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Equality Bill

Volume 717: debated on Tuesday 9 February 2010

Committee (6th Day)

Schedule 18 : Public sector equality duty: exceptions

Amendment 114ZA

Moved by

114ZA: Schedule 18, page 196, line 38, at end insert—

“Exception to the public sector equality duty for small organisationsSection 148 does not apply to—

(a) a public authority specified in Schedule 19 that has fewer than 250 employees; or(b) a person who is not a public authority, but who exercises public functions and who has fewer than 250 employees.”

We tabled this probing amendment to ask the Government for reassurance about the operation of the public sector equality duty in relation to small organisations. Our amendment would provide an exception to the public sector equality duty, which would mean that any public authority, or a non-public authority that had been subcontracted to carry out functions of behalf of a public authority, should not be subject to the public sector equality duty if it employed fewer than 250 people.

Research carried out by the Government to analyse the functions of the public sector equality duty and its impact was carried out predominantly on large organisations. Research to support extending the duty to other protected characteristics was based on research by Schneider-Ross Ltd. Most of the respondents in that case were large organisations. Some 30 per cent of the 174 organisations that replied to the survey employed between 1,000 and 4,999 people. Only 2 per cent employed fewer than 150 people. Has any further or alternative research been undertaken that concentrates more fully on small businesses?

Concerns have been expressed to us that the public sector equality duty may be too onerous on businesses with fewer than 250 employees and that no information has been provided to suggest otherwise. Without any such reassuring information, it is perhaps premature to saddle smaller businesses with this burden until further research has been undertaken. This is a particularly pertinent question because, if the organisations subject to gender pay gap reporting are only those with more than 250 employees, might that not make sense in this case as well?

A second concern is the potential lack of clarity in this area. We have been informed that Section 6(3) of the Human Rights Act 1998 states that a person may be defined as a public authority for exercising public functions. Would that mean, therefore, that a single person could be classed as having to abide by the public sector equality duty? Certain groups are worried because, as the Bill stands, it is unclear exactly to whom the public sector equality duty would apply.

I have another question about smaller organisations that have had public functions outsourced to them. We covered most of this in a debate on a previous day and I will not go over those arguments. However, will the Minister confirm that if public functions are outsourced to a small charity—for example, one based on religious principles—the employment exceptions in paragraph 3 of Schedule 9 would still apply? In other words, will the charity continue to function under the terms of its foundation charter even though it would be performing a service on behalf of a secular public authority? Will the Minister clarify where the terms of a charity's foundation charter would apply and where they would not? If a public sector authority has outsourced some of its functions, in terms of those functions, will the public sector authority duty or the charity’s foundation charter have pre-eminence?

Finally, there is a question to be asked about organisations where jobs cannot be neatly segregated into those that would be tied into the public sector equality duty and those that would come under the private functions of a small organisation. For example, if a small care home operates under a Christian ethos, would that care home have a right to demand that staff were of the same religion? Moreover, if the care home also had some of the public care provision outsourced to it, under the terms of the public sector equality duty would it be able to ask for all staff to be of the same religion? I ask this because in such organisations it would not be possible to separate the roles into those which clearly came under the new equality duty, and those which remained under the small, private organisation. I see the Minister looking confused, and we are confused, but these are genuine concerns which have been raised with us, so I look forward to her response and hope she can shed some light in this area. I beg to move.

My Lords, this amendment, I am sorry to have to say, is regressive. It would exempt from Clause 148 any public authority with fewer than 250 employees.

The Race Relations (Amendment) Act 2000, made in the wake of the recommendations of the Stephen Lawrence inquiry, introduced general statutory duties on scheduled public authorities which apply irrespective of the number of employees within their workforce. That is in respect of race. So did the Disability Discrimination Act 2005, supported by the Conservative Party.

The Equality Act 2006 introduced similar public sector duties as regards sex discrimination which apply irrespective of the size of the public authority. The fair employment amendment Act of 1989, introduced by the Thatcher Administration to combat religious discrimination in the workplace, contained no such exception for public authorities with fewer than 250 employees. That is why the amendment is regressive. It is going back on the whole of that—race, religion, with regard to Northern Ireland here, with regard to gender, with regard to disability.

We know of no evidence to support the amendment, nor do we understand why Her Majesty’s Official Opposition should seek to weaken the scope of the public sector duty and the protection it gives to vulnerable minorities, including women, ethnic minorities, disabled people, religious minorities, gays and lesbians and the elderly, and we are opposed to it.

Could I add my voice in opposing this amendment, and to agree with the noble Lord, Lord Lester? For example, whether a care home is under a religious foundation’s auspices or not, it would be totally unrealistic to restrict those staff who actually do the caring to people of a particular faith, race or anything else, because they just would not work any more. It would be totally contrary to the aims of the Equality Bill.

I fail to understand why the figure 250 has been picked. What matters is that people are not discriminated against either overtly or covertly and it does not matter whether the employees are five, 20, 100 or 1,000. Discrimination is discrimination, so I am surprised by the number. It may sound interesting, but mathematical calculations in a Bill such as this are never helpful. I do not understand why the figure has been asserted, and if, as the provision says, a public authority has a public duty, I do not understand why mathematics is beginning to come into it. Maybe I need to go back to primary school and then I will know that 250 is the level at which it is impossible to discriminate.

My Lords, I would like to interject briefly, as this issue has been worrying me a lot because I knew it was buried somewhere in the Bill. If I have understood the amendment correctly, it is about procurement and where it is in the supply chain. Already small and medium-sized businesses have a huge problem in getting business and contracts from government bodies. There are a lot of barriers in their way, and a lot of contractual obstacles are put in their path. SMEs employ about half the non-public sector workforce in this country. They are very large employers. Most are tiny companies employing five people or fewer, but some are larger companies. Innovation and growth in the economy come from the SME sector: they do not come from large companies, which tend to rationalise and downsize. Therefore, future pensions will be paid by these companies. In some areas, the local authority is almost the only employer. Therefore, there is a huge problem if people cannot do business with the local authority.

I have seen one of these forms. It was sent to my wife, who employs only three or four people, in order that a small sum could be procured from her. It is impossible. There are questions like, “Can we see your special diversity policy?” and “Can you prove that X number of your workforce are this, that and the other?”. Small companies cannot handle it. Therefore it is very sensible that there should be an exemption at some level—although I do not know what the figure should be—to allow government authorities to procure from small businesses. Because this applies down the supply chain, it may not apply to the first contractor, which may be a large organisation. However, when that organisation wants to contract further down the supply chain, the same thing will apply. The Government should show mercy to small companies, because the burden of bureaucracy is already enormous on them. This could be the straw that breaks the camel's back.

My Lords, I will say briefly that I, too, strongly agree with the noble Lord, Lord Lester, and with my noble friend. If I am picking up the vibes correctly, the Minister may be able to answer the query. It may be thought that small charitable bodies that might be asked to undertake work via a public authority would run into a problem because of this. From reading the Bill, I cannot see that. However, I will leave it to those who have more detailed knowledge. I am not in favour of this amendment.

