Lord Sharpe of Epsom:

Moved by Lord Sharpe of Epsom

145: After Clause 32, insert the following new Clause—“Use of positive action in the workplace(1) In this section—(a) “P” is a public sector worker who reasonably thinks that the application by P’s employer, in relation to P’s employment or a working practice, of sections 158 and 159 of the Equality Act 2010 has caused or risks causing detriment to P,(b) “R” is P’s public sector employee, and(c) P reasonably thinks that R is responsible for the detriment in subsection (1)(a).(2) A Minister of the Crown must by regulations make provision for—(a) forms through which P may anonymously question R on any matter relevant to subsection (1),(b) forms through which R may answer questions by P, and(c) such forms to be made publicly available.(3) Within six months of the passing of this Act and every three months thereafter, R must publish a report setting out―(a) the number of forms received under subsection (2), and(b) a summary of the nature of the complaints to which they relate.(4) A Minister of the Crown may by regulations require R to report on the use of sections 158 and 159 of the Equality Act 2010.(5) This section does not apply to activities undertaken by R under paragraph 1 of Schedule 9 of the Equality Act 2010.”Member's explanatory statementThis Amendment introduces a mechanism for public sector employees who believe they have been disadvantaged by their employer’s use of positive action under sections 158 and 159 of the Equality Act 2010. It would require the Government to create a process allowing such employees to anonymously question their employer and requiring employers to respond.

My Lords, I rise to speak to Amendment 145 standing in my name and that of my noble friend Lord Hunt of Wirral. This amendment introduces a mechanism for public sector workers who reasonably believe that they have been subjected to detriment as a result of their employers’ use of positive action under Sections 158 and 159 of the Equality Act 2010. It does not seek to outlaw such action, nor does it obstruct efforts to promote fairness. Rather, it seeks to ensure that fairness extends to all employees, not only those whom the state or the employer happen to deem underrepresented.

We must confront the uncomfortable truth that some public bodies have begun to apply positive action in ways that no longer reflect the careful balance envisaged by Parliament when the Equality Act was passed. We have now entered territory where lawful positive action shades into unlawful positive discrimination —where the scales of justice have been not merely tipped but turned. For example, let us consider West Yorkshire Police, a force whose conduct in this area raises urgent and serious concerns. It has come to light through both media investigation and internal whistleblowers that recruitment processes have been operated in a manner which in practice delays, restricts or even excludes applications from white British candidates. Candidates from certain ethnic minority backgrounds were allowed to apply early and, in some cases, were mentored through the process by dedicated positive action teams. Meanwhile, white British applicants were told to wait until a general window opened, often for as little as 48 hours. This, we are assured, is not discrimination but rather the fair operation of the law. I do not agree. This is not the spirit nor, arguably, even the letter of the Equality Act. It is a distortion of the law, and it demands redress.

What makes this all the more troubling is that these actions are being taken not by private corporations but by the state, or at least by institutions that act in the name of the state and are funded by the public purse. The taxpayer in this case is being forced to subsidise policies that they might find discriminatory and from which they may be excluded. There seems to be something especially perverse, indeed, almost Orwellian, about that.

This is not merely an abstract concern. West Yorkshire Police, for example, reportedly spent over £1.4 million in recent years on equality, diversity and inclusion staff—more than any other force in the country. That is public money. It is money earned by ordinary citizens, some of whom now find themselves effectively barred from entry into public service not because they lack ability but because their ethnic background does not satisfy an internal diversity target. When questions are raised, when whistleblowers from within these forces speak up, what happens? We hear of them being silenced, reprimanded or warned not to interfere. We hear of secret job listings marked “hidden” in the system, visible only to certain candidates. We hear of candidates greeted with hugs and reassurances that their interviews are merely a formality. That is not recruitment, and it is not equality. It is institutional manipulation.

The amendment before your Lordships seeks to restore a measure of transparency and accountability. It proposes a system by which a public sector worker who reasonably believes that they have been harmed by the operation of positive action can submit a formal question anonymously to their employer. The employer, in turn, must respond. Moreover, employers will be required to publish data on such queries, allowing Parliament and the public to monitor the use and potential abuse of these provisions. This is not a punitive or burdensome requirement; it is the most basic form of procedural fairness.

