 House of Commons |
Session 2008 - 09 Publications on the internet General Committee Debates Equality Bill |
Equality Bill |
The Committee consisted of the following Members:Alan Sandall, Eliot Wilson,
Committee Clerks † attended
the
Committee WitnessesVera
Baird QC MP,
Solicitor-General Melanie
Field, Deputy Director, Discrimination Law Team, Government Equalities
Office James
Maskell, Treasury Solicitor’s Department Public Bill CommitteeTuesday 9 June 2009(Afternoon)[Mr. Joe Benton in the Chair]Equality Bill4
pm The
Committee deliberated in
private. 4.4
pm On
resuming—
The
Chairman: Thank you for coming, Solicitor-General. I am
sorry, but it appears that you are the lone Minister this afternoon.
Would you introduce your colleagues to the Committee
please? Vera
Baird: I am fortunate to have with me my two senior
officials. To my right is Melanie Field and to my left James Maskell.
Perhaps they should introduce themselves and say a little more as to
their
role. Melanie
Field: I am Melanie Field. I work in the Government
Equalities Office and am the lead official on the Equality
Bill. James
Maskell: I am James Maskell. I am head of the
Government Equalities Office legal team and the Treasury Solicitors,
and I am the lead lawyer on the Equality
Bill.
The
Chairman: Thank you. Before we commence questioning, will
everyone ensure that their mobile phones and BlackBerrys are switched
off? I understand that there was some trouble with interference this
morning from BlackBerrys, so I would be grateful if that was
done.
Q
207207Mr.
Mark Harper (Forest of Dean) (Con): It is good to see you
in the Chair, Mr. Benton. My first question is a quick one
about positive action, which follows on from this morning’s
evidence and questioning that you did, Minister. May I check the
Government and legal position on a company or business that has two
equally qualified employees using one of the protected characteristics
as a tie-break? Is that lawful or
unlawful? Vera
Baird: That would be
unlawful.
Q
208Mr.
Harper: Right, so the Government’s view is that
clause 153, given what you said this morning about it being fairly
widespread or common practice for such a thing to take place,
effectively enables companies to continue doing it without running into
legal difficulties? Is that the
motivation? Vera
Baird: Yes. It has two purposes. One is the ability
to improve the numbers in an unrepresented work community, which we
talked about, and the other is the one you have now pinpointed. You say
it is fairly widespread. We have certainly had some evidence from
senior stakeholders in business of the kind of example that I gave this
morning, where someone wants to sell to
a particular community and therefore deliberately chooses someone from
that community as a marketing person. That is fairly commonly done and
it makes a lot of sense from a business point of view, I would have
thought, so it is important to make sure there is protection for
that.
Q
209Mr.
Harper: Okay, that is great. On disability, you will know
from previous evidence sessions that a number of disability groups have
expressed some reservations, asking whether the Bill is a step
backwards. I know that the Government’s position is that it is
not, as far as disability protection is concerned, but you will know
that there are a number of concerns. Will you set out clearly for the
Committee the Government’s position on disability protection in
the Bill, so that we have a short statement about the
Government’s position, or about what they think they are doing,
and are clear for when we move into the debate on the specifics of
the
Bill. Vera
Baird: We intend to continue all the protection that
is uniquely available to the disability strand because it allows for
positive discrimination, which is essential. Meanwhile, there has been
the case of Lewisham v. Malcolm, which changed the law to the
disadvantage of disabled people. We have altered slightly how we
describe the law about disability as a consequence of that case and we
have dealt with it, but we do not think there is the slightest
regression. We are confident that we have protected disabled people and
left it open for there to be positive discrimination in their
way. Perhaps
I should discuss concerns that have been expressed about specific
things that the disability sector has said here. The first is that
there might be some regression in that it is now necessary to show that
someone has knowledge that a person is disabled before direct
discrimination is indeed direct discrimination. That was raised here, I
think. May I make points on that? First, the House of Lords made it
very clear in the Malcolm case that that had always been the law. It
interpreted the law in that way, so it has always been the
case and we are only putting into statute what the House of
Lords has declared always to have been the
law. The
extra thing that disabled people have—I hope I am putting this
correctly, but James will help me if I am not—is the
availability of indirect discrimination, which they did not have
before. That, of course, does not require knowledge, but relates to
where a provision, criterion or practice disadvantages someone with a
protected characteristic and is not objectively justifiable. That is a
new strand of discrimination that will help disabled people. If
anything, we think that we have moved forward. Certainly, we have not
moved
backwards. There
are more aspects. One is the problem of whether we have declared
clearly enough the availability of positive discrimination. That is
coupled with whether there is a danger of confusion because of the
existence of the positive action clause that you have just talked
about, Mark. That clause is weaker on the face of it than the positive
discrimination
provision. There
was even a suggestion that it might be better if we left positive
action out of the disabled sector. We have made it as clear as we can
that positive discrimination is still available, but if there is a
better way of declaring it, we would have no problem at all in trying
to do that.
