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Equality Bill

Volume 716: debated on Wednesday 27 January 2010

Committee (5th Day) (Continued)

Clause 148 : Public sector equality duty

Amendment 108S

Moved by

108S: Clause 148, page 94, line 9, at end insert “take such steps as it reasonably considers appropriate and necessary to”

My Lords, my noble friend Lord Ouseley offers his apologies for not being able to attend this evening to move this amendment. He has asked me to do so instead.

The public sector equality duties under existing legislation are groundbreaking. They require public authorities to have due regard proactively to eliminating discrimination and promoting equality of opportunity in the design of all their policies and practices. These duties have been invaluable in bringing about a culture shift in such organisations. However, the duty has failed to achieve the coherent, broad, systemic and co-ordinated culture change which is needed to eliminate discrimination, or at least mitigate its impact; and to effect equality of opportunities and outcomes.

The duty in Clause 148 of the Bill, which closely follows the models in existing legislation, could go even further by making it clear that public authorities must not only have due regard to equality considerations, but take action. A key benefit of the existing duties is that public authorities are required to think about equality in everything they do, not just those activities which are most obviously relevant to equality, such as employment. This has been useful in bringing attention to the more subtle causes of inequality and the proposed amendment in no way alters this, retaining the requirement that a public authority should have due regard to equality considerations in everything it does. However, the duty would be improved if public authorities were required not only to have due regard to equality but to take steps that they reasonably consider appropriate and necessary to the achievement of equality.

Public authorities would be required to identify and take steps which are appropriate, and those which are necessary. Necessary steps are those without which equality of opportunity is impossible; appropriate steps are those which, while not strictly necessary, are desirable and proportionate in the circumstances, having regard to their importance and a range of key considerations, including, for example, cost. At present, public authorities on the whole pay lip service to this duty and are able to avoid taking the meaningful action that can lead to equality outcomes and being held accountable for their actions or inactions.

The amendment also seeks to ensure that there is no regression from the level of protection afforded to disabled people by the existing disability equality duty. Therefore, the Bill should be amended to reflect the duty under the Disability Discrimination Act, which requires public authorities to take account of people’s disabilities, even where that involves treating disabled people more favourably than others. This is important to draw public authorities’ attention to the distinction between more favourable treatment which is permitted under the Bill, such as positive action, and that which is obligatory for disabled people under the Bill. It is essential that the duty under the Bill should fully recognise that true equality for disabled people will not be achieved if they are simply treated in the same way as others.

Cases on the existing public sector equality duties have been important in establishing that they have teeth. To meet the duty, a public authority must have regard to equality considerations before a decision is made in relation to a policy. It must do so rigorously and with an open mind.

Compliance with the duty is not a question of ticking boxes. Rather, regard to equality must be integrated into public authorities’ core functions and is a continuing duty requiring attention throughout the development and implementation of a policy. However, the courts have been equally clear that the duty,

“is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations … it is a duty to have due regard to the need to achieve these goals”.

The distinction is vital.

The overwhelming lesson to be learnt from our experience of equalities legislation over the past 40 years is that we need systemic reform, not solely individual redress. Now is the time to build on the success of the current equality duties by making them more effective. The amendments provide the opportunity to make this clause effective to achieve the impact and outcomes intended. I beg to move.

I rise to speak to Amendment 110A in my name, supported by the Discrimination Law Association and the Disability Charities Consortium, representing the views of 12 organisations.

Clause 148 is one of the most important clauses in the Bill. Its potential impact is huge so it is vital that it states clearly what Parliament expects of public bodies and others carrying out public functions. My amendment ensures that public authorities take action to meet their duties and do so in a transparent way. The key difference between my amendment and the ones in the name of the noble Lord, Lord Ouseley—spoken to by the noble Baroness, Lady Young—is that mine focuses on the demonstration of compliance rather than a more closely defined duty in itself. All these amendments are complementary; mine simply goes one step further and could arguably subsume the others.

The extra step on demonstrating compliance is needed because the track record to date on compliance with the public duty in the various existing laws is, as the noble Baroness, Lady Young, said, far from perfect. Some of the 40,000 relevant public authorities have taken action: changing policies and practices, training staff and involving service users in making changes. Sadly, this has not been the case in all authorities. Far too many have barely begun to consider their functions from an equality perspective, or at most have produced a form of words on paper and little more.

The basic requirement in Clause 148 as drafted is that due regard must be had to the three matters listed in paragraphs (a) to (c) of subsection (1). Having due regard to equality should not merely be the setting of aspirational goals, showpiece displays or events but direct and concrete actions within all relevant functions of a public body. Due regard does not mean, for example, that race equality is less important when the ethnic minority population is small. Neither does it mean that an authority can claim that it does not have the resources needed to meet the duty.

One way I expect the duty to be fulfilled in line with my amendment is, for example, if a primary healthcare trust became aware of higher infant mortality rates among certain ethnic mortality groups in its area. To comply with the duty, I would expect the trust to identify the particular needs of women in those communities and the gaps in their services in order to make suitable and effective ante-natal and post-natal provision, including if necessary increasing or reallocating resources.

I am looking for something similar to the existing disability equality duty and there are many examples where that has made a significant difference. An example provided by the Disability Charities Consortium is the complaint from a local group against a large metropolitan authority which had not produced an equality scheme, saying instead that it had included relevant actions in various parts of its business plan. The local group was unable to understand precisely what the authority was doing specifically to improve services for disabled people. The disability equality duty requirement meant that the DRC was able to insist on a clear statement with all the details being asked for. Without this it would have been enormously resource intensive and difficult to evaluate the authority’s actions.

The aim of my amendment is simply to set a similar statutory minimum standard for compliance with the public sector equality duty to ensure transparency and accountability. I believe that with such a standard in place, the bodies responsible for enforcement or monitoring would have a clearer and more effective basis to track progress and to challenge bodies with poor evidence of compliance.

The Government are rightly concerned to promote evidence-based policies and this mechanism would deliver the means to do just that. I ask the Government to agree to think again between now and Report about how best to put in the Bill an acceptance that minimum compliance standards with the public duty must be explicitly required if this section of the Bill is to stand any chance of fulfilling its rich potential and not be just a token gesture.

My Lords, I would like to begin by speaking to my amendments while I still have the puff. Then I would like to make a few comments on the other amendments in this group. The noble Baroness, Lady Wilkins, will assist me, as the usual channels have agreed, and we will see how far I can get.

I am extremely pleased to speak to Amendments 109CA and 109CB. They address what is for me the holy grail of the Equality Bill—the public sector equality duty. They provide that, in having due regard to the need to advance equality of opportunity, a public body must give consideration to the fact that meeting the needs of disabled people may, in particular, involve taking steps to take account of their disabilities. This specific requirement is missing from Clause 148 as it stands, giving rise to well-founded fears of potential regression in the rights of disabled people.

