Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

The clause sets out the first of the core duties of the new commission. The aim is to ensure that the Commission for Equality and Human Rights is fit for purpose for modern Britain and to provide the commission with flexibility and responsiveness, while making clear its unique duties under the equality enactments. One of the key reasons for establishing the commission was the need to deliver institutional arrangements capable of responding to the challenges of future years. Already, our existing system has reached the limits of what it can achieve. We have three commissions for three areas of equality law: disability, gender and race. However, there is nothing for other areas of equality law: sexual orientation, age—when that is enacted—and religion or belief.

We have a more sophisticated understanding of concepts such as equality and diversity today. By equality, we mean equal treatment or opportunity for two people who can be compared on grounds of, say, race or gender. Diversity, on the other hand, borrows from human rights principles. It recognises the sometimes unique needs of individuals and when fair opportunity or treatment cannot be determined through comparison with another individual. We   believe that both equality and diversity have a legitimate place in the range of duties of the Commission for Equality and Human Rights.

In requiring the new commission to promote equality and diversity, in subsection (1)(a), and to

“encourage good practice in relation to equality and diversity”,

in subsection (1)(b), we have provided it with the scope to address and respond to new or emerging equality or diversity issues. Equality and diversity, in that respect, are not defined with reference to existing discrimination statutes, but can include areas not yet regulated by statute.

The commission is also required to promote equality of opportunity. The duty in subsection (1)(c) reflects the provisions in existing anti-discrimination legislation and particularly the public sector duties. It is not limited to the six equality strands and, together with the equality and diversity elements of the clause, it will enable the commission to encourage good practice in specific areas where legislation does not render practices unlawful. For example, it may promote equal treatment for all, regardless of sexual orientation, in the provision of goods, facilities and services.

Subsection (1)(d) places a duty on the commission to raise awareness and promote understanding of the provisions of the equality enactments and, in particular, of the rights available to individuals under them. In that way, the commission will be able to provide information and advice through a variety of media to individuals and organisations.

Subsection (1)(e) places a duty on the CEHR to use its unique enforcement mechanisms to encourage the equality enactments. Elsewhere in the Bill, we have provided the commission with a more flexible range of powers than are available to the existing commissions in order to enable it to carry out its enforcement duties. The commission is required to work towards eliminating unlawful discrimination, under subsection (1)(f), and unlawful harassment, under subsection (1)(g), as defined in the equality enactments.

Subsection (2) defines terms used in the clause. Of particular note are the definitions of diversity and equality. Diversity means recognising that each individual is different and that specific action may be required to achieve equality. Equality, on the other hand, means recognising that groups of individuals may experience different treatment when compared with other individuals because of particular attributes that they have and that this comparison may define the action necessary to achieve equality.

Subsection (3) provides that the commission may

“promote the favourable treatment of disabled persons.”

That recognises that the Disability Discrimination Act 1995 is alone among our anti-discrimination laws in that it requires action to be taken for disabled people in order to tackle inequality. It requires bodies to make reasonable adjustments. Subsection (4) defines the term “disabled person” for the purposes of part 1 of the Bill by referring to the definition of disability in part 1 of the Disability Discrimination Act.

Taken together, the provisions of the clause set out one of the core duties of the Commission for Equality and Human Rights: to drive efforts to ensure equality and diversity are embedded in the fabric of our workplaces, our economy and our communities.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

I thank the Minister for explaining the purpose of the clause. I have some questions that go to the crux of the matter, as the commission’s duties regarding equality and diversity are what the Bill is all about. There are some nuances that might simply be a matter of interpretation, but which might highlight the difference between the Government and the Opposition on the basic purpose of the Bill. Before we give the clause our full support, I want to ensure that any difference is of nuance only, rather than of principle.

Will the Minister give more explanation about subsection (1), particularly in relation to paragraph (b), which provides that:

“The Commission shall, by exercising the powers conferred by this Part ... encourage good practice in relation to equality and diversity”.

