Equality Bill [HL]

My Lords, we have had a very interesting and, certainly for me, thought-provoking debate, which has done justice to the ambitious and aspirational nature of the Bill. Many distinguished speakers have spoken from a huge range of backgrounds and great knowledge. I pay tribute to all of them. I am mindful of the passion with which everyone has spoken on all sides of your Lordships’ House. We have had a greater range of views than perhaps one might have expected. I take on board the strength of feelings and the concerns that have been raised. I join the noble Lord, Lord Dholakia, in paying tribute to the noble Lord, Lord Lester. I have not known the noble Lord anywhere near as long as the noble Lord, Lord Dholakia, mainly because I am much younger. The noble Lord’s commitment, energy and passion for the subject is amazing. He has been extraordinarily helpful to me and I thank him from the bottom of my heart. The Bill is ambitious. It has an overreaching social aim. The interpretation I would place on Clause 3 is that we want a society in which every individual can achieve his full potential and enjoy equal respect and dignity. We want a society in which every one has an equal chance to participate and contribute, and where our communities are strong, dynamic and form part of the fabric of modern Britain. In other words, a society in which I wish to live. A number of themes have come out of the debate this evening. I noted them with great interest. I shall attempt to address most, if not all, of the questions that have been put by your Lordships, with the proviso that I make on all occasions that I shall write on the ones I will undoubtedly forget. Noble Lords have focused on issues about how we will set up the commission—the costs, the bureaucracy, how we will link it to the discrimination law review and the equalities review and how the strands of work will fit together. I accept that noble Lords have described this Bill as the cart before the horse, or what a pity we did not   have the Equalities Bill at the same time. When something is ready to go and we have the opportunity to push and make a difference in terms of bringing forward the commission, I think that we can all welcome it in the context of the manifesto commitments that have been referred to. Noble Lords have concerned themselves with the independence of the commission and its powers. My noble friend Lady Lockwood talked about no regression. I agree. The ambition of the Bill is to build on the success and the powers of the previous commissions. My noble friend Lord Ashley indicated that we should be firm and determined in doing so. The noble Baroness, Lady Carnegy, talked about whether the commission would be better for our customers. We will have an important debate in Committee and on Report about how we make sure that it provides a better service and an appropriate service and does not become a burden on business, for example. That and other concerns were raised by the noble Earl, Lord Ferrers, and the noble Baroness, Lady O’Cathain, about how the commission would operate. I shall try and deal with those issues in the themes that have been suggested to me. As we have indicated, we expect the commission to open its doors in October 2007 with functions in respect of disability and gender as well as powers in respect of religion and belief, sexual orientation, age and human rights. As noble Lords know, the CRE will join it by March 2009. I cannot give the noble Baroness, Lady Miller, a precise figure for the number of additional staff. As we have made clear, that would primarily be for the commission to decide. But I anticipate that with the range of different resources it will need that there will be additional recruitment in that number. I shall make sure that we send a detailed breakdown of the cost of the set up to the noble Baroness, Lady Miller, who asked the specific question, and I will put a copy of my letter in the Library of the House. In looking at what resources the new commission might need, we have indicated that there is a budget of £70 million. That budget has been determined by the Secretaries of State responsible for the different commissions, looking not only at current expenditure, but, as noble Lords would expect, also at the anticipated work of the commission. We believe it is a good settlement; that it represents value for money; and that it will be adequate resourcing. It does not mean, as noble Lords may have suggested, that we have looked at the detail of exactly how the commission will set itself up. We do not believe that that is a job for government but a job for the commission itself. We think that the 40 per cent increase, which the figure represents, above the existing budgets of all three commissions, is adequate resourcing for the commission to get going. Of course it is something that we would keep under review. As noble Lords will know, we are also making arrangements for transitional commissioners, who will help to make sure that the present commissions move in good order to the new commission and that the work they are currently doing is not disrupted. I should say to the noble Baroness, Lady Howe of Idlicote, that all the appointments will be in accordance with guidance from   the Office of the Commissioner for Public Appointments, which I think is what the noble Baroness was seeking. I can say to the noble Baroness, Lady Thomas of Walliswood, and to my noble friend Lady Turner of Camden that TUPE will apply to all transfers of staff from the existing commissions to the new commission. All staff will enjoy the protection of TUPE. This is covered in Clause 39 of the Bill. My noble friend Lord Parekh was concerned—he spoke from a great philosophical point of view and I would love to continue the conversation—about the issues raised in regard to the different strands and making sure that they are represented, but he joined the noble Lord, Lord