Clause 143

Equality Bill – in a Public Bill Committee at 10:30 am on 30 June 2009.

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Public sector equality duty

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I beg to move amendment 242, in clause 143, page 105, line 13, at end insert—

‘(d) respect and protect the human rights of any person for whom it has responsibility, whether or not they have a relevant protected characteristic.’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following: amendment (a) to amendment 242, at beginning insert ‘fulfil’.

Amendment to take the usual formation of human rights legislation.

Amendment 19, in clause 143, page 105, line 14, at beginning insert

‘Subsection (1) will also apply to’.

Amendment 20, in clause 143, page 105, leave out lines 15 and 16 and insert

‘except in relation to matters of employment’.

Amendment 279, in clause 143, page 105, line 31, leave out ‘and’.

Amendment 280, in clause 143, page 105, line 32, at end insert ‘and,

(c) eliminate hatred and hostility towards members of different groups.’.

Amendment 21, in clause 143, page 105, line 35, at end insert—

‘(5A) A public authority must collect and publish data annually showing, in the exercise of its functions, the extent to which it has succeeded in meeting the requirements under subsection (1).’.

Amendment (a) to amendment 21, line 2, leave out from ‘meeting’ to end and insert—

‘(a) eliminating discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) fostering good relations between persons who share a relevant protected characteristic and persons who do not share it.’.

Public authorities must publish data on whether they have achieved the three parts of the equality duty, rather than on whether they have had regard to this requirement.

Clause stand part.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Welcome back to the Chair, Mr. Benton. I am pleased to be back after leave of absence last week to attend the Council of Europe. I shall refer to that briefly.

I am grateful, first, to the Solicitor-General for her statement this morning, for publishing that document and for what she has done on multiple discrimination, which we shall need to consider at greater length. I am also grateful to my hon. Friend the Member for Forest of Dean for picking up the new clause on volunteering that I tabled for last week. There was a useful scoping debate on it, which was the intention of the new clause. Given the huge progress made, the Committee may heave a sigh of relief that I did not have to share with it the comments and jottings that I had made on parts 9 and 10. In that spirit, I shall be as succinct as I can this morning.

I return to discussing the Council of Europe, which is germane to my amendment. Attending the Council is healthy and always interesting, giving the opportunity of getting close to real human rights issues in a way that sometimes our debates do not, however good natured and well intended. In the same afternoon I found myself speaking in debates on the position of Roma in Europe, as part of the annual human rights discussions, and the widespread arrests in Armenia. As parliamentarians, we can across the board understand the need for action in such areas, those really serious breaches of human rights. In the same way 60 years ago, the drafters of the European convention on human rights—mainly British lawyers, incidentally—fully understood their human duty in the light of the holocaust and the events of the second world war. That is real human rights. I do not wish to pretend for a moment that what we are discussing is not real human rights, but that puts it in the context of immediate needs.

The clause does not open brand new ground but sets out fresh ground in relation to the public sector equality duty. I have to admit to being something of an initial  sceptic as to the efficiency or efficacy of such forward-gear and declaratory duties. However, I have in the event been belied and am reasonably happy with how they have worked in practice with the obligations in relation to race, disability and gender, which informed the wider obligations of the clause.

In principle, therefore, I welcome the extension of those positive duties that the Government are introducing to the other protected characteristics. I shall leave others to speak about their specific concerns with the wording and details of the clause, but to some extent they will give us a chance to look back at some of the underlying issues, which are being considered throughout the Bill—notably the balance between a purely reactive mode for public authorities and what I call a more positive and forward-gear approach. We touched on that when we discussed clause 1, as we do here.

Secondly, the concomitant debate is about how much positive discrimination is required to meet a wish for equal treatment and fairness for all. There is an underlying concern about the extent to which human rights are seen as the rights of individuals or groups and how they should be expressed. At least the effect of last week’s recharging of the human rights batteries at the Council of Europe stimulated me to take such issues a little further. It is clear when we re-read the convention—which I do from time to time, at least the shortened part of it—that the genesis of the document is personal rights, or the rights of the individual. It starts with a pretty firm list: the right to life, the right not to be tortured, the right not to be enslaved, the right for a fair trial and the right for a measure of distance in a person’s personal and family life. They reflect not only the collective tragedies of the second world war, but their real-world emanation in the denial of the rights of the individuals who suffered under those tragedies.

It is quite interesting that the convention brings in anti-discrimination only a little later in the list, under article 14. That provision is conditional on the context of the application of the other articles of the convention. It is also worth remarking that the right to property, which some of us may think quite important, is brought in only under the first protocol.

The fact that the hierarchy starts with the individual is important and we should not lose it. I am not saying that that is wrong, but in the intervening years—in continental Europe and especially in the United Kingdom—there has been a shift to looking at human rights as collective rights, particularly as people sometimes recognise that public policies, or policies in the conduct and practice of public authorities, are defective and affect the rights of more than one individual.

I am thinking about institutional racism or the material failure of inclusive employment policies. I sometimes wonder whether local authorities or others have got round to thinking about them more than in name only, yet even if we are not collectively, as a society, setting out to kill or torture our citizens, and even if our public authorities are properly mindful, which they will be after the clause is enacted, of their public responsibilities to avoid discrimination and promote positive values, including the wider ones of community cohesion, something is missing in the debate.

We have to understand the deformation of the concept of human rights, which still takes part in public debate. In the survey conducted by the Equality and Human  Rights Commission, to which I shall have occasion to refer specifically in relation to the amendment, the rather disturbing data from an opinion poll it conducted showed that 42 per cent. of the general public thought that human rights were for criminals and terrorists while only 40 per cent. thought they had something to do with them as well.

We are in difficulty as a society if we think that human rights belong only to those with first-rate lawyers, the politically correct and those who might be a threat to society, and that they are not shared with us. They are our rights, too. We benefit from them, and we should celebrate them. That brings me straight to the point of the amendment. As I have said, it arises from the recent EHRC inquiry on human rights, which was published two weeks ago. I attended the launch and, more to the point, the Secretary of State for Justice, who introduced it, spoke at it very well. It was a very positive occasion.

In these days of declaring even the most vestigial interest, I should make it clear that the commission did not commission me to table the amendment or new clause 18, which I shall touch on in a moment, but, fired by the enthusiasm of attending the launch, I could not resist the temptation to do so.

The amendment is essentially an attempt to recover the human rights debate from the idea that it is somehow the ground for individuals—people who sometimes might be malicious or contrary to the interests of society—who are wriggling to protect their position and that that debate is nothing to do with us. We have a problem of perception of what human rights are and of execution as to how they might be taken forward. Paragraph 30 of the executive summary of the report on the inquiry found:

“There were a number of factors inhibiting the assertion, provision and enjoyment of rights, including: a lack of leadership, especially from the Government, the Commission and politicians; a lack of knowledge and insufficient mainstreaming of a human rights approach in core processes; a lack of confidence inhibiting members of the public from asserting their rights; organisational culture and structure; the use of general rather than specific language; and inaccurate media reporting.”

When summarised, a report tends to emphasise the bad side and I would not like to suggest—I do not think the report does—that everything is negative, but it is clearly unfinished business. Evidence tendered by the Gwynedd local health board said:

“A lack of awareness of human rights issues can be a barrier to mainstreaming throughout the organisation.”

The distinguished chair of the inquiry, Dame Nuala O’Loan, who has hands-on Northern Ireland experience, was quoted in relation to public authorities that complained that all the human rights stuff got in the way of the day job. She replied—majestically and magisterially—that human rights “are the day job”. That is an eloquent statement of the approach of most members of the Committee, and I hope it is shared a little more widely.

Human rights are about our right to be fed properly when we are in hospital or a care home, and about reasonably law-abiding persons not being subject to excess surveillance by the security authorities. They include the loss of personal data by public officials. Those are all part of how the state interfaces with us. I believe strongly—this is the substance of the amendment—that public authorities need to mainstream human rights,  and they should not be frightened of using human rights language and the human rights approach in forming their policies and drawing up their performance standards and evaluation of achievements. Is what they are doing fit for purpose in terms of the human rights we all have?

That human rights approach is intended to move somewhat away from what, with due respect to the Solicitor-General, I might term the legalistic, which she is not, or box-ticking, which she also is not, approach. It is, however, the approach taken by some public authorities. The question should not be simply or naively, “Did we avoid discrimination? Did we meet our statutory duties as set out in the clause?” It should not be, “Can we get away with it in court?” The questions that public authorities—their councillors, elected members and us—should be asking is, “Did we treat that person with fairness, dignity and respect?”

Bear in mind the fact that more than one authority might be involved because there are border issues, which are touched on in the report. We need to ask, “On the whole, was the outcome what we would have wished for ourselves or our loved ones or was it defective?” In other words, does the public service work for the public?

All that leads me inexorably to the specific recommendations of the inquiry, a lot of which are addressed to public authorities directly and are not really matters of law. The two recommendations that I want to touch on include my amendment 242, which would mean the Government consulting on whether a statutory duty should be imposed on all public authorities to take into account human rights before they implement new policies. That is precedented by what is already in the provision and, somewhat obliquely, by what the Committee has already approved in clause 1 in relation to socio-economic duties.

If we can do that in the one case, sauce for the goose should be sauce for the gander, so we could do something in relation to human rights, although I do not want to force the Solicitor-General to say yes or no to my amendment now. Incidentally, as the hon. Member for Hornsey and Wood Green is dutifully listening to me, I am perfectly happy with her amendment (a) to amendment 242. Although Rome is not going to be taken in a day, we should now be looking at extending the duty.

My second point is a little more sensitive, not least because the Government have already rejected it, and is encapsulated in new clause 18, which I tabled.

Photo of Joe Benton Joe Benton Labour, Bootle 10:45, 30 June 2009

Order. I have to point out to the hon. Gentleman that new clause 18 is outside the scope of the Bill. I am sure that he has enough ingenuity to keep to human rights, but we cannot discuss new clause 18 specifically.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I can genuinely say, Mr. Benton, that you took the words out of my mouth, because I was well aware of that. New clause 18 is slightly outside the scope of the Bill, but the idea would be to give the commission the power of supporting litigation in strategic cases, if necessary. I do not think that we need argue that further; the point has already been made.

Essentially, if we are going to have public sector duties in relation to equality and to go beyond the mere concept of avoiding discrimination, we should be looking at whether public authorities should have a wider duty to promote human rights. After all, that is what I suspect we, as legislators and citizens, would want them to have anyway.