What does “encourage good practice” mean? It is rather a vague term, and I do not want the Bill to pass into law in a vague form. We are charged with the duty of passing legislation, and I firmly believe that legislation should never be vague but should be precise, so that it can be interpreted with ease. Encouraging good practice could include a range of activities from running an advertising campaign to going around the country giving talks to relevant bodies or providing education in schools.

The commission is likewise charged, in subsection (1)(a), with promoting

“understanding of the importance of equality and diversity,”

but how can it promote understanding? To what extent is it required to do so? A duty under the law should not be just a vague idea that the commissioners might decide to go along a particular route or take up a particular case and talk about it; it should be much more than that: it should be a positive duty. Therefore, we need to know a little more about what is expected regarding the promotion of understanding.

Subsection (1) also provides that the commission shall

“promote equality of opportunity”.

To what extent is the commission expected to be proactive—I do not like that word; indeed, I do not think it is a real word, but it is probably the right one—rather than passively saying, “Yes, we are in favour of equality”? Is it to be active in promoting equality of opportunity?

There is no doubt that we all want to promote equality of opportunity in principle—I reiterate that we want the Bill to succeed because it promotes equality of opportunity—but to what extent does the commission have a duty to promote equality of opportunity? How much does it have to do? Does it have to publish pamphlets or take an active role? Does it have to put someone on “Richard and Judy” to talk about equality of opportunity? Apparently that is how to get the message over to most people.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

That is a good idea.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

It probably is, actually. Perhaps we could interest Richard and Judy in our campaign for equality of opportunity.

How far is the commission expected to go? We must settle these points because it is important to be precise about what it will do. Having said that, the three existing commissions already do a tremendous job of promoting the particular equalities for which they are responsible. The Equal Opportunities Commission, for example, funds meetings and seminars throughout the country, as do similar bodies.

Alison Seabeck (Plymouth, Devonport, Labour)

The hon. Lady is talking about general duties and the exact meaning of the clause. Perhaps the Minister can clarify this matter for me because I am new to all this, but clause 13 mentions information and advice and refers to disseminating information, undertaking research and providing education or training. It seems that there is a direct linkage between the hon. Lady’s concerns and what is, at least partially, set out in clause 13.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

The hon. Lady is correct to say that some of the questions that I am asking are answered by reference to clause 13. I just want some reassurance from the Minister as to the Government’s intentions. The crux of why I am asking those questions is that I want to know how much it is going to cost. I cannot help noticing that the Minister has piece of paper that reads, in huge letters, which I can read upside down, “Costs”. The Minister rightly anticipates my question, and I will ask it time and again because it is important.

We all want the new commission to succeed, but it is absolutely essential that the amount of taxpayers’ money that goes into the operation of the new CEHR, and all that flows from it, is justifiable. Every penny of taxpayers’ money that is spent on the running of the new commission is a penny not spent on a school or a hospital. We must justify that: the Government must justify it, and the Opposition have to justify why they have not held the Government to account if the spending should not have happened. The current spending level on the three bodies and their work is justifiable, or thereabouts. However, we come back to the massive rise in costs. A 43 per cent. increase is expected when the new arrangements come into force. We all know that if a certain rise in costs is expected, a much greater rise will actually occur.

I consider it an important duty to keep reminding the Minister of the importance of keeping costs down. That does not mean that we do not want the new body to do its job properly; of course we do. However, we must have a clearer interpretation of the duties imposed by clause 8. I would also like to know a little more about clause 8(1)(f) and (g), which require the commission to work towards the elimination of unlawful discrimination and unlawful harassment. By what means will that be done? Is it left intentionally vague so that the commission can formulate a plan? If such a plan is to be formulated by the commission, will it inform the Government what that plan is, or will it have the means, the ability and the power to go ahead   and do the work on its own? I suspect the latter from our previous discussions, and I hope that it is the latter because we have argued that if such a commission is to be set up, it must be independent and not a Government puppet. It must be a creature of the Government and answerable to the Government, but it must be independent so that it can do the work that it is charged to do.

Clause 8(3) states:

“In promoting equality of opportunity between disabled persons and others, the Commission may, in particular, promote the favourable treatment of disabled persons.”