I should explain that this amendment is the product of lengthy discussions between me, the Disability Charities Consortium and our legal advisers on the one hand, and the Government on the other. Together we have spent a great deal of time working out the best way of avoiding any regression from the disability equality duty on this vital point. I am delighted to say that there has been a meeting of minds and that this amendment is supported by the Equality and Human Rights Commission, the disability lobby, including the disability discrimination experts, and the Government. Yes, it can happen. I am therefore very hopeful that the Government will accept this amendment. It is a huge breakthrough and I extend my sincere thanks to all involved.

I hope that the Committee will allow me to explain in more detail why the amendment is so vital and what it will mean in practice. Clause 148, as drafted, requires public authorities to have due regard to meeting the needs of different groups and says that this may involve more favourable treatment, but only to the extent permitted by other parts of the Bill. However, this makes no explicit mention of the differentiation between the approach to disability and the approach to the other protected characteristics. What is required in meeting the needs of disabled people is vastly different from what is required for other groups.

For example, a deaf user of British sign language who requires a sign language interpreter cannot have his or her needs resolved through alternative means, in the way that, for example, a hearing person with limited English could, by taking English lessons to resolve the problem. A blind person cannot learn to read standard print to access information. A wheelchair user cannot use transport in the way that a non-wheelchair user can. Because of this, the law currently requires public authorities to have due regard to the need to take account of disabled persons’ disabilities, even where that involves treating disabled people more favourably.

Tonight I have a table. It suddenly appeared from nowhere. This is because I have a special requirement because I cannot hold papers. I do not think that anyone else requires that; it is specific to my disability. So thank you, the House.

As I have repeatedly explained to all those I meet, equality does not mean treating everyone the same; it means providing an environment where we can all access life’s opportunities equally. Reasonable adjustments tailored to our particular disability-related needs lie at the heart of disability equality. Without them, we are marginalised at the fringes of society.

I shall continue my noble friend’s speech from her notes on her behalf. Without amendment, Clause 148 would mean that when a public body is faced with the needs of disabled people, it could tend to take the same approach that it takes for other protected characteristics, such as religion or belief, where there is no provision or reasonable adjustments as such and where scope for more favourable treatment is narrower. It could result in public bodies thinking that they need to do less to take account of the needs of disabled people than they do under the current disability equality duty, and the consequences of that would be disastrous.

The amendments avoid that danger by reminding public authorities that a distinctive approach is required for disability, involving close attention to the needs relating to our particular disabilities. Those needs may require more favourable treatment and, of course, often demand reasonable adjustments. The amendments achieve this without in any way disturbing the provisions for addressing disadvantage faced by other groups.

I turn to the other amendments in this group. First, there were the amendments in the name of the noble Lord, Lord Ouseley, spoken to by the noble Baroness, Lady Young. While I am sympathetic to the aim of Amendment 108S, it could, as drafted, weaken the equality duty. It says that public authorities can do what they consider reasonable, appropriate and necessary. That would give them a larger degree of discretion and therefore greater scope for doing nothing.

I do not support Amendment 108T. While I support the notation behind it, inserting this vital principle as a separate limb would divorce it from the overarching duty to advance equality of opportunity. I worry that this would mean that public bodies would not need to do anything to remove or minimise the disadvantages that we face.

I support Amendment 110A in the name of the noble Baroness, Lady Coussins. It would ensure the continuing transparency of public authorities in delivering equality, and therefore their accountability to disabled people—a major feature of the current disability duties.

I am truly delighted at the progress that we have made on this issue. I am confident that these amendments enable us to press on with delivering an effective new general equality duty for the public sector without the threat of regression on the disability equality duty—a regression that many of us feared.

My Lords, we fully support the amendments of the noble Baroness, Lady Campbell, for all the reasons she has given. We cannot support the amendment of the noble Baroness, Lady Coussins, as we believe it goes too far in imposing an obligation to prove negatives.

My Lords, this is such an important debate. It is a little sad that it is all grouped together because there are a number of different issues. As we have just heard from the noble Baroness, Lady Campbell of Surbiton, there are agreements and disagreements across the group. I have listened with great interest to the speeches of the noble Baronesses, Lady Young and Lady Coussins, and it is good to know of both the sympathy and support of the noble Lord, Lord Lester of Herne Hill. We have also received a briefing from the Equality and Human Rights Commission about this whole area and have done our best to consider its content very carefully.

Everyone is in agreement that the success of the proposals in the public sector equality duty rely on how effective it is and how much impact it has on reducing inequalities. We all want to ensure that the seemingly vague duty that is laid down in the Bill does not just result in some form of box-ticking exercise that will burden businesses for very little gain in reducing the inequalities it is supposed to tackle. For this reason, I feel that all the amendments in this group have sense at their heart and I understand that the intention behind them is to ensure that not only should due regard be paid to eliminating discrimination but that there should be a much more proactive element. The amendments try to ensure that public authorities cannot just take into account the need to reduce disadvantages between different groups, meet the needs of different groups and encourage participation in areas where it is low. They attempt to enshrine in legislation the necessity for real action to be taken rather than simply paying lip-service to having taken certain factors into account.

Nevertheless, having said that, and, I hope, having expressed sympathy with the intention behind the amendments, I am not sure they are the best way of ensuring the success of the measures. The requirement to “take account of” and “take such steps” seems already to be included under the duty. I am not clear, therefore, what these amendments would add. They would have the effect of requiring public authorities to identify and take which steps are “appropriate” and which are “necessary”. This can obviously be flexible and with reference to the specific authority concerned. However, the object is that the commission should be able to take action against organisations which,

“fail to identify strong enough measures to promote equality and if they fail to take such measures”.

Does the Minister agree that the most important factor is to assess the outcomes of such measures rather than involve the commission too heavily in the process of identifying targets for each authority? Thank goodness some of my noble friends are not here as I have some responsibility for the concept of targets, I have to admit. I always felt that at least they were a way to point people in the right direction. But I have now learnt that there are some drawbacks to this process. It risks merely increasing the bureaucratic burden on businesses and organisations while not addressing the real issue, which I still believe, and I think everyone agrees, is achieving the right outcomes.

The second issue contained in this group—

The noble Lord said that he was not sure what the amendment would add to the Bill. I was particularly struck by the point made by the noble Baroness, Lady Campbell. She said that the Equality Bill was not about equality of opportunity, but equality of access. That point was powerfully made when a report about disability was brought before the General Synod of the Church of England. There was a fine debate and one of the most compelling points was about the equality of access. The clarity that is added by this amendment is that it emphasises the importance of access to services and not just equality generally.

