My Lords, I declare an interest as chair of the Equality and Human Rights Commission, as Amendment 35 specifically relates to the Equality Act 2010. I hope that my remarks will clarify the intentions of the noble Lord, Lord Moylan, as regards the Equality Act, because I have a great deal of sympathy with what he is attempting to do. I also have an enormous amount of sympathy with some of the comments of the noble Lord, Lord Smith of Finsbury, because, in a much more tangible way, they set out what some of the problems are.
I will speak very briefly. My first point is that the public sector equality duty is not specifically concerned with freedom of expression. Our assessment in the commission is that, although there may be some evidence —the point made by the noble Lord, Lord Moylan, is a strong one—that more recently this has become a tool used by universities to avoid their duties in terms of freedom of expression, nobody has mentioned that other part of the Equality Act and the public sector equality duty, which is the need to foster good relations between groups who share protected characteristics. Therefore, that duty—the need to foster good relations—allows those who wish to hide behind the public sector equality duty to use it that way. Universities sometimes tend to use the fostering good relations duty a bit too widely, but because it is not circumscribed and does not define what it means, they can so do.
We have guidance on freedom of expression for higher education providers and student unions across Britain. When a university considers whether to permit an event to take place, it must take account of all its statutory duties, as the noble Lord, Lord Smith, referred to. These include Section 43 of the Equality Act, Article 10 of the Human Rights Act, student unions’ obligations under charity law, and the Prevent duty, as well as the public sector equality duty. Balancing is therefore a necessary task that they must do. My sympathy
with those institutions lies in the fact that, in every case, every decision will be different depending on the facts of the decision. In that sense, balancing will be a necessary exercise, irrespective of whether his amendment is accepted or not. Having “particular regard” nevertheless places it in a hierarchy.
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My concluding comment is simply about that hierarchy. I understand why the noble Lord seeks this, but it would mean that the public sector equality duty would be different for higher education providers compared with other public bodies, which would create additional complexity. It would create a hierarchy. Other public bodies will be concerned with protecting Article 10 rights, and they would then require further amendments to the respective laws that govern them. Our guidance will, we hope, be superseded by the guidance produced by the Office for Students to accompany this Act when it comes into force. I hope that the guidance will clarify the “particular regard” that Amendment 35 seeks to add in.