Let us be clear. This amendment does not challenge the principle of inclusion; it does not deny that discrimination has existed; but it says unequivocally that the answer to past unfairness is not the imposition of new unfairness, that the pursuit of diversity must not come at the expense of justice, and that inclusion must include everybody. Equality before the law is not a suggestion or a secondary consideration to be weighed against modern ideological preferences. It is a constitutional principle that underpins this very Chamber. When we allow it to be weakened quietly and gradually by well-meaning policies that turn into arbitrary practices, we invite Division, resentment and, ultimately, more injustice.

The Minister may say that everything that I have described—the delays, the exclusion of white British applicants, the unequal mentoring and the hidden vacancies—is perfectly lawful under existing legislation. He may say that this is precisely how the Government intend for positive action to operate in the public sector. However, I sincerely hope that is not the argument that is to be advanced. Alternatively, the Minister may offer reassurance to the Committee and to the public that existing law already contains sufficient safeguards, and that what we have heard from West Yorkshire Police, Thames Valley Police and others would not and should not be permitted under any reasonable interpretation of the Equality Act. If that is the case, I would welcome that clarification. I would also welcome assurance that there is already a functioning system of redress for individuals who believe that they have been mistreated on the basis of how positive action has been applied.

If the Minister agrees with the points that I have made—that West Yorkshire Police should not have discriminated against white applicants and that there is no mechanism to stop this—then I very much look forward to the Government accepting this amendment. I beg to move.

I came into this debate by chance, but it seems to me that this is part of a very undesirable development: an attack on the principle of equality, diversity and inclusion policies. These principles are at the heart of my politics. I have fought for racial equality ever since I was a student, when I went on marches against Enoch Powell and what he stood for. I thought that the response of the Labour Government in the 1960s—to make racial discrimination illegal—was very important. In more modern times, when I was chair of Lancaster University and looking at the question of student admissions, I always thought that we should make allowance for the fact that some working-class people had not had the best chance in life and take this into account in admissions procedures Therefore, I rather regret what the Opposition front bench is trying to do, which is to undermine the political acceptability of these policies.

There is a danger here. I have seen it from some people in my own party who say that, in response to the alleged great Reform upsurge, we should start abandoning EDI. That would be catastrophic for a social democrat like me, who has always believed in these things. I hope that the Members opposite will withdraw their Amendment.

I would gently advise the noble Lord, Lord Liddle, to have read the Amendment before he pontificates down memory lane on his great campaigns of the past for equality.

This amendment is about fairness. It ill behoves his party to lecture us on equality when it needed the Supreme Court to tell its own Prime Minister what a woman was. We will take lessons on equality from many people but not from a party that was found to be institutionally racist by the Equality and Human Rights Commission not that long ago.

Let us move on from there because, if noble Lords read this amendment, they will see that it is an amendment that speaks of fairness. All it says, very simply, is that anyone who construes a situation where they have felt themselves personally discriminated against should have a proper, legal and transparent opportunity to question the decision of a person who is taking a big decision in their life: whether to appoint them to a post or not. It is not draconian and does not include fines; it is merely an occasion for that person to challenge a decision taken by authority in a fair, open and transparent way.

It is a reasonable amendment and, if I may refer to the noble Lord, Lord Watson of Invergowrie, it is not far-right or Trumpian to give working people the opportunity to challenge a decision about themselves. It is a very fair amendment and I think that Members across all sides of the House who read it would concede that. On that basis, I think the Minister should at least engage with these arguments, rather than the straw-man arguments we have heard over the last hour from the Labour Party, whose own record on equality is actually not that good.

Finally, it was a Conservative Government, eight years ago in 2017, who brought in the regulations on the gender pay gap under the famously Trumpian right-winger, the noble Baroness, Lady May of Maidenhead. Our proud record includes creating, for instance, the national living wage in 2015 and other progressive policies for working people. We all have done well for working people over the years, and the Labour Party does not, in any sense, have any kind of monopoly on that.

I hardly know where to start.

Give it a go.

Certainly, I believe that everybody at work—whatever background they come from and whatever their class, sex, gender or sexuality—should have the right to be treated fairly. I believe that our legal system, our Equality Act, precisely provides that protection for people, but that we can build on it through equality action plans and so on. But I have to say that maybe some noble Lords opposite also need to consider people’s real experience.

