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Positive action is a necessary element in the concept of equality, as the European Court of Human Rights reaffirmed in the DH and others v Czech Republic case. Article 14 of the convention does not prohibit a member state from treating groups differently in order to correct what it calls "factual inequalities between them". In some circumstances, a failure to attempt to correct inequality through differential treatment may in itself give rise to a breach of Article 14. That is also true of EU equality law. Article 7 of the framework directive provides that with a view to ensuring,
- "full equality in practice, the principle of equal treatment shall not prevent any member state from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds listed in Article 1".
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It recognises that a concept of literal equality is too narrow. In William Blake's words:
"One Law for the Lion and the Ox is Oppression".
The relevant Explanatory Notes are important. Both here and throughout, they are expressed with great clarity, for which we should be grateful to their authors. I want to mention that particularly because I have not read Explanatory Notes of this quality before, and although I must not name their authors, I think that if I could do so, I would say that Melanie Field and James Maskell between them have done the most extraordinary job I have ever seen. I hope that future Bill teams will work to that high quality. Paragraph 525 explains that Clause 157 provides that,
- "the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim".
"The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed".
To comply with the principle of proportionality, the positive action measure in question must both pursue a legitimate aim and be necessary to achieve that aim. Clause 157(1) relates to the European legal principle that measures must be shown to be necessary and focused on a specific disadvantage, requiring that the person concerned reasonably thinks that paragraphs (a), (b) or (c) apply. Clause 157(2)(a), (b) and (c) define the legitimate aims that may be pursued. I note that the Official Opposition have not tabled any amendments to limit the scope of Clause 157 by substituting "can demonstrate" for "reasonably thinks", as they have done in the next group in relation to Clause 158, to which I now turn.
It is important to record that paragraph 532 of the Explanatory Notes explains that Clause 158,
- "permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the same protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance. The clause does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; each case must be considered on its merits".
The clause defines recruitment broadly so that, for example, it includes a pupilage or tenancy in a set of barristers' chambers such as my own. It is intended to allow the maximum extent of flexibility to address disadvantage and underrepresentation where candidates
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"While current legislation allows employers to undertake a variety of positive action measures, for instance, offering training and encouragement for certain forms of work, it does not allow employers to take any form of positive action at the point of recruitment or promotion. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics".
This is an important advance on current law. When I helped prepare the sex discrimination and race relations Acts in the mid-1970s, we included narrowly restrictive provisions allowing positive action to be taken to encourage women and members of ethnic minorities to apply for jobs where they were underrepresented, and to provide them with special training. But we were unable to obtain agreement to allow any form of positive action at the point of recruitment or promotion. That was regrettable and is one reason why employers have made insufficient use of the positive action provisions. They may encourage women or ethnic-minority individuals to apply for work where they are underrepresented, such as in the police service, and they may give them special training to equip them for the work, but they may not use underrepresentation as a reason for appointing, say, a woman or a person from an ethnic minority who is as qualified as other candidates in preference to a candidate who does not share the relevant protected characteristic.
As regards my own profession as a barrister, the Equality and Diversity Committee of the Bar Council, in a 2007 response to a government consultation on the Bill, explained why greater and clearer positive action measures are needed under the law. The committee pointed out that the current law limits positive action measures to a greater extent than is permitted by the relevant European directives. Currently, for example, apprenticeships and other on-the-job training schemes cannot be used as positive action measures. It argued for the need for a wider range of "voluntary balancing measures" to be available to organisations and employers. Thinking of the profession of the noble Lord, Lord Hunt, the Law Society in response to the same consultation also indicated that further "balancing measures" are needed. We therefore welcome the changes made in Clause 158 to encourage much greater use of positive action.
The Official Opposition seek, in Amendments 117 and 118, to restrict the scope and effect of Clause 158 and apparently intend to oppose the Question that Clause 158 should stand part of the Bill, even though in the other place they did not seek to remove the clause. It is questionable whether the amendments would make any practical difference other than to cause confusion and limit the effectiveness of Clause 158. It is ironical that they should do so, for it was the Thatcher Government who, in the Fair Employment (Northern Ireland) Act 1989, introduced a far more robust system of positive action to combat discrimination against Catholics and Protestants in the workplace, drawing on the Canadian employment equity approach which incorporated monitoring and affirmative action, but not quotas. The 1989 legislation of the noble Baroness, Lady Thatcher, provided for compulsory religious monitoring by both public sector and private
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Monitoring covers about 70 per cent of all employees in Northern Ireland and all employments with 11 or more employees. The Equality Commission for Northern Ireland has kindly informed me that the data reveal that substantial progress has been made and that a sizeable body of independent research evidence shows that the legislative provisions and their implementation have been successful in improving employment equality. The Conservative Party may and should claim credit for introducing the 1989 scheme. It is therefore ironical that it now opposes the much narrower provisions of Clause 158, which are entirely permissive and voluntary and subject to the proportionality principle. My amendment seeks to put the proportionality principle explicitly on the face of Clause 158, and I hope that the Government will be able to accept it.
