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Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011

Volume 726: debated on Tuesday 29 March 2011

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011.

Relevant document: Report from the Joint Committee on Statutory Instruments.

My Lords, I am delighted to be leading this debate, and to have this opportunity to explain the Government’s approach to this legislation.

The main purpose of this order is to add a number of additional public bodies to the lists in Schedule 19 to the Equality Act 2010, so as to make those bodies subject to the public sector equality duty. Schedule 1 to the order sets out those public bodies we propose to add to Part 1 of Schedule 19, covering general public authorities; Schedule 2 adds a new Part 4 to Schedule 19, relating to cross-border Welsh authorities.

Any organisation performing a public function is subject to the equality duty in respect of that function, but listing bodies in Schedule 19 serves two useful purposes. First, it makes absolutely clear that the body named is subject to the general equality duty, and in regard to which of its functions—in some cases this will not be all of them. Secondly, it enables the Secretary of State to impose specific duties on those bodies, to enable the better performance of the general duty. Only bodies listed in Schedule 19 can be made subject to the specific duties.

Schedule 19 to the Act, as it currently stands, lists broad categories of public bodies which are subject to the equality duty, including central government departments, local authorities, the Armed Forces, and the key health, education, policing and transport bodies. In total, around 27,000 public bodies are covered by these categories. This order adds a number of additional bodies to that schedule. I would like to explain briefly how we arrived at this final list.

The Government’s broad criteria for listing bodies for the equality duty were set out in our consultation document in August 2010. Our intention is to list public bodies which deliver public services, are responsible for regulating or inspecting the delivery of those services, or otherwise influence the way in which those services are delivered. The consultation included a draft list for comments. The Government’s broad criteria met with general approval. However, a number of respondees, and particularly the Equality and Human Rights Commission, suggested additions to that draft list.

My officials and lawyers have considered every one of those suggestions, and met with the EHRC to discuss them in detail. As a result of those discussions, a number of bodies have been added to the final list. I will quickly run through those bodies: the General Medical Council; the General Dental Council; the General Chiropractic Council; the Nursing and Midwifery Council; the Children and Family Court Advisory and Support Service; the Homes and Communities Agency; the Higher Education Funding Council for England; the Student Loans Company; the Legal Services Board; the Judicial Appointments Commission; and the NHS Business Services Authority.

Where we did not accept the recommendations of the EHRC or other respondees to our consultation, one of a number of reasons applied. First, in some cases they suggested bodies which are in fact already covered by the broad criteria in Schedule 19. For example, Ofsted and the Charity Commission for England and Wales were suggested, but these are technically non-ministerial government departments, and so fall under the listing for all government departments. Secondly, some bodies were suggested whose influence on equality outcomes we doubted—for example, the Inland Waterways Association. Thirdly, and most importantly, some bodies were suggested which we could not say with confidence perform public functions as defined in the Human Rights Act 1998. This is a necessary criterion for bodies to be listed. While there is no absolute definition as to what constitutes a public function for the purposes of the Human Rights Act, in the case of YL v Birmingham City Council in 2007 the House of Lords adopted a narrow approach when addressing this question.

On this basis, my legal advice was that I could not confidently say that certain bodies met the necessary criteria. These include some museums and heritage organisations; some research and advisory organisations, particularly ones where Ministers make the final decisions; and some trade promotion organisations, such as the British Wool Marketing Board. These types of organisation have therefore not been listed. My officials explained to the EHRC which of these reasons applied to which organisations, and I would be happy to discuss individual cases, although I am obviously keen that we do not get bogged down in lengthy debate about each and every organisation this evening.

I must stress that we will keep the list under review. We plan to add certain additional bodies to it through primary legislation, such as we are doing with GP consortia in the Health and Social Care Bill, and it would be possible to make another order such as this at some point in the future. If there are convincing legal arguments that a particular body not listed exercises public functions and has a significant impact on equality issues, I would be happy to consider them.

