Draft Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011

The Committee consisted of the following Members:

Chair: Mr Roger Gale 

† Andrew, Stuart (Pudsey) (Con) 

† Carmichael, Neil (Stroud) (Con) 

† Farrelly, Paul (Newcastle-under-Lyme) (Lab) 

† Featherstone, Lynne (Minister for Equalities)  

† Fullbrook, Lorraine (South Ribble) (Con) 

† Hamilton, Fabian (Leeds North East) (Lab) 

† Huppert, Dr Julian (Cambridge) (LD) 

† Jones, Graham (Hyndburn) (Lab) 

† Lammy, Mr David (Tottenham) (Lab) 

† Love, Mr Andrew (Edmonton) (Lab/Co-op) 

† Mactaggart, Fiona (Slough) (Lab) 

† Mosley, Stephen (City of Chester) (Con) 

† Phillips, Stephen (Sleaford and North Hykeham) (Con) 

† Sandys, Laura (South Thanet) (Con) 

† Shannon, Jim (Strangford) (DUP) 

† Vaz, Valerie (Walsall South) (Lab) 

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

† Zahawi, Nadhim (Stratford-on-Avon) (Con) 

Georgina Holmes-Skelton, Lydia Menzies, Committee Clerks

† attended the Committee

Fifth Delegated Legislation Committee 

Wednesday 23 March 2011  

[Mr Roger Gale in the Chair] 

Draft Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011 

2.30 pm 

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

That the Committee has considered the draft Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011. 

Good afternoon, Mr Gale. It is an absolute pleasure to serve under your chairmanship. I am delighted to have this opportunity to explain the Government’s approach here. The main purpose of this order is to add a number of public bodies to the lists in schedule 19 to the Equality Act 2010, to make those bodies subject to the public sector equality duty. Schedule 1 to the order sets out the public bodies that we propose to add to part 1 of schedule 19, covering general public authorities. Schedule 2 to the order adds a new part 4 to schedule 19 relating to cross-border Welsh authorities. Schedules 3 and 4 add to schedule 27 to the 2010 Act, setting out repeals and revocations relating to the commencement of the equality duty. Those provisions will ensure that the correct public bodies are covered by the equality duty. 

The equality duty requires public bodies to have due regard to the need to eliminate discrimination and harassment, to advance equality of opportunity and to foster good relations between people who share a relevant protected characteristic and those who do not. Any organisation performing a public function is subject to the equality duty in respect of that function. 

Listing bodies in schedule 19 to the 2010 Act serves two useful purposes. First, it makes clear that the body named is subject to the general equality duty and in regard to which of its functions. In some cases, not all functions will be included. Secondly, it enables the Secretary of State to impose specific duties on those bodies to enable the better performance of the general duty. 

Only bodies listed in schedule 19 can be made subject to the specific duties. Schedule 19 currently lists broad categories of public bodies that are subject to the equality duty, including central Government Departments, local authorities, the armed forces and the key health, education, policing and transport bodies. In total, about 27,000 public bodies are covered by those categories. 

The order will add to the lists a small number of additional bodies, including a number of regulators and inspectorates, such as the General Medical Council and the Law Society; a number of bodies that we propose should be subject to the equality duty only in respect of some of their functions, such as the public sector broadcasters; and a number of other bodies that have

important roles to play in regard to public services. Overall, we propose to list as subject to the equality duty the vast majority of public bodies that are listed for the purpose of the existing race, gender and disability duties. Where that is not the case, one of three reasons applies. 

First, some listed bodies no longer exist or will no longer exist. Secondly, we doubt the influence on equality outcomes of some bodies, such as the Inland Waterways Association. Thirdly, we doubt whether some bodies can be strictly deemed to be performing public functions, as defined in the Human Rights Act 1998. 

Mr David Lammy (Tottenham) (Lab):  The Equality and Human Rights Commission made a recommendation in relation to a number of the bodies that will be excluded. Can the Minister explain why the Sentencing Council for England and Wales is not included? She will appreciate that there is much concern that many people imprisoned and sentenced in this country come from black and ethnic minority backgrounds. Can she also explain why the GMC is included, but not the Royal College of General Practitioners or the Royal College of Nursing? 

Lynne Featherstone:  If the right hon. Gentleman will allow, I said that those are the three general reasons, and I will address his points when I wind up. 

