Dr.
Harris: I know what the hon. Gentleman is saying. Perhaps
there is a philosophical disagreement between us in that I do not think
it is right that there should be an uneven playing field between the
public and private sectors when providing services. While I am not
totally ideologically opposed to the private sector providing
services—they do so very effectively with care services, and the
same applies to charitable sectors—there has to be a level
playing field. Although I will not go into great detail, there is far
too often not a level playing field. For example, independent treatment
sectors were given huge advantages over the poor old NHS—for a
start, they did not have to train anyone—and there is an
outrageously uneven playing field. If something is a good thing to do
when delivering of public services—I believe this is, and I
think the hon. Gentleman believes it is, although I am not sure what
his view is about the clause overall—it should apply to
everyone.
This is not
the same as opening the box and saying, “How are you delivering
welfare to work?” There will be consultation on specific duties,
but this is saying, “Are you doing the things that your public
sector competitors are doing?” If the hon. Gentleman is a
believer in a fair market, as I know he is, I urge him to see things
not in terms of Government interference in how something is done, if he
thinks that the outcome is all that matters, but in terms of the fact
that an unfair competitive advantage should not be given to private
sector organisations. There is already a great deal of unevenness. If,
as generally happens, the public sector trains people, they can then be
used by the private sector free of training costs. That happens in many
care organisations, for example, and we should not make that unevenness
any
worse.
Mr.
Boswell: I have some sympathy with the hon.
Gentleman’s comments. I have experience of cases in which there
has been outsourcing in the health service and a row about the
obligations of training. To help the debate along, would he not concede
that if there is to be a duty on those persons—we await the
Solicitor-General’s comments—it might be reasonable to
look at the fulfilment of that duty slightly differently depending on
the scale of the organisation and what it is doing? A large charity
such as Leonard Cheshire Disability would be in a different position
from one that was small and specialist and perhaps should not require
exactly the same level of HR function as a bigger organisation or a
public authority discharging the same duty.
Dr.
Harris: I was going to come on to the point about
smallness. I have already said that if that is the argument, there
ought to be a particular requirement that there should be a cut-off,
and that should apply to both the public and private sector. I do not
think that there
should be a size cut-off, especially with regard to employment. If there
are only 10 people employed, it should not be that hard to seek to have
regard to the need to eliminate discrimination, harassment,
victimisation and other conduct prohibited under the Bill. The employer
knows the 10 people and can ask them whether they feel that they are
suffering, while that is harder in a bigger organisation. I do not
think that such a thing is onerous. It is not the same argument that we
had on pay audits, which I also do not accept—this is different.
This is not something that scales up by employee in the way that has
been suggested. There are small organisations with only one contract
with the public sector that exist wholly to take public sector money to
do what they do—and good luck to them. However, those
organisations are 100 per cent. funded by the public sector to do the
job. They are equivalent, and they would have an unfair competitive
advantage if they did not have regard to the requirement.
Finally, I am
delighted that the Government accept that there is a difference when
delivering public functions as far as the positive duty is concerned. I
have already indicated that my party will seek to return to this issue
at a later stage of the Bill’s proceedings. We will argue that
for people in receipt of public services, as opposed to other services,
there is a stronger argument for some of the protections that are not
being offered—protection from discrimination on grounds of
religion, for example, or protection from harassment on grounds of
sexual orientation.
Clause 143(2)
sets out a specific recognition that when public services are being
delivered, the situation is different, because public funding is often
involved. There is an expectation that the people concerned,
particularly the users of those services, are a captive and often
vulnerable population who deserve more protection than the ordinary
person in the marketplace trying to book into a hotel or lodging
house. Amendment
280 was tabled by the hon. Member for Stroud for the EHRC. I have a
great deal of sympathy with it, but it slightly misses the point. The
hon. Gentleman argues that a local authority, for example, should have
a positive duty to have regard for the need, inter alia, to
“eliminate hatred
and hostility towards members of different
groups”. We
know that gay people in schools might well be victims of that sort of
hatred and hostility. Would it not be better for gay people in schools
to be covered under clause 143(1), which
states: “A
public authority must, in the exercise of its functions, have due
regard to the need
to...eliminate...harassment”? For
reasons that I cannot understand, protection from harassment on the
grounds of sexual orientation is excluded from schools, as is
protection from harassment on the grounds of sexual orientation and
religion for people seeking to receive public services. I cannot
understand on what basis there would be any need to harass people
receiving public services on the grounds of religion, but that is not
covered by the Bill.