Ouseley, and my noble friend Lady Turner of Camden in looking at the role of the different committees. We have said that beyond the disability committee, which is contained in primary legislation, it must be for the commission to decide which committees are appropriate and how it wishes them to be established. So if, for example, the new commission felt that it needed to have a committee—perhaps on an interim basis—on a particular area, it would be for the commission to decide. My noble friend Lord Parekh was also concerned about training and networks. He was the only noble Lord to raise that particular question. I ask him to look at Clause 18, which refers to grants. The example I have in mind relates to the race equality councils, but the way in which we have looked at the role of the commission in offering and granting funds is, in a sense, to look at how one might support networks and training. My noble friend Lord Parekh also invited me to talk about the common agricultural policy. He will be astonished to hear that I have absolutely no intention whatever of going there tonight, or ever. I know noble Lords will feel that that is a desperate shame. Happy as I always am to talk about Europe on any occasion, sadly, I do not have time today. Many noble Lords, including the noble Baroness, Lady Greengross, the noble Lord, Lord Ouseley, and my noble friend Lord Parekh were concerned about the delay, if I might describe it as that, between 2007 and 2009 for the Commission for Racial Equality. The whole issue of racial equality has to be at the heart of the planning for a successful new commission and must not of course be sidelined in the period before the CRE fully transfers into the new commission. We expect the CRE and the commission to work very closely together, both on race equality issues and where race equality intersects with other areas of equality. There will of course be a transitional commissioner for the CRE appointed to the new commission from the outset to ensure a smooth transition. I hope that it will be the opposite of the situation to which the noble Baroness, Lady O’Cathain, referred when she described silo management, a concept I understand extremely well. The ambition for the commission is to do precisely the opposite and to have no silos. Part of that will be by making sure that the way in which the commissions come in, and the way in which the new duties and responsibilities are worked through, do not allow for that to happen. My noble friend Lady Lockwood wanted to check on the budgeting and whether the combined effects of paragraphs 23, 31, 38 and 55 of Schedule 1 related to the way in which the budget would be allocated as a whole. I hope I can reassure my noble friend. The budget will be allocated by the Secretary of State to the   commission as a whole and it will be for the commission to decide how to share the budget between the strategy committees. In doing so, it will need to ensure that the share on which it decides will enable the committees to carry out their functions. But it is right and proper that the commission should decide. The noble Lord, Lord Lester, in particular, and other noble Lords, were interested in how the equalities review and the discrimination law review will impact on the new commission. As noble Lords will know, the equalities review has a remit to address the barriers to equality of opportunity, not to amend the legislation which will establish the new commission. It is early days. The commission will be an independent body, of course, which will have the power to draw up its own strategic plan. However, we hope that it will be of great importance in informing the work of the commission as we look forward to the single equality Bill. The prospect of reform of the legislative framework, of course, makes it even more important that the commission should begin without delay its work in bringing together all the equality strands. Hence, the Bill is before your Lordships. We hope that this, the discrimination law review and the equalities review will, in a sense, set a framework for the next few years which will be, as I have already indicated, within the manifesto commitment to bring forward a single equality Act. The noble Baronesses, Lady Miller and Lady   O’Cathain, talked about whether we should delay setting up the commission until after the equalities review. We believe that it is very important to get on with it, because the commission will have a key role to play, with so many new powers in different areas. I hope that noble Lords will recognise that that is a practical approach to ensuring that those issues are addressed appropriately. The noble Baroness, Lady Walmsley, my noble friend Lady Massey and others were concerned about sexual orientation and goods, facilities and services. It may feel like a small addition to the Bill, but I believe that it is quite the reverse. We need to think through very carefully how we do this in practice, and we must do it properly. We have commitments to the law review and the single equality Bill, and we will look to address these issues. But I should not want noble Lords to think that this is a lack of intent—it is more a case of genuinely feeling that we have to do this properly. The noble Baroness, Lady Miller, and the noble Lord, Lord De Mauley, talked about the impact that   the Bill might have on small businesses. The commission meets a very strong call from business for a more joined-up approach on discrimination issues. Businesses will enjoy expert information, advice and guidance on all areas of discrimination and human rights law for the first time in one place. This will work regionally to help businesses realise the benefits of diversity and will help them comply with the law, which I think will reduce the chances of costly litigation rather than the opposite. There are no new regulatory burdens for employers and service providers. I believe that promoting