Equality Bill


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Q 212John Mason: There is a feeling in some circles that when religion gets to court, it is treated as the least important of the strands. I do not know whether you feel that that has been the case and whether it will continue to be the case.
Vera Baird: I am not sure what court cases you are referring to. I am not sure that there have been a significant number so that one draws a conclusion that religion always comes out bottom. If you talk to people about sexual orientation, they might be equally concerned that religion might trump them in some cases, though you saw Ben Summerskill being very measured about all of that. I do not know whether there is any evidence to justify that view.
Q 213John Mason: Perhaps we can come back to that when we have the debates later on. May I ask a final point? How would you see the place of an individual employee’s conscience? We had the idea that with abortion, employees are allowed a certain amount of latitude. Are there issues in the Bill that might benefit from an individual employee having a degree of latitude—for example, over a civil ceremony for a same-sex couple?
Vera Baird: Having a degree of latitude to discriminate?
Q 214John Mason: The local authority as a whole would have to provide the service, but it would not force every individual employee to carry out that same service, as happens with abortion.
Vera Baird: Essentially, if you are delivering a public function, it has to be delivered by all the staff on a non-discriminatory basis. Granted that there are some exceptions to that principle in the Bill, none the less that is the right position to hold. Do you have any caveats on that?
Melanie Field: One witness this morning said that indirect discrimination was a helpful way of looking at this. If an employer has a policy that all registrars should conduct civil partnership ceremonies, it could be said to be indirectly discriminatory towards people who hold particular religious views. The question would be whether that policy was a proportionate means of achieving a legitimate aim. There is a question over the level of judgment.
James Maskell: It is also worth mentioning that we will have guidance from the EHRC on a lot of this. These are the sorts of issues that one would expect it to be working through to help employers and employees to reach satisfactory accommodations.
John Mason: Thank you.
Q 215Mr. Tim Boswell (Daventry) (Con): This is directed to the Solicitor-General. First, I have a point on the purpose clause. You know that I am a declared supporter of the concept. I understand that the EHRC has argued that, had a purpose clause been in place, it would have been unlikely that the Malcolm case would have been adjudicated in the same way because a wider interpretation of discrimination would have been applied. I appreciate that that case is now in the past. Do you have any comment on that?
Vera Baird: No, I do not. It is a slightly theoretical notion because we have not had a purpose clause. I cannot see that it is a particularly useful tool. Judges have a number of rules of statutory interpretation to which they cleave fairly strongly, including the ones that came in under the Human Rights Act 1998, which altered the basis of some interpretation. I think that they are satisfactory tools.
Q 216Mr. Boswell: Okay. I fear that I am going to ask one more rather general question and then a much more precise one. Would you like to say another word or two on your take on the issue of diversity? I appreciate that this is the Equality Bill, not an equality and diversity Bill, and that there may be difficulties in interpretation if we try to drag in something else. By diversity I do not necessarily mean the narrow issue of the hierarchy of strands, whether one is higher than another and how that is to be resolved. As I understand it, you are relying on guidance for that rather than on decisions or statutory or judicial interpretation.
Do you see it as at least part of the Bill’s function to try to maintain diversity? I mean that not only in terms of all the aspects that are discriminated against, but in terms of the actual participation in certain areas of people, for example, of different religious groups or none, or from different ethnic backgrounds. Is there a wider agenda, which many of us would be sympathetic to, that is not quite encompassed by the legal framework of the Bill?
Vera Baird: There undoubtedly is an agenda to drive the culture in the direction of better appreciation of diversity and more promotion of equality. The terminology in the public sector duty that talks about fostering good relations between people who share relevant protected characteristics and those who do not is a nod in the direction of communities working together. There are nods in the direction of diversity in some of the issues we discussed this morning, for example in protecting faith schools and giving rather narrow protections—I generally approve of the narrowness of them—where particular communities feel that they need to be protected. That is about it.
