Equality Bill

My Lords, I am deeply proud and privileged to introduce the Equality Bill to this House. A standard accusation against Governments who have been in office for some time, of whatever political persuasion, is that they have run out of ideas, run out of proposals and run out of steam. This Bill clearly shows how wrong that is in the case of this Government; this is a radical Bill, a Bill brimming with ideas, a Bill with measures for the benefit of people across the United Kingdom. It is a Bill this Labour Government are proud to bring forward. Before I discuss the Bill, I would like to pay tribute to the person who has done most to bring this Bill about. This Bill simply would not exist without the drive and determination of my right honourable friend, the Leader of the House of Commons, Harriet Harman. At a time of extraordinary difficulty for the other place, my right honourable friend has, with a single-mindedness of purpose and an astonishing degree of commitment to the ambitions and ideas that the Bill encompasses, and to the people whom the Bill will manifestly help, fought to bring this Bill to this House. I commend and thank her and my right honourable friend the Solicitor-General, who has so ably supported her for all that she has done for this Bill and the cause of equality. In this House, I will lead the ministerial team on the Bill, supported by the Attorney-General, my noble and learned friend Lady Scotland, and by my noble friends Lady Thornton and Lady Crawley. I look forward to the debates we are to have. I also thank very much many Members across the House, including the Front Benches of the parties opposite, key Cross-Bench Peers and my own noble friends for the constructive discussions we have had on the Bill and the issues involved in it before it reached the Floor of this House. I want to do three things in my opening remarks to this Second Reading on the Equality Bill: I want to set out the Government’s case for the Bill; to lay out the broad structure of the Bill; and to detail some key issues in the Bill. This country and, indeed, the party on these Benches have a proud record of legislation against discrimination. In the 1960s, we legislated against race discrimination; in the 1970s, against sex discrimination and for equal pay; in the 1990s, against disability discrimination; and, in the early part of this decade, we had legislation protecting against discrimination at work because of age, religion, belief and sexual orientation, first at work, and then in the provision of services and the exercise of public functions. That range of legislation over 40 years has inevitably resulted in a legislative structure that is complex, inconsistent and often difficult to understand. For instance, different protections apply to different personal characteristics and different rules and tests apply to quite basic concepts—for example, the Race Relations Act contains two separate definitions of indirect discrimination. Although we are confident that our legislation properly transposes the relevant EU directives, its implementation has often resulted in subtly different provisions in the same areas of activity, depending on whether or not European law applies. That is because in many cases our domestic legislation preceded equality legislation in Europe and influenced its content, but the legal effect is not identical so a kind of retrofitting has been necessary in many areas. A major policy intention of this Bill is to harmonise and bring together all the existing equality legislation in one place: nine major pieces of legislation and various subsidiary instruments. The Government believe that this will make the legislation much more accessible and straightforward. As a result, it will be easier for employers and service providers to understand and comply with their responsibilities and employees and customers will be more aware of their rights. We expect that more straightforward law will also enable the Equality and Human Rights Commission to draw up simpler practical guidance. The commission is starting out on this process even now. I would also like to draw the attention of noble Lords to the Explanatory Notes to the Bill, which have been drafted in a way that is intended to bring out as clearly as possible the effect of the various provisions, using practical examples to illustrate what the law will mean in practice. If the Bill only consolidated the law, that would be beneficial but it goes much further than simply bringing together the existing law. It also strengthens it in ways that will benefit very many people. We need to strengthen the law because, despite the progress made in combating discrimination, inequality still persists. We have inequality of pay between men and women, with the latest gender pay gap put at 22 per cent; if you are disabled, you are two and half times more likely to be out of work than a non-disabled person; there is a 15.5 per cent gap between the rate of employment of black and ethnic minority people and the average employment rate; and Muslims have the lowest employment rates of all religious groups, with only one in four Muslim women and three in five Muslim men aged 16 to 64 in employment. There are continuing instances of discrimination because of someone’s age; for example, a retailer assuming that older people are incapable of signing a contract without a younger person present to explain the details to them. One in five lesbian, gay or bisexual people has experienced homophobic bullying at work and nearly half of transgender or transsexual people do not use public, social or leisure facilities for fear of discrimination. Good though our record has been, we need to do more. That