In the last analysis—I concede this to the Solicitor-General before she resists the amendment, which I suspect she feels is her duty—this is not simply a matter of law. The EHRC’s specific inquiry pointed out, and closed on, the importance of leadership on this issue, with which I agree. It is almost a matter of repatriating the human rights debate from the weirdos on the fringes and making clear that this concerns our human rights collectively. As it is about our rights, we should take the matter seriously and, in one way or another, we should incorporate the duty into legislation at some stage, if not now.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

It is a pleasure to see you in the Chair, Mr. Benton. My hon. Friend has taken a clause that deals with the public sector equality duty, and which seeks to create a higher purpose for parts of the Bill, and has elevated it to a higher plane still by talking about human rights. I shall confine myself to slightly more Earth-bound matters by sticking to the public sector equality duty as it stands in the Bill, and by speaking to amendments 19 to 21.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

As a postscript to my remarks, does my hon. Friend agree that although the clause as drafted is important—I look forward to hearing his comments about it—one of the dangers in this debate is that if we merely fulfil the obligation for what might be considered to be fairly narrow duties, we might somehow miss the point about being able to look at some of the wider issues and the collectives as well. It is much easier to go forward on discrimination legislation than it is on the human rights agenda.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I thank my hon. Friend for his intervention, and I respond to him by quoting something that he cited earlier: of course human rights “are the day job”. All of us should keep them in mind, not just in this debate, but more widely and no matter what.

Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury

There are times when the Committee’s proceedings are something of a revelation. We learned a few weeks ago that the hon. Gentleman was a feminist, and we now learn that he believes that it is his duty to ensure that human rights are implemented. Does the Conservative party now enthusiastically support the Human Rights Act 1998?

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

We are learning a great deal about both my party’s position and the Labour party’s view of it. Without wishing to try your patience, Mr. Benton, I suspect that the hon. Lady knows that my party’s position on the Human Rights Act is that it should be modified substantially by introducing a British Bill of Rights, which would be importantly different in some respects and, we believe, better. None the less, I hope that we can agree on the importance of human rights, however we choose to pursue them.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman need not give way with trepidation. I rise merely to ask in what significant way the human rights provisions that he wishes to see in a British Bill of Rights would be different from what is currently in place. It is impossible to understand amendment 242—

Photo of Joe Benton Joe Benton Labour, Bootle

Order. I think that we should return to the amendment.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

Yes, although the eagle eye of the Chair is watching.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am a little confused by your ruling, Mr. Benton. I sought to engage with the hon. Gentleman on amendment 242, which is designed to

“respect and protect the human rights of any person for whom” there is responsibility. We need to debate that in the context of the Bill. My question to the hon. Gentleman, to get clarification, is: under his regime, what would the human rights be, and how would they differ from those that are currently engaged by the amendment?

Photo of Joe Benton Joe Benton Labour, Bootle

Order. I apologise if the hon. Gentleman misheard me. I understood that we were discussing a particular amendment, not trying to clarify any individual party’s approach to something. May we please return to the amendment?

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I will endeavour to ensure that we make progress on amendments 19 to 21 without trying your patience any further, Mr. Benton.

As I said, the public sector equality duty is, in many respects, a noble purpose. It takes the anti-discrimination requirements in the rest of the Bill and applies a higher standard and an additional set of requirements to public bodies and those who seek to exercise their public sector duties. It requires public bodies to eliminate discrimination, harassment or victimisation, to advance equality of opportunity, and to foster good relations between people who share a relevant protected characteristic. Those are noble causes to which I am sure that we would all sign up in principle. My concern is not with those principles or the attempt to achieve such things, but with some of the ways in which that is being done. I have a collection of questions that I hope the Minister will answer. I wish to inquire how effective the measures have been thus far, and look at proportionality with regard to how difficult the outcomes are to achieve, how much they cost, and whether the results that come through live up to the high ideals that the clause invokes.

Amendment 21 is an attempt to get more evidence out there to show the effects of the public sector equality duty. My office has attempted to find data on existing public sector equality duties, even though those are narrower and have not all been in effect for a long time. That was to check what was out there and what had been achieved—this is not a brand new idea; it has been around for some time.

In many respects, we have found that where public sector equality duties already exist, they are valued by the people involved with them. Many people, particularly in the world of disability equality duties, for example, believe strongly that the duty has so far resulted in people with disabilities becoming more involved in getting the public sector services aimed at them to be better designed, more applicable and generally of a higher quality and standard than they would otherwise have been. On its own, that might provide sufficient justification for the equality duty. Although people value such involvement, and believe that the services have been improved qualitatively, when the Minister replies, I want some kind of quantitative Government assessment about the outcomes that have been achieved from that involvement. From that, not only could we see that people have been involved in the process and value it—as I said, that is valuable on its own—but the Government could show that there had been a genuine reduction in discrimination and an improvement in the way in which public sector services have applied to the people on the receiving end.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My hon. Friend talked about the way in which the disability equality duty, in particular, had been valued by disabled people who have been involved by organisations producing such services. The other thing that is worth mentioning—this came through clearly from the Secretaries of State’s reports on disability equality published by the Office for Disability Issues—is that it was not just disabled people who valued involvement. The ODI promoted the involvement of disabled people in producing the reports. Although they did not legally have to, it was the Departments, in addition to the disabled people, that found it helpful to identify the areas to focus on. Therefore it is not just disabled people who benefit from being involved when identifying the areas of focus, but Departments and organisations themselves.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

This is a rider to that intervention. Does my hon. Friend agree that one of the virtues of having it the assessment, if it is done sensibly, is that it is a resource for providing better customer service for people generally? When public authorities are aware of the interests of those service users who have protected characteristics, they often become more aware of the deficiencies of their service to all of us.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

Both my hon. Friends are absolutely right. They have illustrated the high purpose of the clause and the importance of its aims. It looks as though there is some early evidence of progress in the ways that my hon. Friends and I have mentioned. What we should therefore see is not just evidence of people being involved—valuable though that is—or evidence of public sector authorities becoming involved with the people to whom their owe the duty, but differences in outcome. We should see genuine achievements and differences on the ground resulting from improvements in quality, which people think they can see at the moment. That should become visible in outcomes and be measurable on the ground.

If the Government do not have evidence of that just yet—as I said, some of the equality duties are at a relatively early stage—I hope that the Minister will be able to give us examples of Government plans to measure those outcomes in the future, to report on them systematically, and to demonstrate regularly that the process is working. I hope that the Government would do that anyway but, just in case, amendment 21 would insert a requirement for that, which I would regard as normal, good government anyway. The Minister has a chance to show that the Government have got the process under way. If they have not, they can accept the amendment.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My hon. Friend makes a good point about the data. Again, if we consider the Secretaries of State’s reports on disability equality duty, one of the themes that emerges is a variation in how the relevant data were recorded across the Government. Just on that one equality duty, Departments treat data in different ways. Therefore, if we are now going to have a single public sector equality duty, thought will need to be given, probably by the Government Equalities Office, to how that data can be looked at across the Government so that there is some consistency in the tracking. The Secretaries of State’s reports that were co-ordinated by ODI looked just at the disability equality duty. The Minister might think about Secretaries of State having to produce something similar on the public sector duty as a whole so that progress across the Government can be made.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

That is a helpful suggestion. If the Government do not already have something similar in mind, I hope the Minister will be able to take up that idea or tell us the Government’s alternative approach.

It is important that we can all see the concrete results of the equality duty. One reason why is because there has been some criticism—I am sure that we all, including the Government, have heard it—of the equality duties that have been established thus far, particularly from people who have been saying, “Well, it is just a box-ticking, form-filling and paper-based exercise. There are no practical, concrete outcomes that are coming out of it other than employment for consultants, auditors and similar people.”

It is therefore vital that we have such information so that we can refute those charges. The Government are already aware of that. In fact, in their response to the report on the Equality Bill carried out by the Work and Pensions Committee a few months ago, they alluded to some of the criticisms. They said that they were aware of them and that they were concerned to ensure that they switched from outputs to outcomes, whenever possible. I hope that their thinking on how to deal with such issues is under way. It is important that it is, and that they take the chance to put their approach on the record this morning.

Without the evidence and without the response, the charge of box-ticking, the charge of bureaucracy and the charge of form filling will continue to be levelled, and the only way to shoot them down is with evidence of outcomes. It will also allow the Government to assess costs and benefits. Even if a substantial benefit is  being created once the evidence is available, as a Parliament, we will clearly need to see the costs. We will have to weigh up the costs and benefits. We will have to ask whether we can achieve the same benefits at a lower cost and more efficiently and effectively and, if we can, how that can be done. All those things require facts. All those things require evidence, and we do not have enough of that at the moment. Amendment 21 would fill that gap and provide us with some more crunchy data on which to build policy decisions.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 11:00, 30 June 2009

The ODI published a specific example in the Secretary of State’s report on higher education. The then Department for Innovation, Universities and Skills said that there had been an increase in the proportion of undergraduates who received disabled students allowance, but recognised that, due to differences in how the data were collected, there was simply not enough information to look at the number of disabled students in further and higher education compared to the wider population. It is now working with the ODI to look at more consistent data. That is a good example of a situation in which there is not the data even to know what the baseline is, let alone whether further progress is being made.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

That is another helpful example of the problem that I am describing. To pursue that example, if it were clear that the changes that my hon. Friend described were purely ghosts in the data and not real progress, and all that was happening was some other alteration that looked impressive until we genuinely got to the bottom of it, that would be a great cause for concern. We would be kidding ourselves if we thought that it was real progress. However, if the data showed that things were advancing rapidly, everyone here could give themselves a collective pat on the back and say that it is something that is genuinely working and worth doing, and that perhaps we should be doing more of. But we cannot make either of those decisions. We cannot make a firmly based decision until we have the data, which give us the firm foundation on which to make it.

Photo of John Howell John Howell Conservative, Henley

Does my hon. Friend recall that the Select Committee of which he was a member was worried that an authority that was genuinely excellent in promoting equality failed in its duty because it did not undertake the right impact assessments, while an authority that was absolutely hopeless in its equality duty was seen as good because it simply assessed all its policies and procedures in the right way? That was one of our concerns about the way in which the lack of information was directed.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I thank my hon. Friend for his intervention. He is absolutely right. He illustrated the difference between outcomes and outputs. We can measure all the intermediate matters and have all the necessary wonderful files of policies that show, in theory, that we are doing x and y but, actually if the outcomes do not change on the ground and the reality does not alter as a result, we are just wasting time, paper and resources when we should be doing something different. That is when the difference between box-ticking and outcomes is crucial.

We look forward to the Minister’s response about how the Government are addressing the issue. I know that they have made some early responses, but we look forward to some more detail.

Moving on to amendments 19 and 20—

Photo of Evan Harris Evan Harris Shadow Science Minister

Before the hon. Gentleman moves on, my hon. Friend the Member for Hornsey and Wood Green and I have tabled an amendment to his amendment 21. Rather than me spending Committee time speaking separately on that, I wonder whether by way of intervention he might respond to the suggestion that it might be better—and more productive; there might be even less box-ticking—if the actual outcomes, which are the intention of the equality duty, were part of the metrics, rather than simply part of the need to “have regard”. Otherwise we shall have some firms saying, “Yes, we have regard to that, we have regard to that.” Why not, along the lines he is suggesting, ask them to be more specific about what they have actually achieved?

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

To be honest, I have not spent a great deal of time weighing up the relative merits of the hon. Gentleman’s addition to my amendment. He has made the case in his intervention, so I shall leave the Government to respond, rather than editorialise around it for him.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Stimulated only by that comment, does my hon. Friend not agree that there are at least two approaches, both of which the Government probably need to adopt? Who knows, he may well have a role in that himself, in due course.