My Lords, I will say briefly from these Benches that I strongly support what the noble Lord, Lord Lester, said in opposition to the amendment. Many people in this country are employed in small companies, as has already been indicated. The Bill is about individual rights as much as anything. If an amendment of this kind, with this sort of arrangement, were to be on the statute book, a large number of people would not have the benefit of employment rights of any kind. That would be totally unacceptable. I understand that in some instances it may be felt that very small companies may have problems, but one cannot have a situation in which 250 people—quite a high number—do not have access to the employment rights that other people have.

Perhaps I may respectfully correct one matter. This does not limit the scope of the non-discrimination provision, from which there are no small-employer exemptions, thank goodness. It limits the scope of the public sector duty, which is very serious for reasons that are clear. It would not be fair to the Opposition to say that they are seeking to emasculate individual discrimination provisions. They are seeking to weaken the public sector duty.

My Lords, Amendment 114ZA, tabled by the noble Baronesses, Lady Warsi and Lady Morris of Bolton, would exclude from the equality duty public authorities with fewer than 250 employees, or organisations discharging public functions but not listed in Schedule 19 that have fewer than 250 employees.

Despite the progress that we have made, inequality persists in our society. The equality duty is an innovative approach to tackling discrimination. It requires public authorities to show leadership in proactively rooting out entrenched systems of discrimination and in promoting equality of opportunity. The roles of the public sector and of the bodies that provide public services are central to our equality goals, as public services are used by all, with many of the most vulnerable citizens dependent on them.

The noble Earl, Lord Erroll, probably wished to speak to Amendment 115B, which concerns procurement. The noble Baroness, Lady Morris, asked about the impact on SMEs and what further research had been done. I do not know, but I will come back to her in writing.

The equality duty requires public bodies and other organisations which provide public services to have due regard to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations. It is difficult to understand why the size of an organisation should matter in considering the need to eliminate discrimination and promote equality. I think I am at one with the most reverend Primate on this. A number of small organisations provide services that could impact the lives of many in the community. For instance, at times, some of the health service bodies will have fewer than 50 employees but the service that they provide could have an impact on hundreds of people in the area. The same could be said for many schools.

I understand that in the current fiscal climate some people think that compliance with the new integrated equality duty could lead to extra administrative burdens and bureaucracy. I do not think that is the case because, as the noble Lord, Lord Lester, informed us, at the moment we have three different duties, each with different requirements and reporting timescales. Bringing them together into one duty should decrease bureaucracy, and our emphasis on specific duties on proportionality—outcomes rather than processes—should lead to less form-filling and increased results.

The exclusion of public authorities, listed in Schedule 19, which have fewer than 250 staff, or of private organisations that are discharging public functions but have fewer than 250 staff, would seriously limit the coverage of the equality duty. For instance, the amendment would exclude around 70 per cent of all central and local government bodies from the equality duty and that is plainly wrong.

I accept that the amendment is probing but, should it be passed, it would seriously damage the good progress made by the current duties, as it would exempt from the new duty hundreds of public bodies which are subject to the current duties, and would result in serious regression.

The noble Baroness, Lady Morris, asked whether the charity foundation document or the equality duty would take precedence where a public body contracts out some of its functions to a charity. The charity would have to comply with its foundation document but, in performing public functions, it would also need to have due regard to the need to eliminate discrimination and promote equality in accordance with the duty, so it would have to look at both things.

The noble Baroness asked whether the equality duty would apply to a single person performing a public function. Yes, it is important to remember that public functions are vital services which impact on the well-being of the public and, therefore, it is irrelevant whether it is delivered by a large organisation or a single person—a GP or a Secretary of State. She asked whether, if a public function were outsourced to a religious organisation, the exemption in paragraph 3 of Schedule 9 would still apply. Yes, it would. The equality duty operates alongside provisions prohibiting discrimination in the rest of the Bill.

I can answer the question which the noble Baroness asked about whether small authorities were consulted on the extension of the new duty to new strands. Yes, in June 2007, we launched a three-month public consultation on the proposal to extend the equality duty. Around 4,000 organisations and individuals responded, including small organisations and representatives of small organisations, such as schools and health service providers. I ask the noble Baroness to withdraw her amendment.

I am most grateful to all noble Lords who have joined in this short debate. I am also grateful that the Minister pointed out, as I did at the beginning, that this is simply a probing amendment. We do not seek to be regressive in any way, although I very much enjoyed the brief history of equality law given by the noble Lord, Lord Lester, and I look forward to reading that again. The point raised by the noble Earl, Lord Erroll, shows that there is confusion in this area about what applies where. I am most grateful to the Minister for answering some of those concerns on the record. I beg leave to withdraw the amendment.

Amendment 114ZA withdrawn.

Amendment 114ZB

Moved by

114ZB: Schedule 18, page 196, line 41, at end insert “, but no such order may vary or omit the exceptions in paragraph 3 or 4(1), (2)(a) to (e) and (3)”

My Lords, in moving Amendment 114ZB, I will also speak to the other amendments in our name. These amendments are in line with recommendations from the Delegated Powers and Regulatory Reform Committee. I welcome the fact that the Minister tabled amendments on Friday which would meet with some of these recommendations and address most of the concerns raised by our amendments.

Amendment 114ZB is tied into Schedule 18, which is about the public sector equality duty exceptions. Our amendment, following a recommendation by the DPRRC, would ensure that only primary legislation could amend the list of exemptions in this schedule with reference to judicial and parliamentary functions. We are very pleased that the Government have now accepted that there is no need to retain flexibility in this instance.

Furthermore, perhaps there is a case for suggesting that it might be inappropriate for a Minister to be able to alter the exceptions relating to other organisations. Can the Minister clarify, for example, when there might be a case for removing the exemptions relating to the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and part of the Armed Forces? Is there a specific need to retain the flexibility that regulations would allow, or does she agree that this sort of decision should be subject to primary legislation?

Our second set of amendments in this group, Amendments 115A and 135AA, add a similar power which is awarded to Clause 150(1). This subsection would allow the Minister to update Schedule 19 to include or exclude different bodies. In accordance with the recommendations from the DPRRC we tabled Amendment 115A. It would exclude judicial and parliamentary bodies from the regulation by which amendments can be made to the schedule and so make them subject to the public sector equality duty. Amendment 135AA would mean that the reduced power would also be subject to affirmative resolution for greater scrutiny. We welcome the Government’s amendments which, like ours, are designed to meet this recommendation. I apologise; I have been editing my notes as a result of today’s events and I think that I have probably edited them too much.

However, the government amendments retain the negative power for the changes that occur when an entry is removed just because it has ceased to exist, or because it has changed its name. That seems sensible. Have the Government had any response from the DPRRC about whether this would meet its concerns? It seems a critical factor in knowing what their response is. Furthermore, what consultation has occurred with the devolved Ministries about the changes to their powers here? I beg to move.

My Lords, we too have edited our notes down. I am just reading through them and cannot see any reference to one of the noble Baroness’s amendments. I am hoping that somebody will send me a note about it.

I am going to speak to government Amendments 114ZC, 115ZA, 135AB, 136ZZD, 136ZZE, 136ZAA, 136ZAB, 136ZAD, 136ZAE, 136ZAF, 136ZCA, 136ZCB and 136ZCD, which reflect the recommendations made in paragraphs 11 and 13 of the Delegated Powers and Regulatory Reform Committee’s third report of Session 2009-10.

