John
Penrose: I thank my hon. Friend for his intervention. He
is absolutely right. He illustrated the difference between outcomes and
outputs. We can measure all the intermediate matters and have all the
necessary wonderful files of policies that show, in theory, that we are
doing x and y but, actually if the outcomes do not change on
the ground and the reality does not alter as a result, we are just
wasting time, paper and resources when we should be doing something
different. That is when the difference between box-ticking and outcomes
is crucial.
We look
forward to the Minister’s response about how the Government are
addressing the issue. I know that they have made some early responses,
but we look forward to some more detail.
Moving
on to amendments 19 and
20—
Dr.
Harris: Before the hon. Gentleman moves on, my hon. Friend
the Member for Hornsey and Wood Green and I have tabled an amendment to
his amendment 21. Rather than me spending Committee time speaking
separately on that, I wonder whether by way of intervention he might
respond to the suggestion that it might be better—and more
productive; there might be even less box-ticking—if the actual
outcomes, which are the intention of the equality duty, were part of
the metrics, rather than simply part of the need to “have
regard”. Otherwise we shall have some firms saying, “Yes,
we have regard to that, we have regard to that.” Why not, along
the lines he is suggesting, ask them to be more specific about what
they have actually
achieved?
John
Penrose: To be honest, I have not spent a great deal of
time weighing up the relative merits of the hon. Gentleman’s
addition to my amendment. He has made the case in his intervention, so
I shall leave the Government to respond, rather than editorialise
around it for
him.
Mr.
Boswell: Stimulated only by that comment, does my hon.
Friend not agree that there are at least two approaches, both of which
the Government probably need to adopt? Who knows, he may well have a
role in that himself, in due
course. One
approach is perfectly proper, although I find it rather maddening
sometimes, and that is for Governments to cite case studies, evidence
of a particular change that has happened in a particular case or group
of cases. Separately, and not subversive of the first approach, is for
the Government to produce decent metrics, which can show collectively
what the impact of policies could be. In other words, what we sometimes
rudely call the anecdotal approach and the generalised, systematic
approach can be valid, and one should not subvert the
other.
John
Penrose: My hon. Friend is exactly right. In fact, he is
elucidating further a point already made by my hon. Friend the Member
for Forest of Dean about some of the reports already produced by the
ODI, which might be a good foundation for a broader
approach.
The
Solicitor-General: In the interests of saving an
unnecessary speech, although the speeches of the hon. Member for
Oxford, West and Abingdon are always fab, we shall indeed measure the
outcomes. That is in the consultation document about the specific
duties. Measuring whether someone has had due regard is difficult
anyway, but it is outcomes that we care
about.
John
Penrose: I thank the Minister for a helpful and reassuring
intervention. I
shall take amendments 19 and 20 as a pair. What they seek to do is to
pursue a concern that was, again, originally raised by the Work and
Pensions Committee, when it was looking at the Equality Bill. The
concern is that in parts of Government, and the Department for Work and
Pensions is a good example, many public sector functions are being
outsourced. The DWP is a good example because in its current
welfare-to-work work, it is increasingly aiming for third party
organisations, be they private companies, charities or third sector
organisations of one sort or another, to take over the welfare-to-work
programmes for people who are members
of the long-term unemployed or whatever reason. The Department has found
that to be an extremely promising avenue and is ramping that up
steadily. That is done—I use it as an illustration of a
potential problem with that approach—by taking what it calls a
“black box” approach to outsourcing. In other words, it
does not specify what the charity that is undertaking the work must
do. The Department
does not specify the process or the work to be performed; it specifies
the outcomes to be achieved. Speaking to a charity, one could say,
“It is your job to get a certain proportion of the people who
have been out of work for six or 12 months that we are handing to you
into work. If you do get them into work, which is sustainable
employment that lasts for more than a period of weeks, then we shall
pay you according to the results achieved. We shall not pay you
according to what you have done to achieve it, we shall pay you
according to whether you have the outcomes that we are
mandating.” That
is important for several reasons. It means that there is far less
intervention by Government in the work being undertaken to get people
back into work. In addition, it allows a far greater variety of
approaches to get people back into work. Clearly, that can be important
for a number of reasons: first, because every individual may have
different problems and barriers between themselves as they are today,
as a member of the long-term unemployed, and as they are getting back
into work at some point; secondly, the employment market in different
areas of the country will be very varied. The types and numbers of jobs
available, and the skills required in Weston-super-Mare—my own
constituency—might be very different from those up the road in
Bristol. They will certainly be different from those in Manchester or
other parts of the country. That variety and flexibility is crucial,
which is one of the reasons that the Government have decided that this
is a profitable, sensible and effective approach to pursue, and why the
Conservative party also supports it in principle.
