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Clause 152

Positive action: general
Lynne Featherstone: I beg to move amendment 303, in clause 152, page 112, line 19, after ‘needs’, insert
‘to the extent that it is reasonable to meet them’.
To ensure that bodies do not undertake unreasonable measures positive action to accommodate unreasonable needs.
We now move to the positive action provision. This is a probing amendment on the general application of the provision. Clause 152(2) states:
“This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim”.
Our amendment relates to paragraph (b), which refers to “meeting those needs”. As the clause does not refer to a “legitimate” aim in relation to undertaking positive action, the amendment would impose a reasonableness test when the needs of a person with a protected characteristic were being considered. At the moment, the need could be unreasonable, because there is no legitimisation of the aim. I hesitate to tread on religious territory when my hon. Friend the Member for Oxford, West and Abingdon is not present, but it could be any of the protected characteristics. If a religious view could be considered unreasonable—for instance, that all gay people have no place in society or that all women should wear a burqa—surely it would be unreasonable to undertake positive discrimination to accommodate that view, to accommodate the need of the person requiring it.
This probing amendment is designed merely to test what traction, in legal terms, need has on its own without there being a legitimate aim and whether we need to include a reasonableness test to ensure that there are no untoward or unintended consequences. I am interested in what the Minister has to say.
The Solicitor-General: I appreciate that we would not want the provisions allowing positive action to be misused in any way that could be considered unreasonable, but we think that there are sufficient protections within the four corners of the clause itself.
Clause 152(1) requires that a person who intends to take positive action reasonably thinks that people within his remit
“who share a protected characteristic suffer a disadvantage”
“who share a protected characteristic have needs that are different”
or that participation is disproportionately low because of a protected characteristic. There has to be a reasonable point of view in the first place, before any positive action even comes on to the scene. That is an important protection.
There is also clause 152(2), to which the hon. Lady referred, which requires the action to be taken to be a proportionate means of achieving the aims set out in paragraphs (a), (b) and (c). She is mostly concerned with “meeting those needs”. Again, this is about balance and appropriateness. Even if it were possible for a person to use the provision to meet unreasonable needs, the steps to meet their demands would have to be proportionate, so it is difficult to see what good the provision would be to them.
The clause includes a power to make regulations to set out action that would not be permitted, so there is a power if there were ever something capable of being envisaged in advance that we would want to exclude on an unreasonableness basis. Always, when looking at positive action, the EHCR is committed to issuing clear guidance. In this case, since this is a new power, guidance probably ought to include examples of the kind of needs for which protection is intended.
I hope that the hon. Lady is satisfied that those two distinct sets of phraseology within the four corners of the clause will fit the need to ensure that the protection is not abused, and we expect good guidance from the commission.
Lynne Featherstone: I thank the Minister for that helpful explanation. There are indeed enough safeguards in place. With those words on the record, it is clear that unreasonable needs would not be permitted. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Harper: I do not want to speak terribly long on clause stand part, but, before we move on to clause 153, I would like to draw some distinctions, and invite the Minister to do so as well, and set out just what is and what is not included in positive action. Having read the clause, I am happy to support it, because positive action is distinct from positive discrimination—I think Members have said that—which I would not be in favour of.
The Committee must be careful to be clear about what we mean. On one or two previous clauses, there has been some confusion in language when people have said “positive discrimination” when what they meant was positive action. The two are distinct.
I can give an example of positive action. Perhaps a particular group is under-represented in someone’s work force. The employer might decide to advertise in a particular publication that was read by many in that group, or, if they were going out and physically recruiting, they might decide to target particular geographic areas to try to increase the number of people who apply for a job in their organisation. That is a positive step to try to widen diversity, but, crucially, it is not discriminating against anybody else. It is not stopping anybody else from applying for a role and, assuming that the organisation is advertising in other publications as well, it is not prohibiting or disadvantaging anybody. It is simply trying to widen the pool. Positive discrimination would be where an organisation was trying to widen its diversity, but it was doing so by specifically discriminating. I will cite a specific example from my own constituency when we come to clause 153. It is worth clarifying this matter so that people outside are clear what this provision permits them to do and what it does not.
The Law Society, which provided us with a brief on clause 152, specifically says that
“the current positive action provisions in current legislation can be confusing for employers.”
Presumably, if they are confusing for the Law Society, which should understand this stuff very well, they will be confusing for pretty much everybody else. It makes the point that it uses existing usual targeting measures. It says:
“Broadening the circumstances in which an employer can draw attention to an imbalance in an advertisement might be helpful.”