I shall speak first to government Amendment 114ZC. This seeks to achieve the same aim as the noble Baroness’s Amendment 114ZB, in response to the committee’s question whether it would be appropriate for the exceptions to the equality duty relating to judicial functions or those relating to parliamentary bodies to be removed or limited by statutory instrument. This amendment limits the power in paragraph 5 of Schedule 18 so that it cannot be used to remove these exceptions from Schedule 18. Primary legislation would therefore be required to remove or limit these exceptions. While there is no difference between the intentions of the noble Baroness’s amendment and this one, we think that the wording of our amendment provides more precise clarification.

Government Amendment 115ZA reflects the committee’s recommendation that the power in Clause 150 to amend the list of public bodies subject to the duty, as referred to by the noble Baroness, should not be capable of listing the judicial and parliamentary bodies that are currently excluded from the scope of the duty by Schedule 18. The intention behind this amendment is the same as that behind Amendment 115A, which the noble Baroness spoke to. Again, however, we think that our wording provides greater clarity on this important matter.

I turn now to Amendment 135AB, which reflects the recommendation made in paragraph 11 that the power in Clause 150 should be subject to the affirmative procedure. The amendment is seeking the affirmative procedure to apply to the power to make changes to the list of bodies subject to the equality duty, except where we simply want to amend the entry for a body whose name may have changed or where a body is removed because it ceases to exist. We think that it will be more appropriate for the negative procedure to apply in these particular cases. To have to use the affirmative procedure for such minor issues is likely to be a waste of valuable parliamentary time. Of course, if Parliament wishes to debate any use of this power, it can still choose to do so by praying against a negative resolution order. The noble Baroness asked about removing exemptions on organisations such as security services, Armed Forces and so on. We are retaining a measure of flexibility because those organisations are susceptible to change and because they could change their names or merge.

Amendment 135AA—this was missing from my notes—would delete what the Government have proposed and our Amendment 135AB would amend it. Amendments 136ZZD, 136ZZE, 136ZAA, 136ZAB, 136ZAD, 136ZAE, 136ZAF, 136ZCA, 136ZCB and 136ZCD ensure consistency with the Welsh and Scottish Ministers. I therefore invite the noble Baroness not to move Amendment 135AA.

I thank the Minister for that comprehensive reply and it gives me great pleasure to withdraw my amendment.

Amendment 114ZB withdrawn.

Amendment 114ZC

Moved by

114ZC: Schedule 18, page 196, line 41, at end insert—

“(2) But provision by virtue of sub-paragraph (1) may not amend this Schedule—

(a) so as to omit an exception in paragraph 3;(b) so as to omit an exception in paragraph 4(1) so far as applying for the purposes of paragraph 4(2)(a) to (e) or (3);(c) so as to reduce the extent to which an exception referred to in paragraph (a) or (b) applies.”

Amendment 114ZC agreed.

Schedule 18, as amended, agreed.

Clause 149 : Public authorities and public functions

Amendment 114A not moved.

Clause 149 agreed.

Schedule 19 : Public authorities

Amendment 115

Moved by

115: Schedule 19, page 198, line 37, at end insert—

“The relevant qualifications regulator (The Office of the Qualifications and Examinations Regulator—Ofqual).”

My Lords, this is a simple, probing amendment and I will make some brief remarks. The debate about whether Ofqual should be included under the public sector equality duty was covered concisely and effectively in another place. I recall that in relation to this the Solicitor-General said:

“I completely agree that Ofqual should be subject to the equality duty”.—[Official Report, Commons, 30/6/09; col. 594.]

She said that that would be done after the Apprenticeship, Skills, Children and Learning Bill had passed through your Lordships' House and become an Act, thus giving Ofqual statutory status.

Of course, we now have the Apprenticeship, Skills, Children and Learning Act, but I cannot see an amendment here to bring Ofqual into Schedule 19 and make it subject to the public sector equality duty. It may well be that there is a simple answer to this. Perhaps I have missed something that would explain this entirely. However, I have not seen an explanation, and it would be marvellous if the Chancellor of the Duchy of Lancaster could enlighten me. I beg to move.

My Lords, I very much welcome this amendment, moved by the noble Lord, Lord Hunt, to clarify the application of the public sector equality duty, for Ofqual is just the start. On further examination, the schedule proves to be full of holes. I am very concerned to observe that it contains numerous omissions—if an omission can be said to be “contained”. I hope that that is just the result of the sort of unfortunate oversight that the noble Lord, Lord Hunt, was so exercised about the other day. On the assumption that it is, I hope that the Government will commit to remedying the deficiencies in the schedule before it leaves this House.

The Government have given numerous commitments that all organisations covered by the current duties will be covered by the integrated duty. Exclusions that I have noticed include the Electoral Commission, which is surprising when one considers that only recently we were debating political diversity. The NHS is included, but none of its regulators are. The omission of regulators in general is concerning, as is the omission of a number of educational bodies. The General Teaching Council is just one example. As an avid supporter of the arts, I was particularly concerned not to see the Arts Council in the schedule. I could go on, but I shall not. It just remains for the Government to fulfil their commitments and put the schedule to rights. Of course they have the power to change the list by regulation, but they should not expect the Committee to buy a pig in a poke like that. They should populate the schedule comprehensively and reserve their order-making power for amending the list when bodies are created or wound-up. I therefore very much support the amendment.

Amendment 115 would insert the Office of the Qualifications and Examinations Regulator—Ofqual—into Schedule 19, which is the list of public authorities subject to the equality duty. Ofqual, which will be formally established in April and will be the new independent regulator of qualifications and tests in England, must of course be subject to the equality duty. The Government would not contest that. I recognise what the noble Lord, Lord Hunt, said about the comments in the other place by my right honourable friend the Solicitor-General. However, we have since established that we do not need to add Ofqual to Schedule 19 to deliver the desired outcome. The Bill will achieve that without the noble Lord’s amendment. The Apprenticeships, Skills, Children and Learning Act, which received Royal Assent this autumn, establishes Ofqual as a non-ministerial government department, and government departments, including non-ministerial ones, are already covered in Part 1 of Schedule 19. This means that there is no need to include it as a separate entity within Schedule 19.

The noble Lord, Lord Low, suggested that Schedule 19 is practically empty and that the duty covers very few bodies. Schedule 19 as it stands is not the end of the story. At the moment it contains only core generic bodies, such as government departments, local authorities, NHS bodies, educational bodies and the police. We have been clear that we intend to update the schedule with more bodies. Now that we have publicly set out the requirements of the general duty, we want to talk further with other bodies that we think should be included in the schedule. Let me stress that, in broad terms, the duty will cover the same bodies as the current duties and there will be no reduction in coverage. I assure the noble Lord that we are not offering noble Lords a pig in a poke. The two-stage approach is the process that was used to build up the list of bodies subject to the race duty, and we are simply following that precedent. It has allowed us to have informed discussions with those who we propose to list, and we will include them via regulations. There are no inconsistencies, and I hope that this brief explanation will persuade the noble Lord to withdraw his amendment.

Perhaps the Chancellor of the Duchy of Lancaster can clarify the position. I was following her in reading Part 1 of Schedule 19, which is entitled “Public Authorities: General”. I saw under the heading “Ministers of the Crown and government departments”: “A Minister of the Crown”, and

“A government department other than the Security Service, the Secret Intelligence Service or the Government Communications Headquarters”.

