sector, which accounts for only 20 per cent of the workforce, will not the public sector equality duty result in public bodies, notably local authorities, generating a mountain of paper testifying to their policy compliance, as they have in the past, but on a scale hitherto unimagined? Engagement will then take place with that other recent creation, the Equality and Human Rights Commission, again established as an act of harmonisation and simplification but already riddled with widely publicised fault lines. The engagement will no doubt be dense and deep, but I would argue that what little change there will be will be incremental rather than fundamental. Rather than discrimination being purged, it will be buried in a maze of management-speak, impenetrable to all but the professional policy staff involved.
There are those that would call me a dinosaur, unable to see the brave new world that the Bill will usher in once enacted. My retort is that the new world carries much of the old with it, and disentangling ourselves will not necessarily be achieved just because the Bill is a seamless, streamlined and exhaustive entity. November's report from the schools adjudicator says that more than one in two state schools are breaching the recent supposedly exhaustive admissions regulations designed to prevent a covert selection in their pupil intake. That is instructive of the kind of problems that will be encountered with the Bill and which will be made more difficult to disentangle for the victims.
The EHRC will, especially in the current economic climate, simply lack the resources to undertake the level of activity necessary to work across a vastly wider spectrum to secure the kind of step change necessary to shrug off the policy countermeasures deployed, unwittingly or otherwise, to frustrate it in enforcing the legislation. Those discriminated against will simply be forced back into the kind of individualised, adversarial and post-event actions with which many are currently faced. This would result in our being in no better situation than we are today, except that those constituencies aggrieved would be greater in number than at present, with less help to present their grievance. To counter that we must secure, as a minimum, a commitment to include in the Bill the possibility for representative actions to be brought by the EHRC or some other such body, if we are to have legislation that will work in practice.
I know that other Members have spoken on many of my other concerns, so I end by asking the Minister to consider the question that I have posed with her usual courtesy, as it is my belief that we will avoid many of the confrontations that we have experienced on the streets of this country if we consider these matters seriously. If there is no means of the victim getting redress, it will cause this country to go back more than 40 years.
My Lords, I congratulate the Government, especially our talented Leader of the House, and welcome the Equality Bill and its two main aims—to harmonise existing anti-discrimination laws in all human rights areas and to strengthen and extend the remit to further promote the whole equality process. In the 1970s, both Houses campaigned together to pass the Equal Pay Act 1970 and the Sex Discrimination Act 1975, and set up the EOC. I had the honour of being its first deputy chairman, under the skilful chairmanship of the noble Baroness, Lady Lockwood, who sadly is not in her place tonight. I little thought then that some 40 years later we would be debating a Bill to try and ensure that equal pay, the bedrock of that first piece of legislation, is finally achieved.
Today I want to concentrate on three aspects of the Bill: equal pay—surprise, surprise—age discrimination and pensions. First, however, I shall make a few general points. Clearly, it makes sense to try and ensure that government and other public authority policies that aim to reduce socio-economic disadvantage do not fall foul of this legislation. The Government have shown encouraging beginnings, for example in attempting to break the cycle of deprivation in early childhood—something that many of your Lordships have long campaigned for, and will continue to do so. However, we must make sure that these clauses do not have a counterproductive effect on these policies; I have heard doubts expressed already.
I welcome the additional disability clauses that have been mentioned—with the disadvantages that may exist—by my noble friends Lady Campbell and Lord Low. I am not going to say more about this, other than that I thoroughly agree, because they have covered the areas so completely. However, I especially welcome the inclusion of carers of disabled people in positive action schemes which allow them, for example, to request flexible working. I agree with the noble Baroness, Lady Pitkeathley, that indirect discrimination applies to carers as well.
On the political front, I have to admit that I have never been much in favour of women-only shortlists in a positive discrimination sense. However, as all parties now use this to see that more women candidates are selected, and if it ensures a more representative variety of views in the legislative process, hopefullythe proposed sunset clause will be redundant well before 2030.
I have one query about religion; the way it has dominated today’s debate has rather surprised me. The noble Baroness, Lady Gibson, has already referred to the Church of England’s debate about appointing women bishops—I must say this has my full support. WATCH points out that any measure passed by the General Synod concerning the appointment of bishops will eventually come to the House of Lords for approval, and asks whether the House could, let alone should, approve a measure that discriminates unfairly. Perhaps an even more pertinent question is whether it would be legal to do so once the Equality Bill is law. Cynically, I suspect that the answer is yes. I would be grateful if the Minister could indicate the Government’s views on this when she replies—and not just whether the answer is yes, but whether that is actually what should be happening.
I turn to my three main topics. I have already mentioned equal pay. We should remember that the pay gap is not just the result of pay discrimination, but differences in education and experience, gender stereotyping, occupational segregation and, crucially, the current lack of part-time and flexible work. This is increasingly of equal importance for male as well as female workers. Clearly, this Bill is an opportunity seriously to begin closing the gender pay gap. The pay gap between men and women is something like 16.4 per cent for full-time workers, and higher for part-time workers. The Women’s National Commission notes that in the financial sector it reaches as high as 60 per cent.
As we have heard, the Bill contains powers that would allow the Secretary of State to require the reporting of the gender pay gap where a firm employed 250 or more workers, starting voluntarily. This clause would not come into effect until 2013 and only if insufficient progress on reporting had been made. As UNISON has pointed out, this would mean that 50 per cent of private sector workers would be excluded from these somewhat limited measures. Now we have this other series of press rumours, which say that only companies that employ 500 workers would be under pressure to produce data showing that they do not discriminate. Your Lordships will understand why I remain somewhat gloomy about the year by which equal pay for work of equal value will be achieved. We should constantly remind ourselves of the prediction made by the dissolving EOC that it would take until 2085, unless a far more proactive approach was taken.
Returning to how work is organised, it is vital that employers, too, recognise the right to flexible working as valuable for their own bottom line. The Co-operative’s analysis of the pay gap shows that in most companies there is relative equality at junior levels, until it reaches a point where women’s representation drops off markedly. That point is often where flexible working practices diminish.
I turn to age discrimination. Those of your Lordships who attended the All-Party Group on Patient Safety initiated last Tuesday by the noble Baroness, Lady Masham, and heard from relatives the horrendous accounts of inadequate care and treatment of elderly patients in NHS hospitals, will certainly welcome the Bill’s extension of direct anti-discrimination rights in the provision of goods and services. The Bill will be important, too, for those reaching the current default retirement age who want and need to continue working. It is estimated that non-employment among older workers costs the economy between £19 billion and £31 billion a year. Correspondingly, by keeping the mind active, the years of dependency and cost to the NHS will be equally reduced. Thus, making the right decisions now about the default retirement age will be critical. We have all the results from the Heyday case, and so on. Like other noble Lords, Age Concern, Help the Aged and Business in the Community, I hope the noble Baroness will respond by saying that now, in the Bill, is the time for the default age to go.
Lastly and briefly, I come to pensions. In recent legislation the Government have certainly made progress, with the encouragement of the noble Baroness, Lady Hollis, in seeing that women who play the major role in bringing up families—and either have no jobs or work part-time—are given some extra pension credit. However, the planned upward shift of the state retirement age to 66 or 67 over the next few years will mean that while men must wait an additional one to two years for their state pension, women will not be able to draw theirs for an extra six years.
I am not going to go on about annuities, which is my pet subject, but on this issue it is fairly important. Figures show that even today the majority of pensioners living in poverty are women. Could the situation that women pensioners face be construed as either direct or indirect discrimination under the Equality Bill? Given the considerable price of childcare, as my noble friend Lady Deech has already mentioned, whether provided by the state or privately, if women had received a salary for the role they played in bringing up children, their pension would be very different today.
In conclusion, I again applaud the Government on this legislation. There are clearly issues and problems that will need attention, and I fear that we will need more action on the issue of equal pay. As other noble Lords have said, it is the age discrimination clauses which will have the most important long-term value, especially if a decision is taken now to abolish the default retirement age.
Before the noble Baroness sits down, since women bishops have been mentioned twice in your Lordships’ House, is she aware that under the present legislation for ordaining women to the priesthood, the Measure itself as well as the Act of Synod make it possible for parishes with a conscientious objection on theological grounds not to accept that particular ministry and to petition a bishop, like myself, to appoint someone to minister to that particular parish? Some may describe this as discrimination, but I do not think it is; I have ordained women into the priesthood. Those parishes have a right to petition under the present legislation to appoint someone who does not ordain women to look for their sacramental ministry. When women are consecrated bishop, should the Measure come through and be deemed to be expedient—I favour the consecration of women as bishops—someone might decide that I was participating contrary to their theological position because I did so, but I would not see that as discrimination. They might describe it in that way, but I would not describe it as discrimination. I offer ministry in some parishes. I never see it, in religious terms, as discrimination.
My Lords, I welcome the opportunity to debate this Bill at Second Reading. The Government are to be commended for introducing the Bill, which attempts to harmonise discrimination law and sets out key characteristics that are protected: age, disability, gender, maternity, sexual orientation, religion or belief. This is a massive legislative venture.
I was for a number of years a member of the Equal Opportunities Commission, which has now been taken over by the new Equalities Commission. I believe that the campaigns led by the EOC have had the effect of widening opportunities for women, in particular the WISE campaign—Women into Science and Engineering. This has had the effect of increasing the range of jobs available to women which is very important in an increasingly technical and science-based economy.
We sometimes overlook how far we have come and how much is due to the courageous work of previous generations of women. Problems still exist, of course, and we have heard about a number of them in today’s debate, but I believe that the Bill will help by drawing attention to the gender pay gap and insisting on publication of the difference in pay between men and women. Moreover, maternity rights are included in the protected characteristics in the Bill. I support what the noble Baroness, Lady Deech, said about the necessity for further support in that direction.
I am pleased that sexual orientation is also specifically included in the Bill as a protected characteristic and that discrimination on such grounds is to be quite specifically outlawed. There is a problem here which I do not think has been entirely resolved by the Bill, although there has been an attempt to do so. It relates to religion. The Bill seeks to promote understanding and tolerance for the right of individuals to believe in and practice religion. This should not, however, involve the right to impose religious beliefs on persons who do not hold them. There are interpretations of religion—I emphasise interpretations—since most mainstream religions maintain that they support tolerance and regard equality among people as important. I am talking about interpretations which support the repression of women and strongly oppose rights in relation to sexual orientation. In such cases, violence often occurs. There is domestic violence against often very young women—including forced marriages—and homophobic violence against gay and lesbian people. We must make it clear that culture and/or religion offer no excuse for harassment of people protected on grounds set out in the Bill. Our law must always prevail.
There are, however, some provisions in the Bill relating to religious organisations which may need further examination when the Bill is considered in Committee. The issue of employment in state-funded faith schools has recently been brought to my attention. It would appear that religious requirements can be imposed on teachers in such schools that would not otherwise be imposed without the need to establish that it is an occupational requirement.
Schedule 9 sets out a number of exceptions to the requirement not to discriminate. This would appear to permit discrimination on grounds of sexual orientation as a,
“proportionate means of complying with the doctrines of the religion”.