One approach is perfectly proper, although I find it rather maddening sometimes, and that is for Governments to cite case studies, evidence of a particular change that has happened in a particular case or group of cases. Separately, and not subversive of the first approach, is for the Government to produce decent metrics, which can show collectively what the impact of policies could be. In other words, what we sometimes rudely call the anecdotal approach and the generalised, systematic approach can be valid, and one should not subvert the other.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

My hon. Friend is exactly right. In fact, he is elucidating further a point already made by my hon. Friend the Member for Forest of Dean about some of the reports already produced by the ODI, which might be a good foundation for a broader approach.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

In the interests of saving an unnecessary speech, although the speeches of the hon. Member for Oxford, West and Abingdon are always fab, we shall indeed measure the outcomes. That is in the consultation document about the specific duties. Measuring whether someone has had due regard is difficult anyway, but it is outcomes that we care about.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I thank the Minister for a helpful and reassuring intervention.

I shall take amendments 19 and 20 as a pair. What they seek to do is to pursue a concern that was, again, originally raised by the Work and Pensions Committee, when it was looking at the Equality Bill. The concern is that in parts of Government, and the Department for Work and Pensions is a good example, many public sector functions are being outsourced. The DWP is a good example because in its current welfare-to-work work, it is increasingly aiming for third party organisations, be they private companies, charities or third sector organisations of one sort or another, to take over the welfare-to-work programmes for people who are members  of the long-term unemployed or whatever reason. The Department has found that to be an extremely promising avenue and is ramping that up steadily. That is done—I use it as an illustration of a potential problem with that approach—by taking what it calls a “black box” approach to outsourcing. In other words, it does not specify what the charity that is undertaking the work must do.

The Department does not specify the process or the work to be performed; it specifies the outcomes to be achieved. Speaking to a charity, one could say, “It is your job to get a certain proportion of the people who have been out of work for six or 12 months that we are handing to you into work. If you do get them into work, which is sustainable employment that lasts for more than a period of weeks, then we shall pay you according to the results achieved. We shall not pay you according to what you have done to achieve it, we shall pay you according to whether you have the outcomes that we are mandating.”

That is important for several reasons. It means that there is far less intervention by Government in the work being undertaken to get people back into work. In addition, it allows a far greater variety of approaches to get people back into work. Clearly, that can be important for a number of reasons: first, because every individual may have different problems and barriers between themselves as they are today, as a member of the long-term unemployed, and as they are getting back into work at some point; secondly, the employment market in different areas of the country will be very varied. The types and numbers of jobs available, and the skills required in Weston-super-Mare—my own constituency—might be very different from those up the road in Bristol. They will certainly be different from those in Manchester or other parts of the country. That variety and flexibility is crucial, which is one of the reasons that the Government have decided that this is a profitable, sensible and effective approach to pursue, and why the Conservative party also supports it in principle.

Subsection (2) states:

“A person who is not a public authority but who exercises public functions must” also exercise the equality duty. I am concerned that, unless amendments 19 and 20 are accepted, it will be impossible for bodies such as the Department for Work and Pensions to pursue the “black box” approach. They will have to check on small, voluntary sector organisations. For example, there might be a small charity in Leeds that is involved in getting members of the gay community who are suffering from HIV back into work in central Leeds. It might be small, specialised and potentially very effective at what it does. However, if we are not careful, we could end up applying the public sector equality duty to that charity, which might be too small, too dedicated and—quite rightly—too focused on what it is doing to be able to cope with that. That would be a tragedy.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I understand the hon. Gentleman’s point and have some sympathy with it. Does he agree that we are looking for a balance? There is a danger in either extreme. There are dangers in putting money into an organisation and letting it do what it wants, but on the other hand, there are dangers in over-regulating.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I completely accept the hon. Gentleman’s argument. I was going on to say that it is not as if such organisations will be completely unregulated as a result of the rest of the Bill. They will still be subject to all the normal requirements of anti-discrimination legislation and ensuring equality that any other private sector organisation would be required to uphold, as we have discussed in debates on other clauses. We are not talking about a contrast between zero rules and regulation and the public sector equality duty. These are the same rules that we have been debating—and, to a large extent, agreeing on—in the rest of the Bill. The public sector equality duty is a higher standard again.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

May I introduce my hon. Friend to another concern? This public sector equality duty is, by definition, a matter for public bodies. There could be an outsourcing of back-office functions that takes place outwith the jurisdiction—to India, for example. This is a separate point from the one that he has been rehearsing in relation to charities that operate in the UK. Suppose there is a public sector duty on public bodies in this country, but those public sector bodies outsource their activities outwith the jurisdiction. Ministers come along and say, “This is all a matter of contract and we have tied it down”, but it would be impossible to pursue misconduct—including the widest possible breaches of equality legislation—towards those operating for our public sector and within our general remit of duties, but outwith our jurisdiction. Does he feel some unease about that?

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

That was an intriguing intervention from my hon. Friend. I will leave the Minister to respond to that as it is potentially quite an issue. I hope that the Government have already considered questions of territoriality. It is a valid point to raise and I thank my hon. Friend for doing so.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I thought that part of the point was that if someone is to outsource a contract or put it through the voluntary sector, they would choose to award that contract to those likely to perform the public sector equality duty. It would be a way of checking retrospectively that that duty had been performed. It is about being careful to whom contracts are awarded.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills) 11:15, 30 June 2009

Amendments 19 and 20 would gloss the public sector equality duty so that if a Department, or indeed any other public authority, subcontracted a particular part of its public sector duties to any organisation—a charity, a company or whoever—it would still have a duty to ensure that the services provided by the other organisation were provided in a way that was compliant with the public sector equality duty, as it is received by the people who are experiencing it.

However, the amendments would not require a small charity in central Leeds, or any other organisation providing subcontracted services, to apply the public sector equality duty within its own organisation in terms of employment law. We would make them subject to the same employment requirement that any other external, non-public firm or organisation will be subject to as a result of the rest of the Bill. However, we would make it easier for them to deliver public sector services for the reasons I have described.

The Solicitor-Generalrose—

Dr. Harrisrose—

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I am spoiled for choice. Let us start with the Minister.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I credit that that is what the hon. Gentleman intends to do, but he would not do that with the amendment at all. Subsection (2) will do exactly that as it will extend the duty to someone who is not a public authority—in a private business or the voluntary sector—because they are delivering a public function, in so far as they are doing so. That seems to us to be right.

The amendment would extend the equality duty to everything that that separate body did, not limited to when it was delivering public functions. For example, we could have a business that was contracted by the Government—for example, Group 4—to deliver a private prison. Under our provisions, while it is doing that, it is a public function, so it is covered. However, when delivering money to Barclays bank in one of its vans, it is not covered, but the hon. Gentleman’s amendments would cover it.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I thank the Minister for her helpful intervention. Since she is the one with the extensive legal back-up, we will accept her interpretation of the amendment. If we stick to what we are trying to do, perhaps the Government will address the point that we are trying to make. There is an issue of principle, and if the Government feel that it is wrong, I hope they will explain why. If they feel that it is something that has merit, perhaps they will take it away and consider it.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

If the hon. Gentleman’s purpose is to ensure that the delivery of public functions by private businesses is covered by the duty, it is exactly what the clause will do.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I thank the Minister for her intervention. I would like to push her for a little more clarification. She can either intervene again or deal with the point in her speech. I am concerned that in applying the public sector equality duty to public sector services delivered by third parties, those third parties may have to comply with the requirements of the public sector equality duty within their own organisation, in terms of their employees and internal organisation, systems and processes. That may be a duty that is altogether too serious and too high for a small charity in central Leeds, even while it is delivering a public sector equality duty-compliant service. That is the distinction that I am trying to draw, the principle that I am trying to elucidate.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

To take the Minister’s point, if a company or a small charity providing the services has to configure itself sensibly—for example, it is on the one hand providing a private prison, which would not be the case for a small company, as that is a major undertaking, and on the other delivering bullion to Barclays bank—it probably is not very sensible to have two entirely separate overhead operations. It would be much more sensible to have a single structure. If it has to be formed in a way to meet the equality duty, it may not be the best way of hypothetically delivering the bullion services to Barclays bank.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

That is a very fair point. I hope that the Minister either reassures us that provisions elsewhere in the Bill exempt the internal operations of a company or charity that is delivering a public sector service on behalf of a public authority from the public sector duty, even while it delivers both services in a way that is compliant with the public sector duty, or, if she says the Bill does not do that, explains why the Government think it right to make the internal operations compliant.

In respect of the Department for Work and Pensions and outsourcing of the kind that I have been using as an example, I am gravely concerned that the whole “black box”, outcomes-based, payment-by-results approach—which is, by all accounts, proving pretty successful, effective and important—may be subverted. We do not want to put that at risk or in peril. With any luck, the Minister will be able to explain how the Government propose to navigate their way through those particular shoals and rapids. If she feels that that is wrong, perhaps she will explain why the principle is incorrect.

I am conscious of the fact that I have taken up quite a lot of the Committee’s time. I have explained why the amendments were tabled and what we want to achieve with them, so I will sit down and await the Minister’s response.

Photo of David Drew David Drew Labour, Stroud

I rise to speak to my amendments 279 and 280 with the active support of the EHRC. These are two small amendments to an important part of the Bill. I hope to prove that we need clarification of and sensitivity on what is at the root of discrimination when people take action by word or physical assault on those who suffer discrimination.

The provision requires public authorities to address negative and hostile behaviours, not just the attitudes and beliefs underpinning them. That is already a specific duty that impacts on disability and it has given the EHRC its legislative tool. The duty is already on the EHRC and all I ask is that it be put in the Bill so that we have consistency in the way that body operates in relation to all other public bodies.

There is widespread evidence that individuals face such discrimination. At the very least, it is important that we debate that. More importantly, we should look at what the reality of discrimination means to people in their everyday life. At one extreme it includes the attacks and vile behaviour that, sadly, we have all seen towards certain groups of MPs, but it also includes low-level harassment such as name-calling and the sending of notes that imply that people are different and inferior. More particularly, there is also the threat that the internet poses. Discrimination can take different forms.

The criminal law recognises and penalises criminal acts, especially hate crime and incitement to hatred. It does not of itself require public duties inside or outside the criminal justice system proactively to eliminate such behaviours or activities, and the amendment states categorically that that should be the case.

I have already said that the duty exists in relation to disability. Again, the amendment would make it more proactive and more general in how action was implied. Such behaviours are likely to be adequately or comprehensively captured by unlawful harassment provisions in employment, education or goods and services measures, as they happen outside or in the gaps between the spheres and more often between private citizens.

The commission’s research, particularly relating to disability, shows a high level of violence and hostility. Along the continuum, that hostility becomes just as prevalent at a lower level, but more pervasive and pernicious.

I hope, therefore, that the measure finds favour and that we both tackle prejudice and promote understanding of how people relate to this important legislation. As I have said, it mirrors what the EHRC is already expected to do.

