Draft Equality Act 2010 (Specific Duties) Regulations 2011

The Committee consisted of the following Members:

Chair: Mr Christopher Chope 

Brake, Tom (Carshalton and Wallington) (LD) 

Cox, Mr Geoffrey (Torridge and West Devon) (Con) 

Cruddas, Jon (Dagenham and Rainham) (Lab) 

Ellis, Michael (Northampton North) (Con) 

Featherstone, Lynne (Minister for Equalities)  

Flynn, Paul (Newport West) (Lab) 

Johnson, Joseph (Orpington) (Con) 

Lammy, Mr David (Tottenham) (Lab) 

Lewis, Brandon (Great Yarmouth) (Con) 

Lumley, Karen (Redditch) (Con) 

McFadden, Mr Pat (Wolverhampton South East) (Lab) 

Mactaggart, Fiona (Slough) (Lab) 

Murphy, Paul (Torfaen) (Lab) 

Rutley, David (Macclesfield) (Con) 

Shannon, Jim (Strangford) (DUP) 

Stride, Mel (Central Devon) (Con) 

Tami, Mark (Alyn and Deeside) (Lab) 

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

Alison Groves, Committee Clerk

† attended the Committee

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Second Delegated Legislation Committee 

Monday 11 July 2011  

[Mr Christopher Chope in the Chair] 

Draft Equality Act 2010 (Specific Duties) Regulations 2011 

4.30 pm 

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

That the Committee has considered the draft Equality Act 2010 (Specific Duties) Regulations 2011. 

It is a great pleasure to serve under your chairmanship, Mr Chope, and I am pleased to be leading this debate and to have the opportunity to explain the Government’s approach to the regulations. On 5 April, the Government brought into force the new single equality duty contained in section 149 of the Equality Act 2010. That duty requires public bodies and those discharging public functions 

“to have due regard to the need to eliminate discrimination, harassment;…advance equality of opportunity; and…foster good relations between persons who share a relevant protected characteristic and persons who do not share it.” 

The requirement to have due regard to the need to advance equality of opportunity and foster good relations applies to the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. 

Just as with previous race, disability and gender equality legislation, the duty aims to ensure that the consideration of issues of equality forms part of the day-to-day routine of decision making and the operational delivery of public bodies. The new equality duty will follow the same structure as previous duties and be underpinned by the specific duties that we are discussing today. 

The purpose of the regulations is to help public bodies in the better performance of the equality duty—we should not lose sight of that key point during the debate. The general duty is the key provision, which is in place and is broader than previous duties. The specific duties are designed simply to help public bodies to perform the general duty better. 

With these regulations, the Government are proposing a radical new approach. As members of the Committee will be aware, the previous Government believed that the best way to help public bodies to comply with earlier equality duties on race, gender and disability was to impose detailed and prescriptive process requirements. Public bodies had to produce equality schemes, action and engagement plans, staff training schedules, annual reports and so on. Through guidance, they were also encouraged to produce vast equality impact assessments. The net effect of that was to bury public bodies under bureaucracy. This Government are committed to reducing burdens on public bodies, moving them away from bureaucratic processes. 

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Mr David Lammy (Tottenham) (Lab):  The Minister cannot be suggesting that a race impact duty, the procedure undertaken by local authorities to ensure that they do not discriminate against black and ethnic minorities, could be described as a burden. Did I mishear? 

Lynne Featherstone:  I do not think that the right hon. Gentleman misheard, but he may have misinterpreted my words. The burden was in the bureaucracy, not in the need to ensure equality. 

As I said, the Government are committed to reducing burdens on public bodies, and our aim is to shift public bodies from bureaucratic accountability to democratic accountability, with a key focus on transparency. Instead of the process requirements of the past, we propose just two specific duties: public bodies listed in the regulations should publish information to demonstrate their compliance with the equality duty, and they should set themselves equality objectives. 

Fiona Mactaggart (Slough) (Lab):  The original draft of the regulations required “sufficient” information to demonstrate compliance, but the word “sufficient” has since been deleted. What is the consequence of deleting that word? Is insufficient information sufficient for the purposes of the regulations? 

Lynne Featherstone:  No. As I continue my speech, that point will become clear. The information that must be demonstrated is that which would enable a member of the public to hold that public body to account. That is the duty. 

