Equality Bill

My Lords, as the noble Lord, Lord Lester, moved into the 10th minute of his speech, I thought to myself that perhaps it would have been a much shorter speech had he been able to hear my explanation of why these amendments have been tabled, and particularly of why we wanted a debate on Clause 158 stand part. It is not to get rid of Clause 158, because we are happy with ““positive action””; it is to allow us to raise our concerns about the operation of the clause. I will come to that and I am mindful of all the points that he raised. Amendments 117 and 118 are designed to change the language of the clause from ““as qualified as”” to ““equally qualified to””. As I have already explained, we raised Clause 158 stand part to allow further discussion about what is a very important clause. We do not like the clause if it is to be used as positive discrimination, but we would be happy with it if it were to be used as ““positive action””, as the title suggests. We are concerned that without our amendments the clause will verge towards the former, which we could not agree to. The first point that I want to raise is that I was under the impression that the Government intended this clause to be about ““positive action””. This is made clear not only by the title of the clause itself, but also by the statement made by the Minister for Women and Equality, Harriet Harman, at Second Reading in another place. She presented this clause on that occasion saying that, "““the Bill includes the power to take positive action””," to change the situation whereby, if an employer, "““is faced with two equally qualified candidates, one a man and one a woman””," in this example, "““the employer cannot actually say, ‘Right, we've got two equally qualified people for this job, but I'm going to take you, because you're a woman and I want to diversify my management team’””.—[Official Report, Commons, 11/5/09; cols. 557-58.]" It seems clear that the Government agree with us that this clause should be used for a tie-breaker situation between two candidates who are equally qualified. We would very much support the use of positive action in this way. It is clear that there may sometimes be a desire to discriminate in favour of a candidate with one particular characteristic. The example which has been done to death is one where a job vacancy has opened up in a primary school, when all the interviews, checks and tests have been carried out and the two candidates left are equally qualified to do the job. In this presumably rare situation, the employer would then be allowed to choose the male candidate, with the protected characteristic of gender being the factor which gave him the lead over the other candidate, who was equally qualified. I hope very much that the noble Baroness the Chancellor of the Duchy of Lancaster can confirm the Government's views on this clause. We have heard what Harriet Harman said about it in May in another place. By the time the Bill reached your Lordships' House, however, a different tune was being played. The Minister introduced the clause saying that it, "““allows … but does not compel””,—[Official Report, 15/12/09; col. 1408.]" employers to recruit a person from an underrepresented group in their workforce when choosing between otherwise equal candidates for recruitment or promotion. This seems to give a different emphasis on the clause. My understanding from this statement is that employers would be allowed to make a choice from a pool of candidates rather than select one person in a tie-break situation. The Explanatory Notes lend a little more credence to this. One of the examples states that, where the police service employs disproportionately low numbers of people from an ethnic-minority background, and where a number of candidates were, "““as qualified as each other””," preferential selection can be made, "““to a candidate from an ethnic minority background””." Our fear is that this clause is there to allow, in effect, positive discrimination. It appears that, instead of a clause which allows employers to make decisions based on protected characteristics in a tie-break, this clause is going to be much broader. We need to clarify this. In fact, would it allow employers to make a decision based on a protected characteristic when there is a pool of candidates who are considered all to be above a certain level of qualification and so can be considered as ““qualified as each other””? We could not support that. It would be helpful, for the sake of clarity, if the Minister could confirm whether the Government's policy is indeed that this should only be used in a tie-break situation. Clarity is necessary because the Minister in another place said that we should not worry because Clause 158(4)(b) prevented any kind of ““policy”” decision. In other words, this would mean that a company could not have a policy of favouring groups who shared a protected characteristic. I wonder whether this fits with the Government's seeming change of heart about whether this provision should relate to a tie-break or pool situation. The example given in the Explanatory Notes about the police recruiting ethnic minorities seems to show instead what I would have assumed subsection (4)(b) was designed to prevent. Therefore I look to the noble Baroness the Chancellor of the Duchy of Lancaster to clarify that for us. Does subsection (4)(b) prevent a blanket policy—a policy in relation to all recruitment drives—but allow a general policy in relation to one appointment? To put it another way, is it the Government's intention that a company should be able to say, ““We have not employed many of this particular section of people recently””, then advertise a job, interview people from all backgrounds but, when it has found a pool of 20 candidates with the relevant qualifications and skills, to pick the candidate representing what it believes to be an unrepresented class or people over the others? We welcome the commitment to positive action, but this is not the clause we felt we were welcoming when it was first introduced in another place. We are now looking for some reassurance. We believe that a clause which allows a decision to be made on a protected characteristic for a legitimate reason is very sensible and gives employers a reasonable freedom. If, however, the policy is broadened so that it is likened to positive discrimination, then it will do more damage than good to the cause of equality in a society which believes also very firmly in a meritocracy. We have seen that many of the business organisations agree with the principle of this clause, but they need essential clarity to allow it to operate effectively. The CBI, for example, has told us that it welcomes the intention, but feels the clause is poorly drafted. It is uncertain how it will work in practice. It calls it a tie break. It would be helpful if the Minister could address that point directly in her remarks. The British Retail Consortium also supports the clause, saying that, "““businesses should be supported to address under-representation in their workforces””." However, it believes that, "““it is imperative that legislation and accompanying guidance is clear on how this should be done to ensure employers do not end up falling foul of the law””." The British Chambers of Commerce agree with this point, saying that the language is too confusing. The Bill uses ““as qualified””, but the Solicitor-General uses ““equally acceptable””. To be consistent with European law, we believe that we should use ““equally qualified””, as the amendment does. They also think that the situation the Government are trying to describe is one where there are two equally qualified candidates. We are looking to the Minister to make this entirely clear in her response. I hope also that she will agree that, for the sake of clarity and the correct use of the provision in the Bill, it is possible to accept our amendments. I also await with interest her response to the amendments tabled by the noble Lord, Lord Lester. He has explained that they are to clarify the use of this procedure and ensure that it is used only in the correct specific circumstances, namely when it is a, "““proportionate means of achieving a legitimate aim””," concerning positive action regarding those with a protected characteristic which might otherwise disadvantage them. However, the most important area to clarify is that which we have raised—namely, the need to make absolutely clear that positive action can apply only in a tie break. I shall mention the amendment tabled by my noble friend Lady Knight, who sadly is unable to be with us. It raises an interesting issue. We would hope that nothing in this Bill would prevent those over 50 or who are disabled from being integrated into the workforce to address discrimination against these groups, if they were the suitable candidates for the job. However, we cannot support positive discrimination, so this must happen only when a tie break has occurred and two people who are equally qualified have been identified. It is only at this point that a selection on the basis of a protected characteristic should be made.