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Clause 158 does not permit positive discrimination, nor is it contrary to the "merit principle". It simply allows an employer, when faced with two candidates who are as qualified as each other to carry out a specific job, to use the desirability of widening the diversity of the workforce as the criterion for choosing between them. I reassure the noble Lord, Lord Hunt, that my emphasis is no different from that expressed by my right honourable friend Harriet Harman in another place: there has been no change of heart. I am grateful to the most reverend Primate for his very reasonable support for these clauses.
Before I turn in detail to the various amendments, I thank the noble Lord, Lord Lester, both for raising the important issue of proportionality in relation to positive action and for his insightful comments on the importance of positive action more generally.
Amendment 115C would substitute "which" with "provided it", so that the clause would permit positive action provided it is a proportionate means of addressing disadvantage, meeting different needs or reducing underrepresentation. I completely agree with the noble Lord: we would not want the provision to permit action which is disproportionate, or to allow employers or service providers to misuse positive action measures in any way. However, to the great disappointment of the most reverend Primate, I can assure the noble Lord that Clause 157 as drafted will not allow positive action in any circumstances where it is not proportionate. Accordingly, replacing "which" with the alternative suggestion would have no impact on the intent or effect of this provision. Therefore, I urge the noble Lord to withdraw his amendment.
Amendment 118A would make it explicit that any positive action measure taken in recruitment and promotion under Clause 158 has to be a proportionate means of achieving the aims set out in subsection (2) -helping people overcome a disadvantage or participate in an activity. While we consider that Clause 158 as drafted already implicitly embodies a requirement for proportionality, I accept that there are benefits to making proportionality an explicit requirement: it would make clearer what this clause is about, allowing employers to take positive action where proportionate, and also better reflect the terminology used in Clause 157, where proportionality is already explicit. I am therefore content to accept Amendment 118A.
Amendment 117 would change the present wording of the provisions in Clause 158(4)(a) from "as qualified as" to "equally qualified to". Amendment 118 seeks to delete "to be recruited or promoted" from the qualification criteria. We believe these amendments are misconceived and we will therefore resist them.
It has been claimed that Clause 158 would allow employers to set an artificially low qualification threshold for a job to enable them to gerrymander the selection of the successful candidate-the idea that the pass mark is set so low that almost everyone will make the grade, in the hope that at least one candidate has a targeted protected characteristic. Clause 158 does not permit an employer to recruit or promote a candidate who is less qualified than another just because the employer wants to address disadvantage or underrepresentation-in any event, this would make no business sense. Where the assessment process, in whatever form it takes, evaluates one candidate as having scored, say, 95 per cent and another 61 per cent, those candidates cannot be considered as being as qualified as each other to undertake the job. It is immaterial whether the pass mark was set at 60 per cent, 50 per cent or 40 per cent; the clearly superior candidate must always be offered the job. We are confident that the clause as drafted achieves that effect.
We consider that the amendments could have the effect of leading employers to interpret the clause too narrowly by considering the provisions as being solely about the equality of qualifications per se. An employer might misinterpret such wording as a requirement that candidates should have identical qualifications, whereas the provision is designed to be available where both candidates have demonstrated that they have met the employer's particular requirements for the post to a comparable standard. Any assessment of candidates' suitability will depend on a number of factors relevant to the job in question, such as experience, aptitude, physical ability, or performance during an interview or assessment. Formal qualifications are only one way in which a candidate's overall suitability may be assessed.
The impact of such a misinterpretation could be that employers will be reluctant to use the provision unless they have a situation in which candidates have absolutely identical qualifications, or identical scores if a scoring system is part of the assessment process, rather than looking at the respective ability and suitability of each candidate in the round. This would limit the scope for delivering real equality outcomes for women particularly, people from ethnic minority communities and disabled people, for example, who still experience disadvantage and underrepresentation in the labour market. For those reasons, I urge the noble Lord not to press the amendment.
I will briefly mention Amendment 119, tabled by the noble Baroness, Lady Knight of Collingtree, which would appear to permit any action intended to increase the participation of people aged over 50 and disabled people in the labour market. This amendment is unnecessary. The noble Lord, Lord Lester, helpfully explained how the disability and age discrimination provisions in the Bill permit a wider range of differential treatment than is available for the other protected characteristics. In addition, this Government have done much to increase the labour market participation of people aged over 50 and disabled people through targeted programmes such as the Flexible New Deal, which provides tailored help for jobless people of all ages, including those aged 50 and over. I therefore
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Lord Lester of Herne Hill: My Lords, I am extremely grateful to everyone who has taken part in this debate, particularly to the most reverend Primate the Archbishop of York for his contribution. When I listen to him on the subject of discrimination, I always feel that he speaks not only as a very distinguished archbishop, but as a human being who understands exactly what the problems of discrimination are, and looks at these issues not as a lawyer but in a common-sense way to make the law work in practice.