I shall make a couple of points before I finish. We can debate for as long as we like how proactive such organisations ought to be, but there are two particular caveats that I hope my hon. and learned Friend the Solicitor-General will refer to. The first is the need for clarification of exactly which public bodies are encompassed by the new legislation. In these days of quangos, hybrids and outsourcing—the hon. Member for Hornsey and Wood Green mentioned that—the provision needs to be carefully worded in terms of which bodies we expect to be subject to the public sector equality duty.

There is concern, certainly in the commission, that through this part of the Bill we could be lessening accountability, rather than ratcheting it up. Will my hon. and learned Friend make it clear that there is no diminution of the number of bodies that will be included within the provision?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am listening to the hon. Gentleman with great care, but I may have missed something. Will he explain in more detail why he and the EHRC think that there might be a diminution in the number of bodies covered by the provision? I did not quite follow that point in his argument.

Photo of David Drew David Drew Labour, Stroud

This relates to the relationship between clauses 143 and 147, which I will not go into, and schedule 19. There is a view that unless we have it in the Bill that there is at least the recognition that the bodies relating to disability legislation are linked across the board to other forms of discrimination, disability could be considered at a lesser level in terms of the hostility that people can relate to.

My second point concerns behaviour that is acceptable and that which is not. It would be helpful if the Minister said how that is clarified in the legislation. There is a view that, rather than strengthening the work of the commission, we could be weakening it.

I do not want to speak to clause stand part because I have made my points. However, I wish to look at one other issue, which is how the clause relates to religion and belief.

Photo of Joe Benton Joe Benton Labour, Bootle

Order. I point it out to the hon. Gentleman that that matter comes under the next group of amendments.

Photo of David Drew David Drew Labour, Stroud

If you wish me to leave that until later, Mr. Benton, I shall come back to it.

To conclude, will my hon. and learned Friend clarify the nature of the relationship between the commission—its powers and duties that it is responsible for—and how the Bill will ensure that there is no diminution, certainly not in terms of disability, and that the disability duties  relating to public bodies at least relate to every other form of discrimination that we have discussed. That is why this part of the Bill is crucial and why the commission is keen for the provision to be in the Bill—so that its duties are explicitly recognised in terms of all the other public bodies, if we can identify what those public bodies are, which is not an easy thing to do. Therefore, I will take guidance from my hon. and learned Friend. I hope that she and the Government look favourably on my proposal as clarifying rather than mystifying the situation.

Photo of Evan Harris Evan Harris Shadow Science Minister 11:30, 30 June 2009

I have one clause stand part issue, which I shall raise first, and a couple of points on the amendments in the group. The clause stand part issue on which I would be grateful for a response was raised in the EHRC briefing on the need not to have regression from the current disability equality duty. Public authorities have a responsibility to take account of disabled people’s disabilities even if that involves treating disabled people more favourably. The EHRC briefing calls for more probing on whether clause 143 effectively reproduces section 49A(1)(d) of the Disability Discrimination Act 2005, which amends the Disability Discrimination Act 1995 and which places a duty on public authorities to take account of people’s disabilities—this is the important bit—

“even where that involves treating disabled persons more favourably than other persons”.

The EHRC points out that the

“statutory code of practice...states that whilst the goal of the general duty is the promotion of equality ‘the underpinning principle is the requirement to take steps to take account of disabled persons’ disabilities even where that involves treating disabled persons more favourably than other persons. The understanding that to deliver true equality for disabled people requires more than treating them the same as everyone else underpins the requirement to combat discrimination (most notably the Act’s requirement to make reasonable adjustments) and to promote equality of opportunity’.”

The EHRC’s view is that the provision has been extremely useful

“in raising awareness amongst public authorities of their obligations under the reasonable adjustment duty.”

It is concerned that that is not made explicit in the clause. We might expect it to be made explicit in subsection (5), which states that

“Compliance with the duties in this section may involve treating some persons more favourably than others”, but that does not go as far as section 49A(1)(d), which does not create an obligation to do anything specific, but does create a general obligation to do something. The second half of clause 143(5) states:

“but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act”.

The whole point of clause 143(5) is to deal with another issue, which is contained in the second half of the subsection, and its first half does not usefully tackle the point that the EHRC is making.

The basic EHRC point is that the disability equality duty in section 49A was so explicit that it might appear to those who have not been involved in the passage of the Bill that there is no longer a specific requirement in  relation to disabled people and, thus, that the duty in respect of disability has somehow been diluted. The EHRC thinks that a solution would be—I would be grateful for the Minister’s view as to whether she would consider the point, because there is no specific amendment—a provision to require public authorities to have due regard of the need to take steps to take account of a disabled person’s disabilities. The duty in respect of disabled persons has already been elevated beyond what is required or expected of public authorities in respect of the other strands. It would be the EHRC argument, and I see its point, that that could be usefully reproduced in some form in the clause.

Dealing with the amendments before us, I have already by intervention made the point about our amendment to the excellent amendment tabled by the hon. Member for Daventry. I am delighted that he is willing to accept it and I look forward to the Minister’s response. I make the point, as the EHRC has done, that unless public authorities take active steps to fulfil, protect and foster human rights of individuals in this country, both in respect of equality and more broadly, we will not get anywhere. All that we seem to be doing at the moment is firefighting myth-based attacks on the 1998 Act, instead of recognising what it can achieve. I think that Government and Parliament need to be more proactive in promoting that Act. I cannot go any further into my thinking behind that issue, because it would stray outside the scope of the Bill and the amendment, but it is important.

I hope that the hon. Member for Daventry will recognise that if a commitment to promote human rights is to mean anything, it must include the human rights of the most vulnerable, who are often not British-born and bred. The worry is that movement away from the human rights that I thought he was talking about—the rights under the 1998 Act—to some British Bill of Rights could mean that the most vulnerable and in need of protection, especially in terms of discrimination, could be abandoned. The Bill would somehow not apply to Gypsies or asylum seekers, but only to the British man in his castle.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I am of course at one with the hon. Gentleman on the wish to create a climate of credibility, which I think the present situation has tended to lose. For the record, as I pointed out in the Council of Europe the other day, as my name is of Romany origin, I have a rather strong affinity with that community—that is one of the reasons why I take an interest in it.

The rights are indivisible, and the hon. Member for Hornsey and Wood Green has already made the point that even if people are not citizens, it does not mean that they are second-class human beings—of course that is right. I hope that any legislation will take that into account.

I am also entirely at one with the hon. Member for Oxford, West and Abingdon on the need to respect, particularly, the vulnerable, who often have no political base. Even if they are British citizens, they typically do not vote or participate—they do not vote Labour, or for anyone. We need to be conscious at all times that it is not an issue just for minorities, but equally, the proper protection of minorities is implicit in the convention and what we should do.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the hon. Gentleman. I had not realised that “Tim” was a Romany name.

Photo of Evan Harris Evan Harris Shadow Science Minister

Of course, the hon. Gentleman means “Boswell”, and he says that “Tim” is Irish. I wish him luck in his remaining time in this House, and after he leaves, when urging his Front-Bench colleagues not to dilute the 1998 Act in the way that they imply that they would.

I move on to amendments 19 and 20. The Minister has already pointed out the fundamental problem in their drafting. Clause 143(2) quite reasonably refers only to non-public authorities having the duty

“in the exercise of those functions”, that is, public functions. The hon. Member for Weston-super-Mare has made a mistake, I think. By taking out lines 15 and 16, he would take away the restriction and therefore, “except in relation to...employment”, expand the duty to the other functions. I accept that that was not his intention.

As far as the hon. Gentleman’s intention is concerned, I do not think that it is sustainable. There are some quite large non-public authorities that do quite a large amount of work in delivery of public functions. Indeed, they may be the lead deliverer of public functions—even more than a public authority. It would be bizarre for the users of that public service in that geographical area if, because the public service is delivered exclusively through an agent of a public authority, there were no need for the provider to have regard to the public duty. It would essentially create a postcode lottery—or at least, a geographical variation, which is the expression I prefer to use rather than “lottery”—where, for example, people delivering prison services would have to “have regard” to these matters. It would be arbitrary, and the way the Government have framed the provision in the Bill is not arbitrary in that way, and therefore ought to be defended.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

To clarify, the intention behind the two amendments is to ensure that the service, which is being provided by a company or a charity, is subject to the public sector equality duty. But the company or organisation delivering it should not necessarily be so in its internal processes and functions. That is vital. The hon. Gentleman is right to point out that there are large subcontractors as well as some small ones, and if we do not make an exception or at least make the Government address the matter, we could constrict the pool of people who can bid for public sector contracts to only large organisations that can deal with the particular set of requirements. As a result, the richness and potential improvement in quality of many small organisations could be lost.

Photo of Evan Harris Evan Harris Shadow Science Minister

I need to apologise for not talking about the matter in relation to the work force, rather than users. I shall now go back to that and deal with the hon. Gentleman’s second point later. It would be arbitrary whether the work force, which might be quite large, benefited from the need of their employer, in delivering a public function, to be covered by the positive duty. He needs to deal with why, just because of the nature of the employer—even though the function is the same—there is arbitrariness about whether the work force, and the community from which they are drawn, benefit from the positive duty.

I shall give the hon. Gentleman an example that I have used before. Someone in the work force of a public authority might be transferred into the employment of a non-public authority while doing the same job. I have  argued that that should not mean that there is suddenly a new occupational requirement, if the job is the same—I think that the Minister gave me comfort on that—simply by virtue of the employer changing. By virtue simply of that contracting out, there would no longer be a positive duty for what might be a large work force. That would be a deterrent for the Government to contract out work that might be delivered more efficiently by non-public sector organisations. They would suddenly see things that were done to promote all that we want to see, go backwards because the work force, and the community from which they are drawn, would no longer benefit from regard to be had to the need to promote equality in respect of employment matters that previously existed.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I take the hon. Gentleman’s point. The evidence so far on the ground suggests the opposite to what he is describing. Parts of the Government are already outsourcing such things. I cited as an example the Department for Work and Pensions and its work on the welfare-to-work programme and getting long-term members of the unemployed back to work. The difficulty would be that, if the duty were applied to the workings of the mythical small charity in central Leeds, the charity would not be able to participate or bid, so the things that are currently being outsourced could not be outsourced in future. I suspect that the traffic would be in the opposite direction from the way that he suggested.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman is coming back to the point that I was about to touch on. In the delivery of the same service, it would be arbitrary whether the work force were covered by the need to have regard to positive duties. There would also be the problem for the work force who were transferred. His main point is that it is an onerous duty and must therefore not apply to small organisations. However, it applies to small public authorities. If it is a question of size, I would have expected him to table an amendment that referred to 100 workers, 30 workers or five workers, rather than make another arbitrary distinction between a small public sector body and a small private or third sector body that was doing the same work.