She was, however, referring to another type of body. Then, when I looked in the remaining part of Part 1, under the same heading, I did not see the words that she is now explaining appearing anywhere. I am simply seeking further clarification. Could she, please, give noble Lords a little more chapter and verse of exactly where this can be found?

My Lords, before the Minister responds to the noble Lord, Lord Hunt, perhaps she can say whether she means that the regulation-making power will be used to update the schedule—I think that she used the words “update the schedule”—so that the additional bodies with whom she wishes to have discussions with a view to bringing them within the public sector equality duty will not just reside in regulations, but will be introduced into the schedule by the regulation-making power. Is that what she had in mind?

While the noble Baroness is considering the important point made by the noble Lord, Lord Low of Dalston, can she give us an idea of the timescale within which she proposes to give noble Lords and others the clarification that we seek?

Yes, my Lords. Non-ministerial departments are included in Part 1 of Schedule 19, because non-ministerial departments are considered to be government departments. That is what I am informed and that is how they are covered. In response to the questions from the noble Lord, Lord Low, our plan is to publish the list of organisations that we intend to be covered under Schedule 19 in the summer, at the same time as we consult on the draft regulations for specific duties. That is the timescale to which we are working. When we impose the specific duties, the regulations will be subject to the affirmative procedure, which means that government will have the opportunity to debate proposals fully. I think that that is correct. I am looking to the Box for assistance.

Perhaps the noble Baroness can further clarify the point. I always tend, when looking at the interpretation side of any proposal before this Committee, to look at Clause 204, entitled “General interpretation”. I could not see that a government department was defined there in the way that the noble Baroness is describing. It may well be that it is defined elsewhere in a generic way, but I could not see it in Clause 204. We have not yet reached Clause 204, but we may well a little later. It may be helpful if the noble Baroness could explain.

May I have a go, although I will probably get this quite wrong? In Clause 149:

“A public authority is a person who is specified in Schedule 19”.

The definition is extended in subsection (4) to “certain specified functions”—so it is broken down there. Subsection (5) then defines a public function as:

“a function of a public nature for the purposes of the Human Rights Act”,

which has a flexible definition. The power to add to a list of who the public authorities are is the subordinate power, which will be subject to the affirmative procedure, which then gives the flexibility to apply the definition in Clause 149 to particular bodies. I hope that that is right.

My Lords, I understand that that is correct. Does that answer the noble Lord’s questions about a non-ministerial government body?

I think the Minister said that a non-ministerial body is a government department. Is it not better to say that it is a public authority?

Yes, my Lords, just as the department of the Treasury Solicitor, for example, is a non-ministerial department. It is a similar sort of body.

Again, I will clarify for the noble Lord, Lord Low, that we will bring forward a consultative list in the summer at the same time as we consult on the draft regulations for the specific duties. The regulations that add the list to Schedule 19 will be subject to the affirmative procedure, so there will be proper scrutiny of the list.

My Lords, are the non-departmental public bodies in or out? “A government department” is not a good phrase to cover the non-departmental public bodies.

As I understand it, the Equality and Human Rights Commission is one such body and would be covered. My understanding is that such a body is a public authority, not a government department.

My Lords, I reassure the Minister that she has one satisfied customer. I am grateful for her reassurance about the timescale and that the expanded list will be subject to parliamentary scrutiny.

My Lords, I am very grateful to the noble Lord, Lord Low of Dalston, for making some very important points, and I join him in thanking the Chancellor of the Duchy of Lancaster for clarifying the position and in particular for heeding and accepting the advice of the noble Lord, Lord Lester of Herne Hill. As he is a solicitor of the senior court—I think that I am no longer allowed to say the Supreme Court—I normally have to pay substantial sums to obtain that sort of advice. I do not want to debase the advice by saying that the noble Lord gives it completely free of charge, but he does that on so many occasions in this place and I am very grateful to him for clarifying “public authority”, “government department” and “government authority”. I share the slight confusion of my noble and learned friend Lord Mackay of Clashfern as to exactly where we are. I thank the noble Lord, Lord Lester of Herne Hill, for pointing us in the right direction, but I am not sure that I have yet reached the destination that he would advise me to reach.

I do not know whether the noble Lord can afford to go on like this, but he should remember the well known maxim, “No good deed goes unpunished”.

My Lords, clarity has come from the fact that non-departmental public bodies will be listed. The definitions in Schedule 19 are only for those that are there already. A great number will be added in the course of our beautiful summer that is coming.

I do think that we have got somewhere. That is the important thing. I was a little misled at first by the description of a non-departmental public body as a government department, but I have now reached an adequate pausing point for further consideration. I am very grateful to the noble Baroness for the clarity that she has introduced, and I beg leave to withdraw the amendment.

Amendment 115 withdrawn.

Schedule 19 agreed.

Clause 150 : Power to specify public authorities

Amendment 115ZA

Moved by

115ZA: Clause 150, page 96, line 6, at end insert—

“( ) An order may not be made under this section so as to extend the application of section 148 to—

(a) the exercise of a function referred to in paragraph 3 of Schedule 18 (judicial functions etc);(b) a person listed in paragraph 4(2)(a) to (e) of that Schedule (Parliament, devolved legislatures and General Synod);(c) the exercise of a function listed in paragraph 4(3) of that Schedule (proceedings in Parliament or devolved legislatures).”

Amendment 115ZA agreed.

Amendment 115A not moved.

Clause 150, as amended, agreed.

Clauses 151 to 153 agreed.

Clause 154 : Power to impose specific duties: supplementary

Amendment 115B

Moved by

115B: Clause 154, page 99, line 4, at end insert—

“( ) Regulations made under sections 152 or 153 must comply with the Public Sector Equality Directive 2004/18/EC and Directive 2007/66/EC.”

My Lords, the purpose of the amendment is to invite the noble Baroness to explain what appears on the surface to be incompatibility between the Government’s proposals on public procurement and one, or perhaps even two, directives in the European Union.

Clause 154 gives the power to a Minister of the Crown, or to a Scottish or a Welsh Minister, to impose specific duties on public authorities listed in Schedule 19 that are also contracting authorities for public procurement purposes. The Minister may correct me if I am wrong, but I assumed that the Government’s intentions are for public procurement to be another area in which the goal of equality can be pursued.

We therefore tabled this probing amendment, which would make any order made under Clauses 152 or 153 subject to public sector directive 2004/18/EC and directive 2007/66/EC, merely to inquire as to the status of the European directives on public procurement that seem to undermine the Government’s intentions in this area. I immediately apologise to the Committee for any confusion that may have been caused by the reference in the amendment to the “Public Sector Equality Directive”. What was meant, of course, was “public sector directive”.

The intention is that public sector authorities should be able to use procurement as an extra tool to secure equality. The amendment seeks to clarify the extent to which the Government have taken the EU directives into account on this issue. I am sure that they have; I merely seek reassurance, which I believe the Minister will give. However, the Committee may find it useful if I explain why this is a complicated area.