good practice will be the primary route to driving change. Having information and advice easily and more cost-effectively available will reduce the costs of compliance. Reaching out to small and medium-sized enterprises should be a top priority. There should be no regulatory burdens for small businesses either. Having information in the one-stop shop referred to will be better. There was concern from the noble Earl, Lord Ferrers, and the noble Baroness, Lady O’Cathain, about what would happen to businesses under Part 2 of the Bill in particular. This is not about stopping businesses which provide services continuing to do so; we are saying that they have to provide their services to all. For example, a provider of kosher food is perfectly entitled to continue to provide kosher food. However, the Bill ensures that the provider cannot limit the provision of that food to a particular group unless it falls within Clauses 59, 60 or 61; they would not be commercial organisations. That is the only restriction placed by the Bill. On the issue of public authority, we agree with the   noble Baroness, Lady Miller. We share the disappointment about the way ““public authority”” in the Human Rights Act has been interpreted by the courts. The narrow construction of the definition has   not fulfilled our hopes and expectations. The Government are following the advice of the Joint Committee and adopting two strategies to approach the problem. First, we agree with the noble Lord, Lord   Lester; we are actively seeking a suitable case in which to intervene to argue for a wider definition of public authority. That would include the point raised by a number of noble Lords, not least the noble Baroness, Lady Greengross, and the noble Baroness, Lady Miller, on local authority-funded residents in private care homes, such as the Leonard Cheshire case. Furthermore, we are issuing guidance on how the contracts between public authorities and private organisations for the provision of services may seek to protect convention rights. This is a very important area; noble Lords have referred to the need to think about it very carefully. It will benefit from careful consideration and will therefore be a matter for the discrimination law review to consider. The noble Baroness, Lady Thomas of Walliswood, asked for reassurance that the definition of public   authority is the same as in the Disability Discrimination Act 2005. We have been assured by counsel that the definition we have used is the same as that in the Act. Noble Lords were interested and concerned about the relationship between the new commission and its role within human rights. As noble Lords know from the Bill, the commission will have no enforcement powers in relation to human rights on the basis that we do not believe that it needs them. There is already a well understood and well used process for challenging alleged breaches of convention rights in courts and tribunals for which public funding is available where appropriate. Concerns were raised by noble Lords about the   independence of the commission. It is a non-departmental public body. It will operate within the standard framework, which is well understood. It has worked very well for existing commissions which speak very independently on the issues of the day—and rightly so. We believe that that is the right way to go. Noble Lords—my noble friend Lord Parekh in particular—talked about the powers of the Secretary of State to direct the commission and whether that compromises its independence. As noble Lords will know from the Bill, the commission is free to initiate its own inquiries and investigations and I do not believe that the powers that we have available conflict with the Paris principles; a point raised by the noble Baroness, Lady Walmsley. We want the commission to be Paris principles compliant. In other areas of government life, noble Lords will have heard me say before that under some circumstances it may be for the Secretary of State to require the commission to provide expert advice on equality and human rights issues. We believe that that is an appropriate power to have in the Bill. Noble Lords were also concerned about the role of international treaties in the Bill. The specific monitoring power under Clause 12(2) does not include monitoring the effectiveness of international treaties, but, under the clause, as noble Lords will realise, the commission can monitor the effectiveness of the Human Rights Act in ensuring protection of the rights set out in the European Convention on Human Rights. The broad power in Clause 14 to give advice can be used to promote compliance with any human rights; for example, the UN Convention on the Rights of the Child. In effect, the commission will be able to monitor the effectiveness of international human rights treaties in the UK and give appropriate guidance if it considers that we are falling short in implementing our international obligations. In particular, it will be able to provide advice to the Government on whether domestic legislation complies with the UK’s treaty obligations; for example, whether legislation on the detention of children complies with the UN Convention on the Rights of the Child. My noble friend Lady Whitaker raised that point with me. In the course of Committee and Report, I am sure that we will have many debates about the whole question of the relationship between the commission and enforcement on human rights, not least from the noble Lord, Lord Lester, who has already raised those issues in his opening speech. The noble Lord also asked about removing the requirement for an unlawful act notice or a court tribunal ruling for a persistent discrimination injunction. Lowering the threshold for seeking an injunction for persistent discrimination to bring it in line with arrangements for an injunction—for example in unlawful advertising and so forth—is interesting and we would like to consider that suggestion