There should be a level playing field and it cannot be right for a public sector body that is bidding for a contract, a tender or the delivery of public services to be faced with more duties to have to have regard to. I do not think that they are onerous, so I shall not use that term. I do not like the term “burden” for doing something that is right and not particularly onerous, because it is only “having regard”. It seems wrong not to have a level playing field. If it is a burden, as the hon. Gentleman sees it, that will automatically penalise public authorities. They would not have to have this as part of their overhead, such as it is.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills) 11:45, 30 June 2009

My argument is slightly different from the hon. Gentleman’s. I was talking about not just the size of an organisation, but the type of contract that the outsourcing involves. He is saying that he fundamentally does not agree with the black box, payment-by-results style of outsourcing contract currently being used to some great effect in Departments such as the Department for Work and Pensions. It is an inevitable part of such a contract that we do not open the box. We say, “It’s up to  you how you deliver that, provided it is done in a way that is fundamentally legal.” If, on the other hand, we are going to require a public sector equality duty to apply to the internal operations of that organisation, we have to start checking up on how things are being done. We then have to go back to the old-fashioned way, which has been abandoned or moved away from in places such as the Department for Work and Pensions, of checking process, mandating process and requiring things to be done, rather than outcomes to be achieved.

Photo of Evan Harris Evan Harris Shadow Science Minister

I know what the hon. Gentleman is saying. Perhaps there is a philosophical disagreement between us in that I do not think it is right that there should be an uneven playing field between the public and private sectors when providing services. While I am not totally ideologically opposed to the private sector providing services—they do so very effectively with care services, and the same applies to charitable sectors—there has to be a level playing field. Although I will not go into great detail, there is far too often not a level playing field. For example, independent treatment sectors were given huge advantages over the poor old NHS—for a start, they did not have to train anyone—and there is an outrageously uneven playing field. If something is a good thing to do when delivering of public services—I believe this is, and I think the hon. Gentleman believes it is, although I am not sure what his view is about the clause overall—it should apply to everyone.

This is not the same as opening the box and saying, “How are you delivering welfare to work?” There will be consultation on specific duties, but this is saying, “Are you doing the things that your public sector competitors are doing?” If the hon. Gentleman is a believer in a fair market, as I know he is, I urge him to see things not in terms of Government interference in how something is done, if he thinks that the outcome is all that matters, but in terms of the fact that an unfair competitive advantage should not be given to private sector organisations. There is already a great deal of unevenness. If, as generally happens, the public sector trains people, they can then be used by the private sector free of training costs. That happens in many care organisations, for example, and we should not make that unevenness any worse.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I have some sympathy with the hon. Gentleman’s comments. I have experience of cases in which there has been outsourcing in the health service and a row about the obligations of training. To help the debate along, would he not concede that if there is to be a duty on those persons—we await the Solicitor-General’s comments—it might be reasonable to look at the fulfilment of that duty slightly differently depending on the scale of the organisation and what it is doing? A large charity such as Leonard Cheshire Disability would be in a different position from one that was small and specialist and perhaps should not require exactly the same level of HR function as a bigger organisation or a public authority discharging the same duty.

Photo of Evan Harris Evan Harris Shadow Science Minister

I was going to come on to the point about smallness. I have already said that if that is the argument, there ought to be a particular requirement that there should be a cut-off, and that should apply to both the public and private sector. I do not think that there  should be a size cut-off, especially with regard to employment. If there are only 10 people employed, it should not be that hard to seek to have regard to the need to eliminate discrimination, harassment, victimisation and other conduct prohibited under the Bill. The employer knows the 10 people and can ask them whether they feel that they are suffering, while that is harder in a bigger organisation. I do not think that such a thing is onerous. It is not the same argument that we had on pay audits, which I also do not accept—this is different. This is not something that scales up by employee in the way that has been suggested. There are small organisations with only one contract with the public sector that exist wholly to take public sector money to do what they do—and good luck to them. However, those organisations are 100 per cent. funded by the public sector to do the job. They are equivalent, and they would have an unfair competitive advantage if they did not have regard to the requirement.

Finally, I am delighted that the Government accept that there is a difference when delivering public functions as far as the positive duty is concerned. I have already indicated that my party will seek to return to this issue at a later stage of the Bill’s proceedings. We will argue that for people in receipt of public services, as opposed to other services, there is a stronger argument for some of the protections that are not being offered—protection from discrimination on grounds of religion, for example, or protection from harassment on grounds of sexual orientation.

Clause 143(2) sets out a specific recognition that when public services are being delivered, the situation is different, because public funding is often involved. There is an expectation that the people concerned, particularly the users of those services, are a captive and often vulnerable population who deserve more protection than the ordinary person in the marketplace trying to book into a hotel or lodging house.

Amendment 280 was tabled by the hon. Member for Stroud for the EHRC. I have a great deal of sympathy with it, but it slightly misses the point. The hon. Gentleman argues that a local authority, for example, should have a positive duty to have regard for the need, inter alia, to

“eliminate hatred and hostility towards members of different groups”.

We know that gay people in schools might well be victims of that sort of hatred and hostility. Would it not be better for gay people in schools to be covered under clause 143(1), which states:

“A public authority must, in the exercise of its functions, have due regard to the need to...eliminate...harassment”?

For reasons that I cannot understand, protection from harassment on the grounds of sexual orientation is excluded from schools, as is protection from harassment on the grounds of sexual orientation and religion for people seeking to receive public services. I cannot understand on what basis there would be any need to harass people receiving public services on the grounds of religion, but that is not covered by the Bill.

I urge the hon. Gentleman—and the EHRC, which I have spoken to about this—to work for the extension of harassment provisions when necessary, perhaps under a narrower definition than currently exists, so that such situations would be covered by legislation on unlawful conduct. That would automatically bring those areas  within the public sector duty without any requirement for an amendment that says that we should try to do something to eliminate hatred and hostility, but that allows the framework of the legislation not to make unlawful the delivery of that hostility and hatred through harassment. The approach seems to be upside down. If the EHRC recognises that this is a problem, it should readdress the question of whether the harassment provisions could or should be extended carefully to vulnerable groups in respect of education and public services. To a certain extent, such things apply only to public services, so we are talking about the same territory. I hope that the hon. Gentleman recognises that a combination of approaches might be needed to deal with this.

If the amendment were to be accepted, there would have to be regard to the need for public authorities to protect freedom of speech. An amendment relating to that subject is in the next group, so I will not take that matter further, although it kind of ties in, and I meant to table it as a response to the sort of debate that we are having on this group of amendments. It is difficult to get public authorities to start eliminating hatred, as that would automatically lead them to not allow someone to book a room if they believed that that person hated certain groups of people. It is not a crime to hate certain groups of people, although I deprecate it enormously. I have campaigned for more than two decades against racism, but it is not the job of a public authority to say who has free speech within the law. I urge the hon. Gentleman and the EHRC to look towards the law.

My hon. Friend the Member for Hornsey and Wood Green and I tabled amendment (a) to amendment 21 to set out on the amendment paper an argument that the hon. Member for Weston-super-Mare might wish to consider. That was a bit of a waste of time if he is saying that the Minister can respond to my criticism of his amendment. There is no need for the Minister to deal with amendment (a) to amendment 21, as I had hoped that the hon. Gentleman would. However, as I said in an intervention, it might be better to be even more specific about what the reporting requirements are, rather than just having regard. The Minister said that that would be picked up by the specific duties, which I welcome, and I do not think there is anything more to say on amendment (a) to amendment 21.

We support the measure, with the caveat that we will deal with in the next group. We wish it well, but we think that it could be improved, as we will set out specifically during our next debate.

Photo of John Howell John Howell Conservative, Henley

It is a great relief to be able to give my undivided attention to this Committee. The Finance Bill Committee has been running in parallel for the past few weeks but, mercifully, it has now ended, which allows me to devote my attention to this Bill for the remainder of our sittings.

In my first contribution to the Committee, I mentioned my experience in relation to the public sector equality duty during my time in a local government role, because I saw that as a chance to move the debate on to outcomes. I welcome the Solicitor-General’s comments about the shift towards an outcome focus. I also welcome the positive-action orientated wording in clause 143(1), such as “eliminate discrimination”, “advance equality of opportunity”, and “foster good relations.” A lot is set by words and that wording paints a good picture.

When I came to producing and delivering the public sector equality duties, as they were, in a local government context, I looked at not only the issue of fairness—of course—but what one might call enlightened self-interest. One of the last things I signed off in that role had the words:

“by ensuring we do not exclude we ensure that as an employer, we tap into the talents and abilities of all our people and the users of our services benefit on a lasting basis.”

It is perhaps early in one’s parliamentary career to be quoting oneself, but it was a great pleasure to bring that to bear. That picks up the point made by my hon. Friend the Member for Daventry about the general benefits of customer service that come from focusing on equality duties and improving services overall.

I was also interested in the earlier discussion about whether there was any evidence that the existing equality duties had worked. There are some indications of success and that equality issues have been forced into a position of higher priority—indeed, a small amount of mainstreaming has also taken place. In both the Schneider-Ross report and the Work and Pensions Committee’s report, I was struck by the fact that those results were still difficult to tie down and prove in terms of metrics. There was no link between the metrics that were there and the outcomes.

Perhaps one good example of that issue is contained in the January 2007 Ipsos MORI report on the disability equality duty, which revealed that 72 per cent. of public authorities covered by the audit that had taken place had published a disability equality scheme and that at least 54 per cent. had published a scheme that contained evidence that the authority had involved disabled people in its production. Those statistics are encouraging, but they do not tell us, or measure, what difference was achieved as a result. Of course, we really need to understand that aspect when considering the clause. It is impossible to discuss the merits of the clause without a better understanding of the monitoring and compliance regime that will underpin it. My feeling is that existing monitoring and compliance are inadequate and more about process than outputs. It is one thing to change the focus to outcomes, but if the measurements are still about outputs, the process will not be taken any further.

During the Work and Pensions Committee’s inquiry into disability, which was aimed at the Bill, I was keen to pursue the matter with several organisations, one of which was the TUC. It was covered in question 86 in the evidence volume to the Committee’s third report of the 2008-09 Session, which was entitled “The Equality Bill: how disability equality fits within a single Equality Act”. When I asked where the current disability equality duty was working, the TUC said that there were some excellent organisations, but it was interesting that even it could not refer to any specific bodies, and that none immediately jumped out as good examples that could be used as case studies. The TUC admitted that there were an enormous number of “laggards”, but more importantly then confirmed that the EHRC was investigating 170 bodies for failure to comply. It talked about the need for “pushing and shoving”. We are familiar with the use of “nudging” as a means of delivering policies, but the suggestion was somewhat more forceful than that.

I was asking essentially whether the overall picture of the disability equality duty example was negative and whether anyone out there was doing it really well,  without having to be pushed and shoved. The answer that I received from Citizens Advice was, “Yes, it was a negative picture.” That was amplified by the TUC, which said that in its estimate only about 10 per cent. of organisations delivered it well, 10 per cent. did it really badly and the rest were somewhere in the middle.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 12:00, 30 June 2009

My hon. Friend had a previous role in delivering such things and he mentioned the important duty of improving the customer service of organisations. Given that many organisations are not doing it well, is there an approach that it might be helpful for the Government pursue? If they could get organisations to understand that adopting those duties, particularly engaging with different groups, made them better at delivering their core business—the issue that they think about each day—that might be a way in which to get organisations not only to take the matter seriously as an add-on, but to make it a central part of what they do each day.