Q 217Mr. Boswell: Okay, thank you. If I may, I will divide the practical question in two. I was pleased to hear you refer a number of times to mediation. There are a number of areas where reaching for the judicial revolver is not helpful. Are you at least prepared to reflect on whether what is written in the Bill delivers sufficiently or would be likely to lead to processes of mediation as a precursor to any necessary litigation—that is, people should try to sort problems out first? I am thinking, for example, of the analogy of employment tribunals.
My second question is in the same spirit and is about the procedure of the Bill. You would not expect Opposition Members to subvert the whole purpose of a Public Bill Committee by saying that we need all this done behind closed doors, so I am sure that you will not interpret my question in that way. Some of these matters are legally very complex and, frankly, are outside the competence of some of us. Nevertheless, they are exercising a number of people, including some who are legally advised. Over and above the public debate, would you at least be prepared to look at whether there are particular cruces in terms of the interpretation of something, and to caucus to try and see whether we can reach some kind of common understanding?
Vera Baird: I am glad that you agree that promoting mediation is an obvious way forward and wholly compatible with the nature of the Bill. There are structures that permit mediation in both of the obvious forums where action is likely to be taken if someone gets to the threshold of court. A person would go either to the employment tribunal and engage with ACAS or, if it regarded an outside of work provision, they would go to the county court where there is a lot of mediation. In some centres—particularly in a small claims court, where some of these cases would arise—there is an almost automatic attempt at mediation before the matter goes to court. Given that we are aiming at a culture change and that the commission is intended to drive that, one would hope that long before people started to talk about issuing proceedings, there would be an attempt to mediate if issues came to the attention of the commission. There are formal processes of mediation tucked within both of those processes.
If I understand what you are suggesting about caucusing—an interesting notion—you think that where issues are disputed, or where there is potential for dispute, we should try to talk to the lawyers for the stakeholders and hammer out the likely meaning. If there is any of that left to do, it will be a useful exercise for us to carry out before the Bill is finally enacted, so that everybody is clear about it. However, I think that we have been doing an enormous amount of that work as we have gone along, as we have been very consultative.
Q 218Mr. Boswell: I understand that, although we heard evidence this morning regarding some of the concerns held by the Church representatives, who did not feel that they knew exactly what the provision was before. I did not raise the issue for that purpose, I just record it.
Perhaps I can give you a gloss—this is very much a personal view. Rather than drawing political lines in the sand, if we are stuck on a definition and there is still a doubt about it, it would be helpful, in practical terms, to leave the issue open for further consideration before reaching a final view. I do not suggest that you do not have a job in Government, but if we are to get this right, a degree of tentativeness would be helpful to the process.
Vera Baird: I am not sure how we can legislate tentatively—I might not get the gist of what you are saying. I think that we have consulted widely, but I will ask Melanie to comment on what the two Church representatives said about being taken by surprise by that particular provision. However, I think that there has been discussion not only from stakeholder group to official, but from stakeholder group lawyers to our lawyers all the way through, in an attempt to ensure that the wording of the Bill is clear. As you know, it is what we call a plain-English Bill, in the sense that it has not only the necessary legalese on one side of the page, but plain English on the other side. Hopefully, it is accessible to those who are not legally qualified. I do not know whether there is anything to add about how we can better ensure that our definitions are well understood.
James Maskell: In a lot of cases one would hope that any issues would be raised during the debates if there are doubts about them. We will be clear where we do not intend to change the meaning of something. With a Bill of this nature, inevitably we might change a word but we do not intend to change the meaning. Sometimes people might think that we did intend to change the meaning. That is a consolidation of a clear element of the Bill. If it helps, we will make it clear when we are not changing the status quo.
Melanie Field: Following the comments made by the two representatives this morning I did go back and check on the issue. My understanding is that we do not think that we have narrowed the substantive provisions that we were clarifying under the law. A colleague telephoned the Church of England representative and gave them prior notice, but I have not been able to ascertain that anyone contacted the Catholics about it. We will obviously apologise for that.
