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.