Subsection (2)
states: “A
person who is not a public authority but who exercises public functions
must” also
exercise the equality duty. I am concerned that, unless amendments 19
and 20 are accepted, it will be impossible for bodies such as the
Department for Work and Pensions to pursue the “black
box” approach. They will have to check on small, voluntary
sector organisations. For example, there might be a small charity in
Leeds that is involved in getting members of the gay community who are
suffering from HIV back into work in central Leeds. It might be small,
specialised and potentially very effective at what it does. However, if
we are not careful, we could end up applying the public sector equality
duty to that charity, which might be too small, too dedicated
and—quite rightly—too focused on what it is doing to be
able to cope with that. That would be a
tragedy. John
Mason (Glasgow, East) (SNP): I understand the hon.
Gentleman’s point and have some sympathy with it. Does he agree
that we are looking for a balance? There is a danger in either extreme.
There are dangers in putting money into an organisation and letting it
do what it wants, but on the other hand, there are dangers in
over-regulating.
John
Penrose: I completely accept the hon. Gentleman’s
argument. I was going on to say that it is not as if such organisations
will be completely unregulated as a result of the rest of the Bill.
They will still be subject to all the normal requirements of
anti-discrimination legislation and ensuring equality that any other
private sector organisation would be required to uphold, as we have
discussed in debates on other clauses. We are not talking about a
contrast between zero rules and regulation and the public sector
equality duty. These are the same rules that we have been
debating—and, to a large extent, agreeing on—in the rest
of the Bill. The public sector equality duty is a higher standard
again.
Mr.
Boswell: May I introduce my hon. Friend to another
concern? This public sector equality duty is, by definition, a matter
for public bodies. There could be an outsourcing of back-office
functions that takes place outwith the jurisdiction—to India,
for example. This is a separate point from the one that he has been
rehearsing in relation to charities that operate in the UK. Suppose
there is a public sector duty on public bodies in this country, but
those public sector bodies outsource their activities outwith the
jurisdiction. Ministers come along and say, “This is all a
matter of contract and we have tied it down”, but it would be
impossible to pursue misconduct—including the widest possible
breaches of equality legislation—towards those operating for our
public sector and within our general remit of duties, but outwith our
jurisdiction. Does he feel some unease about
that?
John
Penrose: That was an intriguing intervention from my hon.
Friend. I will leave the Minister to respond to that as it is
potentially quite an issue. I hope that the Government have already
considered questions of territoriality. It is a valid point to raise
and I thank my hon. Friend for doing so.
Lynne
Featherstone (Hornsey and Wood Green) (LD): I thought that
part of the point was that if someone is to outsource a contract or put
it through the voluntary sector, they would choose to award that
contract to those likely to perform the public sector equality duty. It
would be a way of checking retrospectively that that duty had been
performed. It is about being careful to whom contracts are
awarded.
11.15
am
John
Penrose: Amendments 19 and 20 would gloss the public
sector equality duty so that if a Department, or indeed any other
public authority, subcontracted a particular part of its public sector
duties to any organisation—a charity, a company or
whoever—it would still have a duty to ensure that the services
provided by the other organisation were provided in a way that was
compliant with the public sector equality duty, as it is received by
the people who are experiencing
it. However,
the amendments would not require a small charity in central Leeds, or
any other organisation providing subcontracted services, to apply the
public sector equality duty within its own organisation in terms of
employment law. We would make them subject to the same employment
requirement that any other external, non-public firm or organisation
will be subject to as a result of the rest of the Bill. However, we
would make it easier for them to deliver public sector services for the
reasons I have described.
The
Solicitor-General
rose—
John
Penrose: I am spoiled for choice. Let us start with the
Minister.
The
Solicitor-General: I credit that that is what the hon.
Gentleman intends to do, but he would not do that with the amendment at
all. Subsection (2) will do exactly that as it will extend the duty to
someone who is not a public authority—in a private business or
the voluntary sector—because they are delivering a public
function, in so far as they are doing so. That seems to us to be
right. The
amendment would extend the equality duty to everything that that
separate body did, not limited to when it was delivering public
functions. For example, we could have a business that was contracted by
the Government—for example, Group 4—to deliver a private
prison. Under our provisions, while it is doing that, it is a public
function, so it is covered. However, when delivering money to Barclays
bank in one of its vans, it is not covered, but the hon.
Gentleman’s amendments would cover
it.
John
Penrose: I thank the Minister for her helpful
intervention. Since she is the one with the extensive legal back-up, we
will accept her interpretation of the amendment. If we stick to what we
are trying to do, perhaps the Government will address the point that we
are trying to make. There is an issue of principle, and if the
Government feel that it is wrong, I hope they will explain why. If they
feel that it is something that has merit, perhaps they will take it
away and consider
it.
The
Solicitor-General: If the hon. Gentleman’s purpose
is to ensure that the delivery of public functions by private
businesses is covered by the duty, it is exactly what the clause will
do.