That could leave the way open to discrimination against individuals doing teaching or administrative work, and I think that that would be unacceptable.
The Bill also has specific exceptions to allow religious organisations to discriminate in employment and in service provision on religious grounds when they are working under contract to provide public services or performing public functions. This was dealt with in more detail by the noble Lord, Lord Macdonald of Tradeston. I say in passing that I am a vice-president of the Humanist Association.
I am glad that age has been included in the Bill as a characteristic which should be protected against discrimination. We recently debated older workers and employment. It is now generally agreed that we are all living longer and this has caused Governments—and pension providers—to consider raising the retirement age. The default retirement age of 65 is to be reviewed by the Government in 2011. There is surely a case for dealing with it earlier than that, particularly in the light of comments by the judge in the recent High Court case. There is no reason for not dealing with it in this Bill. However, there is little point in raising the retirement age if the individual concerned simply transfers to jobseeker’s allowance instead of receiving retirement benefit. It makes sense only if appropriate work is available. It is also an argument for much more flexible working to enable older people to continue in work for much longer.
Our recent debate indicated that unemployed workers aged 50 and above are finding it increasingly difficult to obtain other employment. There is a case for additional support for such individuals, many of whom have skills that are said to be necessary, but they are simply rejected on grounds of age. Clause 78 does empower a Minister by regulation to require an employer to provide information about the difference in pay between male and female employees. As I said earlier, I welcome that; I think it is a good idea. It might be an idea for employers to provide information about the number of employees over 50 and the policy of the company in regard to the employment of older workers. If everybody is to have their working lives extended, there is a case for age profiling in order to assist that process.
There is a great deal in this Bill that is entirely admirable. I have just concentrated on topics in which I have a particular interest, but in general I fully support the Bill and would like to see it on the statute book as soon as possible.
My Lords, like other noble Lords, and especially my noble friend Lady Warsi and the noble Lord, Lord Lester of Herne Hill, both of whom represent their—I am sorry, it is two years since I have taken part in a debate, although it does not seem that long, and all of a sudden I find that the words are not coming out properly. But I did get my MA during that time, so that is something which can compensate for it.
I welcome this Bill, but the problem is that it is very large and complex and it has come in very late in the life of this Administration. After listening to all the speeches, I have no doubt at all that there will have to be a lot of looking at and altering things. I know that the noble Baroness, Lady Royall, has suggested that we should not table too many amendments if we want to get the Bill through, but she and all our parties would expect us to do a thorough job on it. It has taken a long time for a consolidation Bill on all these equality matters to come in and we must not neglect anything that is needed.
I will not talk about all the things that other people have. Nobody could fail to be impressed by what the noble Baroness, Lady Campbell of Surbiton, said and what the noble Lord, Lord Low, added on the question of disability. No one could believe that the noble Lord, Lord Alli, does not feel very strongly about civil partnerships. He would like civil partnerships to occur in religious places and so on. However, I have left all that out of my speech and shall not comment on it because it has all been said so well already. We have an awful lot to think about. At the end of the day, we need a culture change and we need to think differently. We should not jump up immediately and say no to that suggestion; we should be prepared to listen much more so that we can be helpful in getting such things through.
Throughout my political life I have been concerned with equality, or perhaps more particularly the inequalities that need to be dealt with. However, perhaps because I am female, my special interest is women. I have always been very concerned about matters relating to women. I remember that when I ran the 300 Group in the early days I used to speak to the noble Baroness, Lady Gould, about what we in our individual parties could do. I do not agree with the noble Baroness, Lady Northover, about all-women shortlists. Frankly, they are somewhat demeaning for women and I do not think that those involved always consider that they have won their seats through fair competition.
Yesterday, the noble Baroness, Lady Deech, asked a Question in this House about the possibility of titles being used by the husbands of women Members. It was suggested that the position of women in the House is not as powerful as that of men because a male Peer’s title can be extended to his wife whereas a woman Peer cannot share her title with her husband. Funnily enough, I spoke about that as long ago as 1993 on a Question tabled by the late Lady Castle. She said that it was not right that we keep saying “My Lords” and that we should say “My Lords and my Ladies”. I said at the time that I did not mind about that; I simply thought that it was not right that a woman could not share her title with her husband. I added that my husband did not mind a bit; he was quite happy to be called “Mr” as long as he could use the car park outside. That caused a laugh, as it has done now. He is currently sitting in the Chamber listening to the debate. I made him type out my speech for me last night, although I am not using any of it. Therefore, as he is sitting there, I want to mention him, as I do not want him to be cross with me. That is why, when I saw him coming into the Chamber, I tried to signal to him to go out.
My noble friend is quite right. As I said, the noble Baroness, Lady Deech, asked a Question in the House yesterday on the same point, but I was rather disappointed at the dismissive way in which the Minister responded. He said that,
“the Government are not aware of any great anxiety or urgent desire for change in this respect”.—[Official Report, 14/12/09; col. 1310.]
If they are not aware that there is a problem, they are not listening. There are fewer than 120 women Peers—a serious disparity in itself, although that is another matter—a very large number of whom have no husband. It is clear that only a few people are really concerned about this matter, but I should not like to think that the Government are not interested in us because we are very small in number. I am sure that the noble Baroness, Lady Royall, does not think that, but I feel that it is something that the Government should look at. It is, in any case, a matter for royal prerogative, so perhaps we should not even be considering it. When I raised the matter in 1993, I was totally ignorant; now I have learnt a little more.
However, there is something that I think we could change. It is not a matter for regulation or legislation but perhaps a matter for the usual channels, and I think that we should change it because this is, after all, the senior House in the Parliament of our country and we should be the ones to show equality in practice. I refer to the allocation of places at State Opening and to where Peers sit in the Chamber. Wives can sit in the Chamber, adding to the glamour of the event, bedecked in their long gowns and many of them in tiaras. However, husbands are consigned either to the vertiginous height and narrow stairs of Strangers’ Gallery or to the Royal Gallery, where they can see Her Majesty coming through but cannot hear a word of the Queen’s Speech. Alternatively, they may, as my husband does, crouch round a television set in one of the offices here. The usual channels should look into that. It is not proper. We are not talking about a lot of people. Those husbands who would like to sit here should have the right to do so. Maybe they could be balloted or whatever. I have gone on for too long.
I end on a little note of levity on account of the fact that we have listened to some quite harrowing stories today, which is why I mentioned that I think that we need a change in the way we think about these things. It cannot all be legislated for. It has to be about how we behave ourselves.
Well, my Lords, follow that! I rise to support this Bill and the Government’s commitment to equality. I also want to raise some concerns about aspects of the Bill’s approach. It seems sensible to consolidate existing discrimination law, which has been built up over 40 years, and alongside that to strengthen aspects of it. I, too, support that in principle.
However, let me say a few words about Clause 1, which introduces a public sector duty regarding socio-economic inequalities. Greater socio-economic equality is difficult to oppose in principle, certainly from these Benches, and I do not oppose it in principle. However, what I would call the sceptical pragmatist in me raises an eyebrow about trying to legislate for it and the deliverability of this clause.
Many of the bodies involved struggle already to deliver their core businesses and to meet rising public expectations. Most of the bodies are going to have their budgets cut in real terms over the next five years and will be required to drive efficiency as never before. Adding to their woes with what many will see as a piece of tokenism is in my view ill advised and I believe that the clause should be withdrawn, as others have suggested. I do not think that it would weaken or do any damage whatever to this Bill if it did not have Clause 1.
I shall speak about the Bill’s approach to religion in Clause 148, on the public sector equality duty, and to some of the related issues in Schedule 9 on work exceptions and Schedule 23 on general exceptions. In doing so, I declare my interest as a member of the British Humanist Association. Clause 148 imposes a duty on public bodies to,
“advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”.
Like the noble Lord, Lord Lester, I do not think that the Bill is right or sensible to apply this provision to religion or beliefs. This provision would be well outside the delivery capability of most public bodies. Religions and beliefs are not fixed or innate, unlike other protected characteristics, such as race or age. Claims can legitimately be made and argued about, as the noble Lord, Lord Lester, has indicated. Religions or beliefs are treated differently from other equality strands in legislation such as the Racial and Religious Hatred Act 2006. They are a private matter and not for public bodies to meddle in, but Clause 148 encourages public bodies to do so.
I turn to Schedule 9. At present, organisations with an ethos based on religion or belief are given some wider scope to discriminate in their employment practices on the ground of religion or belief, more so than other employers, and are allowed to refer to their ethos to justify that discrimination. As I understood it, the noble Baroness, Lady Warsi, seemed to want to extend this, but I think that we should talk about narrowing it. As drafted, the Bill would apply this discrimination even when a religious organisation was working under a contract to a public body and was paid to provide services to the broader public, not just followers of its religion. As my noble friend Lord Macdonald eloquently indicated, this is quite unacceptable. It provides employment prospects in public services to particular religious believers, rules out applicants with the wrong religion or no religion and threatens the employment and promotion prospects of people transferred from a public body under a contracting-out proposal. The Joint Committee on Human Rights has expressed its concerns about the extension of the existing exception for religious organisations, but so far the Government have been unwilling to act on those concerns.
Lastly, there is the related issue of religious organisations effectively being allowed to discriminate against service users on the ground of religion or belief when working under a contract with a public body and paid under that contract from the public purse. The Bill as currently framed allows that, even though the religious organisation cannot discriminate on the ground of sexual orientation, as provided for in paragraph 2(10) of Schedule 23. That seems to me to be a very odd contradiction, but it means that in practice religious groups that get such a contract from a public body could, in time, turn those services into ones restricted to a certain set of beliefs. That would be much more divisive than now.
I have been in the House for 10 years and, like other Members, I have received a large enough number of briefings from religious organisations to realise that my concerns are not fanciful. If we leave the legislation as it is, it will only encourage those who wish to advance the cause of their religion at the expense of taxpayers. I ask the Government to think again about the three issues that I have raised and to bring forward some amendments. I hope that the Minister can give us some reassurance on those issues.
My Lords, the fundamental principles underlying the Bill cannot be challenged and, in general, I give the Bill my support. For me, the most pressing area of need in the Bill is the intent to ban age discrimination in the provision of goods and services. I note that there will be further consultation on how that is to be achieved. I have belonged to a number of organisations which have decided to subject their people to diversity training—I guess most of us have been through it at some stage—and Members will probably know that the most common outright prejudice is not sexism or racism but common or garden ageism. All my professional life as a psychiatrist for older people, I have had to struggle against NHS and local authority ageism. We desperately need legislation in this area.
The Government’s calculations on the possible impact of implementing equality of access to care in mental health services, in general medical and surgical services and in cancer services, will prove extremely costly but it is well worth the investment. I understand the complexity of implementing these provisions and the need for further consultation but I am worried about the proposed delay. There is no timetable outlined and I hope that the Minister will give us some kind of timetable for implementing these vital age-equality provisions.
There are some very disappointing areas in the Bill. From discussions while the Bill was zooming through the other place, I had thought that Vera Baird, the Solicitor-General, had indicated her support for prohibiting the use of pre-employment health-related questions which are not directly relevant to a candidate's ability to do a job. Disappointingly, the Bill arrives unchanged in this respect. People with HIV, mental health problems and many disabilities find themselves asked in application forms about medical conditions, disability and medication. In the United States and a number of EU partners, such questions are unlawful.