Mr Lammy:  I hope that the Minister will appreciate that, in matters of equality, the community impacted on is, by necessity, often a minority community, and sufficient information is important. For the minority—perhaps an ethnic minority in a rural part of England that is experiencing discrimination—the ability to use that democratic challenge is quite difficult. 

Lynne Featherstone:  I understand the right hon. Gentleman’s point, but the word “sufficient” does not add anything in legal terms. I hope to make clear what a public body has to demonstrate. We are following similar processes but the prescriptive nature is removed, thus allowing public bodies to choose how to demonstrate their progress towards the equality objectives more clearly, so that they can be held to account. Instead of the process requirements of the past, there are only two specific duties. 

As for the information—this deals with the right hon. Gentleman’s point—we expect public bodies to publish information that will be useful to the public in holding them to account. It might include details of how they considered equality issues when exercising their functions, the information that they relied upon and whom they had spoken to, but we shall put all that into guidance. The key, however, is that we do not wish to be prescriptive. 

Public bodies will have the flexibility to publish the most relevant information that they have, whatever it is, but not everything that is involved in the process of arriving at their equality outcomes. The point is to provide what is relevant and important to enable citizens, local groups or whoever to hold them to account.

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Our only stipulation is that they should include information relating to persons who share a relevant protected characteristic and who are affected by their policies and practices—for example, how a local authority’s provision of social housing affects women or people with disabilities. Additionally, those public bodies with 150 or more staff are required to publish that information in relation to their own employees. 

All public bodies listed in the regulations except schools have to publish the information by no later than 31 January 2012 and at least annually thereafter. Schools must to the same by 6 April 2012, and at least annually thereafter. The additional time for schools—it is an extra term—is intended to help them to prepare for and implement the new regulations in compliance with the preparation time scales for regulations on schools, as recommended by the Merits of Statutory Instruments Committee. 

As for the objectives, each public body listed in the schedule must prepare and publish one or more specific and measurable equality objectives. For example, they might aim to increase the percentage of people from ethnic minorities whom they employ over the business cycle to reflect the local population; or they might aim to increase the percentage of older people who access a service over that period, to ensure that the service genuinely promotes equality of opportunity for all. All public bodies are required to publish those objectives by no later than 6 April 2012, and at least every four years thereafter. That will ensure that public, voluntary and community sector organisations understand the key inequalities that public bodies are aspiring to tackle and to track progress against them. 

Mr Lammy:  The Minister will recall that, when the matter was debated in the House, a lot of emphasis was placed on having a positive duty. Will she explain what will happen if public bodies do not publish? She says that they should aim to publish, but what happens if they ignore the number of ethnic minorities that they employ or the elderly in their communities who want to come forward? I am worried that we are losing any sense of a positive duty. The emphasis is very much on what the Government would like them to do, not on what they should be doing. 

Lynne Featherstone:  I think that the right hon. Gentleman misunderstands: this is a point of law. Public bodies must publish information that is relevant. That is a duty—it is not optional—and it will be enforced by methods that I shall describe. Individuals should be able to see such information and challenge that authority, and if they do not get a satisfactory answer, they can go to the Equality and Human Rights Commission, which will enforce the duty to comply. 

Mr Lammy:  The Minister says that public bodies must publish information that is relevant. Is the test of what is relevant objective or subjective? Is it what I would like to publish, or is there some requirement about what is published? If someone who is part of an ethnic minority feels discriminated against, perhaps because they live in a rural area and cannot access services, is the information that is published what the local authority would like, or is there some objective analysis of what must be published? 

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Lynne Featherstone:  There are two things there. The public body will choose which information it believes is the most relevant to publish, to demonstrate that it is achieving its equality objective. The individual will have the right to challenge and the right to data and can request any information that is held by that authority. Under the Protection of Freedoms Bill that is going through Parliament at the moment, the data that must be released have been increased to include anything and everything that the public body holds and must be published in a usable, comparable and accessible manner. As the hon. Member for Slough said in the Chamber, holding public bodies to account should be understandable and easy to do. The Government Equalities Office and the EHRC will work on the guidance with public bodies to ensure that people understand how to challenge. 

The objectives must be published no later than 6 April 2012 and every four years thereafter. Let me take the opportunity to explain why we are proposing that all public bodies, except schools, publish their information in advance of setting their equality objectives. It is to help ensure that the public and voluntary and community sector organisations have the opportunity to review the data based on which public bodies set their objectives. Therefore, before anything happens, objectives can be measured. That key element of Government policy will ensure that public bodies’ work on equality is transparent and accountable to the people whom they serve. 

