Clause
152Positive
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” or
“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. 7
pm 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
153Positive
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. 7.15
pm 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”. 7.19
pm Sitting
suspended for a Division in the House.
7.33
pm On
resuming—
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