Public sector directive 2004/18/EC requires that public contracts are awarded on the basis of only two award criteria: “the most economically advantageous tender” or “the lowest price”. In what way do the Government expect the public procurement provisions to work given these constraints?

Public sector directive 2007/66/EC has provisions within it that state that there must be review procedures, which would include the award of damages to any person who is harmed by an infringement of the specifications of the directive. We therefore have one European directive which states that public procurement can be based only on two very narrow criteria, and one which states that any infringement of this would result in the award of damages to the party that has lost out. Have these directives been taken into account? What is the solution for ensuring that the Government’s objective of equality-based public sector procurement can also occur? I look forward to hearing the response of the Chancellor of the Duchy of Lancaster. I beg to move.

My Lords, Amendment 115B, tabled by the noble Baronesses, Lady Warsi and Lady Morris of Bolton, seeks reassurance that any regulations that impose specific duties on public authorities listed in Schedule 19, which are also contracting authorities in relation to their public procurement activities, will comply with the European legislation that regulates public procurement. I can offer that reassurance.

Any regulations made under Clause 152 would have to be made with the EC directives in mind and any failure to comply with the directives, whether in the specific duties or any other legislation, could result in infraction proceedings. For this reason, it is superfluous to have an express provision in the Bill. Directive 2004/18/EC specifies the procedures that public bodies, known as contracting authorities, have to follow when awarding certain contracts for goods, services and works. Directive 2007/66/EC sets out the remedies that are available to economic operators who think that a contracting authority has breached the provisions of directive 2004/18/EC.

Both directives have been transposed into UK law by the Public Contracts Regulations 2006 and the Public Contracts (Scotland) Regulations 2006. I should like to make it clear that the Government do not propose to use the specific duties to alter either the procedures set out in directive 2004/18/EC or the remedies prescribed in directive 2007/66/EC and that any attempt to put this in the Bill is unnecessary.

The public sector spent approximately £220 billion last year on goods and services. That is a huge amount of money and much of it went to private providers following the public procurement procedures. The public sector has an important opportunity to use its purchasing power to promote equality wherever possible and it has legal obligations under the equality duty to do so. Achieving value for money and delivering wider and improved social outcomes, such as equality objectives, often go hand in hand. The procurement proposal in the Bill makes this relationship clear.

In June 2009, the Government consulted on policy proposals for the specific duties, including proposals relating to public procurement. Last month, the Government published a policy statement in response to the consultation. The policy statement includes proposals for specific duties requiring contracting authorities to consider the use of equality-related award criteria where they relate to the subject matter of the contract and are proportionate, and to consider incorporating equality-related contract conditions where they relate to the performance of the contract and are proportionate.

Both those proposals require any proposed action taken by a contracting authority to be proportionate and to relate to the subject matter of the contract in accordance with public procurement procedures. For example, as part of a major estate renovation scheme and in an attempt to redress the local and national under-representation of women in building trades, a local council could include a contract condition that requires 10 per cent of the person weeks required to complete the works to be delivered by women who have either an apprenticeship, traineeship or employment contract with the contractor or sub-contractor and are engaged in a training programme which is accepted by the employer. The current procurement regulations allow for this contract condition because 10 per cent would be considered proportionate and the proposals in the Bill will not change this.

The Government policy statement also included the proposal that public authorities should, when setting their equality objectives and how they intend to achieve them, set out how they will use their public procurements to help meet their equality objectives. For instance, the evidence collected by an NHS trust might show that a particular section of the community within a diverse area is inadvertently excluded from accessing a service. An equality objective might be to redress this exclusion to ensure the service is offered, as it should be, to all sections of the community. The trust would need to consider how its procurements might help it to achieve this objective. These procurement proposals were subject to extensive consultation and views expressed were mixed. However, there was a general acceptance for the inclusion of equality-related measures that were relevant to the contract and proportionate.

The directives do not undermine the provisions in the Bill and we do not believe that there is a contradiction between award criteria that take into account the most economically advantageous tender and equality; for example, quality is a permitted criteria when deciding the most economically advantageous tender. Quality will be linked to many equality issues, such as whether a service meets the needs of users from all sections of the community.

I believe that the package of proposals that we intend to take forward in regulation is proportionate and appropriate. Again, I confirm that the new proposals comply with the European legislation that regulates public procurement.

Perhaps the Minister will be able to assure the noble Lord, Lord Hunt, that it was because of the brilliance of the noble and learned Lord, Lord Howe of Aberavon, in the European Communities Act 1972 that we made quite sure in this country that even if all of that were not the case, European law in this area would have to be given either direct effect or indirect effect because the Conservative Government at the time produced that admirable mechanism. I mention that only because I know that the noble Lord, Lord Hunt, would like that additional reassurance that his own party has helped, in its most European phase, to achieve the right result.

My Lords, I would certainly endorse that and I pay very warm tribute to everything that the noble and learned Lord, Lord Howe of Aberavon, did in ensuring that we are such a strong partner in the European Community and that we can comply with these directives.

My Lords, I am a little nervous about saying anything, except to point out that the Whip on the legislation was provided by Mr Kenneth Clarke. As I represent the party of Europe, I am particularly pleased that the noble Lord, Lord Lester of Herne Hill, should have singled out praise for my noble and learned friend in the way that he did. But I am not quite sure what relevance that has because I had already been persuaded by the Chancellor of the Duchy of Lancaster that these amendments were surplus to requirements, although I will now carefully study every word that she has spoken. My understanding of these provisions has been increased considerably and her reassurance is very welcome. In those circumstances, I beg leave to withdraw the amendment.

Amendment 115B withdrawn.

Clause 154 agreed.

Clauses 155 and 156 agreed.

Clause 157 : Positive action: general

Amendment 115C

Moved by

115C: Clause 157, page 100, line 11, leave out “which” and insert “provided it”

My Lords, I shall speak also to Amendment 118A and to the group as a whole in a single speech. I should emphasise that we on these Benches strongly support both clauses and oppose any dilution of them, and that both clauses are permissive, not mandatory. My amendment to Clause 157 is probing in nature and not intended to hobble or curtail its scope or effect. The amendment to Clause 158 is intended to state in the Bill, in the interests of legal certainty, what is required by EU equality law; namely, compliance with the principle of proportionality. That would be in accordance with the recommendations made by the Joint Committee on Human Rights at paragraph 289 of its report on the Bill.

Positive action is a necessary element in the concept of equality, as the European Court of Human Rights reaffirmed in the DH and others v Czech Republic case. Article 14 of the convention does not prohibit a member state from treating groups differently in order to correct what it calls “factual inequalities between them”. In some circumstances, a failure to attempt to correct inequality through differential treatment may in itself give rise to a breach of Article 14. That is also true of EU equality law. Article 7 of the framework directive provides that with a view to ensuring,

“full equality in practice, the principle of equal treatment shall not prevent any member state from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds listed in Article 1”.

It recognises that a concept of literal equality is too narrow. In William Blake’s words:

“One Law for the Lion and the Ox is Oppression”.

The relevant Explanatory Notes are important. Both here and throughout, they are expressed with great clarity, for which we should be grateful to their authors. I want to mention that particularly because I have not read Explanatory Notes of this quality before, and although I must not name their authors, I think that if I could do so, I would say that Melanie Field and James Maskell between them have done the most extraordinary job I have ever seen. I hope that future Bill teams will work to that high quality. Paragraph 525 explains that Clause 157 provides that,

“the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim”.