Committee members will be aware that there was a full public consultation on an earlier draft of the specific duties last year and a further public engagement exercise earlier this year. The Government are grateful for the many responses that we received and have considered them carefully. Plainly, the regulations have sparked a good deal of debate. As Opposition Members mentioned, some equality lobby groups would have liked us to set very prescriptive regulations, particularly about what needs to be published. Equally, other organisations would have preferred us to have set no regulations at all. The Government have been careful to steer a path through such competing views to ensure that the regulations promote equality and drive transparency and accountability, but without burdening public bodies with bureaucracy. 

The position that we have reached—requiring public bodies to publish information to demonstrate that they are complying with the law, while giving them the freedom and flexibility to publish the most useful information that they have—is the best possible outcome. In particular, it will enable public bodies to publish information that is proportionate to their size and type. For example, some smaller local authorities were concerned that complying with the earlier proposals would have been too onerous and expensive. The Government have listened to that view, too. 

The need to publish information will ensure that public bodies continue to consider equality when making decisions. They may choose to publish the information that they have considered, their analysis of it and any engagement that they have had with relevant stakeholders and parties in regard to it and so on. Our guidance will make that clear. However, crucially, the regulations will ensure flexibility, so that public bodies are not burdened by the need to comply with very prescriptive requirements. I think that that is the right balance, and I commend the regulations to the Committee. 

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4.44 pm 

Fiona Mactaggart:  I am glad to be appearing under your chairmanship this afternoon, Mr Chope. I thank the members of the Committee for being here rather than in the Chamber, where many of us would like to be. 

It is important that we are here because the duties are critical in delivering the public sector equality duty. Their point, which one could be forgiven for not understanding from reading them, is that they assist public sector authorities in delivering their equality duty. 

Those duties have been through three separate rounds of consultation. On 5 April, the Minister started by ignoring some of the previous rounds, a bit like the grand old Duke of York going up and down hills. The last round was announced at very short notice with a consultation period of only one month, as opposed to the standard three months. That has led to frustration for the overstretched equality and diversity sector, and for public bodies that are looking for clarity about their duties. The approach that has been concluded with is at odds with the Government’s ambition to reduce unnecessary bureaucracy. 

Perhaps the Minister will apologise for the chaos, but I doubt it. The problem is that the newly elected Government suggested initially, for example, that it would be all right to have one or more specific equality duties when the response in the initial consultation queries how one objective could possibly cover a public authority’s range of responsibilities in relation to equality. They then stepped back and revised it, but someone in the Government thought, “Oh gosh, we’re having a bad time in the courts with judicial reviews and so on, so perhaps we should make it easier for people.” They then went in the other direction again. 

That suggests that the Government lack clarity and determination about equality—lack of clarity about how to get there, and lack of determination and ambition about their aims. Perhaps the Minister will explain more clearly how a single objective can enable a public authority to meet the range of its equality duties. I cannot think of any public body that can do that with just a single objective, and it would be interesting to hear how she believes that can be done. 

Another point to note is that the regulations are a step back from the level of current specific equality duties that public authorities are used to under the provisions on race, gender and disability. The Equality Act 2010 brought together existing equalities legislation with its specific equality duties, and added additional equalities-specific protected characteristics. 

The Equality and Human Rights Commission’s submission, in its response to the Government, said that the vast majority of its respondents found that the existing specific duties, which are more specific than those that the Committee is being asked to approve today, were useful in assisting them to make progress with equality. 

The commission recently carried out research into how schools in England and Wales were using specific public sector equality duties to improve outcomes for pupils. It indicated that academy schools treat the duties very seriously, and are mainstreaming equality work in their school development plans, as are all schools. It

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reports that duties are creating more positive outcomes for pupils, including better access to facilities, feeling valued, developing higher aspirations, and narrowing gaps in performance and participation in sport. The report is accompanied by in-depth case studies. 

Those are practical examples of how specific duties can give proper guidance to public bodies, whose main job is often not about equality. They want to deliver their main job—providing education, health, parks and so on—but in a way that has equal outcomes for all those who are covered by it. They need specific guidance on how to achieve that. 

The Acts were constructed to create both a general duty and specific duties so that the specific duties could really help public bodies—something that the Government do not quite get. They have ignored the fact that detailed, specific duties, which have existed since 2006, have provided good guides for public authorities. 