Again, an organisation will not say that people from another group should not apply or that it is biased in favour of a particular group. It will simply be saying that in its work force, there are groups that are under-represented and it may encourage people who share that protected characteristic to apply. As long as it does not discriminate against people who do not have that protected characteristic, I see nothing harmful in doing that at all, and this particular clause is welcomed by the Law Society.
For the avoidance of doubt and to stop those who like to misuse and misrepresent such provisions, it would be helpful if the Minister could outline what the Government mean by the clause and what they do not mean. That would benefit both the Committee and those outside who are listening to our proceedings.
The Solicitor-General: I am glad to have a welcome from the hon. Gentleman. The measure is not a wholly new concept. Provisions on positive action already exist within the Sex Discrimination Act 1975 and the Race Relations Act 1976, and the clause is an extension of that. Positive action provisions can apply in different ways to different characteristics. They can even apply to some and not to others. We now intend to regularise them and to make a platform for all of the strands. The first thing that the clause does is establish a permissive framework under which forms of positive action can be taken. Any use of such provisions will be entirely voluntary. There is no requirement for them to be used by specific individuals or organisations. Although they are voluntary, lots of UK businesses have recognised the benefits of using positive action to create a more diverse work force, to better understand customers’ needs and to attract new business. Therefore, the provisions will be used, but it is important to emphasise that they are totally voluntary.
The second characteristic is that it is not, as the hon. Gentleman has said, positive discrimination. Positive discrimination would favour a person from a particular under-represented or disadvantaged group solely because they come from that particular group irrespective of merit. In the main, positive discrimination is unlawful in the UK. Therefore this is not positive discrimination. We are not talking about favouring somebody just because they come from a particular group. The provisions are about ensuring that people’s needs are met, that they have equal opportunities and that they are not held back because of a particular characteristic.
The clause will have effect in cases in which it is reasonable to consider that those with a protected characteristic suffer a disadvantage that is linked to that characteristic, that those who share the characteristic are under-represented in some way, or that those who share the characteristic have particular needs not shared by those without the characteristic in question. In any such situation, the clause will enable organisations, public authorities, employers and service providers to take a wide range of positive action measures to address the disadvantage, and to increase the participation of people with that characteristic. Moreover, any action must be a proportionate way of accomplishing the intended outcome. I am referring to specific training opportunities, targeted health services to address particular needs and providing lessons exclusively for disadvantaged pupils. We want to ensure the appropriate use—we have just canvassed this—of the positive action measures.
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The clause contains a power to make regulations to set out what would not be permitted under it. It ensures that any act that would be unlawful under any other legislation will not be permitted by it. It also provides that if positive action measures are taken under clause 99, which is about the selection of candidates and clause 153(3) regarding recruitment or promotion, which we will come on to in a minute, those provisions will apply, rather than clause 152.
In addition, should the provision allowing registered political parties the use of single sex shortlists in selecting election candidates, which clause 99(7) deals with, be repealed, the clause will not allow the use of similar measures to be taken—I emphasise that point, and it is only what is permitted within the law. Where there is a specific provision to cover a specific kind of positive action, that is the provision that will prevail, not clause 152.
Question put and agreed to.
Clause 152 accordingly ordered to stand part of the Bill.

Clause 153

Positive action: recruitment and promotion
Mr. Harper: I beg to move amendment 29, in clause 153, page 113, line 2, leave out ‘reasonably thinks’ and insert ‘can demonstrate’.
The Chairman: With this it will be convenient to discuss the following: amendment 23, in clause 153, page 113, line 16, leave out ‘as qualified as’ and insert ‘equally qualified to’.
Amendment 31, in clause 191, page 136, line 4, leave out ‘thinks’ and insert ‘can demonstrate’.
Amendment 32, in clause 191, page 136, line 9, leave out ‘thinks’ and insert ‘can demonstrate’.
Amendment 33, in clause 191, page 136, line 16, leave out ‘thinks’ and insert ‘can demonstrate’.
Amendment 34, in clause 191, page 136, line 23, leave out ‘thinks’ and insert ‘can demonstrate’.
Mr. Harper: The clause specifically looks at recruitment and promotion regarding positive action. My amendments may be broken down into three groups. The first consists of amendment 29. Currently, subsection (1) refers to the way that a person can use the clause. I object to the words “reasonably thinks”, preferring “can demonstrate”, just to get rid of the “thinks” part, and make the definition slightly less subjective. That is the first amendment, which is a relatively small one, and I do not want to make a huge deal about it.