The Minister explained that the Disability Discrimination Act 1995 imposes a duty to discriminate positively on grounds of disability. I understand that and recall it being the intention of the Act, which was passed under a Conservative Government so that it is clearly and by definition a good piece of legislation. We know that it has been effective and that the Disability Rights Commission has been an effective body, but we are now discussing legislation to bring all the strands of possible discrimination together so that they can all be treated equally and given due weight by the new commission, so why is there an exception for disability? Generally, I am not in favour of positive discrimination, quotas or any tokenism in any area of discrimination because that can be demeaning to those whom we intend to help, but I accept that in some areas of disability there is a good reason for positive discrimination and action to help people to overcome a particular disability and to operate on a level playing field with equal opportunity. I would be grateful if the Minister could explain a little further.

Liz Blackman (PPS (Rt Hon Geoff Hoon, Lord Privy Seal), Leader of the House of Commons; Erewash, Labour)

The hon. Lady has often spoken in the House and been outraged about the small proportion of disabled people who are, for example, in employment or living independently. The statistics on disabled people are an outrage. Will she consider what she is saying in the light of the available data about disabled people, the access that they do not have and the lives that they lead?

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

The hon. Lady makes a good point with which I do not disagree. I was saying that if someone has a disability, positive discrimination may be necessary to allow that person to operate on a level playing field with people in a similar situation—that is, with equal opportunity. Of course that must be so. I am not saying that it is wrong. That is the law under the 1995 Act, and it has worked well, although not well enough. The hon. Lady is right. We would like to have seen it being much more far reaching and effective in giving disabled people equal opportunity. It has not done as much as we had hoped, but it is still doing that and it will get there. A lot of people are working hard for disabled people in many ways. Much has improved in the past 10 years and the situation is much better than it was. I want to see it get considerably better.

I agree with the Minister’s statistic, which has become my favourite. I am not plagiarising; it was the Minister’s statistic, but, if we repeat it again and again, it will get through to the people who ought to be aware of it. In another context we have discussed women in   the work force working to the limit of their abilities and what would happen if all women who returned to work after having children went back into the work force at the level at which they had previously operated. For example, somebody might be a managing director of a company, stop for a few years to have children and want to go back to the company where she is well known and experienced, but to work only part time because she has to look after children. She might be offered a job as a personal assistant rather than as a managing director, as is often the case. That is the pattern of work for hundreds of thousands of women in Britain today. If instead of taking the lower-paid, lower-status job with lower requirements of her ability, she went back in at the right level and worked to the limit of her ability rather than to a proportion of it, our GDP would be improved by 3 per cent.—equal to our annual trade with Germany.

I make no apology for repeating the Minister’s statistic. It is stunning. It is relevant to clause 8(3) because, if that is the case for women, it is almost certainly the case to at least the same extent, if not a greater one, for disabled people and people from the groups that are potentially discriminated against. It is absolutely imperative that as much should be done as possible. The Minister’s point is correct. We have to do even more to help people who are disabled and could contribute to society—and, let us not be entirely economic, to their own and their families’ lives—far more than they otherwise do. However, although I support the intent of clause 8, I would like the Minister to elaborate a little further. Generally, I have argued that it is absolutely essential that the commission should go ahead and carry out the duties required of it by the clause, not only because that is good for society but because it is an economic imperative, as I have illustrated with the Minister’s statistic.

James Brokenshire (Hornchurch, Conservative)

We had a debate this morning on clause 3. The issue of the difference between clause 3 and clause 8 was raised. I should be interested to understand the rationale in terms of consistency. Clause 8(1)(c) refers to the promotion of equality of opportunity. The preceding provision contains a wider reference about participation in society.

Janet Anderson (Rossendale & Darwen, Labour)

Order. I think that the Minister dealt with that point this morning. If the hon. Gentleman would like to raise a different point, will he please do so?

James Brokenshire (Hornchurch, Conservative)

I am grateful for that clarification, Mrs. Anderson. The only point that I was trying to make on clause 8 relates to the reason for it being constructed in that way. However, I shall be guided by you in relation to how we proceed. I shall move swiftly on, lest I incur your ire, which, as a new Member of Parliament, I do not wish to do.