Moving on, the order also makes a small number of consequential and supplementary amendments to the Equality Act 2010 and other legislation. The purpose and effect of these amendments are explained in detail in the Explanatory Memorandum for the Joint Committee on Statutory Instruments. In summary, though, the overall purpose of the consequential amendments is to ensure that the amended legislation is up to date and works correctly in relation to the Act. There are four such amendments in Articles 3 to 5 of the order. The first is to Schedule 26 to the Act itself, which deals with amendments to other legislation. This amendment simply ensures that the definition of “disabled person” in the Housing (Scotland) Act 2006 refers to the Act instead of the Disability Discrimination Act 1995, which has been repealed.

The second amendment is to Schedule 27 to the Act, which sets out repeals and revocations of other legislation. This amendment adds two new Parts to the legislation, reflecting repeals and revocations of other legislation that are consequential on the repeal of the race duty under the Race Relations Act 1976, which will happen when the new equality duty comes into force.

The third amendment is to the Nationality, Immigration and Asylum Act 2002. This amendment removes redundant cross-references. The fourth is to the School Standards and Framework Act 1998. This amendment requires school adjudicators, when taking decisions, to have regard to the obligations owed by local authorities and school governing bodies under Section 149 of the Act in relation to all the protected characteristics under the Act—not just race, as is the present position.

The overall purpose of the three supplementary amendments in Articles 6 and 7 of the order is to correct inadvertent omissions or drafting errors and ensure that the Act’s provisions work as intended. The first amendment is to paragraph 20(1)(b) of Schedule 8 to the Act. This amendment puts right an incorrect technical reference relating to cases where a reasonable lack of knowledge of a person’s disability would mean that the duty to make reasonable adjustments did not apply.

The second amendment is to paragraph 14(4) of Schedule 17 to the Act. The Act misdescribes the arrangements for appeals to be made in respect of exclusions of disabled schoolchildren. This amendment corrects the wording in relation to appeal arrangements for exclusions to reflect the actual arrangements in England and Wales respectively where the pupil, the parent or both may bring an appeal, depending on the pupil’s age.

The third amendment is to Section 27(1) of the Equality Act 2006. This provides that the Equality and Human Rights Commission can make arrangements for the provision of conciliation services in respect of proceedings under Section 116 of the Act about disabled pupils in schools. This was the previous position, which was intended to be carried over into the Act. I commend the draft order to the Committee.

My Lords, I welcome the order introduced by my noble friend. It clarifies the responsibilities of public bodies in successfully delivering the equality duty. It may well be that more will need to be added to the 27,000 now listed, but that can be done with new orders.

I have a general query about the distinction now being drawn between the general duty and the specific duties. The general duty will come into effect very shortly, on 5 April. In terms of the specific duties, though, a second consultation has been undertaken with a closing date of 21 April.

The specific duty relates to what information public bodies are required to gather and to publish. We do not want to over-bureaucratise public bodies, but some of the changes that are being proposed need to be looked at very closely because, as I understand it, the key differences in the new draft regulations from those published following the previous consultation are the removal of the requirements on public bodies to publish the details of the engagement that they have undertaken when determining their policies and equality objectives; the equality analysis that they have undertaken in reaching their policy decisions, and the information they have considered when undertaking such analysis.

As I understand it, it is expected that there will be challenge from the public to public bodies and that that challenge will be the key means of holding public bodies to account for their performance on equality, and that mechanisms are being developed to support organisations and individuals to effectively challenge public bodies to ensure that they publish the right information and deliver the right results.

I do not understand how the public will be enabled to challenge unless the public are clear what engagement a public body has undertaken when determining policies and equality objectives; what equality analysis it has undertaken in reaching its policy decisions; and what information it has considered when undertaking such analysis. In other words, will the public have the information they need to be able to challenge public bodies effectively?

I hope in the course of the consultation that is now being undertaken and in the next stages of the specific duties being finalised, that there will be greater clarity produced as to what it is the public will have a right to expect to enable them to challenge the equality duty being delivered by those public bodies.

My Lords, I rise not to oppose these regulations, but to put down a few markers and raise one or two questions. I am glad that my noble friend is at the Dispatch Box, not only because I have a great admiration for her, but because I can be sure that she will pass on my concerns. There may not be many to hear them today, but I can rely on her to see that others hear about them.