further with the noble Lord. On the Equality Bill, we will not be making changes to substantive law and discriminatory practice because it is one of the issues that the forthcoming Law Review may wish to consider—something that the noble Lord raised in particular. The right reverend Prelate looked particularly at religion and belief and the issues around Article 9 of   the convention—on the freedom of thought, conscience and religion. Of course, the commission’s guidance must respect all of the convention’s rights protected by the Human Rights Act. As well as Article 9, we also have in mind particularly Article 8 with respect to private and family life and the Article 10 right to freedom of expression. The Human Rights Act recognises that these rights may conflict and it may sometimes be necessary to balance rights against each other. Therefore, the commission will need to ensure that all of the convention rights, especially the three that I have mentioned, underpin all its work and provide a framework of principles for work across the equality strands. I hope that that reassures the noble Baroness, Lady Miller, in her concerns about freedom of speech. A number of noble Lords, especially the noble Baroness, Lady Thomas of Walliswood, and my noble friend Lady Lockwood, talked about equal pay and were concerned that the duty would apply to equal pay. The gender duty will require public authorities to have due regard to the need to eliminate unlawful discrimination and that includes discrimination in pay, so it will cover the Equal Pay Act of 1970. It will also cover contraventions between employers’ contractual terms and conditions. In preparing the secondary legislation on the gender duty we will take into account the views of the Women and Work Commission, which was specifically convened by the Prime Minister to look into the pay gap. My noble friend Lady Lockwood asked about harassment, which is not expressly covered by the Sex Discrimination Act 1975 so is not included in the obligations under the gender duty. Most instances of harassment, as noble Lords will know, already fall within the concept of discrimination because of how the law has developed. In that respect, the gender duty already applies to harassment, although it is not explicitly stated. We are looking to see how we can make an express reference to the elimination of harassments in the duty, when the Sex Discrimination Act 1975 has been amended to introduce the duty that is due to come forward. My noble friends Lady Lockwood and Lady Gale, the noble Lord, Lord Lester, and the noble Baroness, Lady Howe of Idlicote, asked about Section 73 of the Sex Discrimination Act 1975. It is our absolute intention that there will be no regression in the powers available to the commission as compared to those available to the existing commission. In some cases, powers have been amended and modernised, but we do not intend to remove powers. The commission will be able to use the powers available to it under Clause 12 to advise on existing legislation, and to provide advice to the Government on the health and safety legislation as it applies differently to men and women. We are actively looking at Section 73, including the intention behind its inclusion in the Sex Discrimination Act 1975. The noble Baroness, Lady Thomas of Walliswood, asked about contract compliance to close the pay gap. The critical issue around contract compliance is that it must be of relevance—that is, requesting a contractor to take action to close a pay gap must be relevant to the outcome of the contract. Public authorities are responsible for their own procurement policies and procedures, but that requirement will have to be taken into account. My noble friend Lady Lockwood asked about transgender people. The remit will cover transsexual people; it will be possible to use its enforcement powers for the benefit of trans people, as the EOC can currently. As part of the discrimination law review, we shall look more broadly at the protection from discrimination for transsexual and transgender people. The noble Earl, Lord Ferrers, raised a particular issue around King’s Lynn, which I shall undertake to look into. The situation seems completely ridiculous, as the noble Earl described it—which I hope is what he would expect me to say. I shall more than happily look into it. But that is not the intention of this Bill under any circumstances. The noble Baroness, Lady Falkner of Margravine, wanted the details of the timetable. It is not yet in my gift to give that, but of course we will when we can. I know that the Commission for Racial Equality would like the 2009 timetable in the Bill. My view is that we should not tie it in such a restrictive way. As the commission moves forward, it may want to do things in a slightly different way, and I want it to have that flexibility. But we are very clear in our relationship with the commission and very clear that if that is the timetable that it wants, that is the timetable that it will have. Clause 11 and the subject of communities is a very   interesting area. I reassure the noble Lord, Lord   Lester, that in the context of what was said, and the context of disability, we shall have discussions to see what we can do in that regard. The noble Lord, Lord Rix, specifically wanted someone with a learning disability on the disability committee. He will know the requirement for at least one commissioner to be or have been a disabled person. We do not believe that it is helpful to have a specific requirement for that, but I recognise that the DRC has been groundbreaking in appointing a learning-disabled commissioner, who has made a significant contribution to the work of the commission. We would really expect the commission that we are putting in place to regard the DRC as exemplar in that respect and draw from that positive experience. It will be for the commission, too, to decide whether to keep the Learning