Equality Bill

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Q 1The Chairman: Thank you very much. The Committee will ask a series of questions. Before we commence, may I ask whether you have submitted written evidence?
Sarah Spencer: We gave a short paragraph that summarises the many issues on which our member organisations have a consensus, welcoming the Bill and raising several points where we could see it improved—two or three paragraphs that we were asked for.
John Wadham: The Equality and Human Rights Commission has circulated this document, which is in a better colour than this photocopy. Secondly, we have sent a specific submission to the Committee. Thirdly, there is a specific submission from the disability committee, which is part of the commission. All Members should have three documents from us. If you do not, we can get them circulated after the session.
Kevin Sadler: We have supplied the Committee with two paragraphs, which explain the role of the Tribunals Service and welcome the legislation.
The Chairman: Thank you very much. We will start with the questions now.
Q 2Mr. Mark Harper (Forest of Dean) (Con): Thank you, Mr. Benton. I want to start with the socio-economic duty. There is a clear problem with socio-economic inequalities. Just looking at the views of Cabinet Ministers, Alan Johnson and Alan Milburn have come out with memorable quotes about the fact that it is more difficult, and becoming even more so, for people from poor backgrounds to escape their upbringing. The obvious question is not that there is a problem, but how one deals with it. Perhaps the witnesses could explain whether they think the approach that the Government have taken in the Bill is the right one and is likely to be effective.
Sarah Spencer: We think that it is a helpful but modest measure. It does not have any enforcement provisions, but it is a measure that will encourage strategic bodies simply to think about the importance, as you said, of addressing socio-economic inequality. It does not require the bodies to do anything specific other than ensure that they have regard to the need to do that, whatever their functions. We think that the Bill is proportional and useful, but modest.
John Wadham: We have set out in our briefing the fact that we also support the development of the socio-economic duty. In our analysis of the issues relating to our core mandates—race, women and gender, disability, sexual orientation, religion, belief and age—the key factor in many issues that people face is, unsurprisingly, poverty. Their discriminatory treatment has significant socio-economic consequences. Therefore, it is not too much of a leap, from our perspective, to ask the question whether more needs to be done, not only for any particular group, but for the groups in general, to ensure that they are in a better position and can compete on equal terms with others.
Nor is it a big leap to ask public authorities—particularly the strategic ones—the question whether they are delivering their services in a manner appropriate to everyone in their area, particularly in the context of poorer groups. I think it is a sensible way forward, which the commission supports. The commission’s remit extends beyond what we might call the traditional strands and ask questions about inequality in general. That is why we will promote the provision.
To deal with your second question on how effective the Bill will be, that depends on the extent to which the public authorities understand how it works and the extent to which they can use it effectively. That would be the $64,000 question. As Sarah said, it is a modest development because it says only that they need to consider the issue when they are making decisions about their overall policy. I see no reason why that is not going to benefit the people it is designed to benefit.
Kevin Sadler: I am not sure whether there is anything I can add. I am chief executive of a public authority and will therefore be bound by the duty.
Q 3Mr. Harper: I will come back with one further question, if I may, Mr. Benton. If the Bill is not effective and is no more than political posturing, how will it drive organisations to do things differently from what they are doing today? If they are doing this already, the measure will be meaningless and have no effect. In what way will it change how public sector organisations behave?
John Wadham: We have seen some good examples of the general public sector duty in relation to equality when, in initiating new policies, public authorities ask the extent to which they relate to race, gender or disability. Evidence shows that that is making a difference. It seems that that is the best example we have of such a duty, and I see no reason why it will not be effective. The cost implications will be relatively small because the public authority will have to ask how it is delivering to all the people entitled to its service.
It could be said that that is something that public authorities should be doing in any event—in other words, asking themselves questions not only about equality strands, but about socio-economic issues. It seems to promote a public duty on them to concentrate their minds. I am sure that there will be examples when people look again and services are developed that do not currently exist or different approaches will be taken when people who are discriminated against—those who suffer socio-economic disadvantages—become better off.
Sarah Spencer: If the Committee wants to be extra sure that the Bill will have an impact, the place to look is transparency to see whether there should be a requirement in the specific duties under the regulations for bodies to say what they are doing with the provision. Rather than coming as an enforcement measure, that requirement would shine a little light on what the bodies were doing and it would be easier for organisations to ask appropriate questions.
Like the commission, we are relatively confident that the provision, such as it is, will ensure that organisations take such matters into account. It will also enable people to ask the right questions of the authority about whether it is taking those matters into account.
Q 4Lynne Featherstone (Hornsey and Wood Green) (LD): Do any of you have concerns about the discretionary powers that are given to Ministers under the Bill, and the instability that that might cause in equality law, which the Bill will hopefully sort out for the next 20 years? The Government of the day may change. Quite a lot of powers in the Bill are left to the discretion of Ministers in the future.
Sarah Spencer: We would probably want to highlight the exemptions to the age provisions. We attach huge importance to how the Bill extends protection from discrimination to older people in the use of services. Clause 193 gives the Government carte blanche to design the exemptions, and that is unfortunate. We understand why they are doing it. They want to consult during the summer. We suggest that, having consulted on the exemptions, they table appropriate amendments to the Bill in the autumn when it is discussed in the Lords, so that matters are specified in the Bill rather than leaving them all to subsequent regulation.