The amendments in the next group are similar, as they have the “thinks” word in them, which is why they have been grouped together. They would amend clause 191, which refers to “the Minister” rather than “Person (P)”. I will deal with those at the end of my remarks, because they are not talking about positive action—they have been grouped with it because they use the same concept.
The crux of my argument on the clause is on amendment 23. It would amend the clause by replacing the words “as qualified as” with “equally qualified to”. It may sound a small change, but it is significant in respect of how the clause would operate. The amendment would change it from a way that my party and I do not find acceptable to a way that we would.
It would also mean that the Bill will be in line with the explanatory notes, which talk about candidates being “equally qualified”. It is my contention that that does not mean the same as “as qualified as”. “Equally qualified” implies that the candidates are equal in every material way pertaining to that particular job, either as a new recruit or as a promotion. This is the argument that has been used by both Ministers and the EHRC: where we would usually have two equally qualified candidates—the larger the number of candidates, the less likely, I suspect, that they would be equally qualified—the clause would be used as a tie-breaker.
An example commonly used by the EHRC, us and Ministers is that of a primary school in which all the staff are female and there are no male role models for the pupils. Let us say that the head teacher has a vacancy for a new teacher and there are two candidates equally qualified in terms of teaching ability and how they would fit into the school; in all ways they are the same, but one is a man and one is a woman. The contention is that the clause would enable the head teacher to say that there are some good reasons why it would be good to have a more diverse work force and to have a male role model in the school. Therefore, because the two candidates are equally qualified and capable of doing the job, the head teacher would prefer the male candidate in order to have a more diverse work force. In those limited circumstances, in which there are two equally qualified candidates, we would be content with that.
If two equally qualified candidates are genuinely equal—and there is only one job—there has to be some way of making a hiring decision. Widening the diversity of the work force seems to be as good a reason as any. Alternative ways of making the decision would be completely subjective, for example by asking, “Do I like them?”, “Who do I like best?”, “Who would I get on with best?”. I suspect that that is how a lot of hiring decisions are made. In the limited circumstances I have mentioned, widening the diversity of the work force seems as good a way to make the decision as any.
The problem with how the clause is currently drafted is that the use of the words “as qualified as” does not have the same meaning at all for me. Those words seems to set a bar or hurdle and indicate that there are a certain set of qualifications or characteristics that are needed for the job and that, as long as someone gets over that bar or requirement, they are equally qualified to do the job and to be recruited or promoted as any other candidate. That leads to a problem, because if someone is in that situation and they have a significant number of candidates, we will start to get what is effectively positive discrimination, which I do not think we want.
I hope that I am not talking out of turn here, but I have discussed the matter with the chairman of the EHRC, who conceded that it was unlikely there would be equally qualified candidates applying for a role. He agreed with my characterisation that “as qualified as” would put candidates within a band of capability. He suggested that as long as the difference between the candidates was fairly narrow, the diversity measure could be allowed to kick in. The danger in relation to that is where to stop.
The heart of the matter is if there are two equally qualified candidates and one or the other gets the job, it does not cause too many problems. However, a situation might arise in which candidates are qualified for the job and able to meet the criteria, but there is a big difference between some of them and a number of the candidates are much better. Let us say that those who are better happen to be men and that although there are female candidates who are qualified to do the job, they are not as qualified as the male candidates. If the work force is largely male, the employer might decide to hire or promote the female candidate. It seems likely that that would stir resentment because weaker candidates are being preferred purely because of their gender. That is certainly not helpful to the cause of equality. That would give equality a bad name and damage the idea of fairness. It could lead to what the hon. Member for Oxford, West and Abingdon suggested in relation to a different matter, with people not thinking that this sort of thing applies to them.
I have a specific example for the Minister of such a situation being damaging. In my county, back in 2006, the Gloucestershire constabulary admitted breaking the law because it had a policy of deselecting potential recruits because of their colour. It was trying to advance the diversity of its work force, mainly to meet a Government target for ethnic minority recruits, so that the percentage in the force matched exactly the percentage in the county. The reason why I am aware of it is that it affected one of my constituents, who was certainly qualified to do the job. He and a number of others were disregarded in the selection process purely because they did not meet the criteria for advancing the diversity of the work force as far as race and colour were concerned.
Apart from being illegal—I am not sure that it would be if we allowed the wording “as qualified as”, because that implies that one could have a large pool of candidates and then start making decisions about the diversity of one’s work force—I do not think that the measure sits well with subsection (4)(b), which prohibits a policy, because as soon as one starts talking about lots of people, one is effectively talking about a policy.