The point about these regulations, so far as I am concerned, is that they herald very much more significant regulations and developments which are in the offing, namely, the commencement of Section 149 of the Equality Act and the implementation of the Equality Act draft specific duties regulations. In my view the coalition should be congratulated on scrapping the provisions in the Equality Act, which placed a duty on all public bodies at all times to take account of the inequalities of outcome that result from socioeconomic disadvantage. In promoting equality of opportunity, one is trying to extend the freedom of people to make the most of their talents: promoting equality of outcome means allowing the state to try by rules, regulations and bureaucratic means to iron out differences in performance so that endeavour and achievement are not rewarded. I would have thought that that is the last thing that one could possibly want in a free society. The Home Secretary was entirely right to point out in a speech that while people expect fairness, there should be no seeking a world where everyone gets the same out of life regardless of what they put in. Most people were really pleased to hear her say that the Government are moving away from equality of outcome to equality of opportunity.

The question is: how does what the Home Secretary has said fit in with what is in store for us? And, how much mischief by local authorities and public authorities will be encouraged by the implementation of Section 149 and the Equality Act’s specific duties regulations?

I accept that much has been done in the most recent version of the specific duties regulations to reduce bureaucracy, but the regulations will still require public authorities to publish equality objectives which are specific and measurable—and that means, in plain English, targets. They will require them to gather information to show that they are complying with those targets. That sounds to me very much more like equality of outcome as an approach than the one that the Secretary of State says that she now espouses.

What is clear, though, is that Section 149 and the regulations place extra burdens on local authorities and other bodies, and present local authorities in particular with new distractions when they should be concentrating on providing basic services. I should like to know how local authorities are going to meet the cost of the new duties. Is it not a pound to a penny that some authorities will continue cutting important services and then blame the Government for having placed new burdens on them?

Of course there are far wider issues than cost involved, and we can explore those in detail when the regulations on the specific duties are debated. Once again, however, the emphasis is being put on equality when public authorities have already behaved in the most monstrous way in the name of equality, putting the most bizarre limits on the freedom of citizens of this country. I need only cite the preposterous case of the council trying to strip a care home of council funding because the people running it did not want to keep asking their elderly residents about their sexual orientation, and the scandalous case of the nurse suspended for offering to pray for a patient. I fear that all this setting of equality objectives threatens to accelerate the marginalisation that Christians are already experiencing. We can be sure of one thing: Christians and their treatment will not be monitored to see that they are getting a fair deal.

I would have thought that we could all agree that we should be tolerant of the views of others. In recent years, though, we as a society seem to have passed through the stage of tolerance, giving it but a casual nod, and instead rights are everything. Rights must be enforced, however trivial has been the breach of a right, and however easy and painless it would have been to have left the right unenforced out of respect for the views of others. There are many here who know the sort of case that I am referring to. In short, this obsession with rights and equality has driven tolerance out of the door and bred in its place intolerance, injustice and unfairness. Now, with the report to the Equalities and Human Rights Commission recommending that children of 11 should be asked if they are gay, it threatens the very rights of both parents and children. Surely it is time that we stepped back and asked ourselves some very serious questions about where we are going. It is certainly time that we made sure that in legislation there is protection for those with deeply held religious beliefs and who want no more than to be able to continue to follow tenets of their religion that only a very few years ago virtually all of us accepted as wholly unexceptionable. I therefore ask my noble friend to recognise that there is great concern about all these regulations. She must expect a few fireworks when the more fundamental regulations come before the House.

My Lords, I thank the Minister for her detailed explanation of the draft order, which applies to a number of public bodies in the list in Schedule 19 to the Equality Act 2010. We will be happy to support the order.

I was interested in the remarks of the noble Lord, Lord Waddington. He has certainly livened up what is sometimes a rather dull affair in Grand Committee. He will not be surprised to hear that I do not really agree with the general thrust of his arguments; in general, I am proud of what we achieved in equality legislation. I agree that one would like to enhance people’s minds; that is a preferable approach. However, legislation sometimes needs to underpin desirable changes, and this legislation is very important.

Sometimes, of course, there is excessive zeal, sometimes there are instances where people have made mistaken judgments and it is fair to raise those issues, but overall this legislation has proved to be effective, though I look forward to a comprehensive response by the noble Baroness to her noble friend’s questions on this point. I, too, have one or two questions about the order. First, where is the Office for Budget Responsibility? Why is that not listed? I understand that it is considered to be a legal entity and since it seems to have unparalleled influence, it would be useful to know whether her department intends to put it on the list. Will she also say something about the Criminal Cases Review Commission?

