Draft Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010

The Committee consisted of the following Members:

Chair: Mr Charles Walker 

† Brown, Lyn (West Ham) (Lab) 

† Clark, Katy (North Ayrshire and Arran) (Lab) 

† Creasy, Stella (Walthamstow) (Lab/Co-op) 

† Crockart, Mike (Edinburgh West) (LD) 

† Featherstone, Lynne (Minister for Equalities)  

† Hillier, Meg (Hackney South and Shoreditch) (Lab/Co-op) 

† Lefroy, Jeremy (Stafford) (Con) 

† Leslie, Charlotte (Bristol North West) (Con) 

† Lewis, Brandon (Great Yarmouth) (Con) 

† Lewis, Dr Julian (New Forest East) (Con) 

† Liddell-Grainger, Mr Ian (Bridgwater and West Somerset) (Con) 

† Lord, Jonathan (Woking) (Con) 

Paisley, Ian (North Antrim) (DUP) 

† Pound, Stephen (Ealing North) (Lab) 

† Timpson, Mr Edward (Crewe and Nantwich) (Con) 

† Umunna, Mr Chuka (Streatham) (Lab) 

† Vaz, Valerie (Walsall South) (Lab) 

† Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Annette Toft, Committee Clerk

† attended the Committee

Third Delegated Legislation Committee 

Monday 13 September 2010  

[Mr Charles Walker in the Chair] 

Draft Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 

4.30 pm 

The Minister for Equalities (Lynne Featherstone):  I beg to move, 

That the Committee has considered the draft Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010. 

The main purpose of the order is to make the provisions of the Equality Act 2010 effective, in line with the Act’s primary objectives of simplification and consistency. Before going into the detail of the order, I emphasise to Members that the Government are well on track to commence 90% or more of the Act on 1 October. That achievement will confirm our commitment, which was evident when the Bill went through Parliament, to the Act’s principles of fair and consistent protection, and I hope that it will receive support from Members on both sides of the House. 

The changes that the order makes fall into three broad categories. First, some of the changes involve corrections or updates to the Equality Act. Article 3 of the order will amend section 87 of the Act, which enables the Secretary of State to give directions, using powers set out in the Education Act 1996, to require a school to comply with its duties not to discriminate against pupils under section 85. The reason for the amendment is to refer to the corresponding Scottish legislation, so that the procedure will work for Scotland, as well as for England and Wales. 

Article 4 makes changes to section 94 of the Act. That section explains the meaning of various terms used in chapter 2—on further and higher education—in part 6, which is on education. The amendment is needed to reflect the concerns of interested parties that there needs to be a definition of “conferment” in the context of awarding qualifications. 

Article 5 makes changes to section 108 of the Act, which prohibits discrimination after relations have ended. Subsection (4) of that section is intended to replicate the existing law. Therefore, even if a person becomes disabled after a relationship has ended, the duty to make a reasonable adjustment still applies. However, the Act as currently drafted could be interpreted as meaning that the duty arose only if the person already had a disability when the relationship ended. The amendment will simply put that right. 

Articles 6 and 7 make changes to sections 132, 134 and 135 of the Act. Those provisions cover, among other things, the period for calculating arrears where successful claims are made with regard to equal pay or pensions cases in Scotland, in the case of a person with an incapacity, or in a situation involving fraud or error.

The effect of the amendment is that the five-year limit for calculating arrears may be extended if the period includes time during which the claimant suffered incapacity or was induced by the fraud or error not to raise the claim, subject to a maximum reckonable period of 20 years. The amendments enable the provisions to work correctly in Scotland and reflect the existing position under the Equal Pay Act 1970. 