is what the Bill before the House today does. The structure of the Bill is broadly as follows. Part 1 places a new duty on key public bodies to take account of socio-economic inequalities when making strategic decisions. Part 2 contains the key concepts on which the Bill is based: the protected characteristics such as age, disability, race etc; and definitions of prohibited conduct such as direct discrimination, dual discrimination, discrimination arising from disability, harassment and victimisation. Part 3 prohibits discrimination and other unlawful conduct in the provision of goods, facilities or services and the exercise of public functions. Part 4 prohibits discrimination and other unlawful conduct in connection with premises. That would typically relate to landlord/tenant situations. Part 5 prohibits discrimination at work. It also contains the Bill’s main provisions on equal pay as well as on publishing gender pay-gap information and making pay secrecy clauses ineffective. Part 6 prohibits discrimination in education. Most of these provisions simply carry forward existing legislation. Part 7 prohibits discrimination in clubs and associations, including political parties. The Bill extends protection against discrimination in mixed clubs, for example of men and women. In such cases, it will not be lawful to treat some members less favourably than others, but the Bill does not abolish single-sex clubs or other clubs for people with a shared characteristic —for example, the Women’s Institute, gay clubs or clubs for people of a particular race or religion. Part 8 prohibits other forms of conduct, including helping someone or instructing someone to discriminate. These provisions are mostly carried over from existing legislation. Part 9 covers enforcement by courts and tribunals, including the wider power to make recommendations. Part 10 is about discriminatory terms in contracts and collective agreements. Again, these provisions are basically carried over from existing legislation. Part 11 sets out the public sector equality duty and contains provisions on positive action. Part 12 is about disability and transport. This is, I think, the Lady Chapman memorial part. It covers taxis, private hire vehicles, buses and rail vehicles. Its main effect is to make such means of transport accessible to disabled people. These provisions are also mostly carried over from existing provisions in the Disability Discrimination Act. Part 13 contains additional provisions about reasonable adjustments for disabled people in premises. Part 14 includes general exemptions. Noble Lords should note that the schedules deal with exceptions and reasonable adjustments in the various fields such as work, services, education and premises. Finally, Part 15 provides a number of general powers, including a power to harmonise the Act in future with measures required under future EU legislation. I now turn to those issues within the structure of the Bill which seem likely to be the main areas of interest. Essentially, these are all measures to strengthen the current legislation. I begin with the new socio-economic duty in Clause 1. This duty is about ensuring that public bodies systematically and strategically take account of people who are poor and disadvantaged when they are making fundamental policy decisions. It is not intended to be a magic bullet that will do everything, but we believe that it will help, when combined with other measures that the Government have taken and are taking to help narrow the gap between rich and poor. I am pleased to say that the Bill was amended on Report in the other House so that this duty now also applies to Scottish as well as Welsh and English bodies. On age, the Bill prohibits, for the first time, age discrimination in the provision of goods and services and the exercise of public functions. The relevant clauses are Clauses 4, 28 and 195. Even at the time of the Equality Bill 2005 there were calls for this to be done, and of course the Government are aware of the ever-increasing proportion of older people in the population and the need to ensure that they are treated fairly. The Bill provides this new protection which will ensure that people are not treated unfairly because of their age—for example, in receiving financial services, or in health and social care. Of course, we do not want to wipe out age-related concessions, rules and benefits that cause no harm—for example, free TV licences for the over-75s, winter fuel allowances for pensioners or free bus passes. All these things will continue and the Bill contains a power to make appropriate exceptions by means of secondary legislation. The Government have already sought views about exceptions that might be made. The Bill also contains an expanded and integrated public sector equality duty. The relevant clauses are Clauses 148 to 156. We currently have three equality duties requiring public bodies to have due regard, when carrying out their functions, to the need to eliminate discrimination, promote equality of opportunity and foster good relations between different groups in relation to race, gender and disability, but these three duties are all slightly different and, consequently, public bodies have to meet different requirements that do not match up with each other. The Bill strengthens the law by bringing them all together and expanding them to cover, in addition, sexual orientation, age and religion and belief, and to apply fully to gender reassignment. This duty is all about providing better all-round services to the community and all its diverse members. It is not about favouring certain groups over others. I believe that this equality duty will be one of the most effective