Equality Bill

Government Amendments 131A, 131B, 134B, 134C, 134ZA, 134ZB and the new Clause in Amendment 134ZC concern the power in Clause 196 that would allow us to ensure that the Bill does not quickly fall into disrepair as a result of changes in European Law—what we call the ““harmonisation power””. As time is extremely tight, I hope that noble Lords will forgive me if I also address Amendment 134, tabled in the name of the noble Baronesses, Lady Warsi and Lady Morris, and also their intention to oppose the Question that the clause shall stand part of the Bill. Overall, the role that Europe has played in shaping our current body of equality legislation has been positive. Indeed, much of the relevant European law is based on legislation that was previously in place domestically. However, although it is based on similar concepts and structures, European law has from time to time required us to amend or extend our domestic regime. Our ability to do this without the aid of primary legislation is limited by the extent of the power in Section 2(2) of the European Communities Act 1972. As the scope of EU equality law is not generally as wide as domestic equality law, this has resulted in a patchwork of protection and a lot of confusion that led to the Discrimination Law Review—culminating in this Bill, one of the main aims of which is to simplify and harmonise the thicket of legislation that has grown up over more than 40 years. The harmonisation power will future-proof the Bill, so that changes required from Europe can be incorporated into domestic law without disrupting the harmonised approach we have achieved in the Bill. The Government have paid close attention to comments made by the Delegated Powers Committee about the power in its third report of the current Session. These have prompted us to bring forward amendments to which I shall turn after considering the committee’s concerns. The committee noted that: "““Clause 196 contains an exceptionally significant Henry VIII power””," enabling the Government, when implementing an EU obligation, to extend the effect of the implementing provision beyond what is required by the obligation. Of course, I agree that this is a significant power; in fact it is vital to ensure that the Bill when enacted retains clarity and coherence. An ability to remove anomalies that may arise seems just common sense. The committee also noted that the Government did not provide a precedent, and that the power’s extent is much wider than suggested by the example given in the Explanatory Notes. For a precedent, I point to Section 260 of the Civil Partnership Act 2004, which allows Orders in Council to make similar provision outside the scope of European law to those made using Section 2(2) of the European Communities Act, where European law applies. Most of the Bill’s provisions are within the scope of Section 2(2) for almost all relevant purposes, and Schedule 24 makes it clear that there are large areas of the Bill to which the power does not apply at all. The committee was concerned that the power could be used to replicate in other strands the implementing provisions of an EU obligation which was restricted to a single strand. The power could indeed be used to copy over to the colour and nationality elements of the definition of race any provisions that may be required by European law for the rest; that can only be a positive thing. There will be times when, if we rely solely on Section 2(2), cracks will begin to appear and anomalies to creep in. Without this power, those anomalies will eventually accumulate to the disadvantage of all. However, in the light of the committee’s concerns, we are seeking to place some further procedural constraints on this exercise. Government Amendment 131A will prevent Ministers circumventing the minimum 12 weeks’ consultation that must take place prior to the power’s use. We now accept that any weakening of this requirement would be hard to justify in view of the committee’s concerns. Amendment 131B ensures that, where the consultation results in any changes of policy, those changes must in turn be consulted on. Amendment 134, tabled by the noble Baronesses, Lady Warsi and Lady Morris, seeks to increase the frequency with which a Minister must report to Parliament on the harmonisation power’s use from five-yearly to annually. We originally opted for five-yearly reports, both because we expect this power to be used infrequently, and because when it is used full accountability will be built into the process. A requirement to report annually would be overkill. However, in response to the committee’s concerns, Amendments 134ZA and 134ZB increase the frequency of ministerial reporting from every five years to every two years. We think this strikes an appropriate balance; I therefore ask the noble Baroness to withdraw her amendment—before she has even moved it, if she will forgive me. Amendment 134ZC inserts a new clause that makes detailed provision about the making of orders under this power. It requires, in particular, the Minister to lay an explanatory document before the House alongside a draft order. This document must say why the harmonising provision is being made, and explain why the Minister considers that the conditions for using the power are met. It must give details of the consultation, the responses received and any changes to the proposals made as a result of those responses. This procedure will enable Parliament to challenge the Government in a detailed and informed way each time they seek to use this power. Finally, I will speak to Amendments 134B and 134C, which are consequential to the substantive amendments relating to exceptions for marriage and broadcasting respectively, which the Government accepted earlier in this Committee. We do not consider that it would be appropriate for the harmonisation power to be used to affect these exceptions—hence Amendments 134B and 134C insert references to the relevant provisions into Schedule 24, putting them outside the scope of the harmonisation power. I beg to move.