I urge the
hon. Gentleman—and the EHRC, which I have spoken to about
this—to work for the extension of harassment provisions when
necessary, perhaps under a narrower definition than currently exists,
so that such situations would be covered by legislation on unlawful
conduct. That would automatically bring those areas
within the public sector duty without any requirement for an amendment
that says that we should try to do something to eliminate hatred and
hostility, but that allows the framework of the legislation not to make
unlawful the delivery of that hostility and hatred through harassment.
The approach seems to be upside down. If the EHRC recognises that this
is a problem, it should readdress the question of whether the
harassment provisions could or should be extended carefully to
vulnerable groups in respect of education and public services. To a
certain extent, such things apply only to public services, so we are
talking about the same territory. I hope that the hon. Gentleman
recognises that a combination of approaches might be needed to deal
with this. If the
amendment were to be accepted, there would have to be regard to the
need for public authorities to protect freedom of speech. An amendment
relating to that subject is in the next group, so I will not take that
matter further, although it kind of ties in, and I meant to table it as
a response to the sort of debate that we are having on this group of
amendments. It is difficult to get public authorities to start
eliminating hatred, as that would automatically lead them to not allow
someone to book a room if they believed that that person hated certain
groups of people. It is not a crime to hate certain groups of people,
although I deprecate it enormously. I have campaigned for more than two
decades against racism, but it is not the job of a public authority to
say who has free speech within the law. I urge the hon. Gentleman and
the EHRC to look towards the
law. My
hon. Friend the Member for Hornsey and Wood Green and I tabled
amendment (a) to amendment 21 to set out on the amendment paper an
argument that the hon. Member for Weston-super-Mare might wish to
consider. That was a bit of a waste of time if he is saying that the
Minister can respond to my criticism of his amendment. There is no need
for the Minister to deal with amendment (a) to amendment 21, as I had
hoped that the hon. Gentleman would. However, as I said in an
intervention, it might be better to be even more specific about what
the reporting requirements are, rather than just having regard. The
Minister said that that would be picked up by the specific duties,
which I welcome, and I do not think there is anything more to say on
amendment (a) to amendment
21. We
support the measure, with the caveat that we will deal with in the next
group. We wish it well, but we think that it could be improved, as we
will set out specifically during our next
debate.
John
Howell: It is a great relief to be able to give my
undivided attention to this Committee. The Finance Bill Committee has
been running in parallel for the past few weeks but, mercifully, it has
now ended, which allows me to devote my attention to this Bill for the
remainder of our
sittings. In
my first contribution to the Committee, I mentioned my experience in
relation to the public sector equality duty during my time in a local
government role, because I saw that as a chance to move the debate on
to outcomes. I welcome the Solicitor-General’s comments about
the shift towards an outcome focus. I also welcome the positive-action
orientated wording in clause 143(1), such as “eliminate
discrimination”, “advance equality of
opportunity”, and “foster good relations.” A lot
is set by words and that wording paints a good picture.