Disabilities Action Group. We hope that it will consider that very carefully. With the communities clause, we are not sure whether it is appropriate to refer to good relations; but, as I have said, I should like to discuss that matter, because I believe that there is work that we could do around that issue. All I can say to my noble friend Lady Wilkins and the noble Lord, Lord Rix, is that I apologise profusely that the Bill has not yet been made available in accessible formats. Everything that was said about that was absolutely right; I apologise unreservedly, and we shall do it. The noble Lord, Lord Rix, also asked about the disability committee, whether it would continue and whether five years was the right length of time. My noble friend Lord Ashley asked the same question. We believe that we have got it about right; the review of the disability committee will be independent and will involve a wide-ranging consultation. Following that, it will be open to the Secretary of State to decide how long it should continue before it is dissolved, which may be a short time or may be several years. We want to have that degree of flexibility, but it will be done on the basis of consultation, which must include people and organisations working for, and made up of, people with disabilities. There must be a report of the review that will include the views of those persons consulted, who must include disabled people. I hope that that goes some way to address the points raised by my noble friend Lord Ashley. There is concern regarding the shorter term of office of the DRC transitional commissioner. However, that reflects the provisions in the Bill and the fact that the disability committee is part of primary legislation. I anticipated that the noble Baroness, Lady Carnegy, would refer to Scotland. The noble Baroness will know that the 2003 executive programme in Scotland included a commitment to establish a commission before the 2007 Scottish parliamentary election. Clause 7 reflects the situation under devolution. We recognise that any new commission in Scotland will have to work very closely with the commission in England. Clause 7(4) allows the commission in England to take action in relation to devolved Scottish matters with the consent of a suitable body in Scotland. That will, of course, be the Scottish Human Rights Committee, but we cannot include it in the Bill because as yet it does not exist. I shall write to the noble Baroness if I have any further details on that. The noble Baroness asked why education in Scotland was included in the Bill as it is not a matter for us. That is because discrimination is a reserved matter, although, as the noble Baroness knows, education in Scotland is a devolved matter. Therefore, the issue is included in the Bill in view of its discrimination aspects. The noble Baroness, Lady Greengross, asked me about the benefits for older people. That is a very important part of the noble Baroness’s work and, indeed, we hope that it will constitute a very important part of the benefits flowing from the work of the commission. The commission will be charged with promoting good practice and compliance with the age regulations to be brought in next year, which will make   discrimination on grounds of age unlawful in employment and vocational training. That is an incredibly important step forward but we are very mindful of the public sector duty to promote age equality and the different levels of protection against discrimination currently available in law. That forms part of the review of discrimination law. We hope that that review will address those questions and produce solutions. That review will also consider the whole question of public duty protection in the provision of goods, facilities and services in regard to sexual orientation. My noble friend Lady Turner of Camden referred to school transport, schools and harassment. I would like to discuss those issues with my noble friend. The noble Baronesses, Lady Massey and Lady   Walmsley, referred to children’s issues and designating a particular commissioner. The commission’s role applies to children just as much as it applies to adults. The duty to promote equality, diversity and human rights and to encourage good relations applies to children and young people. They will have a key stake in the new commission. It will need to conduct meaningful and accessible consultation with that group. Wherever the gender duty places an obligation on public authorities to promote equality of opportunity between men and women, that applies also to boys and girls. I know that the noble Baroness, Lady Walmsley, will want to discuss whether that means we should include boys and girls in the Bill. The noble Baroness will know that we shall discuss with the Children’s Commissioner the link between his work and the work of the new commission. My noble friend Lady Gale asked whether the Women’s National Commission would continue. The answer to that is ““yes””. I also confirm that the board will include a commissioner with special knowledge of Wales. I do not know whether that will be a full-time post. That is for the commission to decide. We recognise that the Welsh Language Act will apply in that case, as my noble friend suggested. In drawing to a close I refer to the words of Sir   Peter Large, who I had never heard of until yesterday. However, noble Lords will know of the report on restrictions against disabled people, written in 1982. It set the foundations for legislation on disability discrimination. He stated that the report was founded on the straightforward and simple proposition that what is morally indefensible ought no longer to be legally permissible. I believe that applies equally to this Bill. I look forward to continuing the debate at all stages of the Bill in your Lordships’ House. I commend the Bill to the House. On Question, Bill read a second time, and committed to a Committee of the Whole House.