We know that 60 per cent of employers will not knowingly employ a person who admits to having had mental health problems and over 40 per cent of mental health service users are put off even applying for a job because of such discriminating questions. A half of those who decide to apply for a job hide their history and I have to admit to colluding with some patients who decided to do this in the past by not seeking to intervene in the process. It is, of course, permissible and necessary to ask a person who has been offered a job about any disabilities which might impact on their ability to do the job. I feel there must be a middle way to ensure that employers feel encouraged to take on people who fall into these groups that is just and fair for both employers and job seekers. I hope we can work on this as the Bill progresses.
A further concern is the impact of a public authority’s duty in respect of religion or belief. The noble Lord, Lord Warner, said everything I wanted to say about that and so did the noble Lord, Lord Macdonald. I will add only that I see a real danger of creating parallel, separate services for different religious groups, which lead to further divisions in society and to unfair employment practices. I remember my great shock, at my first visit to Northern Ireland services to older people about 35 years ago, on realising that, when you went into an institution in Northern Ireland, you either went to a Catholic one or a Protestant one, and there was no choice.
Here, we already have separate charitable institutions run by various religious groups and some of them are exemplary. Methodist Homes for the Aged, for example, are rigidly—and blessedly, in my view—an organisation which is an equal opportunities employer of the very best kind and accepts residents of all faiths and none. There are others, such as Jewish Care, which, for understandable historical reasons, have developed along separate lines and take people who wish to go into a particular sort of care, because they are Jewish. This I find perfectly okay, particularly as Jewish Care is also a very clear equal opportunities employer and its care staff, again, are of all faiths and none.
I have also served on a Christian housing association where we had a truly ecumenical board running it. We also had very good, strong equal opportunities policies. I am concerned, however, that the provisions in the Bill will make it possible for religious organisations to discriminate in employment. We already know that this goes on in some providers of public services. People who provide care services at home, where people do not have a choice, because the contract is let by a local authority or primary care trust, need to know that those who are employed will have employee status which is truly equal, as you would expect. We are truly setting up problems for the future if we allow this to happen.
My last area of concern is the clauses on positive action. In general, I do not have a problem with Clause 154, it seems fine to me. However, I have a strong objection to Clause 155, on recruitment and promotion, where it is permissible, the Bill says,
“where two candidates are equally qualified”,
to discriminate in favour of an individual with protected characteristics. In practice, it does not work, mainly because there never are two equally qualified candidates for a job; there is either someone with protected characteristics who is the best fit and properly qualified, or there is someone who is not and who is given the job and somebody else who will be directly discriminated against as a result of the choice.
I am astonished to see Clause 155 in the Bill, because we have had ample evidence of the misguided application of positive action in local authorities, such as Lambeth in the 1980s, and in the NHS, which did not appoint executive trust and PCT executive board members in this way, but has quite often appointed non-executive directors in this way, which, frankly, has led to PCTs and many trust boards becoming white-male-free zones. I remember when many white male chairs were sacked from trust boards in 1987 and 1988. Many women and some ethnic minority candidates came in instead. Too few of them, at that time, had real experience of running large corporate organisations or had serious financial skills—there might have been women who did, but they did not. They were said to be bringing community knowledge and skills. We were creating corporate incompetence on a massive scale, which, I fear, continues to this day.
Positive action in employment is profoundly discriminatory because of this lack of candidates being equal and does nothing to establish confidence in women or people from ethnic minorities being able to do the job. This is usually a matter for allowing time so that those who have had educational opportunities and experience can catch up. Of course, we need to provide special development opportunities for people to be able to make the best of their talents, but we women and ethnic minorities should oppose anything that detracts from our being appointed wholly on merit. I look forward to the Committee stage of this valuable Bill and to some robust debate.
My Lords, before the noble Baroness, Lady Miller, goes, I want to start by congratulating her on her speech and saying how wonderful it is to have her back in the House being well after her accident. She is greatly loved in this House, and her speech reminded us all of how we have missed her.
I, too, wish to congratulate the Government on introducing the Bill. I pay special tribute to the Ministers who have championed its introduction: Harriet Harman and our Front Bench in this House. It is a visionary, progressive and long-overdue piece of legislation. Social justice requires the eradication of all discrimination. Although I would have liked to speak about the many hurdles still facing women in fulfilling their aspirations—a part of my life’s work—I would also have liked to speak about the continuing problems about race and Islamophobia and, like the noble Lord, Lord Lester, and my noble friend Lord Warner, about religion. I would also have liked to speak about the obstacles that still exist to educational equity, but I am mindful of time constraints, and I am going to confine myself to what I consider a very pressing problem: inequality of income or the gap between rich and poor. It underpins so many of the other disadvantages that people face in our society.
Too much time was spent in the 1970s and 1980s debating which forms of inequity were worse: gender, class or race. The truth is that combinations of inequality are often the hardest to overcome. Lack of resources is so often the killer blow. So I congratulate the Government on the socio-economic duty, which is a brave inclusion in the Bill. It is highly symbolic, but one of the functions of antidiscrimination legislation is to be symbolic, so I hope that the Front Bench will not listen to the sceptical pragmatists in our midst. It has been my lifelong belief that greater equality is the material foundation on which a better society is built. In recent years, that became a very subversive thing to believe and certainly a subversive thing to say. I was never intensely relaxed about people getting filthy rich, although some people within my own party took a different view. The prevailing neoliberal fundamentalism over the past two decades saw financial inequality as an irrelevance at best and, at worst, something to be encouraged.
However, we now have impressive empirical evidence that shows that many of our social ills are directly linked to levels of inequality: from health and mortality through to mental illness, obesity, homicide and other crime. The research of Wilkinson and Pickett, which was published earlier this year in The Spirit Level, says it all. Almost all social problems that are more common at the bottom end of the social ladder are more common in more unequal societies. The reason is that in societies where there is greater inequality, people are more inclined to feel inferior and less respected, and that in turn leads to all forms of social pain. We see it expressed in lack of trust in others, mental anguish, comfort eating, binge drinking, crime and antisocial behaviour. In more unequal societies, there is less sense of community and more depression, social isolation and loneliness. It is not just the poor who suffer from inequality; the rich do too because they suffer feelings of angst, insecurity and pressure. They too have mental illness and eating disorders and feed their fears with more consumption of material goods, which depletes our planet’s resources, and constantly finding ways to cocoon themselves and their children from people who are not like themselves.
I am afraid that unequal societies breed anxiety and fear of the other, and fear of the other is what leads to discrimination. So what is the answer? It is a reduction in social inequality. The good society means the creation of a different, more egalitarian society. It means greater fairness between the better off and the poorer. Talk of equal opportunities is not enough. I say this to my liberal friends. All the rhetoric about meritocracy is a nonsense if people cannot get off the starting blocks. It has to be recognised that there is a link between income inequality and the availability of opportunities.
The National Equality Panel, which has been working on a report for the Equality and Human Rights Commission, is finding that larger income differences tend to reduce social mobility. Greater equality of income should be a national objective and a central focus of national policy because the social effects of inequality have truly profound implications.
It is to the credit of the Government that they are now legislating for change. I shall be supporting this Bill and I just hope that there is time to get it through. This is Labour at its boldest. This is Labour at its best.
My Lords, it is a great pleasure to follow the wonderful speech made by the noble Baroness, Lady Kennedy. I believe that she is one of the great heroes of this Chamber, as indeed are many who have contributed tonight. I am astonished by the wealth of experience that Members bring not only to this issue but to all issues that come before this House. The Equality Bill offers an opportunity to pay tribute to the thousands of people who over many decades have fought, challenged and sought to help their fellow citizens to achieve greater opportunity, equality, fair treatment and justice.
The Government have brought forward a worthy Bill. I praise and thank those who have fought to bring it to this House in its present form. It offers the basis for us to consider what is good and to reflect on all the contributions made by Members of this House in order to enable the Government to consider those and, I hope, to offer some amendments that will reduce the scope for lengthy debate and discussion that might hold up this Bill. Certainly, we will have to take account of all comments that have been made from a wide variety of experiences by Members to enable us to improve this Bill to the point at which it is enacted.
This is long overdue consolidating legislation and I welcome it. If it is enacted with improvement and, if implemented, enforced effectively, it will help us as a nation to bridge and reduce the widening gap in inequalities. However, in its present form, the Bill is hugely disappointing. It is defective in many respects and unlikely to remove some of the structural barriers blocking the path towards universal equality for all our people.
Having ignored the advice of many experienced individuals and organisations when they introduced the Equality Bill in 2005, the Government put the proverbial cart before the horse and created the enforcement machinery of the Equality and Human Rights Commission ahead of the consolidated Bill we have before us. That was a serious misjudgement, as the past few years have proved. But we are where we are. Perhaps light-touch regulation is now dead, in which case we can all celebrate. I believe that it is shameful that this Bill with its deficiencies is being rushed through in the dying days of this Parliament and it is almost being offered to us on a take-it-or-lose-it basis, which is not acceptable. Some people have suggested that this Bill is better than what we have and that therefore we must not lose it. But they have also suggested that if they were drafting it, they would do it differently. Unfortunately, we do not have that luxury.
There are many positive provisions in the Bill. I welcome the extended protection against discrimination on additional grounds, although from what I have heard from colleagues, such as the noble Lord, Lord Warner, there are some difficulties that we have to consider and seek to overcome. It is flawed by some unreasonable and unduly narrow definitions, such as some in the case of marriage and civil partnerships which are to the detriment of cohabitees and those involved as couples in common law unions.
I would extend the same welcome and support to protection from age discrimination, even though there are flaws in the restriction of protection for young people, and to the comments made about special provision for goods and services for those aged over 50. We heard from the noble Earl, Lord Ferrers, earlier about Saga. I will not repeat what has been said but there are matters that have to be addressed there regarding specific needs. Those are promised in secondary legislation and it is hoped that we will see some of those in the Bill before it is enacted.
The importance of positive action warrants its inclusion in the Bill, but the provision and its likely effects in terms of outcome are totally exaggerated. It adds nothing to what exists now and is more likely to be counterproductive than beneficial. The provisions to deal with multiple discrimination are essential but why are they not applicable to indirect discrimination and harassment? That seems to me a ludicrous oversight and requires addressing. It is not for want of trying over the past decades that we have failed to narrow the pay gap between men and women. The requirement for firms employing more than 250 employees to publish gender statistics will contribute to greater transparency, but it will neither resolve this dilemma nor tackle the root causes of gender inequality in the workplace. A combination of light-touch regulation and political timidity are the main contributory causes of this lamentable scenario. I am delighted to welcome and support the provision for the employment tribunals to be able to make recommendations in individual cases which will be applicable to the workforce as a whole. It is hoped that this provision will be utilised by a body like the Equality and Human Rights Commission to use individual casework to push industries and sectors towards a broader application of best equality practices, using the power of enforcement in the way it is intended.