Photo of John Howell John Howell Conservative, Henley

I thank my hon. Friend for his remark. He is absolutely right. The way in which I approached the matter was twofold. First, it was not seen as something that was separate. I committed my local authority to being the first English county council to go for a charter mark for the organisation as a whole. Therefore, there was a context and a process in which it could sit. In parallel to that were a series of workshops with groups that represented all those with the protected characteristics that met regularly to look at how different aspects of the organisations were working. We asked them to tell us what outcomes they wanted and to say how we could integrate them in a more fundamental way. There are some extremely good examples of what my hon. Friend was saying, such as by taking an holistic view of an organisation and not making the issue too separate, a lot could be achieved within the organisation by mainstreaming it.

I return to a bit of pushing and shoving. As a practical example of the difficulty, Citizens Advice commented, “With a little bit of pushing and shoving, the public duties are effective, but the problem is that pushing and shoving does not occur a lot of the time”. The difficulty of the EHRC monitoring so many organisations and the difficulty of read-across between them came out in several pieces of evidence that have been delivered both to the Committee and to the Select Committee. The example that I cited earlier came from the public interest research unit, which referred to a public authority that was excellent in promoting equality, but which did not undertake impact assessment so it is in breach, against an authority that assesses all its policies and procedures, but is appalling in terms of delivering equality.

There were ticked boxes around the current schemes, which is probably the description that has been used most by those who have looked at them. It is certainly something that we need to move away from, but we need to understand what it is in terms of the monitoring of compliance that underpins the delivery of what the clause sets out to achieve.

I reinforce the point that I made earlier to my hon. Friend on his intervention: moving away from the schemes and the bureaucracy, and talking and listening to people  is by far one of the most effective ways of ensuring that real outcomes are delivered, and that people are not trammelled by bureaucracy and the ease with which one can slip into an output-based culture, rather than an outcome-based one.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I want to understand why the clause is somewhat limited in its scope. I cannot understand why we would not wish to impose the public sector equality duty on the organisational side of anyone who receives a contract. I understand the size argument, but, like my hon. Friend the Member for Oxford, West and Abingdon, I do not agree with it. To me, the whole essence of a contract from the Government or a state authority is that people will be certain of getting aid, and they would want that contract—it is a wonderful contract to get in an uncertain world. Then, in doing so, the expectation of those getting the contract should be that they should have regard in all the functions, whether they are a private sector company that is executing a public function or a supplier contracted to a public authority. I simply seek to probe the Minister as to why the Government have not gone even further in the clause.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I have a specific question for the Minister. It refers to a written answer that the Parliamentary Secretary, Government Equalities Office, gave to an MP. The question was:

“To ask the Minister for the Cabinet Office what steps the Government is taking to tackle discrimination against same-sex couples during adoption processes.”— a perfectly reasonable question. However, I was a little concerned. In the answer, the Minister said:

The Equality Act (Sexual Orientation) Regulations 2007 introduced the right for same sex couples to be treated the same as other prospective adopters.”— a perfectly reasonable and fair point, which we support. He continued:

“The new Equality Bill maintains this right. It also introduces a new public sector Equality Duty”— which is why it is relevant here—

“which means that local authorities will have to consider the needs of lesbian, gay and bisexual people when they are planning their policies and services, including adoption services.”—[Official Report, 23 June 2009; Vol. 494, c. 794-5W.]

My concern is that when they are planning adoption services, local authorities should not really have the needs of any prospective adoptive parents in mind, gay or otherwise. Under the Children Act 1989, the only thing that they should think about—the primary thing, which courts should also think about—is the welfare of the child. When the Minister comes to conclude, will she confirm that section 1 of the 1989 Act, which makes the welfare of the child paramount, is the main thing that local authorities should think about when they are planning adoption services? They should not really be considering the needs of adoptive parents, whether gay or straight, but should be thinking about the needs of the child. That should be the paramount consideration in mind.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I will return to that point later if there is a need to. But I do not see any clash between the answer given by my ministerial colleague and the principle that is in section 1 of the 1989 Act, which has been there for ever—that the welfare of the child is always paramount. Of course, the welfare of the child  might be best suited by a local authority having adoption services with particular interests—a religious or a gay interest. That might well be in the interest of the welfare of a child being paramount. Therefore, I cannot see a clash between the two.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I thank the Minister for that answer. I was simply making a point. She is quite right. She characterised it by having the local authority starting from the interest of the child and thinking about the range of prospective adoptive parents? That is absolutely the right way. The written answer, which may not have been phrased in the best way, said that the local authority would consider the needs of prospective adoptive parents. That should not be the starting point, which should be, as the Solicitor-General said, the needs of the child, and the range of parents that the child might need should then be considered, not the other way round. The Solicitor-General helpfully characterised that this morning, and I am simply drawing her attention to the written answer because it was less than helpful.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I cannot see any lack of helpfulness in the answer. The hon. Gentleman was asking about the provision of adoption services, and the obvious answer is that they should be able to offer every option for a child, including gay adoption if necessary. The quibble is about a question that was answered by someone else, but I hope that I have satisfied him that nothing has undermined—it would be earth-shattering if it did—section 1 of the 1989 Act.

We have had an interesting and wide-ranging discussion on this group of amendments to clause 143, which creates the new equality duty on public authorities that will replace the three existing public sector duties on race, disability and gender. Those three equality duties were innovative and pioneering, and shifted responsibility, as many speakers have acknowledged, from combating discrimination and disadvantage after it had happened—a passive model of waiting for discrimination to occur and then tackling it—to putting the onus firmly on public authorities to consider how to prevent and protect against that discrimination in the first place.

There is broad consensus that the existing duties have been valuable tools in promoting race, disability and gender equality, and I am glad to be able to add the hon. Member for Daventry to that broad consensus following his acceptance of it this morning. Some 82 per cent. of respondents to the discrimination law review consultation supported the concept of introducing a single equality duty on the basis of the efficacy of what had gone before.

The Schneider Ross research, to which the hon. Member for Henley referred, was published on 11 June with the consultation document and our proposals for the specific duties to underpin clause 143, and was favourable. That research was into the effectiveness of the current specific duties. Some 97 per cent. of the respondents to the research reported either a significant improvement, or some improvement in one specific outcome. That word and that research run together well to indicate that they have worked, and that it is now time to build on that success and to extend the benefits of the duties to the other protected strands.

The hon. Member for Daventry would build even more on the good foundation by adding to the clear requirements in the clause a requirement for public  authorities to have due regard to the need to “fulfil”—he accepts that minor amendment from the Liberal Democrats—respect and promote the human rights of people for whom they are responsible when exercising their functions, regardless of whether such persons possess a relevant protected characteristic under the legislation.

It was good to have a Council of Europe flavour in our discussion, and we have lamented its absence in our recent few sittings. There is no doubt that the EHRC report and our experience indicate difficulties with public acceptance of human rights. The press do their level best to ensure that everyone misunderstands those rights. A couple of examples were quoted, but the Committee may recall a siege when someone on a roof was given something to eat by the police, and the press asserted the following day that he was entitled to a Big Mac as one of his human rights. The police were just sensibly keeping him happy and comfortable in the hope of persuading him to come down. I believe that they were successful in that, but that was not how it was depicted.

Another example was the convicted murderer Nilsen, who wanted some pornography in prison, and it was reported that his human rights would facilitate that straight away. Not surprisingly, bad feeling was whipped up, although it was never on the cards; it was just some strange attempt of his, and the authorities, of course, dismissed it appropriately.

I will not be critical of Opposition Members, because they have all made it clear that they value people’s rights, but I can particularly recall responding to a debate about human rights in which the Tory party was not very supportive or helpful of the Act. It had too many overtones of Europe for some of them, I think. There is undoubtedly a job to be done, and the EHRC report has disclosed that it is sizeable. The EHRC will spearhead it, of course; that is essentially part of its function.

I note that the report suggests—I say this a little out of self-defence—that human rights have not been used extensively in court. That is certainly not my experience, particularly in the criminal field. When I was still at the Bar, I was a lecturer in the faculty set up by the Criminal Bar Association and the Bar Council to teach barristers about the Human Rights Act. The Crown Prosecution Service helpfully indicated that it would not instruct anybody who had not been on such a course, so all prosecutors had to go on it, which meant that the defence lawyers also had to go on it so that they would be able to match the prosecutors. It was an excellent way of spreading the knowledge. I think that the legislation is used pretty frequently now.

Photo of Tim Boswell Tim Boswell Conservative, Daventry 12:15, 30 June 2009

I agree with the Solicitor-General on that specific point. Does she agree as a practising lawyer that one of the elements is not what goes to court but the threat of proceedings that might be taken? I advert to the case where I wrote to a prison director and said, “If you don’t do something about this immediately, I shall think you’re in prima facie breach of article 2,” and the decision was changed within a week, without the need to go to court.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

That is exactly right. I was going to come to an analogous point. The hon. Gentleman made the point that we must mainstream human rights in the delivery of public services. That has been helpful in some ways.

For instance, hon. Members might reflect on the emergence of a community called carers. Historically, before the Human Rights Act, scant regard was given even to the existence of such a community. If somebody had a sick or elderly person in their home, they were just seen as having a duty as part of family life to look after them. Now that Human Rights Act rights attach to everyone, it is possible to ensure not merely that the cared-for person is adequately protected but that the carer’s interests are balanced as well. Human rights have played a role, not in a court-based way but through the medium of negotiations within local authorities and in the delivery of welfare services, in redressing that balance so that we now have a better picture. We have a mixed picture on how well human rights have proceeded, and I see the point of the hon. Gentleman’s proposal that we should try to take them further.

The amendment draws on the report on human rights in England and Wales by the EHRC and its distinguished chair, to whom I pay considerable tribute. However, the report said that the Government should consider consulting on whether to introduce a human rights duty alongside the existing public sector duties. Interestingly, it did not suggest incorporating human rights into the equality duty, although the commission has been closely involved in the development of that duty. It seems that the commission would prefer to keep the two concepts separate, whereas the hon. Gentleman’s amendment would merge the two. At present, the EHRC’s only proposal on the matter is a significant commitment, by which I am pleased, that it will assist public authorities to develop mechanisms to integrate their current positive obligations under section 6 of the Human Rights Act with their work on the equality duty. I look forward to the outcome of that work.

Perhaps the key question in considering the amendment tabled by the hon. Member for Daventry is whether it would add anything to the obligations on public authorities. It would require the public authority to fulfil, respect and protect human rights. Section 6 of the Human Rights Act 1998 already requires public authorities to act in a way that is compatible with people’s human rights. Of course, certain of the rights also create positive obligations, which can require not just that a public authority should have regard to rights, but that action can be demanded from it to protect a person’s rights. An example that is close to my heart is that a local authority’s domestic violence unit may secure new accommodation for victims of domestic violence to protect their freedom from inhuman and degrading treatment and, in some situations, to protect their right to life. Therefore it may be that a duty along the lines of the amendment would not add to existing provision.