I should add that this group also includes Amendment 119, tabled by the noble Baroness, Lady Knight, which would give blanket permission to discriminate in favour of the over-50s and disabled people without reference to proportionality. That would clearly violate European law. There is of course nothing to prevent more favourable treatment of disabled people; Clause 13 so provides. The positive action provisions in the Bill apply to disability, unlike the Disability Discrimination Act, to permit positive action between different types of disability-for example, permitting an employer to target training at people with learning disabilities, or to target advertising at people with sight impairments. In relation to age, as well as the positive discrimination measures permitted by Clauses 157 and 158, Clause 13 provides that age discrimination is not prohibited where it is a more proportionate means of achieving a legitimate aim.
I am sorry to have taken so long, but I will not make a second speech on those issues.
6 pm
Lord Hunt of Wirral: My Lords, as the noble Lord, Lord Lester, moved into the 10th minute of his speech, I thought to myself that perhaps it would have been a much shorter speech had he been able to hear my explanation of why these amendments have been tabled, and particularly of why we wanted a debate on Clause 158 stand part. It is not to get rid of Clause 158, because we are happy with "positive action"; it is to allow us to raise our concerns about the operation of the clause. I will come to that and I am mindful of all the points that he raised.
Amendments 117 and 118 are designed to change the language of the clause from "as qualified as" to "equally qualified to". As I have already explained, we raised Clause 158 stand part to allow further discussion about what is a very important clause. We do not like the clause if it is to be used as positive discrimination, but we would be happy with it if it were to be used as "positive action", as the title suggests. We are concerned that without our amendments the clause will verge towards the former, which we could not agree to.
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The first point that I want to raise is that I was under the impression that the Government intended this clause to be about "positive action". This is made clear not only by the title of the clause itself, but also by the statement made by the Minister for Women and Equality, Harriet Harman, at Second Reading in another place. She presented this clause on that occasion saying that,
to change the situation whereby, if an employer,
- "the employer cannot actually say, 'Right, we've got two equally qualified people for this job, but I'm going to take you, because you're a woman and I want to diversify my management team'".-[Official Report, Commons, 11/5/09; cols. 557-58.]
It seems clear that the Government agree with us that this clause should be used for a tie-breaker situation between two candidates who are equally qualified. We would very much support the use of positive action in this way. It is clear that there may sometimes be a desire to discriminate in favour of a candidate with one particular characteristic. The example which has been done to death is one where a job vacancy has opened up in a primary school, when all the interviews, checks and tests have been carried out and the two candidates left are equally qualified to do the job. In this presumably rare situation, the employer would then be allowed to choose the male candidate, with the protected characteristic of gender being the factor which gave him the lead over the other candidate, who was equally qualified.
I hope very much that the noble Baroness the Chancellor of the Duchy of Lancaster can confirm the Government's views on this clause. We have heard what Harriet Harman said about it in May in another place. By the time the Bill reached your Lordships' House, however, a different tune was being played. The Minister introduced the clause saying that it,
employers to recruit a person from an underrepresented group in their workforce when choosing between otherwise equal candidates for recruitment or promotion. This seems to give a different emphasis on the clause. My understanding from this statement is that employers would be allowed to make a choice from a pool of candidates rather than select one person in a tie-break situation.
The Explanatory Notes lend a little more credence to this. One of the examples states that, where the police service employs disproportionately low numbers of people from an ethnic-minority background, and where a number of candidates were,
preferential selection can be made,
Our fear is that this clause is there to allow, in effect, positive discrimination. It appears that, instead of a clause which allows employers to make decisions based on protected characteristics in a tie-break, this clause is going to be much broader. We need to clarify this. In
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Clarity is necessary because the Minister in another place said that we should not worry because Clause 158(4)(b) prevented any kind of "policy" decision. In other words, this would mean that a company could not have a policy of favouring groups who shared a protected characteristic. I wonder whether this fits with the Government's seeming change of heart about whether this provision should relate to a tie-break or pool situation. The example given in the Explanatory Notes about the police recruiting ethnic minorities seems to show instead what I would have assumed subsection (4)(b) was designed to prevent. Therefore I look to the noble Baroness the Chancellor of the Duchy of Lancaster to clarify that for us. Does subsection (4)(b) prevent a blanket policy-a policy in relation to all recruitment drives-but allow a general policy in relation to one appointment?