My concerns about this Bill are numerous but I shall focus on three which I feel can be addressed. Not surprisingly they relate to performance, implementation and enforcement relating to equality. I say those are the important underlying principles because I believe we are what we do and my experience has been right at the frontline of seeking to change institutional practice and eradicate the discriminatory impact on people from all backgrounds. The first is the public sector duty regarding socio-economic equalities. I see it as mere exhortation and posturing. It will make absolutely no difference to poverty and inequalities unless there are specified requirements on actions, outcomes and monitoring. I welcome it because I think it is symbolic, as was said by the noble Baroness, Lady Kennedy, and that is very important. I agree with the noble Lord, Lord Warner, about the way it is presented at present and its likely impact, but I disagree with him that we should get rid of it. I think we should keep it and build on it. I believe that what we have been doing in this era, and continue to do, is palliative at best and devastatingly destructive at worst.
In 1997 the Government inherited one of the most unequal societies in western democracies and since then, the gulf has widened in spite of all the efforts made to narrow it. Richard Wilkinson and Kate Pickett in their recent publication, The Spirit Level, as quoted also by the noble Baroness, Lady Kennedy, pointed to the fact that income inequality in the UK is now 40 per cent greater than it was in the 1970s. How will this Bill contribute to a turnaround in the fortunes of the poor? The newly formed Resolution Foundation highlighted that 14.3 million people are currently living in households earning less than the median income but above the level for state support. They literally are on the edge of serious debt all the time. How will the Bill help them? Our economy has been carefully regulated to concentrate wealth in the hands of the people who are already seriously rich and to make sure that the cost of the risks that they take as well as the cost of the rescue plans when things go wrong are borne by society as a whole. Such disproportionality is not acceptable in the context of equality. How will the Bill address this huge inequality?
The second of the three main concerns I want to deal with is that of the expanded public sector duty, which still falls short of what is required. On the point about public bodies, I think there should be only exceptional exemptions from compliance. All public bodies should be in no doubt about what actions are required to achieve measurable outcomes and the consequences of non-compliance. The continuing specification for public authorities to apply the discredited requirement “to have due regard” is no longer acceptable. “Having due regard” is interpreted as thinking about the need to tackle discrimination and equality, but having to do nothing to achieve it. That is how, in my experience, a lot of local authorities—many of which I have worked with or for—have interpreted or semi-interpreted Section 71 of the Race Relations Act 1976. They were required to make appropriate arrangements and did. They said, “We’ve made appropriate arrangements, and those appropriate arrangements are to do nothing”. Many local authorities today, even with new, enhanced equality duties and public duties, still pay due regard but do very little or nothing, which the law allows. We cannot continue to allow the law to be so feeble. This is a very important part of the Bill. If not amended, it will continue to be a blunt instrument to push forward meaningful activity to achieve equality outcomes and eliminate persistent, deep-seated institutional discrimination.
The third and related issue is procurement. We have failed over several decades to ensure that contractors and suppliers who supply goods and services through procurement by public authorities comply with the public sector equality duty. What is proposed in the Bill is welcome but falls short of what is necessary to make meaningful impact.
Much of the Bill relies heavily on secondary legislation, thus leaving many uncertainties. We need answers from government in each of those areas to know what outcomes are expected, how they are to be achieved and what the consequences of non-compliance are.
We have to use this opportunity to get the Bill right. We owe it to all those who are disadvantaged and disaffected, as well as to those who have worked tirelessly with commitment and passion over many decades in support of the goals of equality, justice and fair treatment for all our citizens. I have every confidence that our Leader of the House will guide us through the difficulties and the long journey that we have to take in steering this Bill through the House towards becoming an Act of which we can be proud and which does justice to the people who have given their lives and great commitment to serving their fellow citizens in the name of equality.
My Lords, in the 1990s, my colleagues and I on the Commission on Social Justice, set up by the late John Smith, leader of the Labour Party, took it for granted that equality was an essential part of social justice and that discrimination on any ground was unacceptable. Of course, equality does not mean any equality or similarity necessarily of income, but my noble friend Lady Kennedy of The Shaws made an excellent point, because we on our social justice commission would have been shocked at the widening gap—not a reducing gap—between average earnings and those of board members. I am thinking not just of investment banks but of all sorts of firms where that is so. Recent years have not assisted. Social justice surely requires some reduction in that widening gap.
To us on the commission, equality meant equality of the worth of all citizens; that is, each individual is entitled to consideration, respect and certain basic fundamental rights: rights of citizenship, human rights, a fair chance to develop one’s potential and a right not to be discriminated against. In our report of 1994, we said that rather than try to develop a series of separate anti-discrimination laws, government should consider the case for a single law, prohibiting unjustified discrimination in employment education et cetera. This omnibus approach would provide a legal framework which was both straightforward and flexible.
Both the setting up a few years ago of a single commission, the Equality and Human Rights Commission, and this Bill are extremely welcome. I am bound to express in parentheses some regret at the dissent and recrimination within the Equality and Human Rights Commission and particularly over the resignation of the redoubtable Sir Bert Massie, the knowledgeable and expert guide to disablement problems. The detailed law that we have developed in this country over many years has improved things so far as discrimination is concerned. As other speakers in the debate have pointed out, however, there is far too much of a gender pay gap. Men on average earn 22 per cent an hour more than women. I am pleased to see in this Bill greater transparency in those differences. Lifting gagging orders will certainly assist so that secrecy orders in employment contracts will be banned.
I welcome this Bill in consolidating and harmonising our statute law against discrimination and I welcome the clarification of the law in many areas, including clarifying the differences—it may not be perfect and I am not sure how it could be perfect—between discrimination, which is unlawful, and positive action. When you think of examples such as those given by the Leader of the House at the beginning of this debate in relation to giving preference to male teachers in primary schools in certain circumstances so as to provide male role models, that is a good example of positive action. Similarly you could mention taxi cabs in relation to a preference for women because of the increasing demand by potential women passengers to have women drivers for their safety. Preferences the other way round there would equally be sound. Similarly, most people would agree that when a police force wants to make its force more representative of the area which it polices positive action in favour of ethnic minorities is again justified.
I was much impressed by the speech a short while ago by the noble Baroness, Lady Murphy, making the point that in the health service in particular there had been quite a lot of positive action which had often resulted in less qualified, less suitable people being appointed than had previously been the case. That is a worrying factor. This Bill will allow political parties to use positive action to reserve a specific number of places on electoral shortlists for black and Asian candidates, for example, when selecting a candidate. This would not be black-only shortlists but at least some deliberate attempt to enable the party and the electorate to choose minority ethnic candidates.
I counsel caution in the use of these powers. The Labour Party has used women-only shortlists in many constituencies. In 1997 there were 30 or 40 MPs elected on that basis. Sometimes it was not always done in the most sensitive way. I am saying not that it is bad but that it was not always done sensitively. Sometimes there was dissension and resentment among long-standing active male members, even losing the Labour Party the seat. I hope lessons have been learnt from that. It should certainly be remembered that the Bill does not require positive action of this political party or that political party. It is voluntary. If you are going to have any preference of this kind, it must be done so as to carry the maximum number of members of the particular party. The Bill contains a sunset clause with a date that had been 2015 but that was raised to 2030. That strikes me as a rather pessimistic reflection on the advancement of women in political life at the present time.
There is a great deal in this Bill. I am afraid that it will be difficult to reconcile the Government’s desire to have their Bill and the desire that we all have to ensure that it is a good Bill.
My Lords, as No. 37 on your list, it is quite difficult at this stage in the proceedings not to repeat things that have been said before, so I hope your Lordships’ House will forgive me if I stray into the territory that has been covered by other noble Lords, in some cases so brilliantly, today.
In general, I, like many others in your Lordships’ House and outside it, support this Bill, and I hope that any remaining doubts can be overcome one way or another. It is therefore in the spirit of a critical friend that I make my brief comments today, and I look forward to working alongside noble Lords across the House to ensure that a strong, fair, effective, and indeed landmark, piece of equalities legislation is enacted. I want the Bill to become law, and swiftly, but the desire to ensure the swift passage of the Bill is tempered by the desire to ensure that we get it right. Principally, we need to ensure that the Bill has teeth, that those who break the law are dealt with accordingly, and that victims can expect to receive appropriate redress.
The experience of more than 40 years of legislation in this field points to a patchy record of achievement: to some successes and some failures. However it is measured, though, we do not have an equitable and fair society at present. We are working against a backdrop of substantial social inequalities that still blight the lives of so many people in this country. In health, education, social services and other areas, this inequality manifests itself in diminished life chances and choices for older people, for people with disabilities, for black and minority ethnic people, and for people from areas of gross social deprivation in which whole communities have experienced long-term unemployment and the issues that go with it: physical and mental ill health, educational underachievement, high infant mortality rates and lower life expectancy.
The Explanatory Notes state that the Bill’s two main purposes are to harmonise discrimination law and to strengthen the law to support progress on equality. Within this equalities framework, the provision of exceptions for religion seems to throw up something of an anomaly, as the noble Lords, Lord Macdonald of Tradeston, Lord Lester of Herne Hill, Lord Warner, the noble Baroness, Lady Murphy, and others have pointed out. Under general exceptions in Schedule 23, a religious organisation may practise discrimination against people of the “wrong” or no religion, and services may be shaped, and indeed restricted, in ways that conform to specific religious doctrine rather than to best practice.
The noble Lord, Lord Macdonald of Tradeston, mentioned schools and the education system. I know of a school at which standards continue to be seriously compromised by the reluctance of the senior management and the board to employ teachers from outside this distinctive and particular Christian group. Even other Christians are not expected to work there, and when they do they are hassled. The students have paid the price for this in low-quality and at times inappropriate teaching. Where is the rationale for prohibiting public bodies from discriminating against people on the basis of religion, but allowing religious organisations to discriminate that are sub-contracted to carry out services on their behalf? Surely high-quality public services should be accessible and open to all, whoever is supplying them, and surely the suppliers of the service should be subject to the duty to treat all service users and employees equally. The British Humanist Association and the parliamentary JCHR have expressed concerns about this exception, and I gather from what other people have said that amendments will be tabled on this matter in Committee.
Like many others concerned about social deprivation and equality, I welcome the principles underlying the new public sector duty to address socio-economic disadvantage. I live in a borough in which young men on the west side of the local authority area are expected to live some seven years longer than those who live on the east side of the borough, which is at a distance of two or three kilometres. This is not an unusual situation. It is no coincidence that many of those young men failing to live up to their potential—in fact, failing to live their full lifespan—are black and all from lower-income groups. Unemployment is rife, and the educational system seems to be failing to engage these young men. All too many are NEETs—not in education, employment or training.
Most of us will recognise that what is bad for these young men is bad for the whole community, and indeed for all society. However, like others, I am not entirely convinced by the wording of Clause 1(1). The public sector duty regarding socio-economic inequalities requires an authority,
“when making decisions of a strategic nature about how to exercise its functions”,
“due regard to the desirability”,
of using its powers to reduce inequalities. The terms “due regard” and “desirability” are imprecise terms at best, or are at least open to very wide interpretation. While it seems to be common sense that it should be left to the public bodies themselves to determine what changes they can effect in which sectors, is it right that when,
“deciding how to fulfil a duty”,
these bodies are compelled to take account of guidance issued by a Minister? I find this very confusing. I am not sure how this clause will operate, what constitutes “due regard”, whether in itself “due regard” is good enough anyway, and what sanctions there will be for public bodies that do not have such due regard or whose due regard is too weak for the socio-economic inequalities in the communities for which they are responsible. Furthermore, what does this ministerial guidance look like?