I am only a lawyer, but I have experience within my chambers as a small employer; I doubt we employ more than about 30 people, with probably not more than 75 barristers. We have a different kind of experience, because we are constantly seeking to choose pupils and tenants on the basis of individual merit. I have discussed these provisions of the Bill with the diversity team in my chambers, and they are happy to work within that framework. I have been persuaded by what the Minister has said that proportionality is already fully within Clause 157, and that my words add nothing-although I am very grateful that the most reverend Primate prefers them to those already there. It is not for me to second guess parliamentary counsel, once I am satisfied that the substance is there.
I am very grateful indeed that proportionality has been written into Clause 158 by the Minister indicating that she will accept Amendment 118A. The most reverend Primate was also talking about "reasonably thinks". I think that is in the next group of amendments, so although I agree with him, we will come back to that later. I share the view of the Minister and the Government about the other amendments. This is, therefore, an opportune moment for me to withdraw the amendment.
Baroness Hamwee: My Lords, our Amendment 1 is grouped with Amendment 1A. Our first amendment would bring the end of the time over which these provisions can apply-in other words, before both
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My honourable friend the Member for Cambridge rumbled the Government's objections to the July date because, had they accepted it, it would have amounted to acknowledging that the general election will be on 6 May. The Minister said yesterday that it was "not certain"-I think that she used those words-that it would be possible to undertake the proper scrutiny of the Bill, given the upcoming general election and recesses, if it were earlier than 31 December. However, December really is a long period in which to allow an unsatisfactory situation to continue to apply. We are talking about provisions that relate to the liberty of the subject. In our view, a Bill relating to the liberty of the subject-the longer Bill-should have priority.
As we are all human, the temptation must be that, if we have a period that runs until December-I say "we" because I suppose that noble Lords will know that we have until December, whereas those in the other place will not know precisely who is batting until then-it is unlikely that anything very energetic will happen until after the Summer Recess. In other words, that would be October, and minds need to be focused and steps taken before that.
I see that Amendment 1A, tabled by the noble Baroness, Lady Noakes, proposes the long-stop date of 30 April. In real terms, I am not sure whether that is any different from 31 March; I wonder how firmly her tongue was in her cheek in proposing that. She indicates that it was not, but I shall wait to hear what she says. There will certainly be some elections in early May, whether or not the general election is then. We believe that ours is a reasonable mid-point, and I beg to move.
Baroness Noakes: My Lords, my Amendment 1A is in this group, and as the noble Baroness, Lady Hamwee, said, it would replace the sunset date in Clause 1(1) with 30 April, rather than 31 July as she has put forward in her amendment. The key issue for the Committee is when we can scrutinise primary legislation, because there is agreement on all sides of the Committee that the previous regime of orders under the 1946 Act has to be replaced by primary legislation. Not even the Government will claim that if the Bill completes its passage in your Lordships' House this evening there will have been full parliamentary approval for the three orders that were damned by the Supreme Court's judgment. Our support for the Bill is linked exclusively to the consequences of dealing with terrorism if the vacuum caused by the Supreme Court's judgment is not filled immediately.
Both the structure of the Bill and the timing constraints of our deliberations mean that parliamentary approval is more formal than substantive. We cannot realistically debate the contents of the three orders, and it is pretty
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The Government have laid Command Paper 7806, which contains a full draft Terrorist Asset-Freezing Bill, complete with Explanatory Notes and an impact statement. As I explained on Second Reading this afternoon, we had agreed timing with the Government such that the Bill would have had two days in the other place-today and in the week after Recess-followed by three days in your Lordships' House, over a period ending roughly in mid-March. The chairman of the Joint Committee on Human Rights confirmed that his committee could have handled that March timing. The Government have now put that longer Bill on the back burner and proceeded only with this temporary provisions Bill, which is not entirely unsatisfactory. We, like the Liberal Democrats, believe that the Bill should not remain on the statute book any longer than necessary.
Amendment 1A says that the Bill can stay on the statute book until the end of April. My honourable friend Mr Mark Hoban moved a similar amendment in another place yesterday, with the date of 31 March. The noble Baroness, Lady Hamwee, accused me of having my tongue in my cheek when I moved that date to 30 April. Perhaps I might explain that I have used that slightly longer date because of the Government's decision not to proceed along the lines earlier agreed; that has set back the timetable of getting the Bill through. If a general election comes along before we have concluded our deliberations on a longer Bill, I would hope that we could have completed sufficient scrutiny to allow that arcane process known as