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I should explain that this amendment is the product of lengthy discussions between me, the Disability Charities Consortium and our legal advisers on the one hand, and the Government on the other. Together we have spent a great deal of time working out the best way of avoiding any regression from the disability equality duty on this vital point. I am delighted to say that there has been a meeting of minds and that this amendment is supported by the Equality and Human Rights Commission, the disability lobby, including the disability discrimination experts, and the Government. Yes, it can happen. I am therefore very hopeful that the Government will accept this amendment. It is a huge breakthrough and I extend my sincere thanks to all involved.
I hope that the Committee will allow me to explain in more detail why the amendment is so vital and what it will mean in practice. Clause 148, as drafted, requires public authorities to have due regard to meeting the needs of different groups and says that this may involve more favourable treatment, but only to the extent permitted by other parts of the Bill. However, this makes no explicit mention of the differentiation between the approach to disability and the approach to the other protected characteristics. What is required in meeting the needs of disabled people is vastly different from what is required for other groups.
For example, a deaf user of British sign language who requires a sign language interpreter cannot have his or her needs resolved through alternative means, in the way that, for example, a hearing person with limited English could, by taking English lessons to resolve the problem. A blind person cannot learn to read standard print to access information. A wheelchair user cannot use transport in the way that a non-wheelchair user can. Because of this, the law currently requires public authorities to have due regard to the need to take account of disabled persons' disabilities, even where that involves treating disabled people more favourably.
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Tonight I have a table. It suddenly appeared from nowhere. This is because I have a special requirement because I cannot hold papers. I do not think that anyone else requires that; it is specific to my disability. So thank you, the House.
As I have repeatedly explained to all those I meet, equality does not mean treating everyone the same; it means providing an environment where we can all access life's opportunities equally. Reasonable adjustments tailored to our particular disability-related needs lie at the heart of disability equality. Without them, we are marginalised at the fringes of society.
Baroness Wilkins: I shall continue my noble friend's speech from her notes on her behalf. Without amendment, Clause 148 would mean that when a public body is faced with the needs of disabled people, it could tend to take the same approach that it takes for other protected characteristics, such as religion or belief, where there is no provision or reasonable adjustments as such and where scope for more favourable treatment is narrower. It could result in public bodies thinking that they need to do less to take account of the needs of disabled people than they do under the current disability equality duty, and the consequences of that would be disastrous.
The amendments avoid that danger by reminding public authorities that a distinctive approach is required for disability, involving close attention to the needs relating to our particular disabilities. Those needs may require more favourable treatment and, of course, often demand reasonable adjustments. The amendments achieve this without in any way disturbing the provisions for addressing disadvantage faced by other groups.
I turn to the other amendments in this group. First, there were the amendments in the name of the noble Lord, Lord Ouseley, spoken to by the noble Baroness, Lady Young. While I am sympathetic to the aim of Amendment 108S, it could, as drafted, weaken the equality duty. It says that public authorities can do what they consider reasonable, appropriate and necessary. That would give them a larger degree of discretion and therefore greater scope for doing nothing.
Baroness Campbell of Surbiton: I do not support Amendment 108T. While I support the notation behind it, inserting this vital principle as a separate limb would divorce it from the overarching duty to advance equality of opportunity. I worry that this would mean that public bodies would not need to do anything to remove or minimise the disadvantages that we face.
I support Amendment 110A in the name of the noble Baroness, Lady Coussins. It would ensure the continuing transparency of public authorities in delivering equality, and therefore their accountability to disabled people-a major feature of the current disability duties.
I am truly delighted at the progress that we have made on this issue. I am confident that these amendments enable us to press on with delivering an effective new general equality duty for the public sector without the threat of regression on the disability equality duty-a regression that many of us feared.
