Queen’s Speech

My Lords, it is a pity that the Government’s business managers decided to group equality together with local government, transport, agriculture and the environment, rather than with home, legal and constitutional affairs. That means that, for the purpose of this debate on Human Rights Day, equality has been put into a separate compartment from human rights, even though the right to equality before the law and to the equal protection of the law is a human right and indeed a constitutional right which we hope will be recognised and protected under the equality Bill. That was rightly recognised in the mandate given to the Equality and Human Rights Commission. Equality without discrimination needs to be viewed from a broader human rights perspective. However, unlike the Official Opposition, we wholeheartedly welcome the Government’s commitment to introduce a further equality Bill during this Session. We shall seek to strengthen the Bill where it is weak, to clarify its terms where they are obscure, and to make it workable and effective in practice. We will support the Bill’s passage, provided that it meets these essential objectives. There is great expertise across the House in the areas to be covered by the Bill, on which the Government would be wise to draw. Several noble Lords who will make important contributions in this debate will be centrally involved. Successive Governments have made piecemeal changes in discrimination law since I had the privilege more than 30 years ago of working as Roy Jenkins’s special adviser at the Home Office on what became the Sex Discrimination and Race Relations Acts. Since then, successive Governments have added layer upon layer to a great barrier reef of complex, opaque and anomalous primary and subordinate legislation. One of the most grotesque examples, as the noble Baroness, Lady Warsi, may be interested to discover, was the equal value regulations introduced by the Thatcher Government, which this House, unusually, condemned in passing them through the House. Employers and trade unions, public authorities and other service providers and victims of discriminatory practices and procedures are left in the dark about their position under the law. The complexity and obscurity of the law and the bureaucratic and tortuous nature of some of its procedures create unnecessary litigation and delays that undermine respect for the law and impair access to justice and effective individual and collective remedies. The Government wasted a decade in failing to meet the pressing need for comprehensive reform. Instead, they put the cart before the horse by creating the EHRC before tackling the reform of the law. The resulting delay means that Parliament now has the last chance before the next election to enact a statute of which we may be proud. According to the current list of ministerial responsibilities, the Government Equalities Office is, "““responsible for the Government’s overall strategy and priorities on equality issues””." But the description of its work does not mention the broader human rights perspective, and ministerial and Civil Service responsibility is balkanised across Whitehall. Instead of joined-up government, discrimination law reform has been poorly co-ordinated, and no government department has been willing to take responsibility for the EHRC, which has become Whitehall’s orphan Annie. We fought hard in this House during the passage of the most recent Equality Act for the commission to be genuinely independent from government influence and for commissioners to be appointed on merit in accordance with the UN Paris principles. It is vital for those values to be respected in practice; for appointments to be on merit and for the commission to avoid becoming a politicised NGO. The EHRC was created to be an independent public authority acting professionally and using its powers effectively to promote equality and respect for human rights and to combat unlawful discriminatory practices. It should leave politics to the politicians and concentrate on its demanding statutory mandate. What then are the essential requirements for equality legislation of which we may be proud? The Bill must contain clear, consistent standards to make this area of the law more user-friendly and accessible. The Government have promised that there will be no regression. The Bill must level up and not down. They must create an efficient and effective regulatory framework, securing accessible remedies through procedures which are inexpensive and expeditious. The law needs to be effective in achieving widespread change while, as the right reverend Prelate the Bishop of Southwark emphasised, avoiding imposing overly burdensome and bureaucratic obligations. We welcome the development of public sector duties, giving greater emphasis to securing real progress in policy-making and service delivery. That must not be an exercise in creating mountains of unnecessary paper or the mechanical ticking of boxes on standardised forms. I shall quickly refer to a few topics that we shall have to look at in depth. On sex discrimination and equal pay, the commission has published the bleak facts about the squandering of the talent of women and the prevalence of sex discrimination and sexual harassment and unequal pay for equal work. Women are grossly under-represented in top jobs, and improvements are moving at a snail’s pace. The full-time pay gap has begun to widen and stands at 17 per cent. According to Sunday’s Observer, on a world league table of equal pay ranking, the UK is 81st out of 130 countries. The Government’s response to the pay gap is weak. The gracious Speech refers to the Bill as designed, "““to help address the difference in pay between men and women””." Mere help will not suffice. The Government intend to rely on public procurement instead of requiring equal pay audits from large and medium-sized private and public sector employers. Public procurement is important and provides a lever for change, but it is necessary to clarify the ability to use equality requirements in public procurement without breaching EU rules. The equal pay procedures have been criticised by senior judges, equality experts and equality agencies as tortuous and unworkable. They need to be simplified. The private, as well as the public, sector should be subject to positive duties, placing the responsibility on employers to ensure equal pay, instead of relying on individuals to sue them. That would enable an employer to implement equal pay on the basis of a rational and well-thought-out pay equity plan. The procedures in employment tribunals need to be streamlined, with the power to refer complex cases to the Employment Appeal Tribunal or the High Court. Group or representative claims should be dealt with together, and there is a need for systemic remedies for systemic discrimination; for example, where in an individual case a court or tribunal finds sex discrimination in a collective agreement or pay system, there needs to be suitable machinery for changing the system in an orderly way. That, unfortunately, was abolished by Mrs Thatcher’s Government. We welcome the Government’s intention to reform disability discrimination law to close the gap created by the unfortunate recent decision of the Law Lords in the Malcolm case, and to apply the concepts of direct and indirect discrimination not only to sex, race and other types of unlawful discrimination but also to disability. Together with the duty to make reasonable adjustments, that should ensure that existing legal protection is not undermined by the Malcolm decision. The subject of religion has already been addressed by the right reverend Prelate the Bishop of Southwark. I listened with care to his speech. I had the misfortune to disagree with some of it but I agree especially with what he said about the right to express religious belief and the importance of Article 9 of the convention, which is recognised in the Human Rights Act. However, I hope that he, together with the Church of England and indeed the House, agree that it would be divisive and unworkable to saddle public authorities with a duty to promote religion and belief, including a lack of religious belief, when exercising their public functions. It would also be divisive and unworkable to enable civil claims of religious harassment to be made on the ground that the claimant’s human dignity has been infringed. That would encourage vexatious claims, which would interfere unduly with the rights to free speech and religious freedom. While religious freedom must of course be protected and religious discrimination forbidden, this is an area where one size does not fit all, and exceptions must be no more than are appropriate and necessary. Finally, we welcome the Government’s decision to make it unlawful to discriminate on grounds of age in providing goods, services and facilities to the public and performing public functions, but we regret the decision to kick it into the long grass. In conclusion, we will support the Government in their efforts to enact the Bill but they should not take our support for granted, using the self-imposed problems of a short parliamentary Session to limit necessary debate and amendment when the Bill is in this House.