Mr.
Harper: I am listening to the hon. Gentleman with great
care, but I may have missed something. Will he explain in more detail
why he and the EHRC think that there might be a diminution in the
number of bodies covered by the provision? I did not quite follow that
point in his argument.
Mr.
Drew: This relates to the relationship between clauses 143
and 147, which I will not go into, and schedule 19. There is a view
that unless we have it in the Bill that there is at least the
recognition that the bodies relating to disability legislation are
linked across the board to other forms of discrimination, disability
could be considered at a lesser level in terms of the hostility that
people can relate
to. My
second point concerns behaviour that is acceptable and that which is
not. It would be helpful if the Minister said how that is clarified in
the legislation. There is a view that, rather than strengthening the
work of the commission, we could be weakening
it. I
do not want to speak to clause stand part because I have made my
points. However, I wish to look at one other issue, which is how the
clause relates to religion and
belief.
The
Chairman: Order. I point it out to the hon. Gentleman that
that matter comes under the next group of
amendments.
Mr.
Drew: If you wish me to leave that until later,
Mr. Benton, I shall come back to
it. To
conclude, will my hon. and learned Friend clarify the nature of the
relationship between the commission—its powers and duties that
it is responsible for—and how the Bill will ensure that there is
no diminution, certainly not in terms of disability, and that the
disability duties
relating to public bodies at least relate to every other form of
discrimination that we have discussed. That is why this part of the
Bill is crucial and why the commission is keen for the provision to be
in the Bill—so that its duties are explicitly recognised in
terms of all the other public bodies, if we can identify what those
public bodies are, which is not an easy thing to do. Therefore, I will
take guidance from my hon. and learned Friend. I hope that she and the
Government look favourably on my proposal as clarifying rather than
mystifying the
situation. 11.30
am
Dr.
Harris: I have one clause stand part issue, which I shall
raise first, and a couple of points on the amendments in the group. The
clause stand part issue on which I would be grateful for a response was
raised in the EHRC briefing on the need not to have regression from the
current disability equality duty. Public authorities have a
responsibility to take account of disabled people’s disabilities
even if that involves treating disabled people more favourably. The
EHRC briefing calls for more probing on whether clause 143 effectively
reproduces section 49A(1)(d) of the Disability Discrimination
Act 2005, which amends the Disability Discrimination Act
1995 and which places a duty on public authorities to take account of
people’s disabilities—this is the important
bit— “even
where that involves treating disabled persons more favourably than
other
persons”. The
EHRC points out that the
“statutory code
of practice...states that whilst the goal of the general duty is
the promotion of equality ‘the underpinning principle is the
requirement to take steps to take account of disabled persons’
disabilities even where that involves treating disabled persons more
favourably than other persons. The understanding that to deliver true
equality for disabled people requires more than treating them the same
as everyone else underpins the requirement to combat discrimination
(most notably the Act’s requirement to make reasonable
adjustments) and to promote equality of
opportunity’.” The
EHRC’s view is that the provision has been extremely
useful “in
raising awareness amongst public authorities of their obligations under
the reasonable adjustment
duty.” It
is concerned that that is not made explicit in the clause. We might
expect it to be made explicit in subsection (5), which
states
that “Compliance
with the duties in this section may involve treating some persons more
favourably than
others”, but
that does not go as far as section 49A(1)(d), which does not create an
obligation to do anything specific, but does create a general
obligation to do something. The second half of clause 143(5)
states: “but
that is not to be taken as permitting conduct that would otherwise be
prohibited by or under this
Act”. The
whole point of clause 143(5) is to deal with another issue, which is
contained in the second half of the subsection, and its first half does
not usefully tackle the point that the EHRC is
making. The
basic EHRC point is that the disability equality duty in section 49A
was so explicit that it might appear to those who have not been
involved in the passage of the Bill that there is no longer a specific
requirement in
relation to disabled people and, thus, that the duty in respect of
disability has somehow been diluted. The EHRC thinks that a solution
would be—I would be grateful for the Minister’s view as
to whether she would consider the point, because there is no specific
amendment—a provision to require public authorities to have due
regard of the need to take steps to take account of a disabled
person’s disabilities. The duty in respect of disabled persons
has already been elevated beyond what is required or expected of public
authorities in respect of the other strands. It would be the EHRC
argument, and I see its point, that that could be usefully reproduced
in some form in the
clause. Dealing
with the amendments before us, I have already by intervention made the
point about our amendment to the excellent amendment tabled by the hon.
