Equality Bill

My Lords, I shall speak also to Amendment 118A and to the group as a whole in a single speech. I should emphasise that we on these Benches strongly support both clauses and oppose any dilution of them, and that both clauses are permissive, not mandatory. My amendment to Clause 157 is probing in nature and not intended to hobble or curtail its scope or effect. The amendment to Clause 158 is intended to state in the Bill, in the interests of legal certainty, what is required by EU equality law; namely, compliance with the principle of proportionality. That would be in accordance with the recommendations made by the Joint Committee on Human Rights at paragraph 289 of its report on the Bill. Positive action is a necessary element in the concept of equality, as the European Court of Human Rights reaffirmed in the DH and others v Czech Republic case. Article 14 of the convention does not prohibit a member state from treating groups differently in order to correct what it calls ““factual inequalities between them””. In some circumstances, a failure to attempt to correct inequality through differential treatment may in itself give rise to a breach of Article 14. That is also true of EU equality law. Article 7 of the framework directive provides that with a view to ensuring, "““full equality in practice, the principle of equal treatment shall not prevent any member state from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds listed in Article 1””." It recognises that a concept of literal equality is too narrow. In William Blake’s words: "““One Law for the Lion and the Ox is Oppression””." The relevant Explanatory Notes are important. Both here and throughout, they are expressed with great clarity, for which we should be grateful to their authors. I want to mention that particularly because I have not read Explanatory Notes of this quality before, and although I must not name their authors, I think that if I could do so, I would say that Melanie Field and James Maskell between them have done the most extraordinary job I have ever seen. I hope that future Bill teams will work to that high quality. Paragraph 525 explains that Clause 157 provides that, "““the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim””." Paragraph 526 explains that: "““The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed””." To comply with the principle of proportionality, the positive action measure in question must both pursue a legitimate aim and be necessary to achieve that aim. Clause 157(1) relates to the European legal principle that measures must be shown to be necessary and focused on a specific disadvantage, requiring that the person concerned reasonably thinks that paragraphs (a), (b) or (c) apply. Clause 157(2)(a), (b) and (c) define the legitimate aims that may be pursued. I note that the Official Opposition have not tabled any amendments to limit the scope of Clause 157 by substituting ““can demonstrate”” for ““reasonably thinks””, as they have done in the next group in relation to Clause 158, to which I now turn. It is important to record that paragraph 532 of the Explanatory Notes explains that Clause 158, "““permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the same protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance. The clause does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; each case must be considered on its merits””." The clause defines recruitment broadly so that, for example, it includes a pupilage or tenancy in a set of barristers’ chambers such as my own. It is intended to allow the maximum extent of flexibility to address disadvantage and underrepresentation where candidates are as good as each other, within the confines of European law. The Explanatory Notes explain in paragraph 535 that the clause is new: "““While current legislation allows employers to undertake a variety of positive action measures, for instance, offering training and encouragement for certain forms of work, it does not allow employers to take any form of positive action at the point of recruitment or promotion. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics””." This is an important advance on current law. When I helped prepare the sex discrimination and race relations Acts in the mid-1970s, we included narrowly restrictive provisions allowing positive action to be taken to encourage women and members of ethnic minorities to apply for jobs where they were underrepresented, and to provide them with special training. But we were unable to obtain agreement to allow any form of positive action at the point of recruitment or promotion. That was regrettable and is one reason why employers have made insufficient use of the positive action provisions. They may encourage women or ethnic-minority individuals to apply for work where they are underrepresented, such as in the police service, and they may give them special training to equip them for the work, but they may not use underrepresentation as a reason for appointing, say, a woman or a person from an ethnic minority who is as qualified as other candidates in preference to a candidate who does not share the relevant protected characteristic. As regards my own profession as a barrister, the Equality and Diversity Committee of the Bar Council, in a 2007 response to a government consultation on the Bill, explained why greater and clearer positive action measures are needed under the law. The committee pointed out that the current law limits positive action measures to a greater extent than is permitted by the relevant European directives. Currently, for example, apprenticeships and other on-the-job training schemes cannot be used as positive action measures. It argued for the need for a wider range of ““voluntary balancing measures”” to be available to organisations and employers. Thinking of the profession of the noble Lord, Lord Hunt, the Law Society in response to the same consultation also indicated that further ““balancing measures”” are needed. We therefore welcome the changes made in Clause 158 to encourage much greater use of positive action. The Official Opposition seek, in Amendments 117 and 118, to restrict the scope and effect of Clause 158 and apparently intend to oppose the Question that Clause 158 should stand part of the Bill, even though in the other place they did not seek to remove the clause. It is questionable whether the amendments would make any practical difference other than to cause confusion and limit the effectiveness of Clause 158. It is ironical that they should do so, for it was the Thatcher Government who, in the Fair Employment (Northern Ireland) Act 1989, introduced a far more robust system of positive action to combat discrimination against Catholics and Protestants in the workplace, drawing on the Canadian employment equity approach which incorporated monitoring and affirmative action, but not quotas. The 1989 legislation of the noble Baroness, Lady Thatcher, provided for compulsory religious monitoring by both public sector and private sector employers. It required employers, at least every three years, to review their employment practices and to compare the religious composition of their workforce with available labour in the catchment area. The legislation also provides for affirmative action measures which exclude quotas but include the setting of goals, timetables and outreach measures. Monitoring covers about 70 per cent of all employees in Northern Ireland and all employments with 11 or more employees. The Equality Commission for Northern Ireland has kindly informed me that the data reveal that substantial progress has been made and that a sizeable body of independent research evidence shows that the legislative provisions and their implementation have been successful in improving employment equality. The Conservative Party may and should claim credit for introducing the 1989 scheme. It is therefore ironical that it now opposes the much narrower provisions of Clause 158, which are entirely permissive and voluntary and subject to the proportionality principle. My amendment seeks to put the proportionality principle explicitly on the face of Clause 158, and I hope that the Government will be able to accept it. I should add that this group also includes Amendment 119, tabled by the noble Baroness, Lady Knight, which would give blanket permission to discriminate in favour of the over-50s and disabled people without reference to proportionality. That would clearly violate European law. There is of course nothing to prevent more favourable treatment of disabled people; Clause 13 so provides. The positive action provisions in the Bill apply to disability, unlike the Disability Discrimination Act, to permit positive action between different types of disability—for example, permitting an employer to target training at people with learning disabilities, or to target advertising at people with sight impairments. In relation to age, as well as the positive discrimination measures permitted by Clauses 157 and 158, Clause 13 provides that age discrimination is not prohibited where it is a more proportionate means of achieving a legitimate aim. I am sorry to have taken so long, but I will not make a second speech on those issues.