Equality Bill

My Lords, I welcome and support the introduction of this Bill, which not only harmonises all the current pieces of legislation but also provides new principles further to progress equality across all strands, as disadvantage and inequalities still exist. I congratulate all those who have had the responsibility for pulling this Bill together and for overcoming the complexities and anomalies of the legislation currently on the statute book and so making it easier for everyone—individuals, service providers and employers—to understand their rights under the law. As chair of the Women’s National Commission, an interest I declare, I and the commissioners have had the privilege of discussing aspects of the Bill with a great many stakeholders, the vast majority of whom are genuinely supportive of the outcome of this Bill. I do not intend to set out the case for the Bill, because my noble friend the Leader of the House did that so well, but I should like to look practically at some of the key aspects of the Bill, starting with the three clauses that were inserted in the other place. The new provision for dual discrimination in Clause 14, which addresses people experiencing discrimination because of a combination of characteristics, is opposed by the CBI which believes that the inclusion in the Bill of the clause is burdensome for employers. However, its arguments are not valid, either in substance or in principle. What is important is precise legislation to deal with discrimination that people experience. The new Clause 40 responds to concerns about pre-employment health questionnaires which effectively allow employers to weed out candidates with medical conditions, including HIV. As chair of the Independent Advisory Group for Sexual Health and HIV, this is of particular concern to me. While the new clause is helpful, in that it provides a clearer pathway to a tribunal for people with disabilities, it still does not preclude employers asking questions and discriminating against applicants on health grounds. Thus there remains the "fear of discrimination" factor that many people affected by HIV or mental illness have highlighted. I greatly welcome the Bill making it unlawful to treat a woman unfavourably because of maternity and pregnancy, but until the noble Lord, Lord Lester, spoke I had not appreciated that under Clause 84(c) it will be legal for a school to expel a student on the basis of her pregnancy. I ask my noble friend for clarification, because surely that cannot be right. Also on schools, it is alleged, as the noble Lord, Lord Lester, and the noble Baroness, Lady Greengross, said, that Clause 82(10) will allow schools to harass pupils on grounds of gender re-assignment, religion or belief, or sexual orientation. There is considerable evidence of this. School pupils are a captive population in the classroom, so surely they must be protected even more. This clause has caused great concern among the people involved, and I fail to understand what good purpose is served by allowing it to remain unamended. As my noble friend said, the importance of the public equality duty cannot be overstated, but, in working the new duty, it is important that the beneficial aspects of the gender duty are not lost in harmonisation. The gender duty has provided a legislative framework for women to hold public bodies to account, and, as women invariably make up the majority across all the equality strands, it is vital that a gender perspective is prominent across all the grounds. Clause 148(5) is particularly important in that compliance with the duties involves treating some people more favourably than others. This is a counter to the widespread misconception that equality means treating everyone the same, which has had a detrimental effect on women-only services. However, for the new duty to be effective there has to be greater awareness and understanding of how it will work. The public sector, as has been said, spends £175 billion a year on goods and services. As the CBI says, public procurement is a useful lever to promote equality and other social goals. That is absolutely right. It can also lead to good pay practices, which brings me to the question of pay. As other noble Lords have said, after nearly 40 years of the Equal Pay Act, the gender pay gap remains, but the elimination of the pay gap relies on a package of measures: pay audits, transparency, representative action and hypothetical comparators. On mandatory pay audits, views differ: from those that oppose to those that call for their instant introduction. Clause 78 attempts to balance those two views, and although I support it in principle, I should say to my noble friend that 2013 is an awfully long way off and a tighter timetable may be needed. Currently 30 per cent of employers insist on a secrecy clause in employment contracts. The introduction of transparency and the right to discuss one’s pay with a colleague are important and can make employers consider their pay structure before an equal pay claim is made. However, I again ask my noble friend for a definition of "colleague". Who is included in the clause? It is impossible to achieve equal pay, particularly for women in low paid, undervalued work, unless there is a comparator in the same employment who is treated differently. Again, I must ask why equal pay is the only area of discrimination law in which a hypothetical comparator cannot apply. While the Bill helpfully extends the role of employment tribunals to make recommendations in discrimination cases that benefit the whole workforce, it goes only part of the way. Representative action has been demanded for many years. I appreciate that the Ministry of Justice is looking at this issue, but this should not preclude the inclusion of representative action in the Bill. In conclusion, I shall refer very briefly to two other issues. The first issue relates to positive action. The value of a diverse workforce is beyond question and is accepted by employers. These provisions will not only promote positive action but clarify the current confusion arising from the existing plethora of different rules about when positive action can be used. It would be a retrograde step if the principle of this clause were not accepted. The second issue relates to a purpose clause. Although the Government do not support the idea that a purpose clause is needed in this Bill as it was in the Children Bill, such a clause at the beginning of the Bill that stated the goals and fundamental principles would be a useful tool for those who apply the law in practice. It would prevent misinterpretation of the legislation, thereby strengthening protection for all groups. For that reason, I ask the Government to reconsider the matter and think about a purpose clause. I have been able only to scratch the surface of some of the clauses of this important Bill. I have raised a number of queries which the Government may not feel able to respond to positively, but this Bill is not about rhetoric but about a real, practical advancement towards equality. I fundamentally believe that, in the name of equality, it is crucial that the Bill is carried in its entirety, and I wish it a speedy passage through your Lordships’ House.