There is an increasing awareness of the complexity of the ways in which discrimination works within our society. People do not simply experience life in one-dimensional terms, and social identities are multifaceted. Sometimes people are subjected to discrimination for more than one reason. Therefore, like many others, I welcome Clause 14, although it could be argued that it does not go far enough as it disallows cases brought on the grounds of indirect discrimination. This clause also gives Ministers the latitude to make a decision which, in effect, amends the section. Can the Minister give an example of when it might be thought necessary for a Minister to determine what a claimant needs to demonstrate to prove dual discrimination? What circumstances would need to prevail for a Minister to restrict further the circumstances in which dual discrimination is allowed in the Bill?
In terms of public procurement, public bodies can make a substantial impact on equality of opportunity, especially in the job market. They are often among the largest employers in a locality. In addition, they handle billions of pounds-worth of transactions via public procurement contracts. Procurement processes offer an effective means by which public bodies can fulfil their obligation to advance equality of opportunity. By including rigorous, practical equality criteria in contracts for goods and/or services which they put out to tender, public bodies can more effectively meet the needs of all communities as well as improve equality of opportunity in employment and the job market. However, where is the incentive for public bodies to make use of this mechanism, and how will we know if this strategy for achieving equality is operating effectively?
I endorse all of what my noble friend Lord Ouseley said, particularly when he was discussing the effectiveness of previous legislation in terms of public duty. This issue of it being well-written and well-articulated but proving toothless in effect is a very serious one. I hope the Government will take notice of what has been said in that area.
I would like to return to something that was said by the right reverend Prelate the Bishop of Chester earlier in the debate. He made an interesting point. He seemed to suggest that there was too much focus on the individual in terms of individual rights within the Equality Bill and in equalities frameworks generally. I wondered if he had thought about how the notion of acts such as hate crime acknowledges that a hurt—an act of violence perpetrated on one black person, or one woman, or one person with a disability, or one gay person, or one religious or non-religious person—is also an assault on the whole community. This is felt very deeply by a community. It has a disproportionate and very distressing impact on that community. That has been recognised through all sorts of landmark cases such as the Stephen Lawrence case, so I do not think it is quite as bleak as he would suggest.
I conclude by saying that the importance of making this Bill an Act cannot be overestimated for those who really want to build on and strengthen previous legislation for a fairer, more equitable society. Although equalities legislation alone cannot achieve this, it serves to protect the vulnerable, has a symbolic resonance and demonstrates very clearly our society’s values and our commitment to social justice.
My Lords, I welcome this Bill very much. It covers many aspects of equality. But as I am one of the last speakers tonight, I will not go through them all, but instead concentrate on Clauses 104 and 105, dealing with all-women shortlists. The Bill allows political parties to adopt all-women shortlists when selecting candidates for elected office. It is a sunset clause, set to end by 2030. This measure was originally planned to end by 2015, and I am pleased to see it extended to 2030, although in some ways I am not so pleased as it is an admission that in no way will there be anything like an equal number of women in the political life of this country by 2015. But I welcome the extension of this measure, which is needed, as today we see in the House of Commons only a small number of women MPs—126. That is 19.8 per cent of the total, two less than were elected in 2005, because of by-elections. So the numbers are going backwards.
Since 1918, 292 women have been elected to the House of Commons and, in that same period, 4,378 men. I think that explains why I believe that we should have all-women shortlists. If it was possible to put into the Commons Chamber today all the women who have ever, in the whole of that period, been elected to the Commons, they would still be in the minority. It has been estimated that, at the present rate of progress, it will taken up to 200 years or 40 general elections for women to achieve 50 per cent in the House of Commons. This clause is in place until 2030. If we have general elections every five years up until 2030, starting with the general election in 2010, I estimate that that is five general elections up to 2030. Going on the present rate, we will be nowhere near 50 per cent of women elected by 2030. That is why I advocate having this clause as a permanent feature, at least until there is good evidence that members of political parties will select women without all-women short lists. It is prejudice against women in society, which is then taken into political parties by members at local level, that prevents women getting selected. That is the biggest problem to overcome. However, the clause will work only if all political parties use it. Only the Labour Party has used this legislation so far, which is why Labour has 94 women MPs, more than all the other political parties put together.
This clause means that political parities can implement this policy without worrying whether or not they are in breach of the law, as the Labour Party had to put up with when it tried to implement this policy pre-1997. I would also advocate using similar measures to appoint women to your Lordships’ House, as we fare no better than women in the Commons. Women have been able to sit in your Lordships House since 1958 and, to date, 1,044 men have been appointed and 198 women— 84 per cent men and 16 per cent women. So whether elected or appointed, women are a minority in both Houses. To put things on a more equal basis, perhaps only women should be appointed as Peers until 50 per cent is achieved. I think that would be a good idea, myself. Think how different this House would look if we could do that. Perhaps we could use quotas.
I am pleased to note that the Government have set targets on new public appointments—on gender, ethnic minorities and disability. This was launched in June 2009. By 2011, the aim across government is for 50 per cent of all new UK public appointments to be women, 14 per cent disabled people and 11 per cent people from ethnic minorities. Such appointments are regulated by the Commissioner for Public Appointments. To underpin this, Ministers announced a cross-government action plan, Opening Doors—Increasing Diversity, which sets out action over the next year to increase the visibility of the appointments system, ensuring transparency and accountability and tackling the barriers that people face in putting themselves forward. This is a very good initiative which we hope will produce good results.
I am keen to have more women in elected positions, but not just for the sake of it. Where we see a large number of women in a legislature, there is a different agenda. If one looks at the first elections of the Welsh Assembly in 1999, for the first time a large number of women were elected because the Labour Party had adopted a policy of having an equal number of men and women candidates, using the system which we call twinning. By their second elections in 2003, a record-breaking number of women were elected to the Welsh Assembly: there were 30 women and 30 men. If Wales can achieve this, it can be achieved anywhere—believe me, I know.
Having so many women in a legislature means, first, that it reflects the general population, and secondly, that it can pursue a different agenda. For example, the first Children’s Commissioner was in Wales; now England, Scotland and Northern Ireland have one. The Commissioner for Older People for Wales, Ruth Marks, is the only one in the world. Again, Wales takes the lead in these things. These and other innovations have been tried in Wales because of the influence of women politicians, making the difference. That is what is needed. Women can bring that added dimension, providing there are enough of them, as in the Welsh Assembly. While I welcome the measures in this Bill, I believe that it will take a very long time. Women are generally very patient, but perhaps our patience is running out.
Let us look at what other countries in Europe and in Africa are doing to increase the number of women in political and public life. Quotas are used to address this problem. Rwanda now has the highest number of women parliamentarians—57 per cent—by using quotas. It seems to work there and in other countries, but of course it has never been suggested here. I am in favour of such action, but the measures are not in this Bill at the moment. Nevertheless, I welcome the measures in this Bill which I believe will bring about a more just and equal society.
My Lords, we have arrived at the last Back-Bench speaker, and I will try to be brief. I, too, warmly welcome the Bill, and the improvements that were made to it in the other place. As we have heard, in tough economic times equality matters more, not less, and we need to make use of everybody’s talents—that of course includes disabled people, who still face among the greatest inequalities and exclusions in our society.
I am delighted that the Bill seeks to remedy the major gap in protection for disabled people left by the Malcolm judgment. The changes made to this clause—Clause 15—in the other place are very welcome, but sadly the Bill also introduces a knowledge requirement which was not in the DDA. It means that employers or service providers could claim they did not or could not reasonably have been expected to know about the disability, which leaves people with hidden disabilities or communication difficulties at an inherent disadvantage. We need to make sure that there is sufficient onus on duty holders to inquire about any potential disability before they take detrimental action. Another niggle that I have with this clause is whether it is clear enough that duty holders should be making reasonable adjustments wherever required to avoid less favourable treatment. I hope the Minister can clarify these two points in her response, though given the number of notes that she has received, I think that it is highly unlikely
I am also delighted that the Bill extends duties on landlords to make reasonable adjustments to the common parts of let residential premises and commonhold properties, as the late and much-missed Baroness Darcy de Knayth would be. We tabled amendments on this issue to both the Housing Act 2004 and the Disability Discrimination Act 2005, and at last they have borne fruit. The Bill will make it unlawful for landlords and management companies unreasonably to refuse permission for a disabled person to make vital physical alterations to such communal areas as hallways and entrances, so that they will no longer be imprisoned in their own home.
I am aware of the time pressures that we face in improving and enacting the Bill. However, there are outstanding issues which we must address. We must ensure that the Bill does not regress on the DDA. I will not repeat these points, since other noble Lords have dealt with them. A major disappointment is that the Bill has not seized the opportunity to adopt a more “social model” definition of disability, as recommended by the Joint Committee on Human Rights in its legislative scrutiny of the Bill. It is a travesty that much tribunal time is wasted in arguing about how disabled someone is, rather than focusing on the discrimination that may have taken place. The Joint Committee recommended:
“At a minimum … the requirement contained in the current definition of disability that the effects of an impairment be ‘long term’ in nature should be removed”.
Currently discrimination can only be proved for an impairment which has lasted for 12 months or more. Should the Bill pass in its current form, it will still be perfectly lawful for an employer to sack someone for taking time off for a shorter episode of severe depression. There are also cases where people face benefit sanctions because of this rule, such as the one brought to RADAR by a distraught disabled woman who had been summoned for a work-focused interview. She could not get to the bus stop to get to the jobcentre because of a serious, though short-term, injury; but the jobcentre would not make reasonable adjustment and send a taxi because she was not covered by the long-term requirement defining disability.
Let us make sure that the Bill deals with the discrimination and not with fruitless arguments about the extent of disability. This is a good Bill which contains many helpful improvements in protection against discrimination and, with a little more work, could prove to be a great landmark in transforming the British economy and our society for the better.
My Lords, it is a great privilege to take part in this debate, a debate which has shown the rich diversity of the House in experience and background, all of which are of such importance and relevance to the issues that we have debated today.
The Liberal Democrats support the Bill; it is a good Bill. Our political creed has at its core the importance, freedom and dignity of the individual. We believe that the right to equality without discrimination is an individual right. It is not a right for communities, although it goes hand in hand with the responsibility to respect the rights of others. Discrimination offends that fundamental dignity and, while inequality is invariably a barrier on the road to individual fulfilment and freedom to fulfil one’s potential, we believe that fulfilling one’s potential is something that is done in society and the community. That is why we support the Bill. It brings together in one piece of legislation a plethora of Acts and orders, or, as the noble Lord, Lord Low, more graphically said, “an overgrown and impenetrable jungle”. It gives a coherence and consistency that ought to make its application more effective, although I echo the concerns expressed by the noble Baronesses, Lady Campbell of Surbiton and Lady Wilkins, and the noble Lord, Lord Low, that there should be no regression, especially with regard to disability.