Q 219Lynne Featherstone (Hornsey and Wood Green) (LD): I am struggling with the socio-economic inequalities bit. The intended outcome is very laudable, but I do not see a mechanism that will actually deliver change and whether that change is measurable. Will you expand on your hopes for that? It seems such an important area and such a very small paragraph.
Vera Baird: What do you see the deficiencies in it being at present?
Q 220Lynne Featherstone: It says that an authority must have regard, but it does not say whether that regard has to translate into action. It does not say how you will look at what effect the legislation has had. If it is meant to be beneficial in reducing the socio-economic gap, how will the legislation help us to look at that retrospectively? I cannot see where it will be effective. Perhaps I have missed something.
Vera Baird: The requirement is that, when planning strategically how to exercise functions, every public authority, the Government, local authorities—the whole lot—will have to have regard to the need to reduce the bad outcomes of socio-economic disadvantage. It is very outcome-focused. One would expect that, in looking at their three-year plans or whatever mechanism is used in the various public authorities that it will cover, they will have to have specific regard to that.
It will be transparent in the following two ways: first, it will be reported on and monitored by the inspectorate. The Audit Commission, Ofsted and so on will have in their matrix of things to consider whether regard appears to have been had to that in the context of the inequalities that will be at large in the domain of the public authorities. For instance, if it was in Redcar council where Ofsted was reporting some deficiency in how education was being delivered in one place as opposed to another or some other defect, the impact on my colleagues on the council—probably from all political parties—would cause them immediately to look at the problem and wonder why the inspectorates were reporting a deficiency in implementing that duty.
Q 221Lynne Featherstone: To focus on it.
Vera Baird: Yes.
Q 222Lynne Featherstone: Forgive my lack of legal knowledge, but a public duty to “have regard” does not just mean that they have to think about it and can then ignore it. It means that they have to think about it and then deliver it.
Vera Baird: It means that they have to have regard to how they integrate that into their strategy, does it not? “Having regard” does not mean that you can go through the motions of pretending you have looked at it, and then leave it behind. You have to have regard to it in a meaningful way. By and large, if you put statutory duties on public authorities, they follow them, but there is a back-up mechanism whereby the inspectorates will be there to, as it were, drive it. That is without the commission, which will also be on the look-out. It is strategic authorities—
Lynne Featherstone: Yes, I understand that it is the strategic authorities.
Q 223John Penrose (Weston-super-Mare) (Con): I want to return to some of our earlier questions this morning, starting with public sector procurement. In particular, I was struck and a little concerned, because, for example, whenever you listen to Ministers from the Department for Work and Pensions talking about welfare to work, they are most insistent that all the outsourcing they are doing of welfare-to-work programmes has to be done on what they are now calling a black-box basis. That means it is outcome-based: they pay by results. They do not, within some very basic legal minima, ask how the results are achieved. They just pay according to how many people get back into work, how fast, and how long they stay there. If we start requiring the subcontractors to comply with public sector equality duties of one sort or another and to provide information on how they are going to satisfy all these other duties, rather than just asking questions about what they have achieved, is there not some kind of conflict or tension there with some of your colleagues?
Vera Baird: I do not think so, but I do not want us to overstate. The public sector duty is exactly that. It is a duty on the public sector, not on the procured service necessarily. In fact, the procurement provisions in the Bill simply make it clear that procurement is a public function, so that the public sector duty is applied to procurement when it occurs. And it will, if you couple it up with a positive action provision, for instance. It will probably allow for quite good provisions in contracts. For instance, when building an estate, you can now put conditions on that there should be training—apprentices and so on—involved in the building of the estate. You could probably couple that with a positive action provision, and now say that you would want 10 per cent. of those to be women, or 5 per cent. of those to be black, minority or ethnic—whatever the deficiency in the work community was. So that kind of provision is capable of being very helpful.
I also think that a quite important point was raised this morning. It is implicit in a contract about welfare to work—I think Katja was talking about somewhere where there is a big BME population—
 
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