ways of combating institutional discrimination and putting the public sector at the forefront of efforts to secure equality. On procurement, Clause 154 will ensure that public bodies use public procurement to contribute to the delivery of their equality objectives. Currently, public spending on goods and services, often in the private sector, amounts to around £220 billion per year. It seems only right to expect that this significant amount is used in a way that supports these broader social objectives. On pay, the Bill contains important provisions that are designed to increase pay transparency. Nearly 40 years after the Equal Pay Act, we still have a gender pay gap. The Government believe that unless you can see a problem, it is impossible to tackle it. That is the reason why the Bill, in Clause 78, contains a power to require employers with 250 or more employees to publish gender pay gap information. The Government intend in any event to use their specific powers under the public sector equality duty to require public bodies with 150 employees or more to publish such information, not only about their gender pay gap but about the proportion of their staff who are from ethnic minority communities and the proportion of their staff who are disabled. The Government intend to bring in these requirements for the public sector from 2011. For the private and voluntary sectors, which account for 80 per cent of employment in this country, the Government have said that the intention is first to encourage voluntary publication of gender pay gap information by the larger employers who would fall within the ambit of the power. The Equality and Human Rights Commission has been working with the CBI and the TUC on a methodology for collating and publishing the figures, and I am hopeful that agreement may be reached on this issue. However, if sufficient progress on publishing is not made by these private and voluntary sector employers by 2013, the Government have made clear that they will use this power to require such transparency. We believe that gender pay gap publishing will be a significant step towards reducing the gender pay gap. Women who want to join a business or public organisation have a legitimate interest in knowing whether their potential employer has a gender pay gap, and prospective employers will need to take note if they want to attract the best talent. Also on transparency, the Bill makes clauses in employment contracts unenforceable if they stop people discussing their pay with colleagues. The Equal Opportunities Commission found in 2004 that 22 per cent of employers imposed employment contracts with such restrictions. This is not a means of requiring employees to broadcast their earnings to one and all but a sensible measure to help an individual find out what he or she is being paid compared with someone who is doing similar work, and to bring an equal pay claim if necessary. On positive action, there are existing positive action provisions in current legislation, but these apply to different protected characteristics in different ways. The Bill extends what action is possible and covers all the protected characteristics in Clause 157. The Bill also extends the scope for positive action by employers when deciding whom to recruit or promote, at Clause 158. Most of the attention has focused on Clause 158, which allows employers to appoint a member of a disadvantaged or under-represented group where they are as suitable for the job as somebody else. This provision has been much misrepresented by some sections of the press as a means of favouring women over men in job applications regardless of merit, for example. That is not the case at all. There is no automatic favouring of a person with a particular characteristic over anyone else. Instead, the purpose of this provision is very much to encourage employers to make the most of a diverse workforce. As well as simplifying the existing provisions allowing training and encouragement of under-represented groups, Clause 158 itself allows, but does not compel, employers to recruit a person from an under-represented group in their workforce when choosing between otherwise equal candidates for recruitment or promotion. Take the example of a primary school wishing to recruit. We all know that there is a relatively low proportion of male teachers in primary schools, and we all also know that it is good to have male teachers as role models for young boys. If a primary school had two or more candidates as qualified as each other for a post and one of them was male, the school could choose him on the basis of making its workforce more diverse, without the risk of a challenge. I acknowledge that there have been some misunderstandings about what this provision does, but it is in fact a very sensible, and in some ways quite modest, provision which reflects developments in European case law in this area. The Bill also provides stronger provisions on enforcement, in Clause 123. It will enable employment tribunals to make recommendations, in a wider range of discrimination cases that benefit the whole workforce and not just the victim of discrimination. Tribunals can already make recommendations, but currently only in relation to the individual who has brought the discrimination case. In 70 per cent of cases, that person will have left the firm with which he or she has been in dispute, so no recommendation can be made. That leaves a rather unsatisfactory state of affairs. On the one hand, the rest of the workforce may face continuing discrimination and, on the other, the employer may face further claims. The ability to make recommendations means that lessons can be learnt from the case and unfair