Before the noble Lord concludes, I wonder whether he will consider that one of the other virtues of the amendment moved by the noble Baroness, Lady Campbell, is that it emphasises—as did Aristotle and Aquinas after him—that like cases should be treated alike and unlike cases treated differently? What is being emphasised here is that you cannot treat the disabled exactly like everybody else because they have special needs. Highlighting that in these amendments brings home to public authorities the importance of that principle.

I thank the right reverend Prelate the Bishop of Liverpool and the noble Lord, Lord Lester, for making points that are very effective in their own right rather than being questions to me. I never like having questions that I cannot answer, so let me pay tribute to them as effective points in their own right.

The right reverend Prelate the Bishop of Liverpool made a strong point. How on earth could I disagree with the point about access? I remember well that some of my early service was spent in assisting at the Royal Liverpool Children's Hospital at Heswall, as it then was. As well as fighting to prevent it from closing, I remember being educated in the whole area of special needs. It is such a good phrase because it encapsulates all that we are seeking to identify. But how do we ensure that those special needs are taken properly into account? That is what the debate about.

I understand why some of the amendments are designed to ensure that there is no regression from the existing disability equality duty contained in the Disability Discrimination Act, where public authorities must take account of people’s disability even when that involves treating disabled people more favourably than others, as the noble Lord, Lord Lester, has just examined very carefully with the rest of us. I understand that that duty would be included under Clause 13. The Minister must correct me if I am mistaken. However, certainly from these Benches, we are keen to ensure that there is no regression from the Disability Discrimination Act in the public sector equality duty. That is absolutely at the heart of all that is necessary and must be protected. I now look forward to hearing a positive response from the Minister.

The one lesson I have learnt over the years is that the word “equality” does not mean treating everyone in the same way. To treat people with disability in the same way would mean that they would never have any opportunity to achieve equality. It would be useful to hear from the Minister the Government’s reasoning for the fact that the duty is not explicitly stated here. That is one of the key questions I wanted to put, but I will be very interested in the Government’s response to all the points that have been made in this important debate.

With the leave of the Committee, I will speak first to Amendments 109CA, 109CB and 108T, the first two being in the name of the noble Baroness, Lady Campbell of Surbiton, and the third being in the name of the noble Lord, Lord Ouseley, and spoken to by the noble Baroness, Lady Young of Hornsey.

Clause 148(1) requires public bodies to think about meeting the needs of people from all protected characteristics. Clause 148(5) makes it clear that, in some circumstances, complying with the duty might mean treating some people more favourably than others. We recognise that the needs of disabled people are different from the needs of persons who share one or more other protected characteristics and we have sympathy with the argument that the lack of explicit reference to disability may, in practice, lead to public bodies thinking that they need to do less than they are required to do under the existing disability equality duty. This is why we have been engaged in discussions with the noble Baroness, Lady Campbell, and others. Under no circumstances would we want public bodies to misinterpret the new duty as imposing lesser requirements than the existing disability duty. I am not going to go into any more detail about the reasons for that because they have been eloquently and adequately described by the noble Baroness, Lady Campbell of Surbiton. We are happy to accept her amendments and I thank her for tabling them.

I assume that Amendment 108T is intended to achieve the same effect as Amendments 109CA and 109CB. I regret that the amendment does not achieve its intended effect because it distinguishes having due regard to the need to advance equality of opportunity from taking account of the disabled person’s disabilities, the effect of which is to imply that having regard to the need to take account of a disabled person’s disabilities does not involve removing or minimising their disadvantages, meeting their needs or encouraging them to participate in public life. The noble Baroness, Lady Campbell, and other noble Lords, have recognised that problem with the amendment, so I am going to ask the noble Baroness, Lady Young, not to move it.

I will now speak to Amendments 108S, 109A, 109B, 109C, 109D and 109E, tabled by the noble Lord, Lord Ouseley, and Amendment 110A, tabled by the noble Baroness, Lady Coussins. The equality duty, as currently drafted, requires public bodies to have due regard to the need to eliminate unlawful discrimination, to advance equality of opportunity, and to foster good relations where they exercise their functions. We believe that these amendments are impractical and will actually make the Bill worse. They will disturb the balance that has been achieved by the current wording of the equality duty. My notes say, “Let me explain what “due regard” means”. I hesitate, being faced by the two noble Lords opposite, but I will do my best. It means that the weight public bodies give to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations should be proportionate to its relevance to a particular function.

The purpose of the equality duty is to oblige public bodies to consider equality issues in respect of all their functions. However, the amendments would require public bodies to take such steps as they reasonably consider necessary to eliminate discrimination, advance equality and foster good relations in respect of all their functions. As well as being very confusing, and leading to potentially huge amounts of box-ticking work for public bodies, in the current financial climate it could add further unavoidable burdens on public bodies and others. The impact of these amendments is that many public bodies would feel obliged to take legal advice every time that they exercised their functions to establish what would be a reasonable step. This would clearly be an unreasonable encumbrance in the context of certain duties such as legal requirements to pay subscriptions, make returns, and keep financial accounts and certain records.

I appreciate that what is at the heart of these amendments is a concern that, despite having a duty to consider matters such as the need to promote race equality, some public bodies have nevertheless arrived at decisions that have affected certain racial groups in a manner that has not received universal approval. However, we feel that public bodies should be required to consider equality issues when they are relevant, and that the weight given to such matters should be proportionate to its relevance to a particular function.

I turn to the comments made by the noble Lord, Lord Hunt. First, on the problem of targets, our proposals for specific duties will require public bodies to consider the evidence and then set equality objectives and take action towards achieving them. This approach will ensure that the bodies will set the appropriate objectives, having listened to the views of service users, and focus their action on the most effective way to deliver the equality outcomes. We could perhaps discuss whether that is a target or not.

The noble Lord also asked why the disability element of the duty was not in Clause 13. I am not sure that I understood that point correctly. Clause 13 sets out the asymmetrical nature of disability protection, which allows more favourable treatment for disabled people. Also relevant is Clause 20, which sets out the duty to make reasonable adjustments. Clause 148 sets out the positive duty on public bodies not only to eliminate discrimination but to advance equality of opportunity. In the case of disability, that can involve taking positive steps to take account of disabled people’s disabilities, particularly now that we have accepted the noble Baroness’s amendment.

On the issues raised through Amendment 110A, tabled by the noble Baroness, Lady Coussins, I am pleased to tell the noble Baroness that they will be covered by secondary legislation. On 25 January, we published a policy statement in response to a consultation exercise on our proposals for specific duties. The structure of a general duty underpinned by specific duties to assist better performance of that duty has worked successfully for the current duties, and we now want to build on that success. In relation to compliance, the enforcement of the equality duty is a remit of the EHRC. The general equality duty can be enforced through judicial review by an interested party or by the commission; the specific duties can be enforced by the commission, which has the power to serve compliance notices and to apply to the relevant court in the event of non-compliance of such a notice. This provides an adequate process in place to ensure that public bodies comply with the requirements of the duty.