Mr Lammy:  The Minister gave three general reasons. None of the bodies that I have mentioned is about to be abolished. None of them would not be expected to follow equality duties. Indeed, we would expect our general practitioners and our nurses to take them very seriously. I hope that she respects the sincerity of my remarks in relation to black and ethnic minorities and that she can say something about them. Has she scrutinised these bodies and determined for herself which should be included and which should not? If she has, surely she can answer that question. 

Lynne Featherstone:  I took the intervention in the spirit in which it was made. I will come back to the right hon. Gentleman. I have not scrutinised every single one of the bodies myself, but I have asked my officials for specific answers to address the points that have been made, so that I can give the right hon. Gentleman a proper answer in due course. 

Under the Human Rights Act, it is a necessary criterion for bodies to be listed, and the courts have taken a narrow approach to what constitutes a public function. On that basis, we doubt whether certain museums and heritage organisations, some advisory and research organisations, and some trade promotion organisations, such as the British Wool Marketing Board, meet the necessary criteria. Such organisations have, therefore, not been listed. 

Stephen Phillips (Sleaford and North Hykeham) (Con):  In response to the point raised by the right hon. Member for Tottenham, it may be that the Sentencing Council for England and Wales is subject to the duties, because it is considered to be discharging public functions within the meaning of the 1998 Act. The Minister may not know the answer today, but could she indicate to the right hon. Gentleman and me whether that is why the Sentencing Council for England and Wales is not being included in schedule 19 of the 2010 Act? 

Lynne Featherstone:  I undertake to write to all members of the Committee with a specific answer on that point. 

Mr Lammy:  That would be helpful but I am surprised that in this Committee, the Minister is unable to address why every single body on the Equality and Human Rights Commission’s list was not included. I see, for example, that Remploy was not. She will appreciate the fantastic work that Remploy do in our communities for those with disabilities. Is it not to be expected that Remploy should follow an equality duty? Why has she excluded it? Surely that matter should be before the Committee this afternoon. Similarly, why would the British Council, which is charged with delivering critical work overseas on behalf of Her Majesty’s Government, not be included on such a list? I have not heard any proposals that the British Council is to be abolished. 

Lynne Featherstone:  I can lay out the broad points, as I have been doing, and I will come back on the specifics as soon as I can. The advice from the Department of Health was that the Royal College of General Practitioners and the Royal College of Nursing do not discharge public functions. 

Valerie Vaz (Walsall South) (Lab):  Is the Minister aware of the case of YL? It involved public functions pursuant to Birmingham city council’s arrangements. Would that be covered by the order? 

Lynne Featherstone:  I will come back to the hon. Lady on that point. My understanding from my officials is that YL would form part of it. 

We have laid out the broad principles, which I will repeat. First, some bodies no longer exist, or will not exist in future. Secondly, with some bodies, we doubt their influence on the equality outcomes. Thirdly, some bodies cannot be strictly deemed to be performing public functions, as defined in the Human Rights Act. I undertake to write to the Committee with answers to specific questions on specific bodies. 

We are confident that the final list meets our original aim, which was to ensure that we have listed all the key organisations that deliver public services, that are responsible for regulating or inspecting the delivery of such services, or that otherwise influence how such services are delivered. 

Fiona Mactaggart (Slough) (Lab):  The Minister has not mentioned one category, which is organisations that are about to exist. In the first consultation last August, the Department suggested that GP commissioning consortia would be included in the list of public bodies, but I do not see them there. Could she explain how they will be included? 

Lynne Featherstone:  I thank the hon. Lady. She is entirely right. GP consortia will be included, but it would not be legal to include them at this point, because they are not yet legal entities. When they are, we will make an order to include them. 

The order also makes a small number of consequential and supplementary amendments to the Equality Act 2010 and to other legislation. The purpose and effect of the amendments is explained in detail in the explanatory memorandum for the Joint Committee on Statutory Instruments. To summarise: the overall purpose of the consequential amendments ensures that the amended legislation is up to date and works correctly in relation to the 2010 Act. 

There are four such amendments in articles 3 to 5 of the order. The first amendment is to schedule 26 of the Equality Act 2010, which deals with amendments to other legislation. This amendment simply ensures that the definition of disabled person in the Housing (Scotland) Act 2006 refers to the Equality Act instead of the Disability Discrimination Act 1995, which has been repealed. 

The amendment to schedule 27 of the Equality Act 2010, which sets out repeals and revocations of other legislation, adds two new parts to the schedule. Those reflect repeals and revocations of other legislation that are consequential on the repeal of the race duty under the Race Relations Act 1976, which will happen when the new equality duty comes into force. 