Article 9 amends part 9 of schedule 3 to the Act to reproduce an amendment that was made, after the Act received Royal Assent, to section 19 of the Disability Discrimination Act 1995 by the Rail Passengers’ Rights and Obligations Regulations 2010. The provisions will restate in the Equality Act provisions in the DDA that provide for exceptions to the duty not to discriminate in relation to the provision of transport services for disabled people. The amendment is needed to ensure that the provisions of the Equality Act, when they come into force, are exactly the same as the provisions in the DDA, which will be repealed. I hope that I can reassure Members by emphasising that the amendment will in no way reduce the rights of disabled people. It simply ensures that there is no overlap between domestic equality legislation and European transport legislation protecting the rights of disabled people with regard to air and rail transport. 

Article 10 amends schedule 11 to the Equality Act, removing a reference to the Learning and Skills Council, which was abolished just before the Act was enacted. Articles 8 and 11 update certain provisions so that they refer to EU law, rather than Community law; that is a result of the Lisbon treaty coming into force. 

The second category of amendments reflects adjustments that need to be made to the public sector equality duties to reflect the introduction by the Equality Act of new key concepts. The existing gender, race and disability equality duties will be replaced in due course by the new single public sector equality duty in sections 149 to 157 of the Equality Act. Hon. Members will be aware that the Government are carrying out a consultation on the specific duties, and the intention is that the new equality duty will come into force in April 2011. The Home Secretary made a written statement about that last week. 

In the meantime, the public sector equality duties in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 need to be kept in force. However, the existing definitions of sex, race and disability discrimination, victimisation and harassment in those Acts are slightly different from those in the Equality Act. Articles 14 to 16 of the order will therefore update the relevant references to unlawful conduct in the existing equality duty provisions to reflect the new terminology in the Equality Act. That will make it easier for public authorities to operate, as they will be able to refer to a single set of definitions for the public sector equality duties. 

Finally, the last category of amendments, which makes up the bulk of the order, is consequential amendments to other legislation. Those are set out in schedules 1 and 2 of the order, which amend schedules 26 and 27 to the Act. There is a long list of changes; the vast majority of them will either replace references to legislation that is to be repealed, such as the Sex Discrimination Act 1975,

with a reference to the appropriate section in the Equality Act, or repeal those references if there is no equivalent new provision. 

A couple of provisions will also harmonise the law where it previously applied inconsistently to different protected categories. Those provisions are, first, the amendments to the Estate Agents Act 1979 in proposed new paragraphs 4 to 6 set out in schedule 1 to the order. Those will enable enforcement action to be taken where an estate agent is found to have committed discrimination because of any protected characteristic—not just as a result of sex and race discrimination, as is currently the case. Secondly, the amendments to the School Standards and Framework Act 1998 in paragraphs 44 to 47 in schedule 1 of the order will enable school adjudicators, when taking a decision, to take into account the non-discrimination duties of a governing body or local authority in relation to all the protected characteristics applicable to schools—not just in relation to duties relating to sex, race and disability, as is currently the case. 

To sum up, the overall effect of the order is minor and technical, and it will therefore have only a very minor substantive impact. The order will complete the process started by the Bill. The House of Lords Select Committee on the Merits of Statutory Instruments and the Joint Committee on Statutory Instruments have considered the order and neither Committee wishes to draw any issue to the attention of either this House or the House of Lords. The House of Lords considered and agreed the order in Grand Committee on 26 July. The order is a practical sign of the Government’s commitment to bringing the Act into force. I commend the order to the Committee. 

4.38 pm 

Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op):  It is a pleasure to serve under your chairmanship, Mr Walker. Her Majesty’s official Opposition welcome the statutory instrument, which, as the Minister rightly outlined, will ensure that the Equality Bill—enacted in the last Parliament of a Labour Government—is effective in law. We very much welcome the Government’s support for the Act. As hon. Members will be aware, the Equality Act received Royal Assent in April. It replaces, fully or partly, nine pieces of legislation, and brings a consistency to law in this area. The Minister mentioned simplification and, in a moment, I shall touch on how we can ensure that the simplification in law works for people on the ground. 