Such measures lead to damaging headlines and damage the cause of equality, as well as creating the slightly bizarre situation of a police force going around breaking the law. I do not think that it is particularly effective. We do not want a situation where candidates applying to join an organisation are discriminated against because of their colour. I want to ensure that the clause will not allow that sort of behaviour to become lawful, as it is damaging, and it is difficult to explain to constituents why they should be treated in that way.
Just so that the Minister is aware, a number of organisations concerned about such matters have reached the same conclusion in their briefs for members of this Committee; I presume that other hon. Members have them. The British Retail Consortium agreed absolutely that companies should address under-representation in their work force, but notes the difference between the explanatory note, which discusses candidates who are “equally qualified”, and the term “as qualified as” in the Bill. The BRC agrees that the two are distinct and likely to confuse and believes, as I do, that the wording of the Bill suggests a principle of minimum merit or a bar that must be got over, whereas “equally qualifies” indicates that candidates have got to the same level. The BRC wants clear guidance for employers so that they do not fall foul of the law. It says explicitly that it supports amendment 23 because it believes that the wording is much clearer than the Bill’s.
The CBI, in its briefing for the Committee, is happy with the tie-break concept but not with how it is currently drafted. It does not think that the Bill is clear enough about how the tie-break would work in practice, or that the word “qualified” is defined in any way. The CBI is unclear whether the use of the word “qualification” is purely academic or whether it will apply more widely to consideration of the candidate’s qualities and ability to do the job. Those things are clearly important, particularly when it comes to promotion, which is likely to be based not on paper qualifications but on ability to do the job.
The British Chambers of Commerce suggests in its memorandum to the Committee that the majority of businesses will use the provision, but that those that do will want certainty. The BCC also notes the difference of language between the Bill and the explanatory notes and does not think that the two are the same. The BCC explicitly supports our amendment, as do a number of organisations. When the Minister responds, she needs to explain why the Bill uses the language that it does and whether it means the same thing.
My final point pertaining to amendment 23 concerns subsection (4)(b), which says that the person concerned—the company, the business or whatever—cannot have a policy of treating people who share a protected characteristic more favourably but must take decisions on a case-by-case basis. I think that that works and I know that it is there because that is what the European directive requires. I cannot remember whether we discussed that in Committee or whether it was in a discussion I had with the EHRC. I can see that that holds up for two equally qualified candidates, where it is not about policy but a decision between two individuals.
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If the language “as qualified as” is used for a pool of candidates, any organisation bigger than an individual employer who makes the decision himself will have to have a policy. That means that we will be encouraging people to take positive actions when they have a pool of candidates and giving them the power to do it, but saying that they cannot have a policy. Recruitment and promotion decisions will then be taken under the table, out of sight and not in accordance with a policy. We should not encourage businesses to go down that route.
Amendments 31 to 34 apply to clause 191. They have nothing to do with positive action but have been put in this group wisely because of the similarity in the words “thinks” and “demonstrate”. Clause 191 is about harmonisation and will enable Ministers to amend the Bill through order-making powers. I will not go into whether order-making powers are right or wrong because we will discuss that under clause 191.
My objection is that clause 191 contains four references to Ministers being able to use order-making powers because they “think” something. I am not happy that we are giving Ministers powers to amend primary legislation by order, but if are, we should jolly well have objective tests that can be reviewed properly through judicial review and that can constrain Ministers’ actions.
I will go through the provisions of the clause briefly one by one. Line 4 states that clause 191 applies if
“there is a Community obligation of the United Kingdom which a Minister of the Crown thinks relates to the subject matter of the Equality Acts”.
It would be better to say that the Minister must “demonstrate” that it does. Ministers should not be able to use this clause simply because they “think” something. That does not give a judge much to go on.
If the Minister thinks that the community obligation relates to the subject matter of the Bill, clause 191 applies only if
“the Minister thinks that it is appropriate to make harmonising provision”.
Again, that relies just on the Minister’s opinion. There is nothing for a judge to test it against. There is no guidance for Ministers on how they should make such decisions. It is just down to whatever they think. The clause gives the Minister the power to make the harmonising provision by order to change primary legislation. I do not think that that is sound.
There are some rules about the timing of making the order. Clause 191 says specifically that there must be consultation and prohibits the Minister from making the order before the end of the period of 12 weeks after the consultation starts. As we are talking about changing primary legislation, the Minister is not allowed to make the order before the end of that period unless he thinks that the
“making of the order is a matter of urgency”.
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Sitting suspended for a Division in the House.
7.33 pm
On resuming
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