Nor should we be starry-eyed about the capacity of legislation to right the wrongs of the world. In his book, Strength to Love, published in 1963, Martin Luther King said:
“Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless”.
Arguably, over many years, perhaps a culture can be changed. It is undoubtedly the case that today language and attitudes that were all too common at the time of the original Race Relations Act are simply not acceptable.
In supporting the Bill, we on these Benches do not accept that it cannot be improved. We will challenge what we believe to be misguided or unnecessary and we shall seek to correct omissions through constructive amendment. Already we have been engaging positively with Ministers and officials, and I hope that across the House we can improve the Bill as it makes it way through your Lordships’ House and secures a successful passage.
One immediate improvement would be to drop Part 1. Tackling socio-economic inequality is important and desirable, but it is wholly questionable whether the three clauses can achieve that end. I join the noble Lord, Lord Warner, in the sceptical pragmatist camp. The noble Baroness, Lady Young of Hornsey, analysed the vagueness of the wording and referred to “desirability”. The noble Lord, Lord Ouseley, said that “due regard” was the ultimate cop-out for organisations that wanted to do nothing. I do not think that they will assist in achieving the objectives that no doubt underlie the insertion of that provision.
Poverty and inequality are so often different sides of the same coin. I do not question the good faith of Labour Ministers who came to power in 1997 desiring to tackle poverty, but Britain has become a less equal and less fair society under their tenure of office. Today, a person born into a poor family is more likely to remain poor throughout their adult life than a person born 30 years ago. One gets the feeling that as their period of office possibly comes to an end, Ministers wish to atone and are trying to salve their consciences by inserting well intentioned but practically limited provision in this legacy legislation. It is abundantly clear that as a result of Clause 3 it would never be put to the legal test, except perhaps through a costly judicial review, which those at greatest socio-economic disadvantage could never afford.
There is a legal maxim: ubi ius ibi remedium—where there is law, there is a remedy. But this part of the Bill seems to turn that on its head: ibi ius ubi remedium—here is the law, where is the remedy? I do not believe that that is what we should be doing. Aspirational legislation which, as the Solicitor-General was quoted as saying, “might do no harm” is not a suitable substitute for substantive policies with regard to education, health and taxation to tackle inequality.
My noble friends Lord Lester of Herne Hill and Lady Northover indicated areas on which we would wish to concentrate. I shall go over them very briefly. Equal pay was mentioned by the noble Baronesses, Lady Gould and Lady Howe of Idlicote. There is the comparison with predecessors, discussion of pay with colleagues and the scope of the employer’s defence. We will be looking at ways of strengthening that to try to ensure that the objectives of equal pay are more likely to become a reality sooner rather than later. The noble Baroness, Lady Howells of St Davids, mentioned representative actions in equal pay claims. While it was important to do that ahead of the civil justice review, perhaps the Minister can indicate whether that can be done under existing tribunals legislation by bringing forward procedural rules rather than by means of an amendment. If it can, we would need to debate one amendment fewer in Committee.
The noble Lord, Lord Macdonald of Tradeston, referred to employment and religion. The noble Lord, Lord Warner, commented on Schedule 9, feeling that the exemptions are too widely drawn, whereas the noble Baroness, Lady Cumberlege, would probably suggest that they are too narrowly drawn. That links to the issue that was also raised by the noble Lord, Lord Warner, about discrimination on grounds of sexual orientation in the provision of public services. Many people are concerned that when public money is spent on public services, discrimination that in other circumstances would not be acceptable somehow seems to get in under the shield of religion.
We understand that the European Commission has recently given two opinions on UK equality legislation with regard to areas of discrimination and whether it gives insufficient protection against certain forms of it. I think it would be helpful if the Minister could indicate whether the Government have received these opinions and, if so, whether it is possible to put them in the public domain because they will properly inform our debates at subsequent stages of this Bill.
My noble friend Lord Lester of Herne Hill reflected on the public sector duty in Clause 148 and these points were picked up by other contributors, not least the noble Baroness, Lady Murphy, the noble Lord, Lord Warner, and the most reverend Primate the Archbishop of York. In its present form, there is a possibility of reaching the stage where different services could be provided for different groups by different people, which would not be a sensible outcome. There are clearly issues which still need to be addressed. This also raises the tension which inevitably exists between free speech and equality, particularly when we deal with issues of religion or faith. If people have to declare interests, I am certainly not the president of the Humanist Association, being an elder of the Church of Scotland. We will do service if we concentrate on these important issues in Committee.
I want to raise again another point in terms of the balance between equality and free speech, which was referred to by my noble friend Lord Lester. Broadcasters are concerned that the Bill could lower the bar for complaints to be made, making it easier for complaints via the EHRC, when there is already an established route through Ofcom and the BBC Trust agreement. We should be concerned if, by implementing the provisions as they stand, we somehow dilute creativity. This is not a fanciful situation; there has already been a complaint to Ofcom that Channel 4’s “Undercover Mosque” might have included material that was likely to cause an incitement to racial hatred. The Government have already indicated that they do not intend to interfere with editorial independence and, with regard to the positive duty to promote equality, they have indicated a willingness to meet that. There is concern, however, on the other side of the coin, that they have not yet made their position clear on the non-discrimination duty. I hope that the Minister can address that tonight or give some indication ahead of the Committee stage that that point is understood and acknowledged.
Another point at which we will want to look is the issue of homophobic and transgender bullying. There are provisions with regard to harassment in schools, but why do they not apply on grounds of gender reassignment and sexual orientation, or indeed of religion and belief? In her opening address, the Leader of the House referred to tackling homophobic bullying at work. The Government seem to be in denial about homophobic or transgender bullying in schools. The briefing which noble Lords will have received from Barnardo’s makes it clear that there is an issue here. Sixty-five per cent of young lesbian, gay and bisexual pupils have experienced direct bullying. Less than a quarter of young gay people have been told that homophobic bullying is wrong. Significantly, where they were told that it was wrong, young gay people were 60 per cent more likely not to have been bullied. If the issue was sufficiently important for the Department for Children, Schools and Families to have issued guidance last week on tackling this bullying, one would wish to ask the Government what steps they intend to take to extend the provisions to tackle the issue of homophobic bullying at school.
In conclusion, we wish to ensure that this Bill is properly delivered. We do not want it to be dealt with in the wash-up and we certainly do not want it to be washed up. I wish to pay tribute to my colleagues in the other place, particularly Lynne Featherstone and Evan Harris, who have raised a variety of issues by way of amendments—for example, that there should be anonymous applications; the issue of discrimination against gay men in the collection of blood; the issue of Scottish Gypsy Travellers, as mentioned by my noble friend Lady Northover; and, as raised by my noble friend Lady Northover, the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Flather, the issue of discrimination by caste, in which my noble friend Lord Avebury has certainly taken an interest. As I think my noble friend Lord Lester indicated, if the definition of race in Clause 9 could include descent, then possibly the Convention on the Elimination of All Forms of Racial Discrimination might cover the question of discrimination by caste. I ask the Minister to look into that.
The Bill is up against a tight timetable, although that is not an excuse for not giving it proper scrutiny. I think we should ensure that the best does not become the enemy of the good, but I think that with some work we can make it better.
My Lords, given the wide-ranging nature of the Bill, I think that I have to declare all my interests as set out in the Register, because, quite rightly, this Bill should reach every part of our lives.
This is an important Bill on a complex and emotive subject and your Lordships’ contributions to the debate have been suitably thorough, thoughtful and heartfelt. There is no doubting the passion and determination all around the House—I think in particular of the noble Baroness, Lady Campbell, and the noble Lord, Lord Alli. I am pleased to be able to contribute to the first stage of what I hope will be a more detailed and lengthy consideration of the Bill than was possible in the other place.
The noble Baroness, Lady Northover, said that my noble friend Lady Warsi did not seem to spell out our views in any positive way. My noble friend said that we want to achieve a workable piece of legislation. I do not think that anyone can doubt her commitment to equality, because anyone who knows her knows her commitment.
I join those who have welcomed the general principles of the Bill and I thank the noble Baroness the Leader of the House for her sensitive and thoughtful introduction. The fact that there is much for us on this side to welcome should not be too surprising. The majority of the Bill’s provisions are, after all, concerned with consolidating existing pieces of equal rights legislation, which were passed with a large amount of cross-party support and, in several cases, under Conservative Governments.
I think that we should take a moment to pay tribute to those of all parties who pioneered the measures that form the backbone of this new Bill and who, in doing so, made a real difference to the lives of millions of people over the years. The list of repeals at Schedule 27 to the Bill is a roll-call of 40 years of social progress in this country: from the Equal Pay Act 1970 and the Sex Discrimination Acts of 1975 and 1986 via the Race Relations Act 1976 to the Disability Discrimination Act 1995. We can on all sides of this House feel proud that those Acts are on the statute book and it is right that we record that fact as we discuss replacing them.
Equality and fairness are objectives to which almost all of us aspire in today’s society. There are very few people whose views are genuinely bigoted or who would defend deliberate discrimination against people on the grounds of race, disability, gender or sexual orientation. However, there remain otherwise decent people who express frustration at what they perceive to be special treatment or preferment in favour of one group or another in society. I was pleased that the Leader of the House said that this Bill does not give preferment to one group. Much indirect discrimination and negative attitude can be traced to this unease and, when addressing inequality, we must be constantly wary not to take measures that risk fostering more resentment.
The Minister for Women in another place made much of the traditional Labour commitment to equality, so I hope that I may be permitted to say that such a commitment has also played a prominent part in my party’s history over the years. I have, I think, mentioned before in your Lordships’ House a favourite election poster of mine from the mid-1990s, which featured in John Major’s handwriting the message “Opportunity for All”. That, for me, summed up a simple but fundamentally Conservative commitment to true equality: not a fruitless search for equality of outcome or a pretence that we are all the same, but the belief that we should all, whatever our background, gender, race, sexual orientation or disability, have access to the same opportunities to get on in life and that we should all be treated in accordance with who we are. I think that the noble Lord, Lord Alli, said that we should be judged on who we are. That message is made more, not less, important by the current economic climate. It is in the interests of a productive economy that we should not allow anyone’s talent to go to waste, a theme articulated by the noble Lord, Lord Adebowale. We are all in this together, as someone wisely said.
However, as we all know, the subject often has its controversy. That is true of this Bill as well. We on this side may applaud the Bill’s broad objectives but we cannot help but feel that, in its detail, it contains some ill conceived measures which make it difficult for us to give it the wholehearted support that we would wish to. That is why we tabled a reasoned amendment in another place and why we continue to seek amendments to parts of the Bill. Many people are sceptical of attempts by the state to bring about a better society through legislation. They are right to be. We have no magic wand. Increasingly, however, it seems that Ministers are waving around the legislative equivalent of a magic wand.