The measure is technical, and the Minister has set out some of those technical points well. There are also, of course, differences in this area of law in the different nations of the UK. The order reflects that and will ensure that the relevant amendments are made to Scottish law, as well as to the law in England and Wales; of course, the Act applies throughout the United Kingdom. Different parts of the Act come into force at different times, and part of the order’s purpose is to ensure that the previous law can be maintained pending the full implementation of sections of the Equality Act. 

The Minister mentioned simplification, and I would like to ask her a couple of questions about that. The issue of guidance on the Equality Act is explained in the explanatory memorandum; the Government give a

commitment to producing a rolling series of guidance on the legislation. Will the Minister pledge that that will be done in plain English? The Opposition are clear that the Act was not destined to become the province only of lawyers and experts at the Equality and Human Rights Commission. The Act is a real tool for ordinary people in our constituencies who feel that they have had their rights, including their equality rights, infringed, and they can use it to seek and gain protection. It is important that people are aware of their rights, and I would welcome a commitment from the Minister on that. 

On the same point, many small businesses will find it a struggle to get to grips with the new law, because they will not have the necessary in-house expertise. The cost of dealing with any breach could have a big impact, particularly in the current climate. We want everyone to comply with the law, so I hope that guidance will be available to those—particularly individuals or smaller organisations—who do not have in-house resources to advise them. 

How many further orders are likely? There are many consequential amendments before us, but will this order wrap things up, or are many others likely to come down the line? It is important that we are aware of how long it will take to implement the Act. 

The Minister mentioned consultation on the equality duty for public authorities. Will she give us an idea of who she is consulting and what the full timetable for that consultation is? This Government have pledged to hold many reviews and consultations and have put in place various stalling mechanisms for legislation. I accept it when the Minister says that the Government are committed to the Act, but it is important that we are sure that the consultation is proper and thorough, and that all those who will benefit from it and feel its impact are properly consulted. 

Finally, and importantly, there was much discussion of equal pay when the Act was drafted and debated. In the end, the Labour Government chose to allow companies with 250 or more employees the opportunity voluntarily to provide evidence of equal pay, and they said that they would review the situation in 2013. What plans does the Minister have on this important issue? Three years seems a long time, but I suspect that 2013 will come quite quickly. Will this Government uphold the previous Government’s position? If so, will the Minister introduce an order at some point to enforce action on equal pay if the voluntary approach does not deliver the hoped-for results? 

4.42 pm 

Lynne Featherstone:  I forgot to say how pleased I am to serve under your chairmanship, Mr Walker. 

The hon. Lady asked about guidance and codes for people and small businesses, and the Government have made a good start on that. On 5 July, the Government Equalities Office published five summary guides on the Act in partnership with ACAS, the British Chambers of Commerce, the Equality and Diversity Forum and Citizens Advice. The guides provide employers, business, voluntary sector organisations, public sector organisations and the public—the individuals the hon. Lady asked about—with simple, straightforward information about the changes made by the Act. Since then, seven quick-start guides on particular aspects of the legislation have been published,

including on disability, positive action and carers, and a further dozen or so are in preparation. The Equality and Human Rights Commission published detailed guidance on equality law and good practice at the end of July. 

The quick-start guides make it clear that one key purpose of the Act is to create a single approach to discrimination against people with different protected characteristics, and that the Act replaces most of the previous discrimination legislation. We are in contact with EHRC. The summary guides were published on 5 July, which is more than 12 weeks before the commencement of the Act’s main provisions on 1 October. That addresses the hon. Lady’s first three points. 

I now come to consultation on specific duties. Let me deal with equal pay commencement and the gender reporting provisions that are due to come in in 2013 if the voluntary arrangement does not result in organisations with 250 or more employees coming forward and improving their behaviour. We are indeed considering how to proceed in the best way for business and others affected by section 78 of the Act. It should be remembered that that section was introduced by the previous Government on the clear understanding that it would not be used before 2013. We are examining that at the moment and will make an announcement in due course. 