I was elected as the first ever woman general secretary of the TUC. Clearly, we were not a movement that rushed things, because it took an awful long time to get to that point. I have enough self-awareness to know that it was not because there were not talented women, black or white, who could have been elected and who had the talent, skills and ability. There was something else going on, and I hope that there would be enough honesty in this House to recognise that black people and women face real barriers that will not be overcome unless we take positive action.

The other point I would just like to reflect on is that, whenever I spoke about seeing more women playing active roles in not just the trade union movement but in public life, including, by the way, lending my support to women who were arguing that we needed more women in the boardroom—I supported that principle—I was always fascinated that, whenever I raised those issues, people, largely men I have to say, would start talking about merit. Well, I have to say, when I look at the upper echelons, I do not always see in those male-dominated and white-dominated ranks people who got there on the basis of merit. I have never seen an advert for a position on a board. I have never known any board member to go through an open recruitment process to get that position. It has very often been a case of a tap on the shoulder.

If we look at how many judges and newspaper editors we have, and specifically at race, sex and gender, yes, the picture has progressed, but we still have a very long way to go. Therefore, I think this Amendment is a little disingenuous in trying to suggest that people who have been held back for years because of their class background, race or gender, if given a helping hand and a bit of encouragement to go for it, will somehow cause a meltdown of society.

Achieving what my noble friend said is, quite rightly, part of my history and our history. I hope that it is part of our progress as a country that we value equality. We know that ultimately it is good for all of us, and long may we keep struggling to achieve that goal.

My Lords, my noble friends on this side of the House have commented on this Amendment in far better terms than I could, but I will make a supplementary point. I was very surprised to see this amendment, because one of the perennial themes that we have heard throughout all stages of the Bill in this House has been a complaint about the alleged level of extra bureaucracy that it is supposed to impose on employers. Yet here we see a veritable feast of form-filling and requirements to report on those forms at regular intervals. I suggest that this amendment is not needed; it is surplus to requirements because it places unnecessary burdens on employers.

My Lords, I will be very brief. It is very important that we do not suggest that giving a helping hand to those who have been politically deprived of equality equals equality. It can also equal tokenism. Working-class people, women and people from ethnic minorities have been promoted to positions in authority, and people basically point them out and say, “Look at them: they succeeded”. That is the opposite of equal treatment, and condescension is not a good look.

My Lords, I can hardly follow my noble friend Lady O’Grady in being the TUC’s first woman general secretary, but I was the first woman leader of Newport City Council after decades and the first woman leader of the Welsh Local Government Association—and am still the only one.

I was also a public service employee for 35 years, when I taught in schools in London and south Wales, so I know about positive action. When I became a public service employer, as the leader of Newport, what I tried to do with positive action was to actively take a range of measures and initiatives to encourage people from communities that were underrepresented. We wanted them to bring their talents, experiences and expertise to our organisation, and we wanted them to join us.

Our selection process was no different: through the use of positive action, we did not seek to remove competition; rather, we wanted to allow everyone the same level of opportunity. That final selection for a post was always made on the merit of the applicant. We built our workforce so that it reflected the rich diversity and complexities of our community of Newport and we attracted the best talent from the widest pool of people.

My Lords, this has been an interesting debate on positive action, and I am grateful to the noble Lord, Lord Sharpe of Epsom, for initiating it. It raised important issues but, when the noble Lord, Lord Jackson, spoke of straw-man debates, I thought he was a good example in the issues that he raised, because we are not talking about positive discrimination here. As the noble Lord, Lord Sharpe, acknowledged, all Governments have supported positive action, for very good reasons.

The positive action provisions in the Equality Act 2010 enable, in a work context, both public and private sector employers to prioritise the recruitment of and promote people who have protected characteristics that are underrepresented generally or at certain levels in their workplace.

This is permissible only where the available candidates are considered equally qualified for the particular role. In other words, it is a tie-break based on workforce diversity. We therefore do not accept the premise of the new Clause that another employee has suffered an unjustified detriment by not being selected. Of course, we are absolutely clear that it is illegal to positively discriminate, and I will give reasons.

The noble Lord, Lord Sharpe, raised something that I read in the Daily Telegraph about West Yorkshire Police. One of the things that, sadly, many of our newspapers fail to do is to issue the full statement. I thought West Yorkshire Police issued a commendable statement. It said:

“In West Yorkshire Police, we are committed to improving equality, diversity, and inclusion within the organisation, and strive to be more representative of the communities we serve.