When
I came to producing and delivering the public sector equality duties,
as they were, in a local government context, I looked at not only the
issue of fairness—of course—but what one might call
enlightened self-interest. One of the last things I signed off in that
role had the
words: “by
ensuring we do not exclude we ensure that as an employer, we tap into
the talents and abilities of all our people and the users of our
services benefit on a lasting
basis.” It
is perhaps early in one’s parliamentary career to be quoting
oneself, but it was a great pleasure to bring that to bear. That picks
up the point made by my hon. Friend the Member for Daventry about the
general benefits of customer service that come from focusing on
equality duties and improving services
overall. I
was also interested in the earlier discussion about whether there was
any evidence that the existing equality duties had worked. There are
some indications of success and that equality issues have been forced
into a position of higher priority—indeed, a small amount of
mainstreaming has also taken place. In both the Schneider-Ross report
and the Work and Pensions Committee’s report, I was struck by
the fact that those results were still difficult to tie down and prove
in terms of metrics. There was no link between the metrics that were
there and the
outcomes. Perhaps
one good example of that issue is contained in the January 2007 Ipsos
MORI report on the disability equality duty, which revealed that 72 per
cent. of public authorities covered by the audit that had taken place
had published a disability equality scheme and that at least 54 per
cent. had published a scheme that contained evidence that the authority
had involved disabled people in its production. Those statistics are
encouraging, but they do not tell us, or measure, what difference was
achieved as a result. Of course, we really need to understand that
aspect when considering the clause. It is impossible to discuss the
merits of the clause without a better understanding of the monitoring
and compliance regime that will underpin it. My feeling is that
existing monitoring and compliance are inadequate and more about
process than outputs. It is one thing to change the focus to outcomes,
but if the measurements are still about outputs, the process will not
be taken any
further. During
the Work and Pensions Committee’s inquiry into disability, which
was aimed at the Bill, I was keen to pursue the matter with several
organisations, one of which was the TUC. It was covered in question 86
in the evidence volume to the Committee’s third report of the
2008-09 Session, which was entitled “The Equality Bill: how
disability equality fits within a single Equality Act”. When I
asked where the current disability equality duty was working, the TUC
said that there were some excellent organisations, but it was
interesting that even it could not refer to any specific bodies, and
that none immediately jumped out as good examples that could be used as
case studies. The TUC admitted that there were an enormous number of
“laggards”, but more importantly then confirmed that the
EHRC was investigating 170 bodies for failure to comply. It talked
about the need for “pushing and shoving”. We are familiar
with the use of “nudging” as a means of delivering
policies, but the suggestion was somewhat more forceful than
that. I
was asking essentially whether the overall picture of the disability
equality duty example was negative and whether anyone out there was
doing it really well,
without having to be pushed and shoved. The answer that I received from
Citizens Advice was, “Yes, it was a negative picture.”
That was amplified by the TUC, which said that in its estimate only
about 10 per cent. of organisations delivered it well, 10 per cent. did
it really badly and the rest were somewhere in the
middle. 12
noon
Mr.
Harper: My hon. Friend had a previous role in delivering
such things and he mentioned the important duty of improving the
customer service of organisations. Given that many organisations are
not doing it well, is there an approach that it might be helpful for
the Government pursue? If they could get organisations to understand
that adopting those duties, particularly engaging with different
groups, made them better at delivering their core business—the
issue that they think about each day—that might be a way in
which to get organisations not only to take the matter seriously as an
add-on, but to make it a central part of what they do each
day.
John
Howell: I thank my hon. Friend for his remark. He is
absolutely right. The way in which I approached the matter was twofold.
First, it was not seen as something that was separate. I committed my
local authority to being the first English county council to go for a
charter mark for the organisation as a whole. Therefore, there was a
context and a process in which it could sit. In parallel to that were a
series of workshops with groups that represented all those with the
protected characteristics that met regularly to look at how different
aspects of the organisations were working. We asked them to tell us
what outcomes they wanted and to say how we could integrate them in a
more fundamental way. There are some extremely good examples of what my
hon. Friend was saying, such as by taking an holistic view of an
organisation and not making the issue too separate, a lot could be
achieved within the organisation by mainstreaming
it. I
return to a bit of pushing and shoving. As a practical example of the
difficulty, Citizens Advice commented, “With a little bit of
pushing and shoving, the public duties are effective, but the problem
is that pushing and shoving does not occur a lot of the time”.
The difficulty of the EHRC monitoring so many organisations and the
difficulty of read-across between them came out in several pieces of
evidence that have been delivered both to the Committee and to the
Select Committee. The example that I cited earlier came from the public
interest research unit, which referred to a public authority that was
excellent in promoting equality, but which did not undertake impact
assessment so it is in breach, against an authority that assesses all
its policies and procedures, but is appalling in terms of delivering
equality. There
were ticked boxes around the current schemes, which is probably the
description that has been used most by those who have looked at them.
It is certainly something that we need to move away from, but we need
to understand what it is in terms of the monitoring of compliance that
underpins the delivery of what the clause sets out to
achieve. I
reinforce the point that I made earlier to my hon. Friend on his
intervention: moving away from the schemes and the bureaucracy, and
talking and listening to people
is by far one of the most effective ways of ensuring that real outcomes
are delivered, and that people are not trammelled by bureaucracy and
the ease with which one can slip into an output-based culture, rather
than an outcome-based
one. | 