I want to come on to discuss the Public Bodies Bill because I am very puzzled about some of the organisations listed in the schedule. We have spent hours and days debating the Public Bodies Bill, sponsored by the Cabinet Office, which gives Ministers the power to abolish or change the function, governance and finance of organisations. It is a remarkable Bill, which is now smaller than when it started, which is very unusual for your Lordships’ House. I see the Youth Justice Board listed in Schedule 1. It is true that last night we voted to retain the Youth Justice Board, but my understanding is that it was the Government’s intention to abolish it, so why is it in Schedule 1? Where I agree with the noble Lord, Lord Waddington, is that, if it is listed, presumably its duty is to go through the responsibilities contained in the Act.

I am hopeful that the Government will accept your Lordships’ view on the Youth Justice Board, but let us say that they do not, that they reverse it on ping-pong and that eventually that is accepted. The Youth Justice Board is going out of business, but in this order, we are placing responsibilities on it. That seems to me to be a bit of a puzzle. I then come to “A Primary Care Trust ...” In the other place there is NHS legislation abolishing primary care trusts. These bodies which face going out of business are none the less having duties placed upon them as a result of the order.

The Audit Commission is going to be abolished, not in the Public Bodies Bill, but by separate legislation: again, it is listed in this order. On page 7, police authorities are listed. Shortly, after the Easter break, we will be having Second Reading of the Police Reform and Social Responsibility Bill, abolishing police authorities. I thought that the Government were trying to reduce regulation. Why are these bodies listed? As I see it, if we are going ahead with this appalling decision to have elected police commissioners, politicising the police force and abolishing police authorities, why are they listed in the order?

I come to the bodies that are listed in the Public Bodies Bill whose functions are to be transferred to charities or trusts. The noble Baroness mentioned the Inland Waterways Association. I can see why she says that that should not be covered, but what about the British Waterways Board? That will, as I understand it, cease to be a public body and become a trust. The question is whether the equality duty ought to transfer to the trust. I think it ought to do so and I would be grateful for her views on that.

The noble Baroness mentioned GP consortia. As this is part of the NHS Bill, I ought to declare an interest as chair of Heart of England foundation trust and as a policy consultant and trainer to Cumberlege Connections in relation to the health service. I know the Government have now said—the noble Baroness has now repeated the comments of her honourable friend in another place—that in the event of the Health and Social Care Bill becoming law GP consortia will be added. That of course is very welcome, but shadow consortia are in fact being set up at the moment, and, as I understand it, starting to make decisions in relation to commissioning. Could she consider adding consortia as soon as possible, assuming the legislation goes through?

Finally, I come back to the issue of police reform. My understanding is that if the Police Reform and Social Responsibility Bill is passed in its current shape, the responsibilities which apply to the police authorities listed here will transfer to chief constables and the Commissioner of the Metropolitan Police, including the employment of police staff. Can the noble Baroness give me some assurance, assuming that this Bill becomes an Act, that this responsibility would be transferred to police commissioners and the Commissioner of the Police of the Metropolis?

I thank noble Lords for their warm welcome to the order and for a very good and reasoned debate. As noble Lords will know, when the Equality Bill was going through your Lordships’ House, it really did generate common consensus across the House. It was something that we all signed up to.

The first point that my noble friend Lord Shipley raised was about the opportunity for the public to challenge if they feel they are not able to get a positive response. We have to make sure that there are enough processes and systems in place, and we are working on that at the moment through making sure that local authorities will be able to give advice to individuals on how to get information if they feel they are not being heard. There will be much broader consultation on that, and I hope that in that process the noble Lord will allow me to write to him and other noble Lords about the way we are taking this forward so that we know that individual citizens are empowered. That, basically, is what the Government are trying to do: to draw back from a process-driven way of working to a point where the ordinary citizen feels that he or she is able to go and question what is being applied in their name.