Our Diversity, Equality and Inclusion team supports and consults with those with different protected characteristics such as sex, disability, sexual orientation, and race to ensure their views can influence and improve the service the force delivers. They also work to improve the wellbeing of everybody in the organisation and inclusivity overall.

The most recent census found that 23 per cent of people in West Yorkshire identified as being from an ethnic minority background. Our current police officer representation from ethnic minority backgrounds is around nine per cent. To address this under-representation, we use Positive Action under the Equality Act 2010. Our use of this was recently reviewed by His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services in an Activism and Impartiality inspection and no issues were identified.

Positive Action allows people from under-represented groups who express an interest in joining the force to complete an application, which is then held on file until a recruitment window is opened. No interviews are held until the window is officially opened to all candidates. Enabling people from under-represented groups to apply early does not give them an advantage in the application process, it simply provides us with more opportunity to attract talent from this pool of applicants”.

I think that is the point that my noble friend Lady O’Grady was making. It is a pity that the Daily Telegraph did not report the full statement from the police because I think it sets this whole thing in perfect context.

A detriment arises where someone is treated unfairly by their employer—for example, where someone is promoted over them who is clearly a weaker candidate. If the reason for that was based on a protected characteristic, it would be unlawful positive discrimination under the 2010 Act and would be rightly challengeable, but this is not the situation under positive action. I think that has been extremely well illustrated by West Yorkshire Police in terms of how it adopted that policy.

We also have doubts as to whether the processes envisaged could be truly confidential. This could have undesirable implications for both the successful candidate and the complainant. Lawful recruitment decisions are confidential for good reason, and opening them up to this kind of probing risks creating interemployee bad feeling, particularly in smaller departments where the identification of people by inference or guesswork is easier.

The Bill is about improving employment rights, not creating new and unnecessary conflicts. Positive action can work effectively only as part of a confidential recruitment process, where transparency is often good for equality. What is proposed would, I fear, work against that, and as such the Government cannot support the proposed new clause.

To avoid any sort of doubt—the noble Lord was asking me to be very clear—positive discrimination is unlawful under the 2010 Act except in limited ways in relation to disability. Positive discrimination implies that an organisation is recruiting or promoting someone because of their protected characteristic rather than on merit. Examples of positive action under the 2010 Act generally involve removing barriers and improving access for underrepresented groups to help to address inequalities in recruitment and promotion across the workplace more widely. That full statement from West Yorkshire Police is a good example. A police force should represent and look like the community that it is seeking to police. Its actions and its explanation are extremely valuable.

One thing on which I agree with the noble Lord, Lord Jackson, is that there were many occasions, particularly under Prime Minister May, where actions were taken—I certainly admire her continued work in addressing exploited workers under modern slavery—and it is important that we recognise that. However, I hope that, after the noble Lord, Lord Sharpe, has heard these arguments and the reassurances that I have given him, he will withdraw his Amendment.

I thank the Minister for that comprehensive answer, and I thank all noble Lords who have spoken in this quite lively debate. I have to say I was disappointed that the greatest lady of them all who did not need a helping hand did not get a mention, so I will mention her: Margaret Thatcher.

I say to the noble Lord, Lord Liddle, that we are not seeking to undermine anything in this; I was very clear about that. I want to make it clear that, as I said in my opening remarks, this Amendment does not seek to outlaw such action, nor does it obstruct efforts to promote fairness. It just seeks to ensure that fairness extends to all employees, not only to those whom the state or the employer happens to deem underrepresented.

I am grateful to the Minister for his extended quote from the Yorkshire case, but I also mentioned the case in Thames Valley. A tribunal there ruled that the three white police officers who won a claim after they were passed over for promotion were overlooked by Thames Valley Police because of their race and an ethnic-minority sergeant was promoted—this is the killer line—

“without any competitive assessment process taking place”, which is precisely not the spirit of the Laws that we have just been discussing.

And that is illegal.

That is why we were asking these questions and laying this Amendment. It is good to have it out in the open. The amendment sought not litigation but clarity. It sought not courtroom battles but a simple mechanism for transparency and accountability. It would have been a route for asking questions and a structure for reporting. It would be a reminder that positive action must remain within the bounds of the law and fairness, and not become a euphemism for sanctioned discrimination. However, I have heard the arguments from the Minister and, not least because of the lateness of the hour, I am content to withdraw the amendment.

Amendment 145 withdrawn.

Clause 33 agreed.

House resumed.