Equality Bill

My Lords, we are very grateful to the Chancellor of the Duchy of Lancaster for her full explanation in her important and impressive speech. As I made clear in the debate on the humble Address, we warmly welcome the Bill. It is a long-standing and core objective of the Liberal Democrats to promote equality of opportunity on the basis of individual worth and merit and to combat unjustifiable discrimination wherever it exists. We hope that our scrutiny of the Bill will help to ensure that effective measures are put in place to eliminate discrimination—measures which are not bureaucratic or opaque and which address real problems and achieve tangible benefits for all. We hope that such measures will ensure that the benefits outweigh the burdens that any legislation necessarily imposes. We welcome the Bill as an important practical measure to rationalise the existing mass of discrimination legislation and to strengthen and improve the law as it stands for the benefit of everyone. We are glad that the Official Opposition also support the Bill. Our colleagues Lynne Featherstone MP and Dr Evan Harris MP sought in the other place to improve the Bill and to remove some of its blemishes but obtained hardly any concessions. We shall look to the Government to be more open-minded during the Bill’s passage through this House. For our part, we will seek to avoid tabling unnecessary amendments or to prolong discussion. If the Bill is to pass before the general election, there will be a need for unusual discipline on all sides, including my own. We will help to ensure that the Bill completes its passage in this House with all deliberate speed. Some improvements are needed. We have already raised many of our concerns with Ministers and their advisers and we are grateful to them for being readily available and willing to reflect on them. Ministers are very fortunate to have such an outstandingly able public Bill team. The Bill has taken far too long to be conceived and its birth pangs have been painful, in part because of the hostility of some Ministers in representing what they regard as the best interests of commerce and industry. The politics of business have led to some weaknesses in the Bill, which we will seek to remove, notably in tackling the serious and persistent problem of unequal pay for women. Where the pay gap is caused by direct or indirect sex discrimination, some of the provisions on equal pay are incompatible with EU legislation and our own case law, notably in defining the comparisons that may be made and the scope of the employer’s defence. It is in the interests of employers and workers to take positive action to eliminate sex discrimination in the workplace, including discrimination in pay, and to have efficient procedures for dealing with discrimination cases in the tribunals. Too many employers prefer to leave the problems to be addressed, if at all, in individual legal proceedings and are hostile to collective remedies and positive duties that are designed to give systemic remedies for systemic discriminatory practices. Such discrimination wastes the talent and ability of its victims. It is unjust and bad for the economy. If left unattended, it results in the accumulation of problems that eventually have to be remedied at huge cost to the rest of us. The problem arises not only in the public sector. It is more than 20 years since the Law Lords’ decision in Hayward v Cammell Laird, in which I appeared as counsel for Julie Hayward. The noble and learned Lord, Lord Goff of Chieveley, warned employers and trade unions then of what he described as the absolute need to ensure that the pay structures for various groups of employees include no element of sex discrimination, direct or indirect. Unfortunately, the Bill’s provisions on equal pay are weak and ineffectual. Given the failure of employers to implement the principle of equal pay for women for so many years, it is not sufficient to rely on a future obligation for only very large employers to introduce transparency into the workplace to help to address the differences in pay between women and men. We should give incentives to employers to carry out proper job evaluations and to work to eliminate sex discrimination in pay, rather than relying only on the possibility of more transparency and the threat of litigation to promote equal pay for women. Political tactics have led to the inclusion of some provisions that should not be in the Bill, notably, in Part 1, a public sector duty on socio-economic inequalities that would, as we have heard, compel public authorities when deciding how to exercise their manifold functions to, ""have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage"," taking account of any guidance issued by a Minister of the Crown. This so-called duty is a vague and unworkable exercise in political window-dressing that attempts to suggest that Labour alone is concerned to reduce socio-economic inequalities. The breach of this duty would not give rise to a cause of action in private law, but its presence in the Bill could give rise to politically motivated attempts to use judicial review to challenge a wide range of decisions by already overburdened public authorities, diverting energy and attention from the serious problems of discrimination, victimisation and harassment that the Bill is designed to tackle. Therefore, like the Official Opposition, we cannot support Part 1 of the Bill. Another example of a vague, unworkable and, in this case, dangerously divisive provision is the way in which religion and belief have been included in the public sector equality duty in Clause 148. It would oblige a public authority, in the exercise of its functions, to have due regard not only to the need to, ""eliminate discrimination, harassment and victimisation"," but to, ""foster good relations between persons who share a relevant protected characteristic and persons who do not share it"—" that is, the characteristics of age, disability, gender reassignment, marriage, civil partnership, race, religion, belief, sex and sexual orientation. Clause 148 treats each strand in exactly the same way. However, religion and belief are not the same and should not be treated as identical. Religion