Research done in 2009 on the cost and effectiveness of the specific duties showed that the overwhelming majority of respondents considered that they were delivering equality improvements as a result of their work on the implementation of specific duties. Only a minority felt that specific duties required them to take disproportionate action. That is the minority to whom the Government have listened, not the majority of respondents, who believed that specific duties were reassuring. Indeed, in the first round of consultation on transparency in August 2010, the Government asked respondents whether the regulations, as then drafted, reflected the aims of transparency. The split in the views of respondents was striking. Most were public authorities; 33% of respondents said, “Yes”, but 42% said, “No”, or that they were not sure that the regulations reflected the aims of greater transparency. Many requested greater clarity and guidance on what types of data should be published. 

The same split was reflected in the aims for work force transparency and, to some extent, in public service provision. It seems that the response of the bodies that bothered to reply to the Government’s series of chaotic consultations is that the direction of travel, which the Minister has chosen to adopt, is the opposite direction to that for which they argued. The EHRC study also found that the specific duties had provided an effective mechanism for focusing action, and had made a positive impact on organisations’ policy and service delivery. Those studies demonstrate the value of specific duties, if they are sufficiently clear. I must say to members of the Committee that the duties are clear and general in driving equality outcomes, without necessarily creating burdens. A limited, but structured process also enables public bodies to assess their own progress. 

We also have additional protected characteristics in relation to which, until now, public authorities have not had any duties. The previous duties in respect of race, sex and disability now have added to them those of age, gender reassignment, pregnancy and maternity, religion or belief and sexual orientation. Will the Minister give an example of when one equality objective can deal with such matters, because it floors me? I am really looking forward to her answer. Page 5 of the more recent consultation document states: 

“Under the requirements of the general duty to have ‘due regard’ to the matters set out in the Act, public bodies will need to understand the effect of their policies and practices on equality—this will involve looking at evidence, engaging with people, staff,

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service users and others and considering the effect of what they do on the whole community. Information to help public bodies comply with the duties and understand what constitutes good practice will be delivered through guidance, not regulation.” 

Previously, much of what was referred to was in regulation so a public body could look at the regulations to see what it had to publish. It saw that it had to publish information such as the evidence on which it had depended in drawing up its policy objectives, the engagement that it had had with people and so on. It is completely unhelpful to public authorities for the information requirement to be removed from the specific duties, even if it appears in the guidance. The Government are cutting the resources available to the EHRC and then giving it the job of implementing something much more complex that was previously the Government’s job. That will confuse public authorities and lead some to believe that less is required of them. I have heard it suggested that the reason why there are fewer requirements in the specific duties than there were previously is indeed that less is required of public authorities. I want a clear statement from the Minister that section 149 of the 2010 Act, which provides for the public duty, has not been watered down in any way by the change in the specific duties, but that the same duty remains on public authorities to promote and secure equality. 

The problem with not putting such duties in the regulations is that we now put poor public authorities, which include little primary schools as well as big NHS bodies, through the business of reading more documents, and, if they are taking time to perform their duties properly, working out what action they need to take, whereas in the previous specific duties it was fairly straightforward and people knew what the regulations required of them. 

Regulations must make it clear that compliance with the duties should not be seen as an optional extra. The use of the phrase “one or more objectives” in regulation 3(1) suggests that it is possible to comply with the general duty in section 149 in respect of prohibited grounds by setting one objective. Will the Minister tell us how one objective can satisfy all such things? Under previous legislation, bodies had to report every three years. Now there will be one objective every four years. Frankly, that is pretty pathetic compared with previous requirements under three separate laws to set objectives and report every three years. 

The previous Government recognised that having three separate laws created unnecessary confusion and bureaucracy in public bodies. That is why we created a single Equality Act. However, the Minister’s bunking out of clarity in regulations will mean that more authorities are at risk of not fulfilling their legal duties, because section 149 is clear: 

“A public authority must, in the exercise of its functions, have due regard to the need to— 

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; 

(b) advance— 

not merely promote— 

equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; 

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.” 

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“involves having due regard, in particular, to the need to— 

“(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; 

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; 

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.” 


“involves having due regard, in particular, to the need to— 

(a) tackle prejudice, and 

(b) promote understanding.” 