Clause 8(1)(e) refers to the enforcement of the equality enactments. I should like to highlight the issue of the concept of the word “enforce”. I appreciate that the clause is the overarching guide to which the subsequent provisions of this part of the Bill relate.   However, the word “enforce” has a strong connotation. Many of the references to the equality enactments themselves relate to private individuals wanting to enforce their rights. I appreciate that there are provisions that follow on from this clause relating to support to individuals, through legal advice or other support, to enable them to enforce the relevant equality enactments. However, the choice of the word “enforce” is strong in this context. Are we seeking to create something similar to the Crown Prosecution Service—the equalities prosecution service, or whatever? I am sure that that is not the intention, and that the clause seeks to provide the backdrop to which the subsequent provisions of this part relate, but I would be grateful for clarification on that subsection.

There are references here to the elimination of unlawful discrimination and unlawful harassment. Those references relate to a number of provisions that are referred to in clause 33, including the Employment Equality (Religion or Belief) Regulations 2003. I have briefly examined them and in essence they contain some provisions to deal with religious harassment. I appreciate that this may cut across some of the subsequent provisions of part 2, but can the Minister give any guidance on the term “unlawful harassment” and the extent to which there is any crossover between part 2 and the regulations to which I have referred?

I echo the comments of my hon. Friend the Member for Epping Forest on clause 8(3) on the favourable treatment of disabled persons. We are trying through this Bill to provide equality of opportunity, and I understand the significant problems that people with disabilities will find in trying to get work.

I entirely echo the comments of the hon. Member for Erewash (Liz Blackman), who highlighted the statistics and the current inequalities that the Disability Discrimination Act seeks in part to deal with, for example, by providing facilities and other rights for disabled people to be able to participate in society and to have equality of opportunity. However, I am concerned, to echo the comments of my hon. Friend, to see that this clause is trying to go for fixed quotas or something similar. I would appreciate the Minister’s response to those points.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

Let me again set the context of the development of the proposals about the commission, because it is important to understand how we got to where we got to, and the processes that we went through. As Members will be aware, there are three existing commissions, and some of the powers and duties being taken forward already existed for them. They will be taken forward in a more unified and modern way.

The hon. Member for Epping Forest asked about encouraging good practice. It is clear from the relevant sections of the Race Relations Act 1976 and the Sex Discrimination Act 1975 that in the 1970s we did not encourage good practice—or if we did, we did not put such things in legislation. However, that has changed, and the Disability Rights Commission Act 1999 contains a specific reference to that:

“with a view to encouraging good practice in the treatment of disabled persons”.

Therefore, we are developing our views and our understanding on this matter. There is a recognition that commissions can and should gather information about actions that result in the outcomes that they were set up to achieve—in these instances, equality of opportunity between men and women, and equality of opportunity for disabled people— and it is important that such information is shared.

The Race Relations Act includes a statement about promoting equality of opportunity and good relations; we will address that shortly. The Sex Discrimination Act contains statements about promoting equality of opportunity between men and women generally, and promoting equality of opportunity in employment. The existing work by the current commissions will be taken forward.

The consultation period that followed the publication of the White Paper “Fairness for All: A New Commission for Equality and Human Rights” was marked by a lengthy debate about what should be the balance between the new commission’s enforcement and promotional functions. Business and public bodies—those organisations with responsibilities to comply with discrimination law—were understandably encouraged by the promotional activities provided for in the clause. On the other hand, equality organisations, including the commissions, were anxious to ensure that their unique role to enforce and encourage enforcement of equality legislation should be properly reflected in the CEHR’s duties. The clause takes careful note of the conflicting concerns, in reflection of our belief that the CEHR should have a wide range of powers and activities available to it, to ensure that it can be proportionate and take necessary action in a flexible way.