practices can be addressed. As a result, they could help to lessen the likelihood of future cases. Recommendations will not be directly enforceable but may be taken into account in subsequent relevant cases. I believe that this is a sensible and proportionate measure all round. The Bill will have an important effect, through its definitions of direct discrimination and harassment, of providing protection for those who, while themselves not possessing a protected characteristic, are associated with someone who does—for example, by being a carer. That reflects the recent so-called Coleman case of a mother of a disabled child who claimed protection under the relevant EU directive on the basis that while she was not disabled she was associated with a person who was. The European Court of Justice agreed that the relevant directive applies in such cases and the Bill has been drafted to deliver that protection. We have gone slightly beyond implementing the court’s judgment. In practice, the Bill will protect carers who look after, for example, elderly people as well as disabled people against direct discrimination or harassment by their employer or a service provider. The Bill will provide a new protection, Clause 14, against discrimination because of a combination of two characteristics, which we call "dual discrimination". The Government identified a gap in the existing law, where, for example, a black woman may face a type of discrimination because of her race and sex combined, which a white woman or a black man does not. People will still be able to bring claims based on a single characteristic—the new clause does not prevent that—but the Bill will close a gap by also providing protection against dual discrimination. In this way, it will provide additional protection for people who face discrimination and disadvantage because of stereotypical attitudes or prejudice when, at the moment, it can be difficult or impossible for people to get the remedy that they need. It is important to note that protection against dual discrimination does not limit in any way the number of claims that could be made on individual grounds. Any of seven protected characteristics can be combined to form the claim of dual discrimination. The Bill makes important improvements in protection for disabled people. In the other House, a new Clause 60 was added to deter employers from inappropriate use of "pre-employment questions" about disability. This amendment, like a number of others already mentioned, was directly in response to concerns raised during scrutiny in the other House; that is, employers were unfairly screening out disabled people right at the start of the application process, without giving them a chance to compete fairly. A further improvement in disability protection is Clause 15, which is intended to restore the protection for disabled people that was provided prior to the Malcolm judgment. Disabled people should be protected not just because of their disability itself but also because of something arising as a consequence of their disability. For example, a pub landlady might refuse to serve a man who has had a stroke, as she thinks he is drunk because of the way in which he speaks. He is not refused service because he has had a stroke, but because he has slurred speech, which is something arising as a consequence of his disability. Finally, the Bill requires landlords to make reasonable disability-related changes to shared areas in residential premises, such as entrance lobbies, when they get a request from a disabled tenant or occupier—Clauses 36 and 37, and Schedule 21. Such changes would be at the expense of the requester. I should like briefly to deal with some of the myths about this Bill. It will not force gay youth workers on the churches; it will not abolish Christmas; it will not force employers to employ black women; it will not do middle-aged white men out of a job; it will not ban the wearing or display of religious symbols; it will not force councils to support gay clubs; and it will not provide tax-free breaks for scientologists. One further accusation has been levelled; that the Bill has not received sufficient scrutiny before coming to this place. I have to disagree, although I can see that noble Lords opposite disagree with me. The Bill was scrutinised and reported on by the Joint Committee on Human Rights. Ministers gave evidence to the Work and Pensions Select Committee which reported on the Bill and to which the Government responded. The Public Bill Committee held four evidence sessions with around two dozen representatives and a wide range of stakeholders. It also interviewed Ministers. The committee then scrutinised the Bill for a further 38 hours, discussing more than 300 amendments. The Bill then had its Report stage which lasted a further five and half hours. This is considerable scrutiny, and rightly so, because this is an important Bill which consolidates and simplifies a mass of legislation. It is a Bill with real benefits, not just for a particular group for whom equality legislation can be a vital resolution of difficulties facing them, but for the population of the country as a whole in areas like extending provisions against discrimination on grounds of age. I look forward to future debates on this Bill in your Lordships’ House, not least because I recognise and pay tribute to the huge expertise and knowledge that exist on all sides of the House on the subject. I look forward to engaging with that expertise and to learning from it. This is a Bill with considerable ambition and wide potential benefits that will have a real impact on people’s lives. It is a Bill which, I believe, will command widespread support. I beg to move.