The amendment to the Nationality, Immigration and Asylum Act 2002 removes redundant cross-references. The amendment to the School Standards and Framework Act 1998 requires school adjudicators, when they take decisions, to have regard to the obligations that are owed by local authorities and school governing bodies under section 149 of the Equality Act in relation to all the protected characteristics, not just race, as is the present position. 

The purpose of the three supplementary amendments in articles 6 and 7 of the order is to correct inadvertent omissions or drafting errors and ensure that the provisions in the Equality Act work as intended. The amendment to paragraph 20(1)(b) of schedule 8 to the Act puts right an incorrect technical reference relating to cases where a reasonable lack of knowledge of a person’s disability would mean that the duty to make reasonable adjustments does not apply. 

The Equality Act wrongly describes the arrangement for appeals to be made in respect of exclusions of disabled school pupils. The amendment to paragraph 14(4) of schedule 17 to the Act corrects the wording in relation to appeal arrangements for exclusions to reflect the arrangements in England and Wales respectively, where the pupil, the parent or both may bring an appeal depending on the pupil’s age. 

The amendment to section 27(1) of the Equality Act 2006 provides that the Equality and Human Rights Commission can make arrangements for the provision of conciliation services in respect of proceedings under section 116 of the Act about disabled pupils in schools. This was the previous position, which was intended to be carried over into the Equality Act 2010. 

I commend the draft order to the Committee. 

The Chair:  Order. May I remind the Committee that this is a debate on the order before the Committee this afternoon, not on wider issues? The order amends part 1 of schedule 19 to the Equality Act 2010, which lists the bodies to which section 149 applies. It is therefore perfectly in order to discuss whether a body should be included in the list, but it is not in order to have a wider debate on section 149. I hope that that is clear. 

2.42 pm 

Fiona Mactaggart:  Thank you, Mr Gale. It is a privilege to serve under your chairmanship of this Committee. 

Most Opposition Members had expected and, indeed, hoped that we would debate not only the order, but the specific duties as well. The specific duties are clearly set out in the evidence that the Equality and Human Rights

Commission gave in response to the Government’s consultation. Their primary role is to support the implementation of the general duty that we are discussing—to guide bodies on how to comply with the general duty—and ultimately to further the aims of the general duty by advancing equality to further the public good. Conversely, failure to implement the specific duties should clearly indicate the probability of non-compliance with the general duty. 

Some organisations are missing, and my right hon. Friend the Member for Tottenham has mentioned some. The Chancellor told us earlier today that the Office for Budget Responsibility is now a legal entity. It seems to me that there can be no doubt that it is a public body, and one would expect it to be listed in the order even if, as the Minister has said, the GP commissioning consortia quite reasonably cannot be included until they exist formally in law. 

We need to name bodies to ensure that they have the equality responsibilities under the legislation. As my hon. Friend the Member for Walsall South pointed out, the case of YL decided that a body that most people thought was providing public services—a care home, providing care to an elderly person with dementia, and organised and largely paid for by Birmingham city council—was not providing a public function. It is therefore important that we have real clarity about which bodies are included. 

Mr Lammy:  The Minister did not suggest any urgency, so given that we do not have the criteria for the organisations left out, does my hon. Friend not think that the order should have been suspended and brought back on another occasion, when we would have the information before us and could debate it properly? It is not appropriate for the Minister to say that she will reply to the Committee subsequently by letter when we do not know which criteria stand against which organisation. I cannot understand why, for example, the Criminal Cases Review Commission is not subject to the public equality duty. 

Fiona Mactaggart:  My right hon. Friend makes a reasonable point, but I will resist his suggestion because the legislation comes into force on 5 April—we are already in the last-chance saloon—and it would be quite improper not to have a list such as that in the order. Even if the list is flawed—I am prepared to accept that suggestion—we still need a list. It would be wrong not to agree to the proposal. 

Let us work out how we reached the current situation. It is worth reviewing the progress of the statutory instrument, the process of consultation and so on. The initial proposals came in June 2009, and a policy statement on implementation was made in January 2010, under the previous Government. I am not planning to blame the present Government for things going back that far, and I quite understand that a new Government coming into power want to look again at the impact of the legislation—so no blame there. However, what happened then? 

A new version of the statutory instrument, with significant amendments, was published in August 2010 and a consultation was held. The consultation ran until

November and included the evidence from the Equalities and Human Rights Commission, quoted by my right hon. Friend, that suggested additional bodies for the list. There were 600 responses in all, not only from lobby groups, voluntary groups and so on, but two thirds came from public authorities that would be caught by the duty. We can be confident that the consultation engaged those who were directly affected. 