The noble Baroness asked whether the equality duty should place at least the same requirements to be transparent about compliance as well as the current disability duty. It will do so. Our proposals for specific duties, which will support the better performance of the equality duty, include the requirements to report annually on key equality employment data and to publish annually information about progress towards achieving their equality objectives. We propose to require public bodies to demonstrate how they have taken equality into account in the design of key policies and services and what difference that has made to the outcomes in all those areas. Therefore, I ask the noble Baroness to withdraw her amendment.

I thank the Minister for her considered remarks. I have to perform a set of mental gymnastics now as I try to separate myself out from the noble Lord, Lord Ouseley. Obviously I cannot second-guess what he might wish to say here, but I am pleased that the amendment put forward by my noble friend Lady Campbell of Surbiton has been accepted because it is, one might say, a somewhat stronger version of the amendment that the noble Lord had proposed.

I take to heart the remarks that were made by the noble Lord, Lord Hunt of Wirral. He made a number of important points around the consensus we now have that we are all trying to make it better, and that to make it better you need to make it work. It is in that spirit that the amendments were put forward to try to sharpen up some of the wording around the public sector equality duty with due regard. I take the legal interpretation on board, but it is important for us to have clarity about how sharp the clause is going to be. I beg leave to withdraw the amendment.

Amendment 108S withdrawn.

Amendment 108T not moved.

Amendment 109

Moved by

109: Clause 148, page 94, line 16, leave out subsection (2) and insert—

“( ) Subsection (1) will also apply to a person who is not a public authority but who exercises public functions except in relation to matters of employment.”

I am joining the Front Bench for a fleeting moment, which requires me to declare an interest in that I am a member of a local authority, which under these terms would be a public body.

We have dealt a lot with Clause 148(1), but Clause 148(2) states that:

“A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1)”.

We agree with this subsection. We think it is right that a public authority that has subcontracted part of its public sector duties to an alternative organisation must ensure that the other organisation provides services compliant with the public sector equality duty.

It is interesting that the subsection starts with “a person”. I am assuming, therefore, that the services, which is what this is all about, can be contracted to a person or that “a person” can be construed as a company, as a voluntary organisation or as any other body that is carrying out the services on behalf of that public authority. We need to be clear that the definition of “a person” is covered. Whoever “a person” is, it is right that the services should be delivered to the highest ideals that the public sector equality duty brings in.

We also welcome the fact that subsection (2) states that organisations to which services have been subcontracted have to comply with the duty only,

“in the exercise of those functions”.

We would, however, welcome some clarity from the Minister in this regard. Will she confirm that the intention of the Bill is that the public sector equality duty should apply only to those organisations in the exercise of those specific functions and not in any other capacity? In other words, the company’s or voluntary organisation’s own internal functions and processes will not be affected by the contract—only the contract will be affected, and other processes are exempt.

We believe that it is important that a private company or voluntary organisation is not made subject to the higher demands of the public sector equality duty across the whole gamut of the company simply because it has been contracted to perform a service for a public authority. We should not forget that these companies are already subject to the anti-discrimination legislation as well as equality provisions in the private sector. We are not at all arguing that private companies should be excluded from equality legislation, merely that in their everyday functions, which are over and beyond those that public bodies are contracted to, they should not be made subject to a duty that is designed to apply only to public bodies. I hope that the Minister will be able to reassure us on that.

We have tabled Amendment 109, which would leave out subsection (2) and insert a requirement that the public sector equality duty should apply to someone who exercises public functions except as regards employment. This amendment has been tabled to probe the Minister further on the extent to which the public sector equality duty applies in these circumstances to these organisations. We do not wish to remove subsection (2); we agree with it. This is a probing amendment about the duty that will apply in practice to organisations—I think specifically of small organisations—or, indeed, to individuals who have duties contracted to them. We are concerned that small organisations which are performing subcontractor services should not have to obey the provisions of the public sector equality duty in respect of its employment law. Will the Minister confirm whether that would be the case? We hope to ensure that these companies are subject to the same provisions of employment law as their non-public counterparts. We very much hope to minimise onerous burdens on potentially very small organisations.

I hope that the Minister will lay out for the Committee the detail of how the application of a single duty only to certain parts of the organisation might work. In other words, how do the Government envisage the mechanics of applying this public sector equality duty only to subcontracted functions, which is what I have been talking about all the way through? That is what we all think is going to happen, and what we desire, but we would be interested to see how that division is designed to work in practice, although, of course, companies already work on behalf of public bodies and have some responsibilities in that regard under the law, but I think this measure widens them substantially. I beg to move.

I have to tell the Committee that, if this amendment is agreed to, I cannot call Amendment 109A by reason of pre-emption.

I wonder whether the noble Baroness, Lady Hanham, could give one or two examples of what she means by this very important exception,

“except in relation to matters of employment”,

because it seems to me that this Bill focuses more sharply on employment issues than on almost any other. That phrase,

“except in relation to matters of employment”,

seems to me a key phrase which might provide an opt-out for anybody who wished to avoid the impact of this Bill altogether. Can she spell out in examples what she is getting at here?

My Lords, I was speaking very much off the cuff, but I think that all these organisations and companies are already covered by employment law. They already have to conform with that. However, we are not talking about employment law but all these other aspects that have been brought in under subsection (1).

My Lords, I do not want to prolong the debate and I am anxious to hear the Minister’s explanation. However, it is vital that Clause 148(2) remains as it is and that it covers more than employment. It should cover the whole range of public functions performed by a body that is private in form but exercises functions of a public nature. Exactly the same problem arises under the Human Rights Act which covers public authorities in the strict sense but also covers bodies that are private, as I say, but act in place of the state.

As I understand it, this measure ensures that bodies which are genuinely exercising a public function of a particular kind must have regard to the matters in Clause 148(1). If that were not the case, there would be a most regrettable gap because, apart from employment, it would mean that in all the other provision of public services the duty to have regard to the need to eliminate discrimination and to advance equality of opportunity would not apply. That would be regressive and would certainly drive a coach and horses through this part of the duty. Therefore, we hope that the Minister will be able to explain better than I have done why the measure is needed.

My Lords, I wonder if I might press the indulgence of the House a little. At an earlier stage of the Bill I probably missed an opportunity to raise this point, but it is one which the Young Equals organisation is very concerned about. It asks the Government to confirm how public service providers will be supported in implementing the age element of the public sector equality duty, as it relates to children. It also asks that guidance should set out how public services can implement the age element of the duty in relation to children; and offer practical information on how to identify age equality issues for children, relevant case studies and other such things. Also, what information will be provided to children and young people on the age provisions of the Bill? Young Equals feels that it is essential that guidance on the Equality Bill is fully accessible to children and young people—of the right age, obviously—and relevant to those who work with them. Young Equals thinks it would be useful to produce a document that sets out the age provisions of the Bill for children and young people within this public service duty.