Since the disability sector came here the other day, we have engaged it
to see whether it has any suggestions about how we can make what we
want to be clear even
clearer. The
purpose in keeping disabled people in the positive action arena is to
allow positive action, such as between groups of disabled people. So,
for example, if Tesco wanted to have a specific programme on people
with learning difficulties, it would be protected from discrimination
against other disabled people through that provision. Both those
aspects are important and if there is any deficiency in how we have
declared them, we are happy to have the provision corrected,
strengthened or whatever is
necessary. It
is absolutely clear—I hope I am making it absolutely
clear—that the political will is to make sure that disabled
people are protected and given all that they have always had since the
Disability Discrimination Act 1995 came into
force.
Mr.
Harper: As we move into consideration in Committee, it is
helpful to know where we are approaching that matter from. We will seek
to be as constructive as the Minister has been in getting to
that. Vera
Baird: May I just check whether there is anything to
add?
No.
Q
210Mr.
Harper: Two brief points on employment. I shall put them
together and the Minister can then reply to them together. Employment
rates for disabled people are still fairly low—much lower than
for non-disabled people. Will you set out briefly any changes in the
Bill that help to improve that situation? The second issue is linked to
that and follows on from this morning’s discussion about the
gender pay gap: there is a disability pay
gap. I
have some information about the pay gap in Government. A number of
Departments pay their disabled employees, on average, a significant
amount less than their non-disabled employees. I suspect that mostly it
is a case not of people in the same jobs being paid different amounts,
but of seniority in the civil service being reflected. However, I do
not have that level of
detail. Will
the Minister perhaps address that point? There is nothing specifically
in the Bill about the disability pay gap. Given the conversations we
have had about the gender pay gap, do the Government intend to look at
that?
Vera
Baird: There is, of course, the positive action
provision, which we have already talked about. That provision will try
to help the imbalance in relation to employment for disabled people.
There is also a duty to report to the companies registry on the levels
of disability employment—it is already there. We are consulting
on whether there should be reporting of the disability pay gap on much
the same basis as there will be of the gender pay gap because
transparency would
help. Those
are the things that I would point to straightaway as providing a first
response to your
question. James
Maskell: It is worth making it clear that there are
obviously two separate elements here: the public sector and the private
sector. On the public sector, a consultation will shortly come out in
relation to specific duties, which will potentially cover disclosure of
disability
employment issues and so forth. In the context of the private sector, at
this point we will be looking more for the first stage to be a
voluntary element in terms of what people would want to
disclose. Vera
Baird: Our approach is the same as with the gender
pay gap: oblige the public sector and request the private sector. That
is what we are looking at. James’s point that you have to
distinguish the two was well made. We obviously intend that the public
sector will drive
it.
Q
211John
Mason (Glasgow, East) (SNP): It has been suggested that
maybe there should be a kind of equality guarantee or purpose clause in
the Bill, as that would help the courts when they come to interpreting
the legislation. To follow on from that, what is the
Government’s thinking if there is a conflict between some of the
eight protected characteristics? For example, what if one
person’s right does not quite fit in with someone else’s
right? Vera
Baird: I do not myself find the prospect of a purpose
clause a very helpful likely tool for court interpretation. It is not
something that we have as a rule in many British statutes. I do not
think that the courts will have real difficulty understanding what the
purpose of this is. It is fairly manifest from the content of the Bill
what it is intended to promote. You could quote the equality duty as
setting out most clearly what its intention is.
I do not
think that a purpose clause would be a useful tool of interpretation.
There has certainly been no pressure from the judiciary to lead us to
think that they would find it difficult to look at the Bill without
such an aid. A purpose clause is not part of what we usually do in
English statute, and there is no particular reason to put it in here. I
do not know whether any statement of purpose would go beyond the full
contents of the statute itself to help where there is a conflict
between strands. I would guess that there are likely to be, at some
point, conflicts between strands, although it is not that marked an
experience that there have been a lot of conflicts between strands in
the past. Clearly, religion and sexual orientation are likely to be the
ones, if there are any. We would hope that the Equality and Human
Rights Commission will give guidance about how the public sector should
deal with this, and there will be every prospect of it being involved
in mediation if there were some issue.
A few people
in the EHRC in Manchester have picked up cases in which there has been
discrimination or a question mark over whether there is
discrimination—some are large, some small. They are an obvious
repository. They have, in a number of cases which they quoted to me
when I visited them just a few weeks ago, been able simply to indicate
to the person, perhaps the church hall organiser or some bigger affair,
that they are discriminating—they have not realised that they
are and have rectified it.
In other
cases, the people at the EHRC have facilitated mediation between people
who have not intended to get at cross purposes but represent separate
interests. Obviously, one hopes that the tenor in which the Bill will
be carried forward will be to try to promote good relations between the
groups. That is for the EHRC to be at the forefront
of, so I hope that it will be much more about mediating, facilitating
and making sure that there is a positive approach to each other among
the strands, which, after all, is what the Bill is about. Obviously, if
you have to go to court, then you have to go to
court.
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