I do not know how that can be done with just one objective; it will require a miracle worker. I look forward to the Minister’s explaining how that miracle can be worked. 

The Government have recognised the problems created by unclear regulatory requirements in the Treasury infrastructure report. Indeed, the Minister referred to my question today to the Minister of State, Cabinet Office, who specifically said that there would be central requirements. He said that citizens cannot be expected to make judgments unless there are standardised data as well as objective data in standardised form.

It would be a huge help to public bodies if the regulations provided guidance, as previous regulations have done, on what kind of standardised data they are required to produce. It is a pity that they do not, as that will create confusion. One response from the bodies is that some are likely to over-comply to safeguard their legal position. As hon. Members will realise from the duties that I read out, their legal position is fairly onerous—they have substantial duties. That in itself will lead to an increased burden and an undue focus on process at the expense of outcome. At a time when public bodies are under financial constraints and intense scrutiny, there is a risk of increased challenge from their service users and employees, including an increased risk of litigation through the courts. 

The Minister knows that the Fawcett challenge to the Budget makes it clear that, with or without helpful regulations for the specific duties to comply, public bodies need to conduct some analysis of how their policy impacts on protected groups. A reading of this set of regulations, which is supposed to help public bodies comply with their duties, suggests that they do not have to conduct such an analysis. Yet it is quite clear from the courts’ decisions that they have to do that. Will the Minister explain why she has not made clear in these regulations that they risk judicial review—an extraordinarily expensive and burdensome way of holding a public body to account—if they fail to do so? 

The Equalities and Human Rights Commission predicts that there are likely to be more judicial reviews if there are less specific criteria. With these specific duties, it is harder for a public body to show that it has complied with section 149, not to mention the fact that it will be harder to comply because the courts will, as the Minister suggested through nodding, continue to interpret the duty in the way that they have done previously. She has made it clear that she does not believe that the duty is any lower than it was. If the specific duties on public

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bodies do not help them comply with the overall duty in the primary legislation, we will have more judicial reviews. It would therefore be helpful if the Minister confirmed, verbally, that the present duty under section 149 is not affected by the regulations. 

The commission’s view is also that it should not have to use its regulatory powers at an early stage. It should be able to be more strategic. If the regulations and specific duties provided clarity, the commission would not have to intervene. It can illustrate what good looks like, through guidance, but it cannot address the question of, “What must I do?” That should be the job of the regulations, and the regulations have failed to do that. If the regulations were clear and unambiguous, the commission could focus its regulatory activity on strategic areas where it could have most impact. 

Finally, on accountability, the ambition of the regulations, as set out in the Government’s initial consultation, is to ensure that the specific duties, which support the general equality duties, are effective and deliver real transparency and democratic accountability. However, deleting the word “sufficient” removes any sense that the information that public bodies publish needs to be of a commonly-agreed standard to meet the requirements of the general duty, thereby further reducing the clarity of the regulations. Democratic accountability depends on the public and public sector employees being able to compare the equality performance of similar bodies. That will be possible only if bodies publish information that relates to the same issues and is measured in a standard way. It is not clear from the statement made in the House by the Minister of State, Cabinet Office, how a school, for example, will know what specific information it is required to publish to demonstrate compliance with the regulations. The initial specific duties set out that kind of information, but those before us today do not.

The word “transparency” has been scattered throughout consultations on the legislation and should guide good governance. Access to information has to be timely, accessible and appropriate to the objective of achieving transparency. People should be able to see and challenge what is happening or decisions that are being made, and information must be presented in an accessible form and not as a mountain of inaccessible raw data. Neither should the process consist of box ticking. If information is to be used by people who are affected by decisions, it must be accessible at the time those decisions are made. Data provided a year after a decision is taken will not help people to influence that decision. 

If public authorities are to facilitate transparency, they will need to publish their analysis of the information and their key conclusions about the way in which equality might be affected. The previous regulations made it clear that that was part of the job of public bodies, but those before the Committee today do not. Every public body, whether a tiny primary school or a big Department, will have to work out the regulations for themselves, and I suspect that that reflects a failure of the Government as a whole to recognise the importance of equality legislation. I think that the Minister believes that active engagement with the recipients of services and employees, particularly those from protected groups, is likely to lead to better and more appropriate decision making. Why, therefore, is it that not made clear in the regulations? 