My Lords, Amendment 109, tabled by the noble Baronesses, Lady Warsi and Lady Morris of Bolton, would represent a major extension of the duty into the private and voluntary sectors, where bodies in those sectors exercise public functions, and require them to comply with the equality duty in the exercise of all their functions except employment functions, regardless of whether they are discharging a public function.

I reassure noble Lords that Clause 148(2), as drafted, would require bodies that exercise public functions, other than the public authorities listed in Schedule 19, to comply with the equality duty whenever they exercise such public functions. The provisions in the Bill would not require such bodies to comply with the duty when they exercise any of their functions that are not connected to the exercise of a public function. Amendment 109 would require such bodies to comply with the duty whenever they exercise their other functions, such as the performance of any activities that are unrelated to the performance of their public functions—for example, conduct of their core business; any activities on their purchasing functions; and, in short, everything, apart from employment.

The amendment would affect many organisations, and do so in a very arbitrary way. Some organisations would be covered simply because they happened to be carrying out a public function, such as the running of a private prison, perhaps for a short time, while others would not. It might even deter some private or voluntary organisations from taking on public functions if, as a result, the duty would then extend to all their other functions and activities bar employment. Given that employment is singled out by these amendments as a function which should not be subject to the duty, I will address this specific point.

Employment functions have not been explicitly excluded under the existing equality duties, and this has not created any problems. A private body carrying out public functions will not be subject to the duty in respect of any of its functions of a private nature, such as the employment of staff whose duties are not connected to the exercise of the public function. A private body should retain the right to decide who to employ. However, such a body will need to consider the technical abilities of the people deployed to discharge its public functions and the training that they require to perform their duties. For example, an organisation contracted to manage a prison would need to consider whether the skills of the staff charged with delivering the service or the training that they receive satisfactorily address its requirement to promote equality of opportunity.

Several specific questions were asked. The noble Baroness, Lady Hanham, asked: who is the person referred to in Clause 148(2)? This will apply, as she suggested, to a natural person as well as legal entities, such as companies and statutory bodies. The noble Baroness also asked if the duty applied to internal functions. As I said, the duty will apply only to the activities of the organisation concerned with the delivery of the public function. The noble Baroness was concerned about small and medium-sized enterprises. The Government recognise the real concerns of SMEs interested in competing for public sector work. In accepting the recommendations of the Glover review, we have committed to increasing the access of all government contracts to SMEs. The development of a best-practice approach to promoting equality through procurement and a national equality standard may assist in the process. We look forward to hearing the views of stakeholders and industry on this subject.

The noble Baroness asked about public/private functions and internal/external activities. In simple terms, employment will be caught where integral to the performance of a public function. For example, where a contractor runs a prison it will need to comply with the duty in relation to its employees working in the prison but not those involved in other work such as collecting cash from a bank.

The noble Baroness, Lady Howe of Idlicote, asked what the duties meant for children. Although under-18s are excluded from age discrimination protection in services and public functions, children will, as the noble Baroness recognised, benefit from the age aspects of the public sector equality duty. Guidance on the duty will give practical assistance to public service providers on how they can implement the age provisions for children. The Equality and Human Rights Commission’s code of practice and guidance will cover this and will be easily accessible to those organisations concerned. Following that explanation, I trust the noble Baroness will consider withdrawing her amendment.

I thank the noble Baroness for her response. I made it clear from the outset that we were not opposing Clause 2; we were looking for explanations. Those have been clear tonight and having them in Hansard will make things much easier. I beg leave to withdraw the amendment.

Amendment 109 withdrawn.

Amendments 109A to 109C not moved.

Amendments 109CA and 109CB

Moved by

109CA: Clause 148, page 94, line 25, at beginning insert “take steps to”

109CB: Clause 148, page 94, line 29, at end insert—

“( ) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.”

Amendments 109CA and 109CB agreed.

Amendments 109D and 109E not moved.

Amendment 110

Moved by

110: Clause 148, page 94, line 37, at end insert—

“( ) A public authority must collect and publish annually data showing, in the exercise of its functions, the extent to which it has succeeded in meeting the requirements of subsection (1).”

While we have discussed some of the issues related to the mechanics and functions of the public sector equality duty, we have not discussed the importance of the effect of what we are seeking to do. The measure of this clause will lie not in the high ideals which it invokes but the effectiveness of the results it produces on the ground.

For this reason, Amendment 110 would require a public authority to collect and publish data on an annual basis that would demonstrate how the authority had met the requirements of the public sector equality duty in the exercise of its functions. Within this group, we are to debate Amendment 114A and we look forward to hearing the noble Baroness, Lady Young of Hornsey, who I understand will be speaking to it. Her amendment addresses the same issue but from a different perspective and would mean that an outside agency would assess the extent to which the requirements under Clause 148(1) had been met.

We on these Benches are in favour of doing everything we can to ensure that the public sector equality duty lives up to the ideals contained in the clause. I suppose that, as has happened in the past with the policies of this Government, we see a legislative approach which calls for high ideals but lacks the mechanics within the Bill to make that happen.

The importance of this clause will, I contend, stem not from its lofty aspirations but from real and measurable outcomes on the ground. If there is one message that I want to get across today, it is to keep stressing outcomes because we believe that the measure of the target is in its success. For this reason, we would argue that there ought to be some form of systematic reporting which spans the sector and shows where and how successful outcomes are occurring, and what should be changed in order to make the duty even more effective. As the legislation stands, the public sector equality duty is very vague; we would welcome some more clarity here. Indeed, I hope that the noble Baroness the Chancellor of the Duchy of Lancaster will be able to provide some when she responds to this debate.

Each business is, however, different and each will have its own way of doing things as it believes works best in the particular circumstances relevant to that organisation. The public sector equality duty therefore has to be sufficiently flexible to adjust to each specific need. Here, just for a moment, I give the Government the benefit of the doubt. I am sure that they must have a system in place here, but it would be very useful to hear what that is because it is not laid out in the Bill. One hopes that the Government accept this key point: that the outcomes and not simply the aim, however commendable, will be the important result of this legislation. I beg to move.

My Lords, I shall once again speak to an amendment tabled by my noble friend Lord Ouseley, who is unable to be here this evening. Amendment 114A seeks to ensure appropriate and meaningful assessment of public authorities’ performance with regard to the public sector equality duty, and I am grateful to the noble Lord, Lord Hunt of Wirral, for having laid out some of the questions —he has saved me from having to do that—and for providing a context. Once again, the two amendments are somewhat complementary. A number of bodies are perfectly well equipped to carry out such reporting within the system of assessing local authorities, but I would guess that there is a sense that many of those bodies and agencies, when they undertake performance and inspections, are not necessarily reporting adequately or consistently on a public authority’s equality duties.