It is against this background that we view the first part of the Bill, with its duty on public bodies to help to reduce socio-economic inequality. This is a worthy objective, but not one that is necessarily within their competence to achieve, even with the promise of guidance from Ministers. On this side, we sincerely agree with the need to reduce such inequalities. We are, however, complacent or naive if we think that an edict from this place will achieve that. The first part is, therefore, at best ineffective and at worst a damaging distraction from what should be this Bill’s main purpose. Although we cannot conjure up equality, we can enact measures that restrict unfair discrimination and unacceptable practices. That is a proper role for legislation.
On that subject, I commend my noble friend Lady Miller of Hendon for her wonderfully entertaining speech—vintage Lady Miller—and the noble Baroness, Lady Deech, for highlighting yesterday the discrimination that exists here in your Lordships’ House over the different treatment of our spouses. Although yesterday the issue raised a smile or two—and it is not the most pressing inequality facing society—it hardly sends the right message. We should reflect on that in the context of this Bill.
Eliminating unfair practices does not mean, nor should it mean, ignoring differences. As the most reverend Primate the Archbishop of York said, you do not get equality by concealing difference. The richness of our society is its diversity and that is undoubtedly a good thing. The question is how we ensure that such differences are respected and not used to discriminate unfairly. My noble friend Lady Cumberlege talked about accommodating difference. In relation to gender, where would we be without differences in the sexes? Certainly not here is the biological answer.
In an amusing section of her speech, the noble Baroness, Lady Royall, told us exactly what the Bill was not about. I, too, should like to address a concern that was expressed to me and illustrates a point. This Bill will not require “Top Gear” to have a woman presenter or “Loose Women” to have a man. The appeal of these programmes is not restricted wholly to men or women, even though their formats are based primarily on assumptions of differing interests. Should we be legislating for their presenting teams to be evenly balanced? Would we want to see Jeremy Clarkson swapping relationship advice with Coleen Nolan, while Lynda Bellingham demolished a caravan with James May?
My Lords, I do not think so. There is a role for differences in society and we should not be afraid of them.
I want to mention a number of areas of the Bill where we have specific concerns about the detail of what is proposed. The first is equal pay, a subject about which I feel particularly strongly, as do a number of noble Lords, particularly the noble Baronesses, Lady Gould and Lady Howe. I introduced a Private Member’s Bill on this subject earlier in the year. We applaud the measures designed to eliminate the gagging clauses that prevent staff from discussing what they earn. In today’s climate it seems that we do little else but discuss levels of remuneration. As bankers have recently discovered, greater transparency seems to focus the mind and makes it harder for employers to get away with clearly unequal levels of pay.
However, as my noble friend Lady Warsi explained in her powerful opening speech, we are not convinced of the Bill’s intention regarding compulsory pay audits, which are costly and time-consuming. We would welcome the hints given on the “Today” programme and in the Times that the Government might row back on this. However, we regard equal pay as a matter of social justice and we would not wish to see the plight of women working in smaller firms ignored. We believe that the more sensible solution would be to require an audit in all companies in which an employee had brought a successful case on these grounds. That would greatly strengthen the current position by providing meaningful sanctions against unfair employers, while not burdening the majority of fair employers with a new administrative burden. We will bring forward amendments on this in Committee.
My right honourable friend Theresa May said in another place:
“We have consistently supported positive action on the basis that it could be used as a tiebreaker when there are two equally qualified candidates”.—[Official Report, Commons, 2/12/09; col. 1228.]
But some people are nervous about any suggestion of positive discrimination. There should be discretion for employers but we should be wary of going further down the road towards allowing the whole recruitment process to be unfairly weighted. That concern lay behind the discussion in Committee and on Report in another place about the Bill’s reference to “as qualified” versus our preference for “equally qualified”. That important distinction is one to which I know we shall return; as well as being substantively important, it will provide hours of productive activity for the armchair lexicographers in your Lordships’ House.
It goes without saying that we are supportive of the extension of the Sex Discrimination (Election Candidates) Act 2002. The noble Baroness, Lady Howe of Idlicote, said that all parties were introducing all-women shortlists. We have not yet had all-women shortlists, although we have had a number by desire rather than design. David Cameron has said that he will use them if necessary. I say to the noble Baroness, Lady Gale, that the Sex Discrimination (Election Candidates) Act is not just about all-women shortlists; it allows political parties to use positive action in a number of ways and through that we set up our priority list.
Getting the balance right on these issues is, of course, fraught with difficulty, but I return to the basic premise that it is possible and desirable to acknowledge and to celebrate differences while being utterly intolerant of practices that seek to discriminate unfairly using those criteria. If we blindly follow the principle that there should be no differentiation in what can be provided for specific audiences or in who is best to provide them, we could end up with all sorts of unintended consequences. A good example is the provision of goods and services to particular sections of the community, such as car insurance for women and holidays for older people, to which my noble friend Lord Ferrers spoke.
This leads me to my final points about the potential impact of the Bill on religious organisations. We on these Benches have listened to the arguments of the Church of England, the Catholic Bishops’ Conference and others who have a real concern that the measures in the Bill will cause them difficulties. As the most reverend Primate the Archbishop of York, the right reverend Prelate the Bishop of Chester and my noble friends Lady O’Cathain and Lady Cumberlege so ably explained, it revolves around a tightening of the definition of employment for the purposes of religion, which would appear to exclude many of those who currently work in religious organisations. I am sure that we shall discuss this issue in some detail in Committee. We would do well to remember that the principle underpinning this Bill is respect for diversity. It would be wrong, and not a little odd, if in the same Bill we were to show intolerance of the deeply held views of different faiths and restrict their right to employ those who share a commitment to their way of life.
It is important that we give this Bill the detailed scrutiny that it deserves. It affects the lives of everyone in this country and we must ensure that what emerges is equal to the task. Building a fairer society is not a matter of one Bill and we cannot simply legislate for a better world. The measures that we put in place must recognise the world as it is if they are to have any chance of shaping the world as it should be. Empty gestures have no place in our law. If we concentrate on effective measures to tackle discrimination and on providing a fair legal framework, we can help to build on the social progress that those before us fought so hard to achieve.
My Lords, this has not just been an interesting and wide-ranging debate, in many ways it has been a celebration of equality. As my noble friend Lord Alli said, we have come on an extraordinary journey together over the last few years. My noble friend Lady Turner and others reminded us not to overlook how far we have come—we should be proud not only of our achievements, but of those of our forefathers and foremothers.
Concerns have been expressed that the Bill nurtures the culture of individualism. I, too, would be concerned if that were the case, but it is not. The Bill is about the right to be different and the right to be equal. It is about enabling individuals to fulfil their potential as members of their communities and of wider society, a society that will be healthier in economic and social terms as a consequence of the Bill, a society that will be more socially just. I well remember the Social Justice Commission, so ably chaired by my noble friend Lord Borrie. Perhaps we are getting there in the end. It has taken some time, but we are getting there.
The noble Baroness, Lady Miller of Hendon, rightly said that we need a culture change as well as legislative change. It is indeed good to have her back on her feet. The noble Baroness, Lady Warzi, mentioned the proposal made by my noble friend Lord Rooker about a certificate stating which Commons amendments had been debated. I share her enthusiasm for that proposal, but that is for the future, it is not for the present and the present Bill.
Yes, we all want to address the root causes of equality, that is precisely what this Government have been striving to do over the last 12 years and we have achieved a lot. We have tax credits for children, we have enabled many pensioners to come out of poverty, we have got Sure Start, the minimum wage—I could go on—but there is so much more to be done. I recognise that, and the Bill will help not least with the socio-economic duty, which I believe will have a real impact, but to bridge the gap between rich and poor. I am grateful for the support from my noble friend Lady Kennedy of The Shaws. It is not a panacea, it is not a magic wand, but it will help.
To the noble Baroness, Lady Young of Hornsey, I say that we are expecting the guidance to be published, or made available before Committee stage. I was expecting the views of noble Lords opposite on Clause 1, but I was disappointed to hear the views of the Liberal Democrat Benches, particularly as I understand that their colleagues in the Commons voted in favour of that. That is what I was informed earlier; forgive me if I am wrong.
Many views have been expressed about the gender pay gap and I well understand the frustration expressed by my noble friend Lady Gould that 2013 seems distant, but we very much hope that before that date, companies will voluntarily publish gender pay gap information. I had an encouraging letter from the chair of the Equality and Human Rights Commission yesterday, in which he said,
“I can confirm that we are close to an acceptable solution relating to voluntary proposals that will be supported by the TUC, the CBI and other employer representatives”.
I think that that is good news. I recognise that many among us favour mandatory equal pay audits and we will discuss this further in Committee, but no one should doubt our unswerving commitment to narrowing the pay gap. I must tell the noble Baroness, Lady Morris, who I know is passionate about these issues also, that it is not true that parts of the Bill are going to be dropped.
The noble Baroness, Lady Warsi, asked whether the Human Rights Commission would publish the gender pay gap measures before Committee. As I mentioned, we think that we are getting towards some sort of agreement between the parties and we hope that the proposals will be published in January, but it is, of course up to the Commission to decide exactly when publication will take place.
Many noble Lords, including the noble Lord, Lord Lester, the noble Baronesses, Lady Greengross and Lady Howe of Idlicote, and others, expressed concern that the Bill will not remove the default retirement age, which the 2006 age employment regulations permitted and which was the subject of an unsuccessful legal challenge. As noble Lords will know, the Government have responded to those concerns by bringing forward their planned review of the default retirement age. The review will take place next year. On 15 October, we announced that we are calling for evidence to be submitted by 1 February 2010 to inform the review. One issue that has been raised in submissions of evidence received so far is that it would be unfair for the default retirement age to be set at an age lower than the state pension age. Of course, changes to the state pension age are not envisaged to begin until 2026. However, I want to place on the record that, whatever the outcome of the review, the Government agree that it would not be tenable to have a situation where the default retirement age was lower than the state pension age.
I come to Saga, which was mentioned by the noble Earl, Lord Ferrers, and my noble friend Lord Davies of Coity. Our position is clear: as my honourable friend stated in the other place, there will be a specific exception for age-related holidays, such as Saga, but it will not be in the Bill. It will be in regulations, and I will ensure that during the passage of the Bill, we set out in writing exactly what the regulations will provide. I assure all those who benefit from Saga holidays that they will be able to continue to enjoy them and that the exceptions will come into force at the same time as prohibitions in the Bill. Therefore, there is no question that people will not be covered.
My Lords, it will be in the regulations.
The noble Baroness, Lady Murphy, asked about the timetable for implementing the age discrimination ban in services and public functions. We are aiming for the legislation to be in force in all sectors, including health and social care, in 2012. She also talked about positive action and said that candidates are never truly equally qualified. “Equally qualified” does not mean that each candidate has the same level or number of GCSEs, A-levels, diplomas or degrees. It means “qualified” in the sense of fit or suitable. In that sense, there may be a range of people who are equally fit or suitable to do a job, and there must be no blanket rule to appoint candidates with protected characteristics.