Lord Lester of Herne Hill: My Lords, we fully support the amendments of the noble Baroness, Lady Campbell, for all the reasons she has given. We cannot
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Lord Hunt of Wirral: My Lords, this is such an important debate. It is a little sad that it is all grouped together because there are a number of different issues. As we have just heard from the noble Baroness, Lady Campbell of Surbiton, there are agreements and disagreements across the group. I have listened with great interest to the speeches of the noble Baronesses, Lady Young and Lady Coussins, and it is good to know of both the sympathy and support of the noble Lord, Lord Lester of Herne Hill. We have also received a briefing from the Equality and Human Rights Commission about this whole area and have done our best to consider its content very carefully.
Everyone is in agreement that the success of the proposals in the public sector equality duty rely on how effective it is and how much impact it has on reducing inequalities. We all want to ensure that the seemingly vague duty that is laid down in the Bill does not just result in some form of box-ticking exercise that will burden businesses for very little gain in reducing the inequalities it is supposed to tackle. For this reason, I feel that all the amendments in this group have sense at their heart and I understand that the intention behind them is to ensure that not only should due regard be paid to eliminating discrimination but that there should be a much more proactive element. The amendments try to ensure that public authorities cannot just take into account the need to reduce disadvantages between different groups, meet the needs of different groups and encourage participation in areas where it is low. They attempt to enshrine in legislation the necessity for real action to be taken rather than simply paying lip-service to having taken certain factors into account.
Nevertheless, having said that, and, I hope, having expressed sympathy with the intention behind the amendments, I am not sure they are the best way of ensuring the success of the measures. The requirement to "take account of" and "take such steps" seems already to be included under the duty. I am not clear, therefore, what these amendments would add. They would have the effect of requiring public authorities to identify and take which steps are "appropriate" and which are "necessary". This can obviously be flexible and with reference to the specific authority concerned. However, the object is that the commission should be able to take action against organisations which,
- "fail to identify strong enough measures to promote equality and if they fail to take such measures".
Does the Minister agree that the most important factor is to assess the outcomes of such measures rather than involve the commission too heavily in the process of identifying targets for each authority? Thank goodness some of my noble friends are not here as I have some responsibility for the concept of targets, I have to admit. I always felt that at least they were a way to point people in the right direction. But I have now learnt that there are some drawbacks to this process. It risks merely increasing the bureaucratic burden on businesses and organisations while not addressing the real issue, which I still believe, and I think everyone agrees, is achieving the right outcomes.
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The second issue contained in this group-
The Lord Bishop of Liverpool: The noble Lord said that he was not sure what the amendment would add to the Bill. I was particularly struck by the point made by the noble Baroness, Lady Campbell. She said that the Equality Bill was not about equality of opportunity, but equality of access. That point was powerfully made when a report about disability was brought before the General Synod of the Church of England. There was a fine debate and one of the most compelling points was about the equality of access. The clarity that is added by this amendment is that it emphasises the importance of access to services and not just equality generally.
Lord Lester of Herne Hill: Before the noble Lord concludes, I wonder whether he will consider that one of the other virtues of the amendment moved by the noble Baroness, Lady Campbell, is that it emphasises-as did Aristotle and Aquinas after him-that like cases should be treated alike and unlike cases treated differently? What is being emphasised here is that you cannot treat the disabled exactly like everybody else because they have special needs. Highlighting that in these amendments brings home to public authorities the importance of that principle.
Lord Hunt of Wirral: I thank the right reverend Prelate the Bishop of Liverpool and the noble Lord, Lord Lester, for making points that are very effective in their own right rather than being questions to me. I never like having questions that I cannot answer, so let me pay tribute to them as effective points in their own right.
The right reverend Prelate the Bishop of Liverpool made a strong point. How on earth could I disagree with the point about access? I remember well that some of my early service was spent in assisting at the Royal Liverpool Children's Hospital at Heswall, as it then was. As well as fighting to prevent it from closing, I remember being educated in the whole area of special needs. It is such a good phrase because it encapsulates all that we are seeking to identify. But how do we ensure that those special needs are taken properly into account? That is what the debate about.