This amendment would require those agencies to undertake appropriate assessments to determine and report on how a public authority is advancing equality and good relations as part of its programme of assessment, inspections and performance reviews. This is about consistency; the issue of how good and bad practice is recognised and dealt with, in one way or another, is an important part of that. However, the bodies and agencies which currently exist can carry out that assessment of performance.

My Lords, I shall speak first to Amendment 110. The new equality duty will follow the same structure as the current race, disability and gender duties, with specific duties sitting underneath the general duty to help public bodies to better perform the equality duty. Those specific duties will be introduced through secondary legislation and will include the steps outlined in the policy statement published earlier this week, on 25 January. Copies of that have been placed in the House Libraries; they may well also be in the Public Bill Office.

Noble Lords will see from the document that we want the public bodies that will be subject to the specific duties to report annually on their progress against their equality objectives. We also want public bodies to publish their gender pay gaps and BME and disabled employment rates in such a manner that citizens can track progress and compare public bodies.

The noble Lord, Lord Hunt, mentioned the need for flexibility. We believe that secondary legislation is the right place to set out these detailed procedures, since it gives us greater flexibility to change specific requirements if necessary. For example, we may need to make small changes to reporting timescales or the format of the data that we have required public bodies to report.

Amendment 110 would set out in primary legislation process requirements that are better suited to secondary legislation. Further, the amendment would impose data reporting requirements on all public authorities listed in Schedule 19. It would include, for instance, small organisations such as parish councils, on which the reporting requirements could impose disproportionate additional burdens. When we prepare the regulations that contain the specific duties, we intend to consult closely bodies that are likely to be affected.

One of the main drivers behind the design of the new suite of specific duties was a move away from processes and towards outcomes. Our proposals for reporting requirements achieve this aim. Just like the noble Lord, we want the outcomes to live up to the ideals to which we all aspire in this Equality Bill.

The noble Lord asked whether the process would achieve equality outcomes. The answer is yes. The specific duties will require the setting of equality objectives in the light of evidence, the taking of action towards achieving them and reporting on progress. By these means, we will ensure that the process that we prescribe in the regulations will deliver the outcomes.

Perhaps I may ask about timing. Given the document published earlier this week, are the regulations yet in draft and when are we likely to see them? What is the timescale? There is a momentum behind the Bill which we all greatly welcome, as I welcome what the noble Baroness has just said about outcomes. However, in order to deliver the right outcomes, we must know what the process will be and what timescale is envisaged to bring about the results that she referred to.

My Lords, much of this is a consultative process. We have put out our policy statement. I understand that we will publish draft regulations, on which I hope that we will be able to consult well before the summer. However, we are convinced of the need to consult along the way, so all noble Lords will be able to have an input as well as other organisations. I therefore ask the noble Lord to withdraw the amendment in the name of his colleagues.

On Amendment 114A, tabled by the noble Lord, Lord Ouseley, and moved by the noble Baroness, Lady Young of Hornsey, I make it clear that regulators and public sector inspectorates are subject to the existing duties and will be to the new one. It may be helpful for me to explain to the Committee how the equality duty will apply to these bodies. We are not suggesting any changes to the regulators and expect the extent to which they have due regard to the existing duties will continue to apply to the new equality duty. The equality duty will apply to the inspection functions of the public sector inspectorates, which means that equality and action taken to advance it should form one of the indicators of performance which inspectorates develop and assess against. If there is insufficient evidence of action being taken to tackle inequality, it can be highlighted. We are clear that inspectorates should not take on the role of enforcing compliance with the duty because they are not resourced or trained to do so. That is the sole responsibility of the Equality and Human Rights Commission. Furthermore, it would be unworkable and confusing to allow two sets of organisations with potentially conflicting views to enforce the duty. However, it is clear that the roles of the inspectorates and the Equality and Human Rights Commission with regard to equality performance by public bodies are complementary. We encourage their work on developing close working relationships; for example, through Memoranda of Understanding. I ask the noble Baroness not to press the amendment.

From the standpoint of the Cross Benches, perhaps I may say how delighted I am and how wonderful it is that there should be such unanimity and consensus on this issue. I cannot help noting how far we have moved since 1789, when egalité seemed to be championed by only one section of society, and that the noble Lord, Lord Hunt, is pressing so hard for tangible outcomes from this, whereby it is not simply window dressing. That is very encouraging.

I greatly welcome what the noble and right reverend Lord has said and I thank him. It is important that we make progress in this area. Although he had a different historical vista, when I look back over the 34 years during which I have been in Parliament, we have not made the progress that I had always hoped for. We still have a long way to go. That was said to me by the noble Baroness, Lady Howe of Idlicote, 15 years ago. I am not sure that we have made rapid progress since then. It is good that we are establishing this consensus. I thank the Chancellor of the Duchy of Lancaster very much indeed for the positive response that I have received, and I beg leave to withdraw the amendment.

Amendment 110 withdrawn.

Amendment 110A not moved.

Amendment 111

Moved by

111: Clause 148, page 95, line 3, at end insert—

“but subsection (1)(b) does not apply to the protected characteristic of religion or belief.”

My Lords, I spoke much about this issue at Second Reading at col. 1416 when I explained my great concerns about the way in which religion and belief are treated in the same way as the other characteristics protected in Clause 148(1)(b). I have been warning about this for a long time. For those who live the kind of sad life that involves reading a lot of stuff, I wrote an article in 2008, Extending the Equality Duty to Religion, Conscience and Belief: Proceed with Caution. In that article I explained my concerns.

Essentially, I seek to make sure that only workable duties are imposed on public authorities and that those duties do not create division, but encourage cohesion. The most reverend Primate the Archbishop of York has already referred to the danger of encouraging silos. I am very concerned that once one deals with religion and belief as though they are the same as race or gender, one raises problems regarding free speech, for example—which the noble Lord, Lord Hunt of Wirral, will remember that we grappled with when we dealt with race-hate speech and whether the law should be extended to cover religious-hate speech. There was a movement, especially among British Muslims at that time, for religious-hate speech to be treated in exactly the same way as race-hate speech. The noble Lord, Lord Hunt, and I managed to achieve a victory, whereby religious-hate speech was treated differently from race-hate speech.

We had a similar problem with blasphemy. The antique common-law offence of blasphemy gave rise to demands that it should be extended to protect Islam against insults. That was a dangerous idea, and we dealt with it by abolishing blasphemy. To use that disgusting simile, we shot the fox and got rid of the problem.

The problem with Clause 148(1) is that in paragraph (a) public authorities must

“have due regard to the need to … eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act”.