and belief are not about immutable characteristics such as age, disability, race, gender and sexual orientation. They are about matters of faith—or lack of it—and the practices of those who share a particular faith. One person’s faith may be another person’s blasphemy. Even within the Christian churches, passionate differences are not unknown. There are conflicts between the right to religious freedom and the right to be protected against sexual orientation discrimination. The place of religion in public policy is disputed by many in our plural, secular society. Clause 148(3) explains: ""Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic"—" that is, religion or belief— ""and persons who do not … involves having due regard, in particular"," to their needs. These provisions are unworkable and divisive. Clause 10 explains: ""Religion means any religion and a reference to religion includes a reference to a lack of religion … Belief means any religious or philosophical belief and … includes a reference to a lack of belief"." The Bill quite properly does not define religion, which includes new as well as traditional religions and their different sects. I know of no cogent and compelling evidence to show that these provisions are needed to tackle a serious social problem. I do not understand how a public authority can be expected to operate these provisions or how they will be protected against unreasonable and well publicised claims and criticisms by those dissatisfied with policies and practices. The quarrels within and about the Church of the Holy Sepulchre will be insignificant compared with what may happen if the Bill is not amended. How can it be appropriate and compatible with equality and freedom of religion for a public authority to have to take account of the needs of Muslims compared with Jews or Christians, or of Muslim women compared with Sikh or Hindu women, or of atheists, agnostics and humanists compared with believers in a theistic religion, or a non-theistic religion such as Buddhism, or followers of a new religion such as Scientology? These are examples of legislative overreach and I hope that the Government will agree to prune Clause 148 where it is overinclusive. There is also the problem of the potentially adverse impact of Clause 148 and other provisions on the editorial independence and freedom of expression of broadcasters, such as the BBC and Channel 4. They have drawn the problem to the Government’s attention and we seek an assurance that appropriate amendments will be introduced to deal with this. There are also examples where the Bill is underinclusive. It fails to cover homophobic bullying in schools, except where it amounts to discrimination rather than harassment. I hope that the Minister will explain exactly how the Bill and other measures will tackle this serious problem effectively. We need to be sure that the Bill will ensure that those responsible for our schools are required to stop homophobic bullying, to take measures against the bullies and to ensure that the victims have effective remedies. The Bill provides no remedy where a school discriminates against a teenage girl who becomes pregnant, even though it is clear that European convention law requires a remedy to be provided for discrimination against pupils in schools. I have written to the Solicitor-General about this and we hope for a positive reply from the Minister this evening. The right to equality between spouses is a fundamental right protected by Protocol 7 to the European Convention on Human Rights. Forty-six countries have signed that protocol and 42 have ratified it. The UK has not done so, but it committed to doing so in the 1997 White Paper, Rights Brought Home, and has reiterated the commitment subsequently. Before the UK can do that, Parliament has to abolish or amend family law provisions incompatible with the right to equality between spouses. I have listed these in a Question for Written Answer published yesterday. I hope that the Minister will tell us that the Government will introduce appropriate amendments in the Bill together with amendments to equalise the position of civil partners in respect of housekeeping allowances. On racial discrimination, I hope that the Minister will be able to confirm that the reference to race in Clause 9 should be interpreted and applied in accordance with the UN Convention on the Elimination of All Forms of Racial Discrimination, by which the UK is internationally bound. On age discrimination, we hope that the Government will ensure that the outmoded default retirement age of 65 is abolished during what remains of the lifetime of this Parliament. As for disability discrimination, we need to be satisfied that the Bill involves a progressive approach, as it probably does. On the interaction between religion and sexual orientation discrimination, we have concerns about the exemption permitting discrimination in state-maintained faith schools beyond what is permitted for charities and businesses where the principle of proportionality applies. The European Commission has given two recent opinions that UK equality legislation does not give sufficient protection against discrimination on the grounds of sexual orientation and disability. I have asked the Government to make those publicly available so that they may be considered by the House in our debates on the Bill. Provision is needed on positive action, as the Minister explained, because promoting equality may require more than treating different individuals in the same way as each other and may require the accommodation of difference. The need to take steps to correct conditions of disadvantage that arise from discrimination may require taking special measures of general application. I stated those principles in my own Equality Bill, which I introduced as a Private Member’s Bill. We need to ensure that the measures for positive action are limited only to what is appropriate and necessary to meet legitimate aims in accordance with the principle of proportionality. I have concentrated on areas in which we seek changes, but nothing that I have said should take away from the fact that we warmly welcome the Bill and will do our best to ensure that it is safely delivered.