To consider briefly the qualified rights, such as the right of everyone, under article 8 of the ECHR, to respect for their private and family life, home and correspondence, public authorities must, of course, have such respect. That is everyone’s right, and it is up to public authorities to act compatibly, so they must respect it. The hon. Gentleman wants to inject that requirement into public authorities’ conduct of their business, but they already have such a duty. If there is a danger that they would act incompatibly with that right, they have a duty to protect it by avoiding doing so.

The amendment would add nothing to the existing obligation on public authorities to take the steps outlined. However, it might be a disadvantage: it would bring the commission’s power to issue compliance notices against public authorities into the field of human rights, when those compliance notices are generally intended for systemic breaches of equality. The EHRC has many duties and powers to promote human rights. It can initiate judicial review proceedings if it thinks that someone has acted in breach of the Human Rights Act; that is all the more appropriate if a public authority is concerned. The commission’s functions are wide-ranging and I am not convinced that we need to bring in its compliance notices, which would be not the main thrust but a side-swipe, as it were, of the amendment.

I welcome the debate that the hon. Gentleman has opened up with the amendment; I welcome again the impact that section 6 has on public authorities, and the fact that the EHRC will specifically consider, as the Bill progresses, how to integrate its new duties with section 6. I respectfully suggest that the hon. Gentleman can now withdraw the amendment. It will add nothing to the provisions and is arguably in the wrong place, as this is not a human rights Bill.

As I and the hon. Member for Oxford, West and Abingdon have pointed out, amendments 19 and 20 would extend the reach of the equality duty into the non-public functions of private bodies, although I am not sure whether that was their purpose. However, since there is a question of reach, as it were, perhaps I might mention the current reach of the equality duty, which will also play on issues raised by my hon. Friend the Member for Stroud.

The equality duty requires all the public authorities listed in schedule 19 to have due regard to the three matters listed in clause 143. Clause 144, which I refer to because we are considering the reach of the provision, introduces schedule 19, which lists the public authorities. Clause 143(2) extends the duty to bodies that are not public authorities: they are not in schedule 19 but nevertheless carry out public functions. That is a recognition that public functions are increasingly being carried out by private bodies; they must not escape the scope of the duty simply because they are acting as a sort of agency. Schedule 19 lists public bodies, and the flexibility of clause 143(2) allows us to specify those other bodies that deliver public functions. It is pretty comprehensive coverage, but there is a little more to say.

Schedule 19 lists most public authorities—Government Departments, local authorities, NHS bodies and so on. It covers about 90 per cent. of public authorities, but that is not the end of the story. We are setting out publicly the requirements of the general duty, and our officials are talking further with a number of other bodies that we believe should be included—beyond those already listed in schedule 19. We shall complete the list before the new duty comes into force.

Essentially, we have put together the list-based system of the race equality duty with the definition of public functions under the Human Rights Act to give a broader reach. However, by the time the duty comes into force, we envisage that schedule 19 will list the same bodies that are subject to the current duty. We have a little work still to do, but there will be no reduction in the coverage of the duty across the full range of bodies.

Photo of David Drew David Drew Labour, Stroud

May I be clear about this? Will there always be the opportunity to use secondary legislation to add or exclude bodies that are implicit in schedule 19?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Yes, that is correct. If my hon. Friend is concerned about the matter, I have with me a complete list of the bodies currently subject to the general race duty, or the specific gender and disability duties that we hope to add to the schedule. If he wishes to read it, he will see that it is extremely comprehensive. Although no one has raised the point to which he refers, it is important to emphasise that although we have 90 per cent. now, and we will add the definitions of public functions, which should cover everyone, we intend to specify more in the interests of safety.

Amendments 19 and 20 would change clause 143(2) to read as follows:

“Subsection (1)”— that is the application of the duty—

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

The effect would be a significant widening of the provision. As currently phrased, it states:

“A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard” to the equality duty. We have confined the application of the equality duty to non-public bodies that deliver public functions. The amendments tabled by the hon. Member for Weston-super-Mare would widen it to cover all business—those who happen, in one small department of their business, to be delivering a public function, except employment functions. I confess that I have not followed the logic between what he said about the black box and the employment functions, although I am sure that it must be there.

The other defect of amendments 19 and 20 is that they would apply only to those bodies subject to the duty because they are carrying out public functions. Anyone listed in schedule 19 would be covered for employment functions in any case, so the proposal is not remotely workable.

If we extended the equality duty to every business in all its operations, that would be a significant extension of the equality duty into the voluntary sector, and it would be very uneven in its application. I think I mentioned in an intervention that the way in which Group 4 ran a private prison would be subject to the duty. Under the hon. Gentleman’s amendment, it would be subject to that duty when delivering cash to a bank and also when doing all the other things it does. Securicor, however, would not be subject to that duty when delivering cash to a bank. No one would know who was and was not subject to it because they would not know, in any event, who was delivering a public function somewhere else.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills) 12:30, 30 June 2009

I apologise if there is a technical flaw in the amendment; but when the Solicitor-General helpfully intervened during my earlier remarks, I was driving at whether or not that subsection (2) will make it impossible for Departments, such as the DWP, or any other public authority to pursue the black-box, payment-by-results approach to subcontracting, and if so, I was trying to ensure that that is not prevented in future. Even if the amendment falls on a technicality, I hope that she will  consult her colleagues about it to ensure that such a problem is not an inadvertent and unintentional consequence of an otherwise sensible approach.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

It is not a technicality, and the hon. Gentleman has done the opposite of what he set out to do. I simply cannot see how it relates to the kind of black-box doctrine to which he seems so attached. The point is that the equality duty passes on to the exerciser of the public function, whether black box or green box and however it is begun, but that will not affect whether or not one micro-manages from within the Department how new jobs are set up. All it does is pass on that duty and obligation—enforceable in the ways that we are beginning to become familiar with—to the deliverer of public functions, so it does not really play on that issue at all.

The duty will, of course, only impact on bodies carrying out public functions within Great Britain. The hon. Member for Daventry mentioned outsourcing to India, but back-office services are not a public function in any event, so any worries about that are without foundation. In such cases, we would have to ensure that public bodies used their procurement processes to ensure that anything outsourced abroad was subject to strict contractual terms that required the delivery of equalities, and that would be enforceable on a contractual basis, even though we are talking about things across the sea. I hope that I have dealt with the questions that the amendment raised on impacts upon the delivery of public functions.

I will now address the point that employment might be singled out as a function that should not be subject to the duty. It seems to us that employment is part and parcel of the way in which public functions are delivered, because it is difficult to deliver that if one cannot consider the technical abilities of the people one employs to do it. How could a private contractor be required to make arrangements for advancing equality in all the aspects of running a prison but not in relation to the people it employs or how it employs them? Employment functions have not been excluded from the current duties.

My final answer to the hon. Member for Weston-super-Mare is that the amendments miss their target completely, as we have been unable to find any problem at all resulting from employment functions being included in the existing duties. I respectfully suggest that he should not press his amendment, having had a satisfactory answer from me, even though he was in many ways asking the wrong question.

I will speak relatively briefly to amendments 279 and 280, which would require public authorities to have due regard to the need to eliminate hatred and hostility. I very much agree with the sentiment behind the amendments, as public authorities should tackle hatred between groups and the resulting hostility, where possible. However, clause 143, as drafted, encapsulates that concept, and fostering good relations must inevitably include tackling hatred and its manifestations. We cannot see the point of glossing the concept further.

My hon. Friend the Member for Stroud made some significant points about the disability duty and whether it had been in any way weakened. The equivalent provisions of the disability duty, which currently are eliminating harassment and promoting positive attitudes—this is no reflection on the amendment—are carried forward  and are fully covered in the first limb of clause 143. Eliminating discrimination, harassment and so on are included in clause 143(1)(a). And, of course, we are extending the elimination of harassment in respect of goods, facilities and services for disability for the first time. That is a significant broadening.

Elements of the disability duties to eliminate harassment and promote positive attitudes are to be found in the third limb, which is

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

There is absolutely no stepping back from that duty in this duty. The need to take steps to take account of people’s disabilities is set out elsewhere in the Bill, in the duty to make reasonable adjustments, and this duty makes it clear that public bodies must have

“due regard to the need to advance equality of opportunity” for disabled people.

If my hon. Friend casts an eye over clause 5, he will see that it involves treating some people more favourably than others, if necessary, but there is an even more express permission in clause 13(3), which makes absolutely clear the asymmetric nature of protection for disabled people. I hope that he is reassured by that.

Amendment 21 logically comes next. It is about reporting on all of this; it is important that we do so, and I agree entirely with everything that has been said about the futility of such measures if they are not well monitored. The amendment would place an annual reporting requirement on public bodies to demonstrate that they have complied with the requirements of the duty, and amendment (a) to amendment 21 would require public authorities to show annually how they have eliminated discrimination, advanced equality and fostered good relations. Amendment (a) points to the need to report on outcomes, not just to the fact that there has been due regard to these matters.

We intend—we will come to this more fully when we discuss later clauses—to follow the same structure as that for the current duties. The general duty in clause 143, which gives broad aims, will be underpinned with specific duties, processes and detailed steps to be set out in secondary legislation. The consultation document on the specific duties has been out since June. Secondary legislation seems to us the right place to set out detailed processes, because of the need for greater flexibility to tighten things up or do whatever might be needed.

The amendments would impose a data reporting requirement on all public authorities. We think that it is right that specific duties are lighter, for instance, on a parish council—this is not unrelated to the issue about size—than on a major metropolitan council. So, again, it is better not to have a sweeping impact, as the amendment would. It is better to look at specific duties in secondary legislation, so that we can target the right bodies—the ones that are big enough, significant enough or otherwise suited—to carry out the duties.

As members of the Committee know, the commission is developing an equality measurement framework, if I can call it that. It is intended, first, to assist in providing public authorities with a robust standardised baseline of evidence to determine where there is inequality. Its  second purpose is to ensure that public authorities report data in a standardised manner, so that citizens, politicians and so on can compare across the board.

Specific duties will undoubtedly require public authorities to report annually on their progress on objectives. We intend that they must also report on the gender pay gap, black and minority ethnic employment rates and disabled employment rates in a standardised manner.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Will some effort be made by the Government to ensure that a consolidated report is made to the House, with the intention of encouraging an annual debate, whereby we can actually see and hear how we are getting on collectively?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

That might be a good idea. The commission must produce an annual report in any event, which will feature some of those aspects, so there will be opportunities, I think, for debate. However, so that no one is concerned that the specific duties will be softer than the duty mooted in amendment 21, let me make it clear that, although the general duty requires due regard to be paid to the need to take all the steps in clause 143, the reporting requirements will focus on outcomes. Indeed, one of the main drivers behind the design of the new suite of specific duties was a move away from processes towards outcomes. The EHRC will have the statutory role of enforcing compliance with those duties.