I understand why some of the amendments are designed to ensure that there is no regression from the existing disability equality duty contained in the Disability Discrimination Act, where public authorities must take account of people's disability even when that involves treating disabled people more favourably than others, as the noble Lord, Lord Lester, has just examined very carefully with the rest of us. I understand that that duty would be included under Clause 13. The Minister must correct me if I am mistaken. However, certainly from these Benches, we are keen to ensure that there is no regression from the Disability Discrimination Act in the public sector equality duty. That is absolutely at the heart of all that is necessary and must be protected. I now look forward to hearing a positive response from the Minister.
The one lesson I have learnt over the years is that the word "equality" does not mean treating everyone in the same way. To treat people with disability in the same way would mean that they would never have any
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9 pm
Baroness Thornton: With the leave of the Committee, I will speak first to Amendments 109CA, 109CB and 108T, the first two being in the name of the noble Baroness, Lady Campbell of Surbiton, and the third being in the name of the noble Lord, Lord Ouseley, and spoken to by the noble Baroness, Lady Young of Hornsey.
Clause 148(1) requires public bodies to think about meeting the needs of people from all protected characteristics. Clause 148(5) makes it clear that, in some circumstances, complying with the duty might mean treating some people more favourably than others. We recognise that the needs of disabled people are different from the needs of persons who share one or more other protected characteristics and we have sympathy with the argument that the lack of explicit reference to disability may, in practice, lead to public bodies thinking that they need to do less than they are required to do under the existing disability equality duty. This is why we have been engaged in discussions with the noble Baroness, Lady Campbell, and others. Under no circumstances would we want public bodies to misinterpret the new duty as imposing lesser requirements than the existing disability duty. I am not going to go into any more detail about the reasons for that because they have been eloquently and adequately described by the noble Baroness, Lady Campbell of Surbiton. We are happy to accept her amendments and I thank her for tabling them.
I assume that Amendment 108T is intended to achieve the same effect as Amendments 109CA and 109CB. I regret that the amendment does not achieve its intended effect because it distinguishes having due regard to the need to advance equality of opportunity from taking account of the disabled person's disabilities, the effect of which is to imply that having regard to the need to take account of a disabled person's disabilities does not involve removing or minimising their disadvantages, meeting their needs or encouraging them to participate in public life. The noble Baroness, Lady Campbell, and other noble Lords, have recognised that problem with the amendment, so I am going to ask the noble Baroness, Lady Young, not to move it.
I will now speak to Amendments 108S, 109A, 109B, 109C, 109D and 109E, tabled by the noble Lord, Lord Ouseley, and Amendment 110A, tabled by the noble Baroness, Lady Coussins. The equality duty, as currently drafted, requires public bodies to have due regard to the need to eliminate unlawful discrimination, to advance equality of opportunity, and to foster good relations where they exercise their functions. We believe that these amendments are impractical and will actually make the Bill worse. They will disturb the balance that has been achieved by the current wording of the equality duty. My notes say, "Let me explain what
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The purpose of the equality duty is to oblige public bodies to consider equality issues in respect of all their functions. However, the amendments would require public bodies to take such steps as they reasonably consider necessary to eliminate discrimination, advance equality and foster good relations in respect of all their functions. As well as being very confusing, and leading to potentially huge amounts of box-ticking work for public bodies, in the current financial climate it could add further unavoidable burdens on public bodies and others. The impact of these amendments is that many public bodies would feel obliged to take legal advice every time that they exercised their functions to establish what would be a reasonable step. This would clearly be an unreasonable encumbrance in the context of certain duties such as legal requirements to pay subscriptions, make returns, and keep financial accounts and certain records.
I appreciate that what is at the heart of these amendments is a concern that, despite having a duty to consider matters such as the need to promote race equality, some public bodies have nevertheless arrived at decisions that have affected certain racial groups in a manner that has not received universal approval. However, we feel that public bodies should be required to consider equality issues when they are relevant, and that the weight given to such matters should be proportionate to its relevance to a particular function.