Member for Daventry. I am delighted that he is willing to accept it and
I look forward to the Minister’s response. I make the point, as
the EHRC has done, that unless public authorities take active steps to
fulfil, protect and foster human rights of individuals in this country,
both in respect of equality and more broadly, we will not get anywhere.
All that we seem to be doing at the moment is firefighting myth-based
attacks on the 1998 Act, instead of recognising what it can achieve. I
think that Government and Parliament need to be more proactive in
promoting that Act. I cannot go any further into my thinking behind
that issue, because it would stray outside the scope of the Bill and
the amendment, but it is
important. I
hope that the hon. Member for Daventry will recognise that if a
commitment to promote human rights is to mean anything, it must include
the human rights of the most vulnerable, who are often not British-born
and bred. The worry is that movement away from the human rights that I
thought he was talking about—the rights under the 1998
Act—to some British Bill of Rights could mean that the most
vulnerable and in need of protection, especially in terms of
discrimination, could be abandoned. The Bill would somehow not apply to
Gypsies or asylum seekers, but only to the British man in his
castle.
Mr.
Boswell: I am of course at one with the hon. Gentleman on
the wish to create a climate of credibility, which I think the present
situation has tended to lose. For the record, as I pointed out in the
Council of Europe the other day, as my name is of Romany origin, I have
a rather strong affinity with that community—that is one of the
reasons why I take an interest in
it. The
rights are indivisible, and the hon. Member for Hornsey and Wood Green
has already made the point that even if people are not citizens, it
does not mean that they are second-class human beings—of course
that is right. I hope that any legislation will take that into
account.
I am also
entirely at one with the hon. Member for Oxford, West and Abingdon on
the need to respect, particularly, the vulnerable, who often have no
political base. Even if they are British citizens, they typically do
not vote or participate—they do not vote Labour, or for anyone.
We need to be conscious at all times that it is not an issue just for
minorities, but equally, the proper protection of minorities is
implicit in the convention and what we should
do.
Dr.
Harris: I am grateful to the hon. Gentleman. I had not
realised that “Tim” was a Romany
name.
Mr.
Boswell: It is an Irish
name.
Dr.
Harris: Of course, the hon. Gentleman means
“Boswell”, and he says that “Tim” is Irish.
I wish him luck in his remaining time in this House, and after he
leaves, when urging his Front-Bench colleagues not to dilute the 1998
Act in the way that they imply that they would.
I move on to
amendments 19 and 20. The Minister has already pointed out the
fundamental problem in their drafting. Clause 143(2) quite reasonably
refers only to non-public authorities having the duty
“in the exercise
of those
functions”, that
is, public functions. The hon. Member for Weston-super-Mare has made a
mistake, I think. By taking out lines 15 and 16, he would take away the
restriction and therefore, “except in relation
to...employment”, expand the duty to the other functions. I
accept that that was not his intention.
As far as the
hon. Gentleman’s intention is concerned, I do not think that it
is sustainable. There are some quite large non-public authorities that
do quite a large amount of work in delivery of public functions.
Indeed, they may be the lead deliverer of public functions—even
more than a public authority. It would be bizarre for the users of that
public service in that geographical area if, because the public service
is delivered exclusively through an agent of a public authority, there
were no need for the provider to have regard to the public
duty. It would essentially create a postcode lottery—or at
least, a geographical variation, which is the expression I prefer to
use rather than “lottery”—where, for example,
people delivering prison services would have to “have
regard” to these matters. It would be arbitrary, and the way the
Government have framed the provision in the Bill is not arbitrary in
that way, and therefore ought to be defended.
John
Penrose: To clarify, the intention behind the two
amendments is to ensure that the service, which is being provided by a
company or a charity, is subject to the public sector equality duty.