The Government produced a response to that conversation in reasonably good time, with draft regulations, on 12 January 2011. The Minister will discover that quite a long time has passed since then, while I have been expecting the Delegated Legislation Committee to sit. Things have been going through the Joint Committee on Statutory Instruments and such, but not much has been happening. Then, on 17 March—I am not sure what date it is today, but not very long ago—a written ministerial statement was issued, saying, “We’re not sure we got it right. We’re going to have another consultation about a bit of this,” even though the duty will come into force on 5 April. 

The new consultation will, understandably, be a short one, because the Government have already consulted once. Interestingly, part of the draft regulations stated that a public authority could set itself one statutory ambition a year in its equality duty, but as a result of the responses to the first consultation, it was decided to change that to one or more. Now, on 17 March, it has been decided to change it back again. It is a bit like the Grand Old Duke of York; we are being marched up to the top the hill and then marched back down again. The duty comes into force on 5 April, so we require a list. Having the list is important because of the case of YL, in which there was a narrow 3:2 judgment. 

Mr Andrew Love (Edmonton) (Lab/Co-op):  Is it not intolerable that we keep getting different lists? When we ask Ministers whether or not additional bodies are included, they simply do not know. Although I expect that the list will be updated, surely today we should have some idea what that final list will be. 

Fiona Mactaggart:  That is a matter for the Minister, not for me. 

I have a concern about the way that the Government have flip-flopped on this. The new bodies in the national health service are significant. I do not want to disrespect my right hon. Friend’s comments about the British Council, but we are not talking about the British Council: we are talking about the bodies that will be the main commissioning bodies for our health service. Given the account that I have just given about the consultation and the changing of minds that has gone on during the consultation, the Committee will understand why I want a specific reassurance that there will be a mechanism that can ensure in a timely fashion that such bodies know that they are responsible and that they are included in the list. The list is not just a list of public bodies; it is a list of those bodies to which specific duties can apply. 

Our honourable Chairman pointed out that we are not supposed to talk about the specific duties today—I will follow his guidance—but they are a mechanism to enable such public bodies to fulfil the duty that they are listed to fulfil. These two things have been pulled apart in a fairly brutal separation. That certainly was not

originally intended by the Government. They originally intended to deal with these matters together. I am quite confident of that because the consultation dealt with them together. It was not until question 8 in the consultation that respondents were asked which bodies should be listed. The first seven questions in the consultation were all about what the duties should entail, how they should be organised and how the equalities scheme and its achievements should be publicised and so on. 

The bit that we are discussing was the back end of this responsibility. But it is a very important back end. First, as I say, clarity about what is a public body is necessary because there is a lack of clarity following legal judgments. Secondly, clarity about which public bodies are in the list is necessary because only the bodies mentioned on the list will be subject to specific duties and specific duties are the most effective way to deliver the equality duty. Consultation on how the legislation will work is continuing beyond the start of the legislation, so it occurs to me that something has been happening. 

I am sure that the Minister is committed to promoting equality within the public sector and promoting the three legs of this duty, which are reducing inequality, promoting equality of opportunity and promoting coherence and cohesion between groups and so reducing conflict between protected groups, but the statement on 17 March suggested that someone in government did not like that very much. It would be interesting if she was prepared to tell us how that occurred, although I am not sure that she will. 

We would all love to know what happened between January and March. Was the delay caused by the fact that we were able to show how the Government blatantly ignored their equality duties in, for example, the comprehensive spending review and the Budget, which bore three times as hard on women as on men? Was it caused by the difficulties that the Secretary of State for Education has got into with Building Schools for the Future and the equality duty in that respect? What occurred between January and March to cause the Government not to do their usual flip-flop, but to do something close to a U-turn on how the order should proceed and what the specific duty should be? That is the question that would be the most interesting one for the Minister to answer, and I look forward to seeing whether she will do so. 

2.56 pm 

Lynne Featherstone:  Some 27,000 bodies are on the list, so I can forgive the hon. Member for Slough for not knowing every one of them. The general duty of whether someone is on the list applies to every organisation that discharges a public function, whether or not it is listed. As I have said, the list fulfils two purposes: first, to provide clarity and to avoid doubt; and secondly, as she said, to apply specific duties. 

We are not discussing specific duties; nor are we discussing the Budget or the comprehensive spending review. However, this Government and this Treasury team have done more work on impact assessments than any before. As I have said, the most important thing is that any organisation that executes a public function is subject to the duty, whether or not it is listed. 