I turn to the comments made by the noble Lord, Lord Hunt. First, on the problem of targets, our proposals for specific duties will require public bodies to consider the evidence and then set equality objectives and take action towards achieving them. This approach will ensure that the bodies will set the appropriate objectives, having listened to the views of service users, and focus their action on the most effective way to deliver the equality outcomes. We could perhaps discuss whether that is a target or not.
The noble Lord also asked why the disability element of the duty was not in Clause 13. I am not sure that I understood that point correctly. Clause 13 sets out the asymmetrical nature of disability protection, which allows more favourable treatment for disabled people. Also relevant is Clause 20, which sets out the duty to make reasonable adjustments. Clause 148 sets out the positive duty on public bodies not only to eliminate discrimination but to advance equality of opportunity. In the case of disability, that can involve taking positive steps to take account of disabled people's disabilities, particularly now that we have accepted the noble Baroness's amendment.
On the issues raised through Amendment 110A, tabled by the noble Baroness, Lady Coussins, I am pleased to tell the noble Baroness that they will be covered by secondary legislation. On 25 January, we published a policy statement in response to a consultation exercise on our proposals for specific duties. The structure
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The noble Baroness asked whether the equality duty should place at least the same requirements to be transparent about compliance as well as the current disability duty. It will do so. Our proposals for specific duties, which will support the better performance of the equality duty, include the requirements to report annually on key equality employment data and to publish annually information about progress towards achieving their equality objectives. We propose to require public bodies to demonstrate how they have taken equality into account in the design of key policies and services and what difference that has made to the outcomes in all those areas. Therefore, I ask the noble Baroness to withdraw her amendment.
Baroness Young of Hornsey: I thank the Minister for her considered remarks. I have to perform a set of mental gymnastics now as I try to separate myself out from the noble Lord, Lord Ouseley. Obviously I cannot second-guess what he might wish to say here, but I am pleased that the amendment put forward by my noble friend Lady Campbell of Surbiton has been accepted because it is, one might say, a somewhat stronger version of the amendment that the noble Lord had proposed.
I take to heart the remarks that were made by the noble Lord, Lord Hunt of Wirral. He made a number of important points around the consensus we now have that we are all trying to make it better, and that to make it better you need to make it work. It is in that spirit that the amendments were put forward to try to sharpen up some of the wording around the public sector equality duty with due regard. I take the legal interpretation on board, but it is important for us to have clarity about how sharp the clause is going to be. I beg leave to withdraw the amendment.
109: Clause 148, page 94, line 16, leave out subsection (2) and insert-
"( ) Subsection (1) will also apply to a person who is not a public authority but who exercises public functions except in relation to matters of employment."
Baroness Hanham: I am joining the Front Bench for a fleeting moment, which requires me to declare an interest in that I am a member of a local authority, which under these terms would be a public body.
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We have dealt a lot with Clause 148(1), but Clause 148(2) states that:
"A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1)".
We agree with this subsection. We think it is right that a public authority that has subcontracted part of its public sector duties to an alternative organisation must ensure that the other organisation provides services compliant with the public sector equality duty.
It is interesting that the subsection starts with "a person". I am assuming, therefore, that the services, which is what this is all about, can be contracted to a person or that "a person" can be construed as a company, as a voluntary organisation or as any other body that is carrying out the services on behalf of that public authority. We need to be clear that the definition of "a person" is covered. Whoever "a person" is, it is right that the services should be delivered to the highest ideals that the public sector equality duty brings in.
We also welcome the fact that subsection (2) states that organisations to which services have been subcontracted have to comply with the duty only,
We would, however, welcome some clarity from the Minister in this regard. Will she confirm that the intention of the Bill is that the public sector equality duty should apply only to those organisations in the exercise of those specific functions and not in any other capacity? In other words, the company's or voluntary organisation's own internal functions and processes will not be affected by the contract-only the contract will be affected, and other processes are exempt.
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