Equality Bill

My Lords, I will first speak to government Amendments 126C and 135ZA and then address Amendments 126A and 126B, which have been tabled by the noble Baronesses, Lady Warsi and Lady Morris. The role of guidance in the exceptions from age discrimination outside the workplace has been raised in debates on the Bill, and, as the noble Lord, said, by the Delegated Powers Committee in its third report of 2010. The committee’s concerns arise in essence because these provisions, which allow for sub-delegation, require strong justification. Government Amendment 126C addresses the committee’s concern about sub-delegation by ensuring that guidance made under a power conferred by subsections (3) and (6) can come into force only on a date that is specified in an order. This order cannot be the same one as that specifying the exceptions to which the guidance relates, and it will subject to the negative procedure in Parliament. Government amendment 135ZA is consequential. It applies the provisions in Clause 200 for making orders and regulations under the Bill to those made by the Treasury, as well as those made by a Minister of the Crown. Parliament will be able to debate the provisions, which will be supported by any guidance in the context of the exceptions order, which is subject to the affirmative procedure. Amendment 126C then gives Parliament the opportunity to consider any guidance that is issued. I hope noble Lords will agree that, by including in the Bill scrutiny of the power to bring any guidance into force, this amendment satisfies the concerns expressed by the committee. We have, of course, been in dialogue with the committee. Guidance will not alter the scope of any of the exceptions. That would be outside the extent of the power, which therefore cannot be used to amend substantive provisions in the legislation. It will allow us to set out what steps service providers need to take to take advantage of the exceptions so that they are clear about what they need to do to comply with the legislation. The justification of the ability to make guidance is straightforward; it is there to ensure that exceptions under Clause 195 can operate as effectively as possible. Section 45 of the Sex Discrimination Act 1975, the effect of which is replicated in paragraph 22(3)(b) of Schedule 3 to the Bill, is a precedent. Under that provision, the use of sex as a factor in determining premiums is permitted on the basis of relevant and accurate actuarial and statistical data that are published and updated in accordance with Treasury guidance. Insurers who comply with the disclosure requirements, and who rely on the data that they disclose, can take advantage of the exception when setting premiums. We envisage similar arrangements for using age as a factor in the insurance industry. Without the ability to issue guidance, all the detail on how to comply with an exception would need to be set out in the Act. This would be cumbersome, and inconsistent with the drafting of the rest of the Bill. It would also be harder to make minor necessary changes to the detail to cater for developing practices and procedures in the financial services sector, for example, because a fresh affirmative resolution instrument would be required for every such change. The guidance-making provision is particularly important for financial services as age-based exceptions are likely to be complex, and considerable detail will be needed to provide sufficient certainty to service providers. The guidance will be needed for matters such as giving full effect to the proposals on transparency —data publication—and signposting and referrals by one insurance company to another. We aim to consult on the draft exceptions order in autumn 2010. We will consult on any amendments to that guidance unless circumstances require the amendments to be made urgently. However, guidance may not be limited to financial services. While the exceptions that are also planned for other services, such as age-based holidays and commercial discounts, are likely to be more straightforward, they may require such guidance—for instance, to make clear the steps that service providers must take to come within the exception. Health services are far more complex, and it would not be sensible to rule out the use of guidance in that sector too if it is eventually decided—and to the extent that it is decided—to use the power in Clause 195 to make exceptions in relation to health and social care. In most areas, having the exceptions in legislation will suffice, but at least some will need more detail so that service providers can understand their responsibilities. The noble Lord asked what would happen should the commencement date be voted against. It would mean that the guidance would not come into force. Amendments 126A and 126B, which would remove subsections (3) and (6) from Clause 195, would remove our ability to provide that clarity. If we could not make guidance, we would have two choices; either granting wide exceptions, which I think nobody would want, or including extremely detailed and often sector-specific provisions in the legislation. Neither of these are satisfactory options. We have listened to the Delegated Powers and Regulatory Reform Committee. Amendment 126C specifically addresses its concern about parliamentary scrutiny. It ensures that the guidance cannot be used if Parliament is not happy with it, while retaining the necessary advantages offered by guidance. The noble Lord asked me to reiterate assurances about how Clause 195 will be used. It will be just as the noble Lord described. The power will be used to make an order, subject to affirmative resolution, setting out exceptions to the ban from age discrimination to come into force on the day of the ban. The noble Lord referred to holidays for older people and exceptions. I reassure the noble Lord that we are doing further work and consultation to ensure that we get the exceptions right. On 27 January, we published a policy statement, which provides further clarity as to the exceptions which we are developing. I will ensure that the noble Lord receives a copy. There will be a further opportunity for consultation on the detail of the exceptions when we consult on the draft order that will contain them in the autumn. I trust that the noble Lord will feel able to withdraw his amendment.