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We have ended up with a muddle. Local authorities and public bodies are not sure what is necessary and what makes a difference. The Government have failed to provide clarity, which means that public bodies will face confusion. I think that the Government have made efforts to get themselves off the hook. Public bodies that provide services, however, have been put right on the hook because the Government have not been clear about how equality can be delivered. Problems have been delegated to others such as the EHRC, local public bodies and the armchair citizens’ regulators. That does not show ambition from the Government to generate more equality and do the things required by section 149 of the Equality Act 2010. The Government are doing the least that they believe they can get away with, and they should be ashamed of themselves. 

5.8 pm 

Mr Lammy:  I do not want to detain the Committee for long, but I am not minded to vote for the regulations and want to set out the reasons why. The Government seem to have placed emphasis on section 149 of the Equality Act by describing the entire important area of legislation introduced by the previous Government as a burden. They are effectively arguing that less is more. There are, of course, occasions in which less is more, and we must ensure that public authorities are not overwhelmed by bureaucracy and reams of paper, or made to undertake exercises that serve no useful purpose. It is, however, important to put on the record that during the long march to equality that dominated much of the 20th century, thank God, Martin Luther King never said that less is more. 

Equality is hugely important for those who may suffer from a disability and experience discrimination. Many of us will have been visited by constituents who have disabilities, who are vulnerable and who are particularly worried at this time because some of the benefits on which they have relied are being withdrawn. I want to live in a society where the burden is on the state. The burden should be on the public authority and not the vulnerable individual. 

I am deeply concerned that what the Minister has said amounts to a serious watering down of something that I had hoped that we had arrived at and something of which all hon. Members might have been proud. We now have less clarity, as my hon. Friend the Member for Slough rightly pointed out in her excellent contribution. Where we had regulation—we had such regulation because of a long history of discrimination and prejudice —we will now have solely guidance. Public authorities will be left on their own. What does that mean? If I was being generous, I would say that it makes it harder to discover what good practice is. What is good practice in relation to our employment policies when we look at the position of ethnic minorities in our areas? What is good practice when we look at our age profile and see that, overwhelmingly, we are employing young people and discriminating against those who are of a certain age? 

The first concern is that we will not get good practice and the second is that we will be left with pick-and-mix practices that are patchy across all local authorities in this country. We will be left with a lack of clarity, because we will now have guidance and not regulation. The emphasis today is not that this is something we

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want to see, but that this is a burden for public authorities. Wrapped up in what the Minister is saying are vague generalities. 

I was the Minister responsible for the Gender Recognition Bill. I remember how hard it was to make progress on behalf of people who suffer from gender dysphoria and who seek to change their gender, because of the deep prejudice that exists in parts of our society. It is really hard for those vulnerable groups. We are now saying that it is for them to jump through hurdles to challenge the public authority that is discriminating against them or even to examine what that public authority is doing to make their life easier. The burden is now on the vulnerable. That is the emphasis of what has been said. 

Where there was regulation, the vulnerable must now rely on guidance. That is unacceptable. I am deeply concerned that this important area has been watered down. I am not convinced by what the Minister has said. I happen to think that she does not genuinely believe some of what she is saying. In the past, she has stood by these issues. For that reason, I cannot vote for the regulations. 

5.13 pm 

Lynne Featherstone:  We have had a good debate. Both sides have been fully engaged on the matter. As I give credence to Opposition Members who want to achieve a more equal society, I hope that they understand that we have the same ambitions and aims in mind. However, we may choose to take a different route to get there. The specific duties mark a significant change in approach from the previous equality duties. I understand what the Opposition are saying. There was definitely an assurance and a comfort in going through processes and ticking boxes, but that does not mean that the desire for equality outcomes was any different. I just think that it was comforting to fill in the boxes, but that did not necessarily deliver the outcomes. 

Let me address some of the points that the hon. Member for Slough made. She talked about objectives. The Government want public bodies to set challenging objectives on their most pressing equality issues. There is no set number, but public bodies will have to account for all the protected characteristics across all functions and all three aims of the general duty. In the specific duties, they will have to publish information to demonstrate that compliance, but it has to be proportionate. She asked me for one objective that would cover everything. That is not the point; the general duty must be complied with. One part of the specific duties is the information that will enable that to happen. 

