Equality Bill

My Lords, I will use my best endeavours to make my remarks as brief as possible in view of the need to make progress. This group of amendments refers to two different clauses. Amendment 116 has been tabled to Clause 158, which deals with positive action, recruitment and promotion. The others have been tabled to Clause 196, which is about harmonisation, and enables a Minister of the Crown to amend by order the Act which will result from this Bill, and the Equality Act 2006, in order to ensure consistency—both of provision and with European law. I will not go into the detail of this clause at this point. We have tabled amendments which will allow discussion later. This group of amendments relates especially to the use of ““thinks”” rather than ““can demonstrate””. We have been having detailed discussions on the semantics of this Bill—around the definitions of ““reasonable”” and ““proportionate””—and I am sure noble Lords will also have an opinion on the use of ““thinks”” in these clauses. Our main contention is that, given that the powers provided by these clauses are quite wide, it is sensible to have a less subjective test for when the provisions can be used. If the test were to be made more objective, the person or Minister responsible could be properly held to account for their actions. A test based on a subjective opinion, however, will be much more difficult to judge. In another place, the Minister dismissed these concerns, stating that this, "““is not a ““thinking”” process which can just come to someone over breakfast””.—[Official Report, Commons, Equality Bill Committee, 30/6/09; col. 613.]" I am sure that for most people it would not be. However, there is nothing in this Bill or the Explanatory Notes which makes that clear. Can the Minister please explain what the ““thinking”” process would include? We obviously expect and hope that the Minister making decisions regarding harmonisation, and the person making decisions about the use of positive action, would do so with the utmost regard for best practice. However, the use of ““thinks”” seems to belie the serious implications of the use of these powers. Does the Minister agree that, given the strength of these powers, it would be beneficial if the test for their use were made stricter? In another place, the Minister commented that it would be unproductive if an employer were to be put off using the clause relating to positive action if the test were raised and he had, for example, to find an expensive consultant to provide some statistical analysis to demonstrate that the use of the powers was justified. As I pointed out a little earlier, we on these Benches support the provisions for positive action as long as that does not give way to positive discrimination. However, I wonder whether our amendment would really have as damaging an impact on the use of the clause as the Minister in another place feared would happen. Does the Minister agree that most employers would be able to demonstrate, first, that persons who shared a protected characteristic suffer a disadvantage connected to that characteristic or that, secondly, participation in an activity by persons who share a protected characteristic is disproportionately low? One would not need to spend a lot of money to have a consultant find statistical evidence; instead, it would just raise the bar for the thinking process. This would mean that it was clear in the Bill that this is an important decision that requires reasoned, objective thinking and an evidential basis. I am sure that most employers would be doing that anyway. The aim of the change would be to catch only those who were not, to provide them with clear instruction about when is the appropriate time to use these broad powers, and to make sure that there is sufficient justification. That would not be off-putting to employers, as surely that sort of thinking is what the Government mean to encourage when they use ““thinks””. If not, can the Minister inform the Committee what the word is supposed to denote? The use of the word ““thinks”” in these two clauses raises further concerns when it is noted that in Clause 158 the person must ““reasonably”” think, but that in Clause 196 the Minister does not even have the limitation of ““reasonably”” in order to use the powers contained there only on a thought. Given that the Minister in another place specified that those thoughts could not just occur over the breakfast table, can the noble Baroness account for the fact that ““reasonably”” has not been included here? I feel sure that the Minister will reassure us that all decisions are expected to be reasonable. If that is the case, why is that word included in Clause 158? Surely, the noble Baroness cannot be claiming that Ministers are intrinsically more reasonable than other employers? Again, we advocate the use of ““can demonstrate””, with the intention that the Minister should have to be able to demonstrate the objective thought process and to be held accountable for the decisions made. I do not feel that the change that these amendments would effect would have too great an impact on a process that the Government are assuming would occur anyway. The noble Baroness will correct me if I am wrong—indeed, I suspect that she may wish to do so—but we on these Benches think that it would be sensible if the need for an objective and justifiable decision was laid out in the Bill rather than using a word which, to many, denotes a more subjective decision without the need for demonstrable evidence. I beg to move.