But the company or organisation delivering it should not necessarily be
so in its internal processes and functions. That is vital. The hon.
Gentleman is right to point out that there are large subcontractors as
well as some small ones, and if we do not make an exception or at least
make the Government address the matter, we could constrict the pool of
people who can bid for public sector contracts to only large
organisations that can deal with the particular set of requirements. As
a result, the richness and potential improvement in quality of many
small organisations could be
lost.
Dr.
Harris: I need to apologise for not talking about the
matter in relation to the work force, rather than users. I shall now go
back to that and deal with the hon. Gentleman’s second point
later. It would be arbitrary whether the work force, which might be
quite large, benefited from the need of their employer, in delivering a
public function, to be covered by the positive duty. He needs to deal
with why, just because of the nature of the employer—even though
the function is the same—there is arbitrariness about whether
the work force, and the community from which they are drawn, benefit
from the positive
duty. I
shall give the hon. Gentleman an example that I have used before.
Someone in the work force of a public authority might be transferred
into the employment of a non-public authority while doing the same job.
I have
argued that that should not mean that there is suddenly a new
occupational requirement, if the job is the same—I think that
the Minister gave me comfort on that—simply by virtue of the
employer changing. By virtue simply of that contracting out, there
would no longer be a positive duty for what might be a large work
force. That would be a deterrent for the Government to contract out
work that might be delivered more efficiently by non-public sector
organisations. They would suddenly see things that were done to promote
all that we want to see, go backwards because the work force, and the
community from which they are drawn, would no longer benefit from
regard to be had to the need to promote equality in respect of
employment matters that previously existed. John
Penrose: I take the hon. Gentleman’s point. The
evidence so far on the ground suggests the opposite to what he is
describing. Parts of the Government are already outsourcing such
things. I cited as an example the Department for Work and Pensions and
its work on the welfare-to-work programme and getting long-term members
of the unemployed back to work. The difficulty would be that, if the
duty were applied to the workings of the mythical small charity in
central Leeds, the charity would not be able to participate or bid, so
the things that are currently being outsourced could not be outsourced
in future. I suspect that the traffic would be in the opposite
direction from the way that he suggested.
Dr.
Harris: The hon. Gentleman is coming back to the point
that I was about to touch on. In the delivery of the same service, it
would be arbitrary whether the work force were covered by the need to
have regard to positive duties. There would also be the problem for the
work force who were transferred. His main point is that it is an
onerous duty and must therefore not apply to small organisations.
However, it applies to small public authorities. If it is a question of
size, I would have expected him to table an amendment that referred to
100 workers, 30 workers or five workers, rather than make
another arbitrary distinction between a small public sector body and a
small private or third sector body that was doing the same
work. There
should be a level playing field and it cannot be right for a public
sector body that is bidding for a contract, a tender or the delivery of
public services to be faced with more duties to have to have regard to.
I do not think that they are onerous, so I shall not use that term. I
do not like the term “burden” for doing something that is
right and not particularly onerous, because it is only “having
regard”. It seems wrong not to have a level playing field. If it
is a burden, as the hon. Gentleman sees it, that will automatically
penalise public authorities. They would not have to have this as part
of their overhead, such as it
is. 11.45
am
John
Penrose: My argument is slightly different from the hon.
Gentleman’s. I was talking about not just the size of an
organisation, but the type of contract that the outsourcing involves.
He is saying that he fundamentally does not agree with the black box,
payment-by-results style of outsourcing contract currently being used
to some great effect in Departments such as the Department for Work and
Pensions. It is an inevitable part of such a contract that we do not
open the box. We say, “It’s up to
you how you deliver that, provided it is done in a way that is
fundamentally legal.” If, on the other hand, we are going to
require a public sector equality duty to apply to the internal
operations of that organisation, we have to start checking up on how
things are being done. We then have to go back to the old-fashioned
way, which has been abandoned or moved away from in places such as the
Department for Work and Pensions, of checking process, mandating
process and requiring things to be done, rather than outcomes to be
achieved.
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