That is admirable. It includes religion and belief, or lack of belief, and that is fine.

Clause 148(1)(c) refers to the need to:

“foster good relations between persons who share a relevant protected characteristic and persons who do not share it”.

That means promoting good relations between persons of particular faiths and those of no faith. There is everything to be said in favour of doing so. Clause 148(3) builds upon that by requiring due regard to be placed on advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, in particular the need to remove or minimise disadvantages, meet needs, encourage people, and so on.

My concern is that religion and belief are extremely important, but we do not want thin-skinned or zealot-minded people to start attacking public authorities because they represent particular sectors and say that the authorities are not advancing equality of opportunity—whether they are scientologists, Muslims, Jews, atheists, humanists—and that as they do not share the same characteristics as others, they will judicially review the authorities if they do not do so.

The problem is that if my amendment is accepted, it would be said by some that I am creating some kind of hierarchy by taking religion and belief out and leaving in all the other protected characteristics. I am not creating a hierarchy; I am seeking to recognise that religion and belief cannot simply be treated identically for the reasons I gave about cohesion and the wish to avoid divisiveness. One person’s religion is, unfortunately, another person’s blasphemy, and there is no way in which those can easily be reconciled.

I am very pleased that, at this late hour, I am in the presence of the most reverend Primate the Archbishop of York. For this reason, among many others: the only way in which my amendment can, in the end, succeed is—if I can put it this way—if he and his colleagues liberate us and allow us to do so. If the position of the Church of England were that in some way it wished this to remain as it is, I expect that the Conservative Party—although not always correctly described as the Church of England in politics or the other way round—would probably not support getting rid of Clause 148(1)(b).

I hope that in this debate, at the least, my concerns might lead others to say that they have concerns and that might lead the Minister to say that she will go away and think about this again. I do not seek to do any more than that, but if I could accomplish that this evening, so that we can all think about this more, I would think we had done something really important at this late hour. I beg to move.

My Lords, I never believed that the noble Lord believes that the Church of England has such authority—certainly, the Lords Spiritual do not see it that way—but, if he does, he is probably assuring our future in this House for a very long time.

The trouble with the subsection about which the noble Lord, Lord Lester, is concerned is that Clause 4 defines nine protected characteristics, including religion and belief, and Clause 10 gives a peculiar definition of religion. It states:

“Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.

You are really opening a huge can of worms. The amendment would disapply the advancement of equality of opportunity in relation to the duty of public sectors in the cause of religion and belief. I believe the noble Lord, Lord Lester, is of the view that the duty specified would open doors to giving protection to a plethora of beliefs, religions or lack of them. I have always worried when legislators pass laws in matters of belief where courts might be invited to interpret the doctrines. Courts should be left out of all of that because it is so complicated and difficult.

I have some shared concerns with the noble Lord on this issue, mainly over its likely chilling effect for public authorities in their dealings with religious organisations, with people of different beliefs and those of no beliefs at all. I am concerned it could be used to set up all sorts of religions, beliefs or lack of them. People will then say they are being neglected and not having equal opportunity.

There are those who worry that if we remove this public duty in relation to religion and belief from the Bill we portray religious freedom as a lesser liberty than others. Is there a way in which we could stop this chilling effect? Perhaps this amendment does not properly address the problem. There are already nine protected characteristics; would the best thing be to simply delete that whole section? Are we setting up a hierarchy?

When it comes to religion in terms of immigration, I would sound a caution over whether you would meet the test of the human rights convention. It is very difficult, because I could say tomorrow that I believed in nothing and then claim I believe in a mighty angel that appeared to me in the night, simply because I want to be protected. This is a very wide net. The Church of England is supposed to be a very wide boat, but we do not want to cast the net so wide that we forget there is no more ocean out there.

Can the Minister say how we would maintain the protected characteristics without creating this chilling effect for local authorities? Perhaps it needs to be, in the words of the noble Baroness, Lady Campbell, about meeting “a need” instead of this equality of opportunity, which is so vast I do not know what it is. I have grave anxieties and I can see local authorities having to be monitored because someone somewhere has claimed that their opportunities are not being met because they have no belief. Then the courts would have to adjudicate. Can the Minister please help us on this?

The case for retaining the words of the Bill is that both internationally and in this country religion is increasingly a marker of identity. Religion is not just a disembodied, wispy, platonic idea; it is embodied in people who have particular physical characteristics and those are seen by the wider public as having an identity. All sociologists would now recognise that one of the major features of the modern world is the way that religion has become a marker of identity, and therefore that is a strong argument for retaining the words in the Bill.

When the noble and right reverend Lord looks at Clause 10, he will see that it says:

“Religion means any religion and a reference to religion includes a reference to a lack of religion”.

That is a problem. It goes on:

“Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.

It is no longer about identity; it has gone on to somewhere else. That is the problem. I agree with him that religion is important, but this thing is cast so wide that a chilling effect is coming over me.

I support the amendment of the noble Lord, Lord Lester—I think. It was interesting listening to the first part of the most reverend Primate the Archbishop of York’s comments, and the chilling vision of what might happen in a local authority. Suddenly, a vision of the Jedi versus the Thetans flashed before me: chilling indeed.

Seriously, there is a whole debate about the issue of identities, which is not about identity being physically fixed and absolutely straight down the line. Identity is much more fluid and subject to change, particularly in a globalised world with globalised cultures, but I do not want to get into that. I understand what the Government are trying to do by including the phrase “lack of belief”, but it makes it slightly unwieldy. I speak as a humanist and somebody who feels it is important to put down a marker for people who do not have a particular religious affiliation.

This is a very difficult juggling act. We are not only trying to bring together all those different pieces of legislation, but to bring all those different identities together. As we have said before, you cannot treat all those different aspects of identity the same: that is not what we mean by being equal. This is why I support the amendment of the noble Lord, Lord Lester. The insertion of “religion” clouds the issues in an ineffective way.

I do not mind which of the noble Lords will be speaking, but perhaps I may ask how one is going to cope with this position. I very well understand how the most reverend Primate the Archbishop of York sees the chilling effect. However, since he has raised this, I also look at Clauses 4 and 10. Clause 4 in particular sets out the key concepts of equality and protected characteristics. It seems difficult to exclude it from the advancement of equality, under the “Public sector equality duty”. Almost all the other protected characteristics, with the exception of gender reassignment, are to be found in Clause 148, and that may well be why the Government have kept it in this particular clause. Taking it out may also create certain difficulties where it is included in the key concepts throughout the rest of the Bill. How we are going to deal with this is worrying.

I began with that: I said that the difficulty with the amendment of the noble Lord, Lord Lester, is that it removes the two key characteristics which are already outlined, and it may look as if there is a hierarchy. I did not like his amendment, but his arguments are very convincing. For me, it is a matter of drafting.