Paragraph 526 explains that:

“The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed”.

To comply with the principle of proportionality, the positive action measure in question must both pursue a legitimate aim and be necessary to achieve that aim. Clause 157(1) relates to the European legal principle that measures must be shown to be necessary and focused on a specific disadvantage, requiring that the person concerned reasonably thinks that paragraphs (a), (b) or (c) apply. Clause 157(2)(a), (b) and (c) define the legitimate aims that may be pursued. I note that the Official Opposition have not tabled any amendments to limit the scope of Clause 157 by substituting “can demonstrate” for “reasonably thinks”, as they have done in the next group in relation to Clause 158, to which I now turn.

It is important to record that paragraph 532 of the Explanatory Notes explains that Clause 158,

“permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the same protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance. The clause does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; each case must be considered on its merits”.

The clause defines recruitment broadly so that, for example, it includes a pupilage or tenancy in a set of barristers’ chambers such as my own. It is intended to allow the maximum extent of flexibility to address disadvantage and underrepresentation where candidates are as good as each other, within the confines of European law. The Explanatory Notes explain in paragraph 535 that the clause is new:

“While current legislation allows employers to undertake a variety of positive action measures, for instance, offering training and encouragement for certain forms of work, it does not allow employers to take any form of positive action at the point of recruitment or promotion. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics”.

This is an important advance on current law. When I helped prepare the sex discrimination and race relations Acts in the mid-1970s, we included narrowly restrictive provisions allowing positive action to be taken to encourage women and members of ethnic minorities to apply for jobs where they were underrepresented, and to provide them with special training. But we were unable to obtain agreement to allow any form of positive action at the point of recruitment or promotion. That was regrettable and is one reason why employers have made insufficient use of the positive action provisions. They may encourage women or ethnic-minority individuals to apply for work where they are underrepresented, such as in the police service, and they may give them special training to equip them for the work, but they may not use underrepresentation as a reason for appointing, say, a woman or a person from an ethnic minority who is as qualified as other candidates in preference to a candidate who does not share the relevant protected characteristic.

As regards my own profession as a barrister, the Equality and Diversity Committee of the Bar Council, in a 2007 response to a government consultation on the Bill, explained why greater and clearer positive action measures are needed under the law. The committee pointed out that the current law limits positive action measures to a greater extent than is permitted by the relevant European directives. Currently, for example, apprenticeships and other on-the-job training schemes cannot be used as positive action measures. It argued for the need for a wider range of “voluntary balancing measures” to be available to organisations and employers. Thinking of the profession of the noble Lord, Lord Hunt, the Law Society in response to the same consultation also indicated that further “balancing measures” are needed. We therefore welcome the changes made in Clause 158 to encourage much greater use of positive action.

The Official Opposition seek, in Amendments 117 and 118, to restrict the scope and effect of Clause 158 and apparently intend to oppose the Question that Clause 158 should stand part of the Bill, even though in the other place they did not seek to remove the clause. It is questionable whether the amendments would make any practical difference other than to cause confusion and limit the effectiveness of Clause 158. It is ironical that they should do so, for it was the Thatcher Government who, in the Fair Employment (Northern Ireland) Act 1989, introduced a far more robust system of positive action to combat discrimination against Catholics and Protestants in the workplace, drawing on the Canadian employment equity approach which incorporated monitoring and affirmative action, but not quotas. The 1989 legislation of the noble Baroness, Lady Thatcher, provided for compulsory religious monitoring by both public sector and private sector employers. It required employers, at least every three years, to review their employment practices and to compare the religious composition of their workforce with available labour in the catchment area. The legislation also provides for affirmative action measures which exclude quotas but include the setting of goals, timetables and outreach measures.

Monitoring covers about 70 per cent of all employees in Northern Ireland and all employments with 11 or more employees. The Equality Commission for Northern Ireland has kindly informed me that the data reveal that substantial progress has been made and that a sizeable body of independent research evidence shows that the legislative provisions and their implementation have been successful in improving employment equality. The Conservative Party may and should claim credit for introducing the 1989 scheme. It is therefore ironical that it now opposes the much narrower provisions of Clause 158, which are entirely permissive and voluntary and subject to the proportionality principle. My amendment seeks to put the proportionality principle explicitly on the face of Clause 158, and I hope that the Government will be able to accept it.

I should add that this group also includes Amendment 119, tabled by the noble Baroness, Lady Knight, which would give blanket permission to discriminate in favour of the over-50s and disabled people without reference to proportionality. That would clearly violate European law. There is of course nothing to prevent more favourable treatment of disabled people; Clause 13 so provides. The positive action provisions in the Bill apply to disability, unlike the Disability Discrimination Act, to permit positive action between different types of disability—for example, permitting an employer to target training at people with learning disabilities, or to target advertising at people with sight impairments. In relation to age, as well as the positive discrimination measures permitted by Clauses 157 and 158, Clause 13 provides that age discrimination is not prohibited where it is a more proportionate means of achieving a legitimate aim.

I am sorry to have taken so long, but I will not make a second speech on those issues.

My Lords, as the noble Lord, Lord Lester, moved into the 10th minute of his speech, I thought to myself that perhaps it would have been a much shorter speech had he been able to hear my explanation of why these amendments have been tabled, and particularly of why we wanted a debate on Clause 158 stand part. It is not to get rid of Clause 158, because we are happy with “positive action”; it is to allow us to raise our concerns about the operation of the clause. I will come to that and I am mindful of all the points that he raised.

Amendments 117 and 118 are designed to change the language of the clause from “as qualified as” to “equally qualified to”. As I have already explained, we raised Clause 158 stand part to allow further discussion about what is a very important clause. We do not like the clause if it is to be used as positive discrimination, but we would be happy with it if it were to be used as “positive action”, as the title suggests. We are concerned that without our amendments the clause will verge towards the former, which we could not agree to.

The first point that I want to raise is that I was under the impression that the Government intended this clause to be about “positive action”. This is made clear not only by the title of the clause itself, but also by the statement made by the Minister for Women and Equality, Harriet Harman, at Second Reading in another place. She presented this clause on that occasion saying that,

“the Bill includes the power to take positive action”,

to change the situation whereby, if an employer,

“is faced with two equally qualified candidates, one a man and one a woman”,

in this example,

“the employer cannot actually say, ‘Right, we've got two equally qualified people for this job, but I'm going to take you, because you're a woman and I want to diversify my management team’”.—[Official Report, Commons, 11/5/09; cols. 557-58.]

It seems clear that the Government agree with us that this clause should be used for a tie-breaker situation between two candidates who are equally qualified. We would very much support the use of positive action in this way. It is clear that there may sometimes be a desire to discriminate in favour of a candidate with one particular characteristic. The example which has been done to death is one where a job vacancy has opened up in a primary school, when all the interviews, checks and tests have been carried out and the two candidates left are equally qualified to do the job. In this presumably rare situation, the employer would then be allowed to choose the male candidate, with the protected characteristic of gender being the factor which gave him the lead over the other candidate, who was equally qualified.