To put it another way, is it the Government's intention that a company should be able to say, "We have not employed many of this particular section of people recently", then advertise a job, interview people from all backgrounds but, when it has found a pool of 20 candidates with the relevant qualifications and skills, to pick the candidate representing what it believes to be an unrepresented class of people over the others? We welcome the commitment to positive action, but this is not the clause we felt we were welcoming when it was first introduced in another place. We are now looking for some reassurance.
We believe that a clause which allows a decision to be made on a protected characteristic for a legitimate reason is very sensible and gives employers a reasonable freedom. If, however, the policy is broadened so that it is likened to positive discrimination, then it will do more damage than good to the cause of equality in a society which believes also very firmly in a meritocracy.
We have seen that many of the business organisations agree with the principle of this clause, but they need essential clarity to allow it to operate effectively. The CBI, for example, has told us that it welcomes the intention, but feels the clause is poorly drafted. It is uncertain how it will work in practice. It calls it a tie break. It would be helpful if the Minister could address that point directly in her remarks. The British Retail Consortium also supports the clause, saying that,
- "it is imperative that legislation and accompanying guidance is clear on how this should be done to ensure employers do not end up falling foul of the law".
The British Chambers of Commerce agree with this point, saying that the language is too confusing. The Bill uses "as qualified", but the Solicitor-General uses
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concerning positive action regarding those with a protected characteristic which might otherwise disadvantage them. However, the most important area to clarify is that which we have raised-namely, the need to make absolutely clear that positive action can apply only in a tie break.
I shall mention the amendment tabled by my noble friend Lady Knight, who sadly is unable to be with us. It raises an interesting issue. We would hope that nothing in this Bill would prevent those over 50 or who are disabled from being integrated into the workforce to address discrimination against these groups, if they were the suitable candidates for the job. However, we cannot support positive discrimination, so this must happen only when a tie break has occurred and two people who are equally qualified have been identified. It is only at this point that a selection on the basis of a protected characteristic should be made.
The Archbishop of York: My Lords, Clause 157 begins with the same phrase as Clause 158, "reasonably thinks that". The noble Lord, Lord Hunt, does not quarrel with those words in Clause 157, so why does he quarrel with them in Clause 158? The wording must be "reasonably thinks" because it is very difficult to demonstrate that the employer has all the facts and reasons, and I am not always convinced that things are as transparent and clear to the person being interviewed. If you have reason to believe that you have been discriminated against, that is all that you require. Then it is for the employer to demonstrate that they have not done that. I should rather put it that way round than require the person who "reasonably thinks" that they have been discriminated against to demonstrate it. For those reasons, I do not think that the words in Clause 158 should be changed, as they are not being asked to be changed in Clause 157.
The noble Lord, Lord Lester, wants to change the words from,
Lord Lester of Herne Hill: I only probed on that and did not intend to pursue it.
6.15 pm
The Archbishop of York: I want to continue probing on the noble Lord's behalf. The proviso he provides would save us a lot of bother in future. The words
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We have already meandered from Clause 157 to Clause 158. I prefer the phrase "as qualified as", because "equally qualified to" is mathematical. How would you measure it? How will someone know that I am equally as qualified? I sit in your Lordships' House, and I do not think that I am equally qualified as some of your Lordships. It is better simply to say "as qualified as". It is more humbling and more genuine, so I shall stick with that phrase.
Finally, on "to be recruited or promoted", I do not understand why that should be narrowed. I would rather have both. Of course, some people always worry that positive action means positive discrimination, but the word discrimination can be used in two different ways. In the Latin as well as the Greek, discrimination is the same word as discernment. I understand in this sense that positive action and promotion or recruitment means that it is discerning, not simply leaving someone out. I should rather use the same phrase-which for me is not positive discrimination but positive discernment. Unfortunately, some people do not discern that. I would not quarrel with the drafting as it is, except to say that "provided it is proportionate" is a much stronger way in which to put it.
Baroness Royall of Blaisdon: My Lords, before I address Amendments 115C and 118A, tabled by the noble Lord, Lord Lester, Amendments 117 and 118 in the names of the noble Baronesses, Lady Warsi and Lady Morris, and Amendment 119 from the noble Baroness, Lady Knight of Collingtree, it might help the House if I explain the Bill's positive action provisions.
Clause 157 builds on and simplifies the current legislative framework for positive action. For the first time, these provisions will be extended to cover all protected characteristics and will apply to them all in exactly the same way. As long as the relevant criteria are met, these provisions can be used to address disadvantage, encourage participation where people with a particular protected characteristic are underrepresented, or meet particular needs. For example, a construction firm wishing to diversify its male-dominated workforce could add a statement to its job advertisement inviting women to apply.
Clause 158 enables employers to take targeted action with regard to recruitment and promotion. This will assist employers to address underrepresentation and disadvantage, fill skills gaps, and create a more diverse
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