The consultation document is available. I think that I pointed that out when we issued it at the beginning of the Committee. I shall mention some highlights of what we propose, and it should be remembered that this is everyone’s opportunity to say, “This must be tougher. That should be different.” Examples are that public authorities have to develop and publish equalities objectives and set out the steps that they intend to take to achieve them, that they will report annually on progress against their objectives and review the objectives at least every three years, that they will have to show how they have taken into account evidence of the impact on equality of the design of their policy and service delivery initiatives and—this point was raised what seems like eons ago by the hon. Member for Forest of Dean—that Secretaries of State should report on key equality achievements across their policy sectors at least every three years.

The consultation runs until 30 September. It relates to a series of proposals that we believe will show how and what to measure and will make it clear that the process is outcomes-based. The EHRC will do an overall state-of-the-nation report, which will be a macrocosm of all this, at least every three years.

I therefore hope that hon. Members are satisfied that the reporting and monitoring will be good, that the duty does not at all step back from other duties, notably the disability duty, that the application to private businesses delivering public functions is appropriately balanced and that there is no need to add the human rights duty.

Photo of Evan Harris Evan Harris Shadow Science Minister

I was listening carefully and I wondered whether the Solicitor-General addressed the point that I raised. She addressed the issue of disability duties in relation to a point made by the hon. Member for Stroud, but I was not sure whether she identified whether there was indeed full non-regression—if that is not a  contradiction in terms—from section 49A of the Disability Discrimination Act 1995, which was a point that I raised on a clause stand part basis.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I apologise because I referred only to my hon. Friend the Member for Stroud at the time and not to the contribution from the hon. Member for Oxford, West and Abingdon, but there is no regression.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

This has been a wide-ranging debate, and I am grateful for the contributions made by hon. Members on both sides of the Committee, either in support of my lead amendment or on other matters. It has been right to raise them, and as has been characteristic of the Committee, they have been raised constructively. That is true also in principle of the Solicitor-General’s response. I am particularly grateful to her for the point that she made about the overseas reach of the legislation, which I raised specifically, and for other comments that she made about concerns expressed on both sides of the Committee. What she said was, as ever, courteous—generous, even—well argued and therefore apparently convincing, not least because she appeared, on the merits of the case, to have been somewhat convinced by the substance of the amendment that I had tabled and then proceeded to find good reasons for not adopting it. That is the area where I have some continuing concerns, and I can bring them down to about three.

The first point is that the Equality and Human Rights Commission has in its title two remits, and it seems to me to be not beyond the wit of man, or the ability of the commission to discharge its statutory duties, to deal with issues about equalities reviews and that side of things, while dealing with—to use the language of this field—the strand of human rights. I do not think that it will be confused or that it will be difficult for the commission to comply with that.

My second point for the Solicitor-General concerns the Human Rights Act—as one does, always walking around with a copy in front of one, I happened to have it with me this morning. If we look at section 6, following on to section 7, although she is right that it is unlawful for a public authority to act in a way that is incompatible with the convention, that is in a sense the substance of the argument that we have been putting this morning. There needs to be a proactive element in the forward gear, whereas manifestly what is in the statute is a reactive and responsive one and no more than that. She is absolutely right that woe betide a public authority that takes no notice and says, “Not invented here.” However, there is not the forward gear that we wish to see.

That leads me to my final point. I forget of whom it was said that he was an old man in a hurry, but I think it was probably derogatory.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

It was, as my learned Friend reminds me. We shall borrow his party for the purposes of the argument, bearing in mind that he started as a Tory, even if he did not go on with it. We have an opportunity here to take further the concepts of human rights by inserting them into the public sector duty. We have an opportunity. I shall have no further opportunity in this  place to take forward the argument. We should seize the opportunity that we have. I sense that we stand on the high ground of the issue. In the light of the Solicitor-General’s response, which, although right up to a point, I did not feel was sufficiently positive, I am minded to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 10.

Division number 5 Nimrod Review — Statement — Clause 143

Aye: 8 MPs

No: 10 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 249, in clause 143, page 105, line 13, at end insert—

‘(2) Subsection (1)(b) does not apply in so far as it relates to religion or belief.’.

This amendment removes the duty on public authorities to have regard to promoting equality of opportunity between religious people.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following: amendment 49, in clause 143, page 105, line 32, at end insert—

‘(4A) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves ensuring a proper balance between the rights of persons who share a relevant protected characteristic and the rights of persons who share a different relevant protected characteristic.’.

Prevents public authorities using the public sector equality duty to favour the rights of one group over another.

Amendment 297, in clause 143, page 105, line 32, at end insert—

‘(4A) In complying with its duties under this section, a public authority shall not inhibit lawful free expression.’.

This underpins the need to preserve lawful freedom of expression in public life.

Photo of Evan Harris Evan Harris Shadow Science Minister

This is an important group of amendments, dealing with a difficult area. I want to stress from the outset that I am not opposed to the intentions behind extending the public sector equality duty to all strands, including religion and belief. However, there are specific special factors about religion and belief that create drawbacks to so doing. The drawbacks outweigh the advantages, particularly—a point that I have made before and will make again—when taken with the exception allowed in schedule 23, discrimination in the delivery of public services on the basis of religion with very little in the way of any threshold to be met.

I want to make it clear that it is the combination of the two that is the problem. I shall restrict my remarks to two broad concerns—first, the general problems with, versus the advantages of, extending the positive duty to religion and belief, and secondly, and most importantly, the fact that that is being done at the same time that the delivery of public services is being allowed to be done in a discriminatory way on the basis of religion and belief with very little protection or justification.

It is necessary for the Government to reassure us on both of those issues, and for the EHRC to consider whether the combination of the schedule 23 exemption and the positive duty to provide for equality of opportunity will lead to a balkanisation of services where each religion has its own public service delivery. If one religion has its own public service delivery, every other religion might claim that it should have its own bespoke service. I do not see how the issue is not going to put pressure on public authorities to provide in that way; first, because they can, secondly, because they are asked to, and thirdly, because the clause, in combination with schedule 23, allows and invites them to do that.

Photo of David Drew David Drew Labour, Stroud

The hon. Gentleman will have had the same briefing as me from the EHRC, whose strong view is that the issue is not about the promotion of religion or belief, but about protecting people who, because of their religion or belief, may be being discriminated against. Would it not be better to listen to their clear explanation of the clause, rather than try to prove a negative?

Photo of Evan Harris Evan Harris Shadow Science Minister

Let me reassure the hon. Gentleman by explaining the thrust of my amendment. There are two ways of doing that. If he looks at clause 143(1), he will see that the public sector equality duty has three provisions, the first of which is to

“eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act”.

My colleagues and I have absolutely no objection to extending that to religion and belief. I hope that he accepts that, because it relates to his question. There is no intention to limit or eliminate subsection (1)(a). Indeed, my hon. Friend the Member for Hornsey and Wood Green and I have tabled amendments that seek to ensure that harassment protection in relation to religion and belief goes further, and that children in school, on a narrower definition of harassment, are protected. At the moment, children in school are a vulnerable and captive population who are not protected by harassment provision, so the public sector duty in subsection (1)(a) does not extend to that particular group.

We have also argued that harassment in the delivery of public services on a narrower definition than currently exists should be protected on the basis of religion and belief, which the Government have rejected. It is not these Benches—this Bench, or sub-Bench—that is arguing against extending protection in relation to religion and belief on the basis of eliminating

“discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act”.

In response to the hon. Gentleman, it is the fact that the Government have so far rejected the idea of extending harassment protection that is limiting the application of the public sector duty to people who share the protected characteristic of religion or belief. It is not just us.

Our concerns centre on subsection (1)(b) and we would actually argue for an extension to subsection (1)(a). Again, to reassure the hon. Gentleman and others, we have no intention to limit the application of the public sector equality duty for all the strands, including religion or belief, covered by subsection (1)(c), which states that a public authority must have due regard to the need to

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

Our concern specifically relates to subsection (1)(b), which states that a public authority must have due regard to the need to

“advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”.

Amendment 249 is a probing amendment that seeks to remove that limb.

I accept that that may be a clumsy way of making a point, so it might be better to look at clause 143(3), which is the analogous section. It states:

“Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—”.

Subsection (3)(b) then says:

“meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;”.

I have fewer problems with limbs (a) and (c), which describe how the advance equality and opportunity duty is to be implemented. We should be able to find a compromise to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that is connected to that characteristic and, of course, encourage participation, which is limb (c). Many of the examples given in the EHRC briefing can be dealt with by paragraphs (a) and (c) and do not require paragraph (b). Are those needs, referred to in paragraph (b), legitimate? There is no question being asked about what those needs are.

Photo of John Mason John Mason Scottish National Party, Glasgow East

We discussed dictionaries earlier on. I assume that the courts have a definition of “needs”. “Needs” is a strong word. The courts are presumably not going to count any whim as a need. The fact that the word “needs” is in legislation should be sufficient protection.

Photo of Evan Harris Evan Harris Shadow Science Minister

I agree that the courts would not think that any whim was a need. One could argue that that was covered in the Nadia Eweida case. She was the Christian woman who wanted to wear a cross visibly and said that it was her religious duty. The court judged that there was no such requirement to wear a cross openly in the Christian faith. It was, no doubt, her clear, genuine and sincerely felt wish, but it could not really be ascribed to religious instruction in the Bible. I would, therefore, accept the hon. Gentleman’s point that “needs” is more than any request.

However, there may be needs—genuinely held and doctrinally based needs—that we would still not see as the job of a public sector organisation to meet. Those needs may be something that the community should provide, or individuals should arrange for themselves privately, but they should not intrude on the public sector. A religion may have a need for marriages to be dealt with under Sharia law. That is clearly something that is laid down in their doctrine and I accept that that would be felt to be a genuine need. There is no qualification  to that in this duty and I think we will see increasing pressure on public authorities to provide for Sharia solutions in the delivery of public services.

I would be grateful if the hon. Member for Glasgow, East told me how he does not think that the phrasing, with the relatively unqualified reference to needs, protects against that. I see that he is not rising. I am happy for him to deliberate. I did not want to put him on the spot, but if he is willing to rise I would be grateful.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I take the point the hon. Gentleman is making. There can be a conflict, or a clash between different rights, or different needs. I am just questioning the solution. If we take one of the protected characteristics out of the list, does that not then automatically mean that there is a hierarchy and, if religion is taken out of it, it would then be at the bottom?

Photo of Evan Harris Evan Harris Shadow Science Minister

I am interested in the practical consequences of legislation. I am not that interested in allegations of  a hierarchy. I was not concerned that disability is at the top of any hierarchy, because there are particular positive duties that have always been placed, rightly, on organisations in respect of reasonable adjustment. Whether the hon. Gentleman describes it as a hierarchy or not, what matters is the outcome and he must accept that our law already provides for differentiation and, essentially, a hierarchy in dealing with religion or belief. One of the key planks of my argument is the way that incitement to hatred legislation, quite clearly and rightly, deals with those matters differently, because the nature of religion and belief is different from some of the other protected characteristics.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four o’clock.