John Wadham: I am generally in favour of having many of the measures in detail in the Bill. It is an impressive Bill. Those who helped to draft it can be proud. The issue for me is at what point during that process we stop. In an ideal world, it would be good if the issues of age and exemptions were in the Bill. There is no doubt about that, and I hope that age discrimination provisions in relation to goods, facilities and services can be in the law as soon as possible. However, I understand why that was not possible given the timetable for the Bill’s publication, so the key question is whether we shall get this Bill or have to wait. It would be better for us to get the Bill and for Parliament to scrutinise the exemptions in the best way that it can, given that they will be dealt with under secondary legislation.
Q 5Lynne Featherstone: Sorry, but I thought that it had been a long time in gestation, and that there had already been a lot of consultation.
John Wadham: There are people here closer to you than I am who will understand more about the timetabling of the Bill. I am not here to defend the Government’s position.
Q 6Lynne Featherstone: No. I am concerned about anything that is kicked into the long grass in case it does not happen. I was trying to see whether you felt likewise.
John Wadham: I absolutely want to see provisions put in place as soon as possible. We know, particularly for older people but for young people too, that there are issues about ensuring that we do not lose the positive benefits that currently exist. Therefore, there will be processes of negotiation and consideration. It is a balance. There will always be a time when the Bill needs to be published, and we must get on with that.
Q 7Lynne Featherstone: Perhaps a commencement date in the Bill might be the answer.
John Wadham: I should declare a conflict of interest because the commission is charged with producing statutory guidance as well as other guidance. We want to ensure that when the Bill is enacted, there is as much information as possible so that everybody, whether they are employers, employees or public authorities, can understand what it means. For many people, even lawyers, it is difficult to understand what it means, and we want to do the best job we can. If the Bill were enacted in two weeks’ time, I do not think that our guidance would be ready. We want it to be introduced as soon as possible but only in the context of having material that enables people to understand its effects.
Q 8Sandra Osborne (Ayr, Carrick and Cumnock) (Lab): Can you see how the socio-economic duty applies to Scotland? Does it apply to both reserved and devolved areas? If not, why not?
Sarah Spencer: We do not cover Scotland in that respect.
John Wadham: I can report only what I know. I understood that the Scottish Government have decided that this should not apply to Scotland. There are continuing negotiations with Parliament and the Government aimed at ensuring that it does. Our approach would be that if the legislation is justified in England and Wales, it is justified in Scotland. Issues of devolution must be sorted out in relation to both devolved and non-devolved matters and I hope that those matters can be sorted out. Whether that is done by the Westminster Parliament and Government, or those in Scotland, this should apply to all strategic public authorities across all three countries as soon as possible.
Q 9Sandra Osborne: So, is the commission not involved in negotiations with the Scottish Government on this matter?
John Wadham: My Scottish colleagues are talking to both the Parliament and the Government, as well as to the Government in Westminster, to see whether we can ensure that the legislation covers all public authorities across all three countries in the same way. We will continue to do that. My colleagues have started to think through how that might be possible.
Q 10John Howell (Henley) (Con): In the recent Work and Pensions Committee inquiry into the Equality Bill, one of the consistent criticisms made about the existing duties on public sector bodies was that there was little recognition of the difference between outputs and outcomes. Given the nature of socio-economic inequality, will it be easy for public sector bodies to appreciate that aspect?
John Wadham: It is much easier to concentrate on outputs in the public sector and to measure what has been done. Inevitably, it is more difficult to demonstrate an effect in the real world, but we welcome the public sector equality duties as set out in the Bill on the basis that they will have a more significant effect in the real world. The job of the Equality and Human Rights Commission will be to enforce those public sector equality duties. We do not have the same enforcement powers in the Bill in relation to socio-economic duties but, as Mr. Harper said, the real test is about whether this will make any difference in relation to the effectiveness of the duties. I am confident that it will have an effect. The question for all of us is how effective the duties are going to be. That is a challenge for public authorities and the Government in relation to the guidance or regulations that they then make.
Sarah Spencer: The wording in respect of public duties makes a shift in the right direction for the real problem that you identified. The fact that the duty is now not just to promote equality but to advance it, makes it clear that the intention is to get somewhere with this, not just to do something. The fact that the clause spells out some of the outcomes that are intended, which was not in the previous legislation, and the fact that it is a single duty now, rather than public bodies having to deal with a lot of separate duties, are an advantage. Having said that, we need to look carefully at the specific duties in the consultation on that over the summer to see whether they focus on procedures, which has been a problem in the past, or whether they facilitate a focus on outcomes. I emphasise the importance of transparency. We need to see the position that the public body started with, where they have now got to and what steps they have taken in between.
Q 11John Howell: May I pursue that, particularly in the context of health inequalities, which make up a big part of the socio-economic side of it? You are probably as aware as I am that many county councils have created the post of a director of public health in association with their primary care trusts and are focusing on addressing health inequalities within their area in a very aggressive way, which is to be much commended. What additionality do you see this providing in that sort of situation?
Sarah Spencer: Are you now talking about the socio-economic duty?
John Howell: Yes.
Sarah Spencer: What both sets of duties should provide is a catalyst that requires the public bodies to take into account the need to achieve these outcomes. They are so important, relative to the old system of anti-discrimination which rested on remedies. These duties put the responsibility on to the service provider to look at the question of whether we are delivering equality. Until this socio-economic clause was included, the question would have been whether we were delivering equality on grounds of race, gender and so on, but it now includes that additional dimension so that service providers have to ask themselves that question. That should act as a catalyst to them to do what we would all expect them to do anyway, which is to ensure that they are providing a fair service to everyone, but it is a provision which requires them to ask themselves that. What is particularly important is that it requires them to look at the evidence and then have a proportionate response to it. It should be a driver of actions.
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