I hope very much that the noble Baroness the Chancellor of the Duchy of Lancaster can confirm the Government's views on this clause. We have heard what Harriet Harman said about it in May in another place. By the time the Bill reached your Lordships' House, however, a different tune was being played. The Minister introduced the clause saying that it,

“allows … but does not compel”,—[Official Report, 15/12/09; col. 1408.]

employers to recruit a person from an underrepresented group in their workforce when choosing between otherwise equal candidates for recruitment or promotion. This seems to give a different emphasis on the clause. My understanding from this statement is that employers would be allowed to make a choice from a pool of candidates rather than select one person in a tie-break situation.

The Explanatory Notes lend a little more credence to this. One of the examples states that, where the police service employs disproportionately low numbers of people from an ethnic-minority background, and where a number of candidates were,

“as qualified as each other”,

preferential selection can be made,

“to a candidate from an ethnic minority background”.

Our fear is that this clause is there to allow, in effect, positive discrimination. It appears that, instead of a clause which allows employers to make decisions based on protected characteristics in a tie-break, this clause is going to be much broader. We need to clarify this. In fact, would it allow employers to make a decision based on a protected characteristic when there is a pool of candidates who are considered all to be above a certain level of qualification and so can be considered as “qualified as each other”? We could not support that. It would be helpful, for the sake of clarity, if the Minister could confirm whether the Government's policy is indeed that this should only be used in a tie-break situation.

Clarity is necessary because the Minister in another place said that we should not worry because Clause 158(4)(b) prevented any kind of “policy” decision. In other words, this would mean that a company could not have a policy of favouring groups who shared a protected characteristic. I wonder whether this fits with the Government's seeming change of heart about whether this provision should relate to a tie-break or pool situation. The example given in the Explanatory Notes about the police recruiting ethnic minorities seems to show instead what I would have assumed subsection (4)(b) was designed to prevent. Therefore I look to the noble Baroness the Chancellor of the Duchy of Lancaster to clarify that for us. Does subsection (4)(b) prevent a blanket policy—a policy in relation to all recruitment drives—but allow a general policy in relation to one appointment?

To put it another way, is it the Government's intention that a company should be able to say, “We have not employed many of this particular section of people recently”, then advertise a job, interview people from all backgrounds but, when it has found a pool of 20 candidates with the relevant qualifications and skills, to pick the candidate representing what it believes to be an unrepresented class of people over the others? We welcome the commitment to positive action, but this is not the clause we felt we were welcoming when it was first introduced in another place. We are now looking for some reassurance.

We believe that a clause which allows a decision to be made on a protected characteristic for a legitimate reason is very sensible and gives employers a reasonable freedom. If, however, the policy is broadened so that it is likened to positive discrimination, then it will do more damage than good to the cause of equality in a society which believes also very firmly in a meritocracy.

We have seen that many of the business organisations agree with the principle of this clause, but they need essential clarity to allow it to operate effectively. The CBI, for example, has told us that it welcomes the intention, but feels the clause is poorly drafted. It is uncertain how it will work in practice. It calls it a tie break. It would be helpful if the Minister could address that point directly in her remarks. The British Retail Consortium also supports the clause, saying that,

“businesses should be supported to address under-representation in their workforces”.

However, it believes that,

“it is imperative that legislation and accompanying guidance is clear on how this should be done to ensure employers do not end up falling foul of the law”.

The British Chambers of Commerce agree with this point, saying that the language is too confusing. The Bill uses “as qualified”, but the Solicitor-General uses “equally acceptable”. To be consistent with European law, we believe that we should use “equally qualified”, as the amendment does. They also think that the situation the Government are trying to describe is one where there are two equally qualified candidates. We are looking to the Minister to make this entirely clear in her response. I hope also that she will agree that, for the sake of clarity and the correct use of the provision in the Bill, it is possible to accept our amendments. I also await with interest her response to the amendments tabled by the noble Lord, Lord Lester. He has explained that they are to clarify the use of this procedure and ensure that it is used only in the correct specific circumstances, namely when it is a,

“proportionate means of achieving a legitimate aim”,

concerning positive action regarding those with a protected characteristic which might otherwise disadvantage them. However, the most important area to clarify is that which we have raised—namely, the need to make absolutely clear that positive action can apply only in a tie break.

I shall mention the amendment tabled by my noble friend Lady Knight, who sadly is unable to be with us. It raises an interesting issue. We would hope that nothing in this Bill would prevent those over 50 or who are disabled from being integrated into the workforce to address discrimination against these groups, if they were the suitable candidates for the job. However, we cannot support positive discrimination, so this must happen only when a tie break has occurred and two people who are equally qualified have been identified. It is only at this point that a selection on the basis of a protected characteristic should be made.

My Lords, Clause 157 begins with the same phrase as Clause 158, “reasonably thinks that”. The noble Lord, Lord Hunt, does not quarrel with those words in Clause 157, so why does he quarrel with them in Clause 158? The wording must be “reasonably thinks” because it is very difficult to demonstrate that the employer has all the facts and reasons, and I am not always convinced that things are as transparent and clear to the person being interviewed. If you have reason to believe that you have been discriminated against, that is all that you require. Then it is for the employer to demonstrate that they have not done that. I should rather put it that way round than require the person who “reasonably thinks” that they have been discriminated against to demonstrate it. For those reasons, I do not think that the words in Clause 158 should be changed, as they are not being asked to be changed in Clause 157.

The noble Lord, Lord Lester, wants to change the words from,

“which is a proportionate means of achieving the aim”,


“provided it is a proportionate means of achieving the aim”.

I want to continue probing on the noble Lord’s behalf. The proviso he provides would save us a lot of bother in future. The words “which is” are slightly weaker. Many people whom I have dealt with genuinely believe that they have been discriminated against and have gone through the tribunal and all kinds of different things and still think that they are being discriminated against. You then realise that what they want to do is not proportionate. If there had been a proviso right at the beginning, there is a chance that it would have concentrated the mind. I support the noble Lord’s change to “provided it”, because it subtly asks whether a person really has grounds and whether it is so proportionate that it will achieve their aims and objectives. The noble Lord and I know of many cases which we have pursued and have been taken all around but which have achieved nothing. I want the noble Lord’s probing amendment to be more than probing and to be inserted, because it says it better that simply “which is”.

We have already meandered from Clause 157 to Clause 158. I prefer the phrase “as qualified as”, because “equally qualified to” is mathematical. How would you measure it? How will someone know that I am equally as qualified? I sit in your Lordships’ House, and I do not think that I am equally qualified as some of your Lordships. It is better simply to say “as qualified as”. It is more humbling and more genuine, so I shall stick with that phrase.

Finally, on “to be recruited or promoted”, I do not understand why that should be narrowed. I would rather have both. Of course, some people always worry that positive action means positive discrimination, but the word discrimination can be used in two different ways. In the Latin as well as the Greek, discrimination is the same word as discernment. I understand in this sense that positive action and promotion or recruitment means that it is discerning, not simply leaving someone out. I should rather use the same phrase—which for me is not positive discrimination but positive discernment. Unfortunately, some people do not discern that. I would not quarrel with the drafting as it is, except to say that “provided it is proportionate” is a much stronger way in which to put it.

