My Lords, I am pleased to be able to speak in support of these amendments, to which I have added my name, especially as I was unable to speak in support of similar amendments in Committee because of another commitment. I am grateful to the noble Lord, Lord Low of Dalston, for his perseverance on this important issue. When I read the report of the Committee’s proceedings, I was pleased to note the warm words from the Minister, including his acknowledgment that the amendment looks very much like stated government policy, although he qualified that by arguing that the language of political commitment does not necessarily lend itself to the equalities statute book.
I am sure that no one would quarrel with that as a general proposition, but the body charged by Parliament with advising the Government on the equality and human rights implications of proposed legislation has drafted this amendment carefully to guard against such a weakness. I repeat the point made by the noble and learned Lord, Lord Wallace of Tankerness—that in particular the Minister objected to the use of the term “protection”, yet the EHRC points out that the term can be found in the Legislative and Regulatory Reform Act 2006 with regard to the use of delegated powers under that Act. It requires that a Minister must be satisfied that a provision,
“does not remove any necessary protection”.
Does that sound familiar? I imagine that is why the EHRC drafted this amendment in those terms.
The Minister also promised to take away for further consideration the point about the scope of the public sector equality duty, raised by the noble Lord, Lord Low, and also mentioned earlier today. The Minister described it as a constructive suggestion in order to bring further clarity to these parts of the Bill. It was thus very disappointing not to find the government amendment that would have brought this clarity, and I trust the Minister will explain why. I hope he will respond in particular to the EHRC’s injunction that:
“This must be rectified to ensure clarity and compliance with existing statutory duties”,
as the noble Lord, Lord Low, quoted earlier.
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The Government also suggested, as we have heard, that the “due regard” duty transposed from Section 149(1)(a) of the Equality Act 2010 into what is now paragraph 22 of Schedule 7 to the Bill is sufficient to prevent changes that would reduce equality protection. As the EHRC has pointed out, though, this duty did not stop the coalition Government making changes that reduced equality protection as part of the so-called red tape challenge, including scrapping powers that would enable an employment tribunal, where an employer had lost a discrimination case, to make recommendations affecting that employer’s wider workforce. Moreover, according to the Fawcett Society, if it had not been for an earlier EU Court of Justice ruling that damages for sex discrimination could not be limited, the red tape challenge’s proposal to cap discrimination damages awards could have become law. The recent pledge by the International Trade Secretary to cut bureaucracy and red tape in order to promote free trade post-Brexit can but increase our fears.
In Committee the noble Lord, Lord Duncan of Springbank, stated:
“It is important that we recognise that the rights we have cannot be undone. That must be the fundamental guidance”.
Does that not reinforce the point that we need legislative certainty that they cannot be undone? Otherwise, such assurances, welcome as they are, are nothing more than words: they guarantee nothing for the future. If the Government are really so committed to the future protection of such rights, why not reassure all those groups who are very anxious at present by writing the commitment into the legislation?
The noble Lord also deployed a seagoing metaphor —prose, not poetry, not unlike last week—in response to my amendment on keeping pace with EU developments in the area of family-friendly employment rights, gender equality and work/life balance for parents and carers. He recognised the unease that the Government would,
“take the first opportunity to cast these rights aside, to scrape the barnacles off the boat to allow the ship to move faster. I assure the Committee that they are integral parts of the engine of the ship and we shall not be discarding them”.—[Official Report, 5/3/18; cols. 952-53.]
But what if at some future date the ship sails into exceedingly choppy waters and those who see such rights as red-tape barnacles—perhaps the International Trade Secretary—rather than as integral parts of the engine gain ascendancy and/or there is a change of captain? Surely those currently in charge of the ship should seek to protect the engine from such marauding by accepting these amendments, so that the ship is genuinely inequality-proof.