I will explain to the noble Baroness. I have not removed it from Clause 148; I have removed it only from Clause 148(1)(b). In other words, the duty in relation to religious discrimination et cetera, and promoting good relations, applies across the piece to all the protected characteristics. All I am seeking to do is to apply it differently in relation to Clause 148(1)(b), and I have tried to explain the reasons for that.

Forgive me, and if I am wrong I apologise for wasting the time of the Committee, but in Clause 148, one talks about advancing equality for protected characteristics. The protected characteristics which are the basis of Clause 148 are described in subsection (6). You could not go back to subsection (4) because you would be tied to the exclusion of religion or belief in Clause 148. That may well be the reason why the Government have included this. I would be very worried that the general concepts would be excluded in religion or belief because there is no other definition of “protected characteristics” for the purpose of this clause. That is the problem for me at least.

Listening to the debate, I feel a little like a spectator. I know that the noble Lord, Lord Lester, feels passionately on this subject and I have shared many a platform with him arguing the sort of issues we are now debating. I completely agree with the most reverend Primate in recognising that there is this chilling effect, about which we have to be really careful. I found myself agreeing with every word of the noble and right reverend Lord, Lord Harries of Pentregarth, who put forward a common-sense view as to why this was in the Bill. I am a little confused by the words of the noble and learned Baroness, Lady Butler-Sloss. I listened with interest to the clarification of the noble Baroness, Lady Young of Hornsey. Above all, I am concerned that we may be creating an anomaly. I can hardly wait to hear the Minister’s response. I think that we have been standing side by side on the touchline, but now it is her turn to come on the pitch.

My Lords, I will speak first to Amendment 111 and, secondly, to Amendment 112, which is a different type of amendment about a separate issue. The equality duty is to get public bodies to think about the discrimination that individuals may be suffering or may be likely to suffer and then consider whether there is anything that they can or should do to tackle it. We know from the evidence available through the Equality and Human Rights Commission, and the equalities review, that some people with religious beliefs—for example, Muslim women—or without religious beliefs are suffering disadvantage or have different needs. If we talk about different needs, some people with a particular religion or belief who engage with public services may have certain needs—for example, dietary requirements, or they may not be able to sit exams on holy days. Advancing equality of opportunity involves thinking about whether the service you provide is one that everyone is able to make use of, not just those people who fit into a traditional mould. It should mean more sensitive, personalised services from which everyone can benefit. I think we would all agree about that.

The problem with this amendment is that we suspect that it might create and build a hierarchy of inequality into the duty, which would send a completely wrong message. It could suggest that we do not consider disadvantage linked to religion or belief to be as bad as other forms of disadvantage. But we also understand that competing demands may occur. If they do, an integrated duty that embraces all strands provides the best legal framework for considering how decisions affect all groups, and not just some groups. We also believe that the guidance to the equality duty, which would have to be carefully drafted, could cover and make clear the responsibilities of public bodies in relation to promoting equality of opportunity for religion or belief.

However, I have listened carefully to the noble Lord, Lord Lester, the most reverend Primate the Archbishop of York, the noble Baroness, Lady Young, and the other contributors to this debate. The noble Lord, Lord Lester, and the most reverend Primate in particular made compelling arguments, which led me to believe that the best thing we can do at this stage is to take this away and think about how we can best achieve what we want to achieve. I take on board very much the concerns expressed in the debate. I ask the noble Lord to withdraw the amendment on that basis.

Amendment 112 would not require immigration authorities to take the equality duty into account as far as age and race are concerned, but they would be required to have due regard to the need to advance equality of opportunity between people who share a religion or belief and those who do not share such religion or belief. We want our borders to be secure from certain individuals whose religious beliefs are so strong that it would not be in the public interest to allow them to enter or, in some circumstances, to remain in this country. For that reason, the duty to have due regard to the need to advance equality of opportunity on the ground of religion or belief may not always be compatible with the essential functions of the UK Border Agency to provide effective immigration control that is consistent with government policy and public safety. We also do not want to open ourselves up to meaningless challenges, as other noble Lords have said.

This exception is not designed to be a blank cheque to permit the immigration authorities to evade their responsibilities. It is intended to ensure that, where necessary, they can exercise the essential functions in these respects without the possibility of hopeless and irrelevant challenges, so I request the Lord to withdraw the amendment.

I am extremely grateful to everyone who has spoken, especially the most reverend Primate and the Minister. I want to make two points. I have not spoken to my Amendment 112 on immigration, but I want to refer to it now. It illustrates how the notion of one size fits all is not applied by the Government themselves and shows how they treat religion differently. It is worth looking at because I am not sure that I agree with paragraph 2(1) on immigration. I am not sure that anyone will have focused on the strange thing that is happening here. The provision says:

“In relation to the exercise of immigration and nationality functions, section 148 has effect as if subsection (1)(b)”—

the one that I am concerned with—

“did not apply to the protected characteristics of age, race or religion or belief; but for that purpose ‘race’ means race so far as relating to—

(a) nationality, or

(b) ethnic or national origins”.

That means that the Home Office is taking a new power to exclude someone from entering the country on the basis of their religion or belief, or on the basis of their race defined as,

“nationality, or … ethnic or national origins”,

but not colour. We cannot turn someone away because they are black. We can turn someone away because of their nationality—quite right. We can turn someone away because of their ethnic or national origin in certain circumstances—again, quite right—and now we can turn them away because of their religion or belief.

In that provision the Government are creating a hierarchy. They are allowing discrimination on the basis of religion or belief and taking it out of Clause 148(1)(b), which shows that the notion of no hierarchy is not even consistently applied by Her Majesty’s Government themselves.

If noble Lords turn to the Explanatory Notes, where the explanation for this is admirably well set out on pages 124, 125 and 126, they will see that examples are given about how Clause 148 will apply. The first example is about ethnic minorities. The second is about disabled people. The third is about a black women’s refuge. The fourth is about transsexual staff and non-transsexual staff. The fifth is about age. The sixth is about homophobic bullying. However, the only one dealing with religion or belief in the examples is this one. It states:

“The duty could lead a local authority to introduce measures to facilitate understanding and conciliation between Sunni and Shi’a Muslims living in a particular area, with the aim of fostering good relations between people of different religious beliefs”.

I accept that that is in Clause 148(1)(c) and should remain there, but no example is given here to justify including religion and belief in Clause 148(1)(b).

I mention those things for further thought. I am grateful to the Minister for taking this away and I understand the points about hierarchy and all the rest of it. On that basis, and thanking everyone again, I beg leave to withdraw the amendment.

Amendment 111 withdrawn.

Clause 148, as amended, agreed.

Schedule 18 : Public sector equality duty: exceptions

Amendments 112 to 114 not moved.

House resumed.

House adjourned at 10.10 pm.