I would expect a large public body to set any number of objectives—20, 30 or whatever it felt appropriate to demonstrate that it could achieve its equality objectives—and to have the information and data that would deliver them. For a small rural primary school with a good record, between one and three might be the proportionate number of equality objectives, because it is already complying with the general duty. This is about the specific areas that it wishes to cover in particular and to make that demonstrable, so that anyone can hold it to account. 

I do not agree that the equality duty has been watered down: it is stronger. What has been watered down is the bureaucracy. The hon. Lady did not serve on the Committee

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that considered the Equality Bill; I did, and led for the Liberal Democrats. It is a very good piece of legislation, the vast majority of which is already enacted, and it deals with what the right hon. Member for Tottenham said by covering all groups. He mentioned the transgender community. I agree that that is a vulnerable group, but it is covered by the general duty. If there were such a specific duty, it would be an additional consideration. If a public body wants to make that a specific aim, it is covered anyway by the general duty. All public bodies must demonstrate that they are complying with the general duty. That is one of the specific duties. 

With regard to the consultation, as I said, there was plenty of debate. We believe that we have the balance right, by removing the bureaucratic processes while ensuring that we still deliver the equality objectives and the general equality duty. However, we have said that we will review the situation in two years. We are not just going to walk away from it the minute that the regulations are laid. We have comprehensive plans in place to monitor and review the implementation of the whole of the Equality Act over the next four years. 

We will particularly review the operation of the regulations in two years’ time. The review will consider issues such as whether public bodies have set themselves challenging enough objectives. Are public bodies publishing sufficient equality information to demonstrate their compliance with the equality duty? Is the right sort of information in the right format to enable the public easily to hold the bodies to account? Have public bodies engaged with and been challenged by the public and voluntary sector? It is impossible to envisage a situation where, to comply with the duties, a public body would not engage and demonstrate that compliance. 

Fiona Mactaggart:  The Minister says it is impossible to envisage a situation where a public body would not have done that. Why did that not remain in the specific duties as it was in the previous ones? 

Lynne Featherstone:  We are giving public bodies the flexibility to set their own equality objectives and demonstrate how they have reached them. If a public body could demonstrate that it was revamping inaccessible buildings to make them more accessible to people with disabilities, for example, how would it prove compliance with the duty if it had not consulted those with disabilities about how best to do that? That is what is expected. I have no doubt that that would be the case with public bodies, which have understood the equality agenda for many years. 

Mr Lammy:  Will the hon. Lady give way? 

Lynne Featherstone:  No. I want to make progress. 

The review will include a major survey of the public bodies and be representative of the different types and sizes of organisation. The guidance will demonstrate to the different sizes of public body and types of organisation the sort of information and what might be appropriate. The review will work hand in hand with public bodies, so that that is clearly understood. As I said, the purpose of the review is to ensure that there are no misunderstandings, because the coalition Government are determined to deliver equality. 

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Mr Pat McFadden (Wolverhampton South East) (Lab):  The Minister refers to public bodies. Do the regulations apply to private sector organisations delivering public services on behalf of the state—in other words, acting as public bodies because they have a contract to deliver a public service? 

Lynne Featherstone:  Forgive me; I did not hear the second half of the question. 

Mr McFadden:  I am asking the Minister to define the scope of the regulations. She refers to public bodies. Does this apply to private sector organisations delivering public services on behalf of the state? 

Lynne Featherstone:  No, it does not. 

The hon. Member for Slough asked about schools. At the moment, they may have several objectives. If a school thinks that its current practices work best, the regulations do not in any way prevent it from having as many equality objectives as it thinks serves its purpose in its locality. It is a far better judge of that than the Government in Whitehall. It is not for central Government to dictate what would be best for such a school. 

The previous Government’s consultation proposed a shift from process to outcome. We supported that aim but the previous proposals did not go far enough. We want to turn the previous duties on their heads so that public bodies can innovate and be held to account by the public. There can be no clearer demonstration of the advantage of publishing information and being transparent than MPs’ expenses. I do not think that anyone in the country had a problem with looking at that. 

The hon. Lady spoke about three consultations. There were two consultations by this Government; the other was by the previous Government. As I keep saying, this Government want to take a different approach and we will be judged on that. She referred to judicial review: the changes have nothing to do with the legal challenges to the Department of Education and the Treasury because, like all such challenges, they focused on the general equality duty rather than the specific duties. Our proposed changes would make no difference to the issues in those cases. 