John
Penrose: I thank the Minister for her intervention. I
would like to push her for a little more clarification. She can either
intervene again or deal with the point in her speech. I am concerned
that in applying the public sector equality duty to public sector
services delivered by third parties, those third parties may have to
comply with the requirements of the public sector equality duty within
their own organisation, in terms of their employees and internal
organisation, systems and processes. That may be a duty that is
altogether too serious and too high for a small charity in central
Leeds, even while it is delivering a public sector equality
duty-compliant service. That is the distinction that I am trying to
draw, the principle that I am trying to
elucidate.
Mr.
Boswell: To take the Minister’s point, if a company
or a small charity providing the services has to configure itself
sensibly—for example, it is on the one hand providing a private
prison, which would not be the case for a small company, as that is a
major undertaking, and on the other delivering bullion to Barclays
bank—it probably is not very sensible to have two entirely
separate overhead operations. It would be much more sensible to have a
single structure. If it has to be formed in a way to meet the
equality duty, it may not be the best way of hypothetically
delivering the bullion services to Barclays
bank.
John
Penrose: That is a very fair point. I hope that the
Minister either reassures us that provisions elsewhere in the Bill
exempt the internal operations of a company or charity that is
delivering a public sector service on behalf of a public authority from
the public sector duty, even while it delivers both services in a way
that is compliant with the public sector duty, or, if she says the Bill
does not do that, explains why the Government think it right to make
the internal operations
compliant. In
respect of the Department for Work and Pensions and outsourcing of the
kind that I have been using as an example, I am gravely concerned that
the whole “black box”, outcomes-based, payment-by-results
approach—which is, by all accounts, proving pretty successful,
effective and important—may be subverted. We do not want to put
that at risk or in peril. With any luck, the Minister will be able to
explain how the Government propose to navigate their way through those
particular shoals and rapids. If she feels that that is wrong, perhaps
she will explain why the principle is
incorrect. I
am conscious of the fact that I have taken up quite a lot of the
Committee’s time. I have explained why the amendments were
tabled and what we want to achieve with them, so I will sit down and
await the Minister’s response.
Mr.
David Drew (Stroud) (Lab/Co-op): I rise to speak to my
amendments 279 and 280 with the active support of the EHRC. These are
two small amendments to an important part of the Bill. I hope to prove
that we need clarification of and sensitivity on what is at the root of
discrimination when people take action by word or physical assault on
those who suffer discrimination.
The provision
requires public authorities to address negative and hostile behaviours,
not just the attitudes and beliefs underpinning them. That is already a
specific duty that impacts on disability and it has given the EHRC its
legislative tool. The duty is already on the EHRC and all I ask is that
it be put in the Bill so that we have consistency in the way that body
operates in relation to all other public
bodies. There
is widespread evidence that individuals face such discrimination. At
the very least, it is important that we debate that. More importantly,
we should look at what the reality of discrimination means to people in
their everyday life. At one extreme it includes the attacks and vile
behaviour that, sadly, we have all seen towards certain groups of MPs,
but it also includes low-level harassment such as name-calling and the
sending of notes that imply that people are different and inferior.
More particularly, there is also the threat that the internet poses.
Discrimination can take different
forms. The
criminal law recognises and penalises criminal acts, especially hate
crime and incitement to hatred. It does not of itself require public
duties inside or outside the criminal justice system proactively to
eliminate such behaviours or activities, and the amendment states
categorically that that should be the
case. I
have already said that the duty exists in relation to disability.
Again, the amendment would make it more proactive and more general in
how action was implied. Such behaviours are likely to be adequately or
comprehensively captured by unlawful harassment provisions in
employment, education or goods and services measures, as they happen
outside or in the gaps between the spheres and more often between
private citizens.
The
commission’s research, particularly relating to disability,
shows a high level of violence and hostility. Along the continuum, that
hostility becomes just as prevalent at a lower level, but more
pervasive and pernicious.
I hope,
therefore, that the measure finds favour and that we both tackle
prejudice and promote understanding of how people relate to this
important legislation. As I have said, it mirrors what the EHRC is
already expected to
do. I
shall make a couple of points before I finish. We can debate for as
long as we like how proactive such organisations ought to be, but there
are two particular caveats that I hope my hon. and learned Friend the
Solicitor-General will refer to. The first is the need for
clarification of exactly which public bodies are encompassed by the new
legislation. In these days of quangos, hybrids and
outsourcing—the hon. Member for Hornsey and Wood Green mentioned
that—the provision needs to be carefully worded in terms of
which bodies we expect to be subject to the public sector equality
duty.
There is
concern, certainly in the commission, that through this part of the
Bill we could be lessening accountability, rather than ratcheting it
up. Will my hon. and learned Friend make it clear that there is no
diminution of the number of bodies that will be included within the
provision?
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