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.
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. I
would also expect, because transparency is key lever, other lobbyists
to be immediately watching and to see that the inspectorates were
pointing to deficiencies about them in that field and be trying to
drive the
agenda. There were questions mostly from Labour Members, although they
could have been from anywhere really, about whether it is not already
common currency to be trying to overcome socio-economic inequality. It
is in many cases; none the less, there remain socio-economic
inequalities that are capable of being tackled through the public
services. As I have encapsulated, the point of that is more generally
to ensure that there is an actual legal duty on a public authority to
do that now, and that it has to have priority. In the end, I suppose
that it will be actionable in the sense that it could be used in a
judicial review if there was a deficiency of outcome that could be
pointed to, although it is not intended for that, but to make the local
authority think. 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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