The hon. Lady went back to the word “sufficient”, but it is not necessary. A public body either demonstrates its compliance with the general duty or it does not. The word “sufficient” does not add anything. The public body would be tested on whether it is compliant. The figures cited in relation to the earlier consultation show that a range of views was put forward and some were in favour and some against. We believe that this is the best way forward. A majority—the ratio was 60:40—felt uncomfortable, were worried and raised concerns. We understand those concerns and that is why we have said that not only will we work with them and have guidance to help them—both the GEO and the EHRC—but we will have a review in two years to make sure that that is working. We are determined that this system will have better outcomes than just the procedural processes that were there before. 

The hon. Lady asked about standardised data. I totally agree with her about that. It is extremely important that the data are accessible, understandable, comparable

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and usable. The previous duties did not provide guidance about that. The EHRC and the Government will provide guidance for public bodies to help them decide what information to publish. We think tailored guidance, which is appropriate for those different types of bodies, is much more helpful than a blanket legislative requirement. 

Section 149 is a much stronger duty than before. It is a really good, sound duty. As the hon. Lady made clear, public bodies must publish information to demonstrate objectives and compliance, and to show what they seek to achieve. That is a strong, not a weak requirement. We want the EHRC to focus its enforcement activity on the delivery of real equality, not on the performance of bureaucratic processes. 

Fiona Mactaggart:  Surely by requiring the EHRC to provide the guidance and do all the work, much of which was originally in the regulations, the Minister is moving the regulations from being outcome focused to process focused, because she is delegating to the EHRC the job of producing the guidance and helping people with the processes they need to achieve the outcomes. 

Lynne Featherstone:  Perhaps the hon. Lady and I have different visions of what the EHRC should be. In the coalition Government’s view, it should be a nationally respected and valued national institution, upholding equality and human rights. We are talking about an absolute core function of the EHRC and we want it to use its powers in a way that means that any person or organisation can hold a public body to account. If that body is found wanting, the EHRC can use enforcement powers or compliance duties at that point. It is not about a continual process, but the outcomes achieved. 

Mr McFadden:  I return to what I asked a few minutes ago: the regulations are supposed to be about allowing people to hold public bodies to account, but, in case the Minister has not noticed, there is a mixed economy of provision in public services. Many public services are provided by the private sector and very good charities. If the powers are important, why do they not apply to those people? 

Lynne Featherstone:  If they are exercising a public function, the general duty applies just as much as it does to a totally public body. 

Mr McFadden:  That is in direct opposition to the Minister’s answer a few minutes ago when I asked whether the power applied to private sector bodies delivering public services. I believe her answer was, “No, it does not.” Is she saying that she was wrong a few minutes ago? What is the position? We are confused. 

Lynne Featherstone:  I apologise to the right hon. Gentleman if I misunderstood his earlier question. [ Interruption. ] It was about the specific duties, but the general duty applies to those exercising a public function—I understood him to be asking about the specific duties.

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Section 149 is clear about what public bodies need to consider and there is also a body of case law from the previous duties to assist public bodies in having due regard to the relevant matters. The guidance will help public bodies translate that into practice. 

To sum up—[Hon. Members: “Hear, hear!”] Popular at last. The proposals are the right way forward. They achieve an appropriate balance between greater flexibility and reduced bureaucracy and will make public bodies accountable to the public who use their services rather than to Whitehall. To ensure that the regulations are working as planned, we have committed to reviewing them in two years. The Government commenced the equality duty in line with the demanding timetable that we inherited from the previous Administration. That clearly demonstrates our commitment to tackling discrimination and advancing equality of opportunity, as well as to ensuring that the public sector leads the way. I commend the regulations to the Committee.

Question put. 


The Committee divided: Ayes 10, Noes 7. 

Column number: 18 

Division No. 1 ]  


Brake, Tom   

Cox, Mr Geoffrey   

Ellis, Michael   

Featherstone, Lynne   

Johnson, Joseph   

Lewis, Brandon   

Lumley, Karen   

Rutley, David   

Stride, Mel   

Wright, Jeremy   


Cruddas, Jon   

Flynn, Paul   

Lammy, rh Mr David   

McFadden, rh Mr Pat   

Mactaggart, Fiona   

Murphy, rh Paul   

Tami, Mark   

Question accordingly agreed to.  


That the Committee has considered the draft Equality Act 2010 (Specific Duties) Regulations 2011. 

5.30 pm 

Committee rose.  

Prepared 12th July 2011