Equality Bill

My Lords, this group of amendments relates to two different clauses—158 and 196, so I shall address the relevant amendments separately. Amendment 116 would make it a requirement for employers to rely on the statistical evidence to support the use of positive action measures to tackle disadvantage or underrepresentation within an organisation’s workforce. This same amendment was tabled in another place. The Government resist this amendment. The Bill uses the formulation ““reasonably thinks””, so it already requires a decision-maker to act in a reasonable way when deciding whether to use positive action measures. We believe that ““reasonably”” introduces an element of objectivity and raises the threshold for decision-makers. It means that, when making the decision, the employer must apply logical and rational principles and a failure to do so would give rise to a challenge. Therefore, any use of these measures must be backed by some form of evidence or justification that supports the belief that people who share a particular characteristic are disadvantaged or underrepresented; otherwise, such a decision would be open to challenge, so clearly the employer cannot simply opt to use positive action measures on a whim. Clause 158 sets out the circumstances in which employers could apply these positive action measures and the action that is permitted. Clause 158(4) also ensures that employers would not be able to abuse the provisions by ensuring that any action taken must always be a proportionate way of accomplishing the intended outcome. As has already been mentioned by noble Lords, using the formulation of ““can demonstrate””, as proposed in the amendment, would create a higher threshold based on undisputable statistical evidence, which we consider would have a chilling effect on the willingness of employers to use positive action measures. I am not saying that it is devastating, but that it is chilling. It would discourage employers from using the positive action measures, even when they had identified the need to tackle disadvantage or underrepresentation —the gateway mentioned by the noble Lord, Lord Lester, and the right reverend Prelate. Amendments 130 to 133 will be discussed in a later group, so I will limit my remarks. They would limit ministerial flexibility in deciding whether use of the harmonisation power in Clause 196 is appropriate and, if so, the timing and extent of its use. The provision grants Equality Ministers of the future the flexibility they need in order to keep the Bill, when enacted, a coherent and harmonised piece of legislation in the years ahead. I can offer reassurance to noble Lords, should they require it, that use of this clause would not be at the whim of a Minister dreaming something up over breakfast. While the initial trigger on its use would result from ministerial consideration following advice from officials, there are a number of constraints on the power’s use and in-built requirements to explain and demonstrate why it would need to be deployed in any given case. The word ““thinks”” in Clause 196(1)(a) concerns the question of whether the Minister considers the relevant criteria are met and the Minister is therefore bound by public law principles to act reasonably. The harmonisation provision, particularly the important procedural safeguards that we propose, will be debated more fully when we reach Clause 196, but I remind the House that this power can be used only where a community obligation is to be implemented through the Equality Acts. There will be little by way of subjectivity on this point. It will be clear that action is needed when regulations are brought forward to implement, for example, a directive under Section 2(2) of the European Communities Act 1972. With regard to consultation, it is inherent in such an exercise that the Government will need to demonstrate why the power needs to be used in those particular circumstances. In addition, in response to concerns of the Delegated Powers and Regulatory Reform Committee, the Government are proposing amendments that would add further checks on its use—for example, by requiring further consultation if the initial consultation led to changes to the proposals and an increase in the frequency of reporting to Parliament on the power’s use is proposed. We will explain that when we reach Clause 196. I conclude by highlighting that all regulations intended to be made under this power must be laid before and debated by both Houses of Parliament. As with the consultation, the Minster will by definition need to demonstrate to Parliament that regulations under Section 2(2) of the 1972 Act trigger a need to retain harmony in the law through use of this power, and that any consequential adjustments are necessary. A new clause proposed by the Government after Clause 196 also requires that an explanatory document be laid before Parliament along with the draft regulations describing the results of the consultation, among other things. Ample accountability is built into this provision and it is important to understand that particular pieces of language taken in isolation do not provide the complete picture. I urge the noble Lord to withdraw the amendment.