Fiona Mactaggart:  On more being done by this Government on equality and impact assessments and other things, does the Minister accept that an equality impact assessment is only required when there is a risk to equality from policy? One of the reasons why the previous Government did not do as many equality impact assessments is that they did not make things more unequal in the way that this Government have. 

Lynne Featherstone:  We could go on all day. I could raise issues such as the 10p on tax or the 75p rise in pensions, but that would distract from the argument, and I might strain your patience, Mr Gale. 

It is important to distinguish between the general duty that comes into force on 5 April and the specific duty regulations. All bodies listed in schedule 19 and those that exercise public functions will be under the duty from 5 April. The purpose of the specific duties regulations is to enable the better performance of the duty. We will move forward on that. We are not allowed to discuss that today, although that would be interesting. 

On the hon. Lady’s questions on the Office for Budget Responsibility, which came into being only yesterday, the duty will come into force with the regulations that make it a legal entity. Issues were raised on the Sentencing Council, which was considered and rejected for two reasons: first, it has limited impact on equality, as it sets broad guidelines for all; and secondly, judicial functions are exempt from the equality duty. 

The additions to the list were agreed in discussions between officials in the Government Equalities Office and the EHRC. They met to discuss the bodies in the schedule. Some bodies were added, but we felt that whether some bodies carried public functions or whether they had an impact on equality was unclear. They were unable to determine which public functions were exercised by Remploy—the right hon. Member for Tottenham raised that issue—or by a number of other organisations. 

Mr Lammy:  Is the Minister confirming that there was no ministerial oversight of the list? As the Minister for Equalities, did she look through the list comprehensively to determine that officials did as she would have expected? Does she stand by the list in front of her? 

Lynne Featherstone:  I stand by the list, even though there are more than 27,000 bodies on it. I think that answers the question. 

Mr Lammy:  I asked the question in relation to the bodies that were left off the list. 

Lynne Featherstone:  In meetings and discussions with my officials, I took on board their recommendations. They put in the time and effort to consider whether the criteria were fitting. In that sense, I stand by the list. 

Stephen Phillips:  Does the Minister agree that her job as Minister is to establish the principles by reference to which the public bodies that might be listed in schedule 19 will be considered for listing there? Her job is not to go through the many hundreds of thousands of public bodies that exist in this country—far too many in my opinion—and decide whether each body ought to be listed in schedule 19. With the greatest respect to the

right hon. Member for Tottenham, his question and the way in which he is trying to turn this into a party political debate about the Minister’s competence displays a remarkable naivety, as I am sure she would agree. 

Lynne Featherstone:  I thank my hon. and learned Friend. Of course that is the case. We take as much care as we can and we take our officials’ advice, as they are the ones who have the duty to go through the hundreds of thousands of bodies that exist. 

Mr Lammy:  Will the Minister give way? 

The Chair:  Order. The Minister is not giving way. 

Mr Lammy:  On a point of order, Mr Gale. Is it appropriate that the rights of women in relation to the Human Fertilisation and Embryology Authority are not subject to debate this afternoon? 

The Chair:  That is not a point of order for the Chair; it is a point for debate. 

Lynne Featherstone:  The hon. Member for Slough asked how other bodies could be added to the list in a timely fashion. Additional bodies may be listed for the equality duty by using a new order. 

Fiona Mactaggart:  Would that process happen faster than this one? Like me, I do not think that the Minister is content with how long it has taken the order to come

before the Committee since the consultation took place. I am concerned that we might face a similar delay if new organisations are added. Can she assure us that we will not? 

Lynne Featherstone:  I can assure the hon. Lady that we will go as fast as possible, within parliamentary procedures. The order to amend schedule 19 was laid before Parliament on 14 February. 

Fiona Mactaggart:  The order that was laid before Parliament on 14 February was different and related to other specific duties. 

Lynne Featherstone:  As the hon. Lady knows, those specific duties have gone out for a further short consultation. In closing, I would like to thank members of the Committee for their contributions to the debate. I have just received recent information: “No, it wasn’t.” Anyway, I do not think that we need to delay and have a to and fro on that. I am delighted that we are now implementing the equality duty, which demonstrates the Government’s commitment to promoting fairness and equality of opportunity. I commend the order to the Committee. 

Question put and agreed to.  

Resolved,  

That the Committee has considered the draft Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011. 

3.4 pm 

Committee rose.