Katy Clark (North Ayrshire and Arran) (Lab):  The hon. Lady will recall that in opposition she was strongly in favour of mandatory equality audits. Some of her coalition partners were not so keen on any kind of equality auditing. In the past, she has expressed concern about whether a voluntary system will work. Will she give a personal undertaking that she will be vigilant on the issue? It is more than 30 years since the equal pay legislation came into force and there is still a very significant pay gap between men and women. Does the hon. Lady agree that we need to ensure that the matter is monitored most carefully and that speedy progress is made? 

Lynne Featherstone:  I thank the hon. Lady for her intervention. Indeed, I spent many happy hours during the passage of the Equality Bill through the House discussing that very serious issue—the pay gap that still exists nearly 40 years after the introduction of the Equal Pay Act 1970. I do not know whether anyone has seen the film “Made in Dagenham”, but that tells the story of where it all began. This is an extremely important issue. 

As I said to the hon. Member for Hackney South and Shoreditch, section 78 of the Equality Act is under discussion. The coalition agreement makes it clear that that will not be the only answer to what has been a persistent and insoluble problem. The coalition Government are absolutely committed to narrowing the gender pay gap. It has many causes and we need to use a range of approaches—for example, extending the right to request flexible working, encouraging shared parenting, and promoting flexible parenting leave. We shall be working jointly with the Department for Business, Innovation and Skills on those measures and we are considering what further measures would be necessary. 

Meg Hillier:  I am delighted to hear all that, but the point remains that there will be a crunch point in 2013. We hope that, by then, many businesses and organisations will voluntarily have taken the route of reporting on gender pay in their organisations, but if they have not and push comes to shove, what will the Government’s ultimate stance be on that? Lots of nice words about what other things could be done are all very well, but Opposition Members will want to see firm action to ensure that there are positive steps taken towards equal pay in this country. 

Lynne Featherstone:  I appreciate that the hon. Lady wants to press the point, but I remind Opposition Members that the fact that the system remained voluntary under the Equality Bill was, in my view, a serious error; as for asking companies to come forward voluntarily, we have not, as far as I am aware, seen an awful lot of progress so far. I also remember that Labour Members failed to adopt representative action, the hypothetical comparator and other measures that might have helped to further the cause. I have said to the hon. Lady that we will produce proposals for narrowing the gap, and will announce what we intend to do about gender pay reporting. 

Katy Clark:  Will the hon. Lady give way? 

Lynne Featherstone:  One more time. 

Katy Clark:  I strongly welcome the comments that the hon. Lady has just made. Will she now look at what improvements can be made to equal pay law, so that amendments and legislation can be brought in to introduce steps such as representative actions and class actions, or to deal with some of the technical defences available to employers under equal pay legislation that make it incredibly difficult for individual women to bring a successful equal pay case? 

Lynne Featherstone:  At this point in time, we are examining a whole range of matters, but I am not planning to revisit those issues in the near future, in terms of changing the law. My purpose now is to narrow the gender pay gap, with the commitment that the coalition Government have made. 

Let me move on to the consultation on specific duties. The hon. Member for Hackney South and Shoreditch asked whom we would be consulting on the specific duty. The consultation ends on 10 November, and we are consulting public authorities, charities, third-sector organisations and the equality lobby. I hope that that answers the points that were made. 

I am grateful for the co-operation shown, and for the constructive and interesting, albeit short, debate that we have had on the order. Although the order in itself does not raise major substantive issues and is more of a technical device, it forms part of the overall commencement package to bring the great majority of the Act into force on 1 October. That commencement package includes various statutory instruments subject to the negative procedure that have been laid before the House, either before or after the recess. In some cases, the passage of those instruments remains subject to the scrutiny of the House. 

The one remaining piece of the jigsaw will be the main commencement order, which we shall publish as soon as possible following this debate, assuming that the House approves this order. The October commencement package and this order reaffirm the Government’s commitment to the objectives of the Equality Act 2010, and carry forward the achievement that the House so

recently attained when the Bill was enacted, with real benefits for those concerned. 

Question put and agreed to.  

4.51 pm 

Committee rose.