My Lords, before I address Amendments 115C and 118A, tabled by the noble Lord, Lord Lester, Amendments 117 and 118 in the names of the noble Baronesses, Lady Warsi and Lady Morris, and Amendment 119 from the noble Baroness, Lady Knight of Collingtree, it might help the House if I explain the Bill’s positive action provisions.

Clause 157 builds on and simplifies the current legislative framework for positive action. For the first time, these provisions will be extended to cover all protected characteristics and will apply to them all in exactly the same way. As long as the relevant criteria are met, these provisions can be used to address disadvantage, encourage participation where people with a particular protected characteristic are underrepresented, or meet particular needs. For example, a construction firm wishing to diversify its male-dominated workforce could add a statement to its job advertisement inviting women to apply.

Clause 158 enables employers to take targeted action with regard to recruitment and promotion. This will assist employers to address underrepresentation and disadvantage, fill skills gaps, and create a more diverse workforce. The decision to extend the existing, more limited, provisions has been welcomed by businesses as a beneficial move. Any use of these provisions remains entirely voluntary; it is not a mandatory requirement. However, to ensure that employers do not misuse these voluntary measures, Clause 158(4) ensures that employers cannot adopt a blanket policy of favouring candidates simply because they have a protected characteristic and are disadvantaged or underrepresented. Each case must be considered on its merits.

Clause 158 does not permit positive discrimination, nor is it contrary to the “merit principle”. It simply allows an employer, when faced with two candidates who are as qualified as each other to carry out a specific job, to use the desirability of widening the diversity of the workforce as the criterion for choosing between them. I reassure the noble Lord, Lord Hunt, that my emphasis is no different from that expressed by my right honourable friend Harriet Harman in another place: there has been no change of heart. I am grateful to the most reverend Primate for his very reasonable support for these clauses.

Before I turn in detail to the various amendments, I thank the noble Lord, Lord Lester, both for raising the important issue of proportionality in relation to positive action and for his insightful comments on the importance of positive action more generally.

Amendment 115C would substitute “which” with “provided it”, so that the clause would permit positive action provided it is a proportionate means of addressing disadvantage, meeting different needs or reducing underrepresentation. I completely agree with the noble Lord: we would not want the provision to permit action which is disproportionate, or to allow employers or service providers to misuse positive action measures in any way. However, to the great disappointment of the most reverend Primate, I can assure the noble Lord that Clause 157 as drafted will not allow positive action in any circumstances where it is not proportionate. Accordingly, replacing “which” with the alternative suggestion would have no impact on the intent or effect of this provision. Therefore, I urge the noble Lord to withdraw his amendment.

Amendment 118A would make it explicit that any positive action measure taken in recruitment and promotion under Clause 158 has to be a proportionate means of achieving the aims set out in subsection (2) —helping people overcome a disadvantage or participate in an activity. While we consider that Clause 158 as drafted already implicitly embodies a requirement for proportionality, I accept that there are benefits to making proportionality an explicit requirement: it would make clearer what this clause is about, allowing employers to take positive action where proportionate, and also better reflect the terminology used in Clause 157, where proportionality is already explicit. I am therefore content to accept Amendment 118A.

Amendment 117 would change the present wording of the provisions in Clause 158(4)(a) from “as qualified as” to “equally qualified to”. Amendment 118 seeks to delete “to be recruited or promoted” from the qualification criteria. We believe these amendments are misconceived and we will therefore resist them.

It has been claimed that Clause 158 would allow employers to set an artificially low qualification threshold for a job to enable them to gerrymander the selection of the successful candidate—the idea that the pass mark is set so low that almost everyone will make the grade, in the hope that at least one candidate has a targeted protected characteristic. Clause 158 does not permit an employer to recruit or promote a candidate who is less qualified than another just because the employer wants to address disadvantage or underrepresentation—in any event, this would make no business sense. Where the assessment process, in whatever form it takes, evaluates one candidate as having scored, say, 95 per cent and another 61 per cent, those candidates cannot be considered as being as qualified as each other to undertake the job. It is immaterial whether the pass mark was set at 60 per cent, 50 per cent or 40 per cent; the clearly superior candidate must always be offered the job. We are confident that the clause as drafted achieves that effect.

We consider that the amendments could have the effect of leading employers to interpret the clause too narrowly by considering the provisions as being solely about the equality of qualifications per se. An employer might misinterpret such wording as a requirement that candidates should have identical qualifications, whereas the provision is designed to be available where both candidates have demonstrated that they have met the employer’s particular requirements for the post to a comparable standard. Any assessment of candidates’ suitability will depend on a number of factors relevant to the job in question, such as experience, aptitude, physical ability, or performance during an interview or assessment. Formal qualifications are only one way in which a candidate’s overall suitability may be assessed.

The impact of such a misinterpretation could be that employers will be reluctant to use the provision unless they have a situation in which candidates have absolutely identical qualifications, or identical scores if a scoring system is part of the assessment process, rather than looking at the respective ability and suitability of each candidate in the round. This would limit the scope for delivering real equality outcomes for women particularly, people from ethnic minority communities and disabled people, for example, who still experience disadvantage and underrepresentation in the labour market. For those reasons, I urge the noble Lord not to press the amendment.

I will briefly mention Amendment 119, tabled by the noble Baroness, Lady Knight of Collingtree, which would appear to permit any action intended to increase the participation of people aged over 50 and disabled people in the labour market. This amendment is unnecessary. The noble Lord, Lord Lester, helpfully explained how the disability and age discrimination provisions in the Bill permit a wider range of differential treatment than is available for the other protected characteristics. In addition, this Government have done much to increase the labour market participation of people aged over 50 and disabled people through targeted programmes such as the Flexible New Deal, which provides tailored help for jobless people of all ages, including those aged 50 and over. I therefore suggest that the noble Baroness’s amendment is superfluous, but I also ask the noble Lord to withdraw his amendment.

My Lords, I am extremely grateful to everyone who has taken part in this debate, particularly to the most reverend Primate the Archbishop of York for his contribution. When I listen to him on the subject of discrimination, I always feel that he speaks not only as a very distinguished archbishop, but as a human being who understands exactly what the problems of discrimination are, and looks at these issues not as a lawyer but in a common-sense way to make the law work in practice.

I am only a lawyer, but I have experience within my chambers as a small employer; I doubt we employ more than about 30 people, with probably not more than 75 barristers. We have a different kind of experience, because we are constantly seeking to choose pupils and tenants on the basis of individual merit. I have discussed these provisions of the Bill with the diversity team in my chambers, and they are happy to work within that framework. I have been persuaded by what the Minister has said that proportionality is already fully within Clause 157, and that my words add nothing—although I am very grateful that the most reverend Primate prefers them to those already there. It is not for me to second guess parliamentary counsel, once I am satisfied that the substance is there.

I am very grateful indeed that proportionality has been written into Clause 158 by the Minister indicating that she will accept Amendment 118A. The most reverend Primate was also talking about “reasonably thinks”. I think that is in the next group of amendments, so although I agree with him, we will come back to that later. I share the view of the Minister and the Government about the other amendments. This is, therefore, an opportune moment for me to withdraw the amendment.

Amendment 115C withdrawn.

House resumed. Committee to begin again not before the completion of Committee stage of the Terrorist Asset-Freezing (Temporary Provisions) Bill.