What exactly do we mean by that, and how are we going to pay for it? The hon. Lady has seen my bit of paper with “Costs” written on the top of it. As she gave me due notice that she would want to raise that subject on several occasions, I wanted to make sure that I had the necessary information to hand. In our overall calculation of the likely costs, we included sufficient money for promotion, media campaigns and the public sector duty, about which I will say a little more, but not too much more as it arises later in the Bill—as a not quite so new Member, I would not want to incur your ire, Mrs. Anderson. Fostering community cohesion and advice and information are also provided for in that calculation of the costs.

What might we see? Public bodies might seek the commission’s advice about duties on disability and race—and, if we subsequently deal with it, gender. They might also seek advice in other areas—for example, in employment, in terms of sexual orientation or age, as that comes on stream.

The hon. Member for Hornchurch raised the issue of harassment. We know that we will have a debate in a different context on part 2. I want to clarify the position as it relates to this part of the Bill. Harassment and discrimination are unlawful if they contravene any of the equality enactments, including part 2 of the Bill   and the Employment Equality (Religion or Belief) Regulations 2003. There is no real crossover, as part 2 deals with goods, facilities and services and the latter with employment. I hope that that reassures Opposition Members.

In terms of enforcement, the commission is required to uphold and enforce existing discrimination law. Opposition Members have asked whether the way in which the clause highlights people with disabilities means there is special treatment. This is about taking forward the situation that was addressed in the Disability Discrimination Act 1995, which recognises that equality of outcome is not achieved by equality of treatment. There can at times be a need to make so-called “reasonable adjustments” to ensure that disabled people can have access to employment and to a range of other things in the same way as people without a specific disability. I hope that I have been able to reassure hon. Members.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I am grateful to the Minister for the answers that she has just given. They make a lot of sense and we are all grateful for that elucidation. Will she just clarify how the provision that we are discussing, which I support, is different from the provision of a positive duty elsewhere in the Bill to promote a lack of discrimination and equal treatment between men and women? In particular, I am thinking of the provision, which I again support, for affirmative action to be taken in relation to the treatment of women. Should that, on balance, perhaps be referred to here in a similar, although not identical, way to the reference to disabled persons?

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I am not quite sure that I followed the hon. Gentleman’s detailed point. Perhaps he could come back on it or we could return to it later.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

May I have another go? The Minister has explained why there appears to be differential regard under clause 8(3), which is the proposed statute for disabled persons. It reflects the law, which allows for favourable treatment, in terms of reasonable adjustments, of disabled persons and therefore has a specific reference to the duties on equality and diversity. Where there is a positive duty—more than just a duty of non-discrimination—to promote equality, as there is in the race strand and there is shortly to be in the gender strand, is there a need to reflect that? Alternatively, does she feel that it is already covered under clause 8(1)?

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

If I am answering the question that the hon. Gentleman is putting, that is covered under clause 8(1). This comes back to the fact that the fundamental premise of the race relations and sex discrimination Acts is that people should be treated equally. The fundamental principle in the Disability Discrimination Act is that we needed a different approach and that is why things are set out differently. If that is still not clear, perhaps we could return to it later or the hon. Gentleman and I could enter into some helpful correspondence.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

I want to take up the point made by the hon. Member for Oxford, West and Abingdon (Dr. Harris). I was trying to follow through his reasoning in a logical progression. I might not have understood perfectly what he was saying, but I think that he was asking whether, if there is to be a positive discrimination for disabled people, should there not also be a positive discrimination for women. If there were then positive discrimination for other groups or communities, the logical end result would be that there was so much positive discrimination we would altogether lose sight of the fact that we were trying to achieve equality.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

Will the hon. Lady give way to allow me to regret opening up this can of worms? The point I was trying to make, which I shall not go into any further, is that there is already a positive duty in respect of race; I agree with the Minister that it is covered by clause 8(1). The point that I think the hon. Lady was elucidating is that particularly in regard to disabled persons, subsection (1) is not enough to cover the need for favourable treatment—for example, reasonable adjustment, going the extra mile if that is the right term—to be provided.

I was just agreeing with the hon. Lady’s explanation. I did not wish to raise a completely new area of discussion.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

In that case I will close the can of worms. We were better where we were before.