Equality Bill

With the leave of the Committee, I will speak first to Amendments 109CA, 109CB and 108T, the first two being in the name of the noble Baroness, Lady Campbell of Surbiton, and the third being in the name of the noble Lord, Lord Ouseley, and spoken to by the noble Baroness, Lady Young of Hornsey. Clause 148(1) requires public bodies to think about meeting the needs of people from all protected characteristics. Clause 148(5) makes it clear that, in some circumstances, complying with the duty might mean treating some people more favourably than others. We recognise that the needs of disabled people are different from the needs of persons who share one or more other protected characteristics and we have sympathy with the argument that the lack of explicit reference to disability may, in practice, lead to public bodies thinking that they need to do less than they are required to do under the existing disability equality duty. This is why we have been engaged in discussions with the noble Baroness, Lady Campbell, and others. Under no circumstances would we want public bodies to misinterpret the new duty as imposing lesser requirements than the existing disability duty. I am not going to go into any more detail about the reasons for that because they have been eloquently and adequately described by the noble Baroness, Lady Campbell of Surbiton. We are happy to accept her amendments and I thank her for tabling them. I assume that Amendment 108T is intended to achieve the same effect as Amendments 109CA and 109CB. I regret that the amendment does not achieve its intended effect because it distinguishes having due regard to the need to advance equality of opportunity from taking account of the disabled person’s disabilities, the effect of which is to imply that having regard to the need to take account of a disabled person’s disabilities does not involve removing or minimising their disadvantages, meeting their needs or encouraging them to participate in public life. The noble Baroness, Lady Campbell, and other noble Lords, have recognised that problem with the amendment, so I am going to ask the noble Baroness, Lady Young, not to move it. I will now speak to Amendments 108S, 109A, 109B, 109C, 109D and 109E, tabled by the noble Lord, Lord Ouseley, and Amendment 110A, tabled by the noble Baroness, Lady Coussins. The equality duty, as currently drafted, requires public bodies to have due regard to the need to eliminate unlawful discrimination, to advance equality of opportunity, and to foster good relations where they exercise their functions. We believe that these amendments are impractical and will actually make the Bill worse. They will disturb the balance that has been achieved by the current wording of the equality duty. My notes say, "Let me explain what "due regard" means". I hesitate, being faced by the two noble Lords opposite, but I will do my best. It means that the weight public bodies give to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations should be proportionate to its relevance to a particular function. The purpose of the equality duty is to oblige public bodies to consider equality issues in respect of all their functions. However, the amendments would require public bodies to take such steps as they reasonably consider necessary to eliminate discrimination, advance equality and foster good relations in respect of all their functions. As well as being very confusing, and leading to potentially huge amounts of box-ticking work for public bodies, in the current financial climate it could add further unavoidable burdens on public bodies and others. The impact of these amendments is that many public bodies would feel obliged to take legal advice every time that they exercised their functions to establish what would be a reasonable step. This would clearly be an unreasonable encumbrance in the context of certain duties such as legal requirements to pay subscriptions, make returns, and keep financial accounts and certain records. I appreciate that what is at the heart of these amendments is a concern that, despite having a duty to consider matters such as the need to promote race equality, some public bodies have nevertheless arrived at decisions that have affected certain racial groups in a manner that has not received universal approval. However, we feel that public bodies should be required to consider equality issues when they are relevant, and that the weight given to such matters should be proportionate to its relevance to a particular function. I turn to the comments made by the noble Lord, Lord Hunt. First, on the problem of targets, our proposals for specific duties will require public bodies to consider the evidence and then set equality objectives and take action towards achieving them. This approach will ensure that the bodies will set the appropriate objectives, having listened to the views of service users, and focus their action on the most effective way to deliver the equality outcomes. We could perhaps discuss whether that is a target or not. The noble Lord also asked why the disability element of the duty was not in Clause 13. I am not sure that I understood that point correctly. Clause 13 sets out the asymmetrical nature of disability protection, which allows more favourable treatment for disabled people. Also relevant is Clause 20, which sets out the duty to make reasonable adjustments. Clause 148 sets out the positive duty on public bodies not only to eliminate discrimination but to advance equality of opportunity. In the case of disability, that can involve taking positive steps to take account of disabled people’s disabilities, particularly now that we have accepted the noble Baroness’s amendment. On the issues raised through Amendment 110A, tabled by the noble Baroness, Lady Coussins, I am pleased to tell the noble Baroness that they will be covered by secondary legislation. On 25 January, we published a policy statement in response to a consultation exercise on our proposals for specific duties. The structure of a general duty underpinned by specific duties to assist better performance of that duty has worked successfully for the current duties, and we now want to build on that success. In relation to compliance, the enforcement of the equality duty is a remit of the EHRC. The general equality duty can be enforced through judicial review by an interested party or by the commission; the specific duties can be enforced by the commission, which has the power to serve compliance notices and to apply to the relevant court in the event of non-compliance of such a notice. This provides an adequate process in place to ensure that public bodies comply with the requirements of the duty. The noble Baroness asked whether the equality duty should place at least the same requirements to be transparent about compliance as well as the current disability duty. It will do so. Our proposals for specific duties, which will support the better performance of the equality duty, include the requirements to report annually on key equality employment data and to publish annually information about progress towards achieving their equality objectives. We propose to require public bodies to demonstrate how they have taken equality into account in the design of key policies and services and what difference that has made to the outcomes in all those areas. Therefore, I ask the noble Baroness to withdraw her amendment.