I now come on to religion. I heard the deep concerns expressed, and I shall attempt to address some of them. Like the right reverend Prelate the Bishop of Chester, I will read the speech of the noble Baroness, Lady Afshar, with care. Of course, the Government recognise the important role that faith plays in shaping the values of millions of people in this country. Before I turn to the most reverend Primate, I should say to my noble friends Lord Warner and Lord Macdonald of Tradeston, the noble Lord, Lord Lester, and other noble Lords that I listened carefully to the views they expressed about the public sector duty and religion or belief, and I will consider them carefully.
The most reverend Primate, the noble Baronesses, Lady Cumberlege and Lady O’Cathain, and other noble Lords asked whether the Equality Bill narrows or removes the employment exceptions for organised religions and religious organisations. It will not change the existing legal position regarding churches and employment. It clarifies the existing law to ensure that a balance is maintained between the right of people to manifest their religion and the right of employees not to be discriminated against because of a protected characteristic, such as sexual orientation. The most reverend Primate asked whether priests would not be covered by the Bill’s definition of employment for the purposes of organised religion because they do not wholly or mainly spend their time leading or assisting in the observance of liturgical or ritualistic practices, and he cited the case of the priest in Cockermouth, I think it was. To clarify, the term “wholly or mainly” involves leading or assisting in the observance of liturgical or ritualistic practices. In paragraph 2(8) of Schedule 9, it is not intended to mean simply that 51 per cent or more of time spent must be spent on those activities to be covered by the definition. It should be interpreted as leading or assisting in the observance of liturgical or ritualistic practices being a major or fundamental part of the job. It is unlikely that a court or tribunal would consider a priest not to be in employment for the purposes of an organised religion. In addition, the Solicitor-General made it clear during Public Bill Committee that the definition in the Bill is intended to cover ministers of religion.
I was also asked whether the Bill inadvertently narrowed the exception for organised religion under paragraph 2(8) of Schedule 9. That is not correct. The Equality Bill will not alter the scope of the current law which allows an exception in the case of employment for the purposes of an organised religion. These exceptions include ministers of religion plus a small number of posts outside the clergy, including those who exist to promote and to represent religion. The exception allows requirements to be made of these employees related to sex, being married or in a civil partnership, gender reassignment and sexual orientation. For example, a church may require a priest to be unmarried and celibate, but could not impose similar requirements on other employees, such as accountants.
The noble Baroness, Lady Young of Hornsey, and others spoke of faith schools. We believe that they provide a spiritual ethos as well as a strong moral education and it is this ethos which is so important to parents. In order to maintain their religious character, it is common sense that they must be able to appoint teachers of the same faith. When we are talking about religion, there are occasions where to be of a certain belief is demonstrably of the utmost importance to a particular role or post. When we look at faith schools and, in particular, voluntary aided faith schools, the Government feel that the question of religion is potentially relevant to any members of the teaching staff because all teachers at these schools may be called on to play an active role in maintaining that strong religious ethos.
My noble friend Lord Alli asked whether it would be right for civil partnerships to be able to take place on religious premises. I, too, celebrate the fourth anniversary of the enactment of the civil partnership legislation. I note the fact that the right reverend Prelate said that he would be happy to discuss these issues. But we believe that civil partnerships were established by this Government to provide an equal provision for same-sex couples to that provided for opposite-sex couples within civil marriage, as the right reverend Prelate said. Neither civil marriages nor civil partnerships can take place in religious premises and it is important that that parity remains. The issue was debated at length during the passage of the Civil Partnership Act and the Government see no need to revisit it now.
On disability, I have listened carefully to the views expressed by the noble Baroness, Lady Campbell, my noble friend Lady Wilkins, the noble Lord, Lord Low, and others about the public sector equality duty under Clause 148. I am considering this issue carefully. Of course, there must be no going back and no regression. We are clear that this clause does not take us back, but I want to ensure that that is clear for all public authorities and everyone else concerned. Hence, my further consideration.
I believe that we have strengthened the reasonable adjustment provisions in the Bill. We have introduced a common lower threshold of substantial disadvantage and have removed the possibility of justifying a failure to make a reasonable adjustment. I should like to discuss the issue of costs further with noble Lords. My noble friend is right that for too long we did not do anything about disabled people and housing. Now we are doing something and I celebrate that too.
My noble friend Lady Wilkins spoke about Clause 15 and discrimination arising from disability—the Malcolm clause—which introduces a knowledge requirement. The judgment of the House of Lords was unanimous in that knowledge of a disability must be a factor in determining where there has been a disability-related discrimination. We believe that it is right to reflect that in legislation rather than rely on case law.
The noble Lord, Lord Low, expressed concerns about special educational needs and, I believe, auxiliary aids in education. We have commissioned Ofsted to review all special educational needs and disability provision in schools to look at how well the existing policies are meeting the needs of disabled people and those with special needs. I know that Brian Lamb, chair of the Special Education Consortium, has just conducted an inquiry into parental confidence in the system in schools and his findings will be published tomorrow. One recommendation will be that schools should be subject to the duty to provide auxiliary aids. Therefore, we are considering this recommendation.
My noble friend Lady Gibson spoke of trade union equality representatives. The Government are grateful for the receipt of the TUC’s helpful report on this and will consider it carefully. I should like to take the opportunity to make clear that my right honourable friend the Solicitor-General was misinformed when referring to the TUC’s report on Report in the Commons. The final TUC report was indeed received prior to the debate in the other place.
My noble friends Lord Morris and Lord Parekh and the noble Lord, Lord Ouseley, raised the important issue of procurement. They suggested that we should have a contract compliance for public procurement like in America. In situations where a public body has entered into a contract, we do not agree that any and every breach of discrimination law should automatically result in the termination of that contract. Any decision to terminate a contract must be proportionate and in accordance with the terms of that particular contract, and a breach of the law may be inadvertent or minor and easily rectified. However, good contract compliance would mean that in serious cases the contract may well be terminated.
My noble friend Lady Gould and the noble Lord, Lord Lester, raised the issue of protection against pregnancy and maternity discrimination in education in schools. We are clear that pregnant pupils and those who are new mothers are best supported on an individual basis in schools and, under the equality duty in the Bill, schools will have to advance equality of opportunity between pregnant pupils or new mothers and others, and to foster good relations between the two groups. At the same time, we are sympathetic to the arguments for extending legal protection against discrimination to pregnant schoolgirls and school-age mothers and we are giving this further consideration.
The noble Lord, Lord Lester, asked about the impact on the editorial independence of public sector service broadcasters. We have no intention of encroaching on public service broadcasters’ editorial independence. It is our view that broadcasting output and editorial functions are not public functions for the purposes of the Bill. To the noble Lord, Lord Adebowale, I would say that in respect of the public sector equality duty, we intend to add more bodies to the list of public bodies covered by the duty. When we do so, we will add the BBC and Channel 4, but we will explicitly exclude their broadcasting and output functions. We are also considering bodies such as the Arts Council because at present the Bill lists only the core public bodies which must be included as a minimum—government departments, local authorities, education bodies. We are talking further to the additional bodies that we would like to add to the list.
My noble friends Lord Morris, Lady Gould, and others, suggested that the Bill should have a purpose clause. We share the aim of those who call for a purpose clause—that is to say, clear legislation—but we do not think that a purpose clause would achieve that.
The noble and right reverend Lord, Lord Harries, raised the issue of caste, as did the noble Baroness, Lady Flather, to whom we are grateful for sharing her personal experiences. I will look into the issue of descent further. We believe that further detailed work would need to be carried out to test the assertions of the study produced by the Anti Caste Discrimination Alliance since much of the study relies on anecdotal evidence. We consider that at this stage a sensible approach is for a research project to be undertaken on caste discrimination. Indeed, the ACDA report itself calls for the Equality and Human Rights Commission to do this. The Government are currently in discussion with the HRC about this recommendation.
I was delighted to see the noble Lord, Lord Avebury, in his place. I have noted his concerns about Scottish Gypsies but we are clear that while the judgment relating to the Scottish Gypsy Travellers has gone to appeal, it has set a precedent for public authorities to recognise them as a minority group.
I noted the dismay of the noble Baroness, Lady Deech, about Clause 45. I think she means Clause 47. The reason for its inclusion is completeness. The clause carries forward existing legislation. It is encouraging to hear of progress towards equality in any area of work, but it is not the same as giving areas of work a complete exemption.
My noble friend Lady Pitkeathley mentioned carers, as did others. The Bill protects carers by protecting people who associate with those who are elderly or disabled. I do not believe that protection against indirect discrimination and entitlement to reasonable adjustments as a separate characteristic for protecting carers are the way forward. We have enough protected characteristics based on what people are rather than what they do, but I am sure we will come back to that in Committee.
My noble friend Lady Billingham spoke of the need for more women in sport. We celebrate that. To my noble friend Lord Graham I say thank you for a splendid speech and we will discuss it further in due course.
I noted the concerns expressed by the noble Baroness, Lady Northover, as well as her enthusiasm for other parts of the Bill, including all-women shortlists. I am glad that the noble Baroness, Lady Howe of Idlicote, is now a convert. My noble friend Lady Gale has great experience in these issues. The sunset clause is dispiriting, but, from her calculations, it seems to be necessary.
The noble Lord, Lord Lester, the noble Baroness, Lady Northover, and my noble friend Lady Gould expressed concern that the Bill does not cover homophobic bullying in schools. We recognise that this is a problem and that Stonewall and others have done great work on it, but, in any situation that we can envisage, it would be unlawful discrimination for anyone working in a school to bully a pupil because of their sexual orientation. However, the evidence shows that the real problem in schools is pupil-on-pupil bullying, which is not covered by discrimination law. There would therefore be no practical benefit to extending harassment protection for children in schools.
My noble friend Lady Howells made many important points to which we will return. I say to her that the new single equality duty in the Bill is designed to focus public bodies on achieving real equality outcomes for disadvantaged groups. It is aimed particularly at moving away from a tick-box approach and a lot of process, which has been the criticism levelled at the existing race equality duty in particular.
Representative action was mentioned by the noble Lord, Lord Wallace of Tankerness, and others. We recognise that introducing representative actions could bring benefits both for individuals bringing claims under the Bill and potentially also for defendants faced with multiple claims. However, it would be premature to legislate for representative actions now. In our view, Section 7 of the Employment Tribunals Act 1996 contains the power to make regulations or procedures to enable equal pay claims to be made in representative proceedings. Introducing representative actions would be a significant change. If we decided to legislate in this way in the future, a full and open debate should be held on the issue. We are committed to continuing to look at this and are considering recent research, which will inform our next steps.
Many other points were made in today’s debate. I give a commitment to respond in writing to noble Lords where at all possible. We have already considered a huge number of issues, but I know that we shall consider them in detail in the weeks to come. I look forward to our future debates. I am not seeking to curtail scrutiny, amendments or debates, but I simply urge noble Lords to focus on what is in the Bill, because it will be a challenge to make as much progress as we can in the time available to us. As the noble Lord, Lord Lester, said, we need to be disciplined.
This is an important Bill which is powerful in its aims and wide-ranging in its ambitions. It is a Bill which is a crucial element in achieving our aspiration of a country committed to being free of unjustifiable discrimination. That is an ambition worth pursuing; I believe that it is an ambition which we all share.
Bill read a second time and committed to a Committee of the Whole House.
House adjourned at 10.54 pm.