The noble Lord, Lord Hunt, referred to the new police and crime commissioners. They will be listed through the Police Reform and Social Responsibility Bill. The reference is currently in paragraph 135 of Schedule 16 to that Bill, so it will follow through. The Office for Budget Responsibility has been listed through the Act that created it, so that is already there as well. The Criminal Cases Review Commission is not listed for the existing race or gender duties; we considered it but we were not convinced that it had sufficient impact on the equality list that we have at the moment. Police authorities are listed, and will remain so until the new police and crime commissioners are established.

To answer my noble friend Lord Shipley, public bodies will need to give reasons under their decisions, and guidance will come from the EHRC on how individuals will be able to utilise their powers to challenge local authorities. A body of case law has developed under the existing duties, and the EHRC’s guidance and copy of this practice will be able to reflect that.

I say to my noble friend Lord Waddington that the equality duty applies to protecting the characteristics of religion and/or belief. I agree with the noble Lord that we must not get to a place where some citizens feel that they are not part and parcel of the society that we live in and that they cannot freely practise their form of belief or religion, as long as it does not have a negative impact on those around them. I will take back the points that he raised; he is not the only one who has raised them, and they are real concerns. It is important that we take away differing views—some of us may not agree with all of them—so that we can ensure that everyone is signed in to the equal opportunities agenda, which is very much what my right honourable friend the Home Secretary is trying to do. We must move away from the process-driven place that we have developed.

I for one have seen legislation that has responded to the needs of people like me who had to fight very hard to ensure that discrimination was a thing of the past. However, I do not want to be part of a process that adds bureaucracy and adds to the burdens of local authorities and organisations so that, instead of them developing and being responsible for what they are delivering, we add to a process that often segregates and creates divisions. That is something that all of us here would sign up to.

In answer to the noble Lord, Lord Shipley—my answers are random because I am receiving briefing notes from the Box—the Government’s Equalities Office is currently developing a toolkit to help citizens, volunteers and third sector bodies and to hold public bodies to account. I am sure that we will still have a part to play in the process of developing those tools. Debate is incredibly important for this issue, because it is something that everyone has to be fully committed and signed up to.

The noble Lord raised the issue of the relationship of the general equalities duty to the specific equalities duty. We must make sure that the support of the specific duties over the general duties is there through the specific duties. That is the only way that we are going to be able to measure whether public bodies are responding. We want them to be able to respond to their own local community needs rather than for us to superimpose from the centre what we think local communities actually need. I am sure that the socioeconomic duty would have placed a great burden on local authorities. This way, we are tying to make them responsive to the local communities that they are servicing. Hopefully, when they take that responsibility, they will see the challenge and be able to respond accordingly without having to think that there are boxes to be ticked, which often reflect only parts of an individual’s needs, in contrast to the holistic approach that local authorities and local public organisations should be taking on board.

The noble Lord, Lord Hunt, talked about some of the bodies on the list. While they are in the transitional period, they need to be able to respond and to be certain that they are adhering to the equality duties that are set out in the Act.

Let us take primary care trusts as an example, which face abolition. Already clusters are being created. Staff are haemorrhaging; one can understand that. Unless I have misread the order and the listing in Schedule 1—some of those bodies are not new and have already been listed, but some are being listed for the first time—it seems to be extraordinary that poor PCTs are presumably going to get a guidance from the Department of Health saying, “You are now listed. Your job is to implement the equality requirements”, at the same time as they are going out of business. I do not know why they are being asked to do this.

My Lords, while inspiration flies in from behind me, I assure the noble Lord, Lord Hunt, that there will still be a transitional period during which PCTs cannot abdicate their duty to meet those requirements. The noble Lord will take on board that there are always transitional bodies.

I am sorry to belabour this point. PCTs are being merged into clusters. They have virtually gone as entities so the morale among people working in them is very low. To have a note from the Department of Health saying, “Despite all that, you now have to implement this”, does not seem to be sensible or consistent with what the Government are saying about regulation. I simply do not understand it.

My Lords, since inspiration has just arrived, my note tells me clearly that PCTs are already listed for the existing duties, so this is no great extra burden while they are still in existence. In fact the burden will be reduced because we are taking it away from being a process-driven requirement to being one where PCTs, like all other listed bodies, will be responding to the specific and general duties within the Equality Act 2010. I feel that the noble Lord is not overly satisfied but I commend this order to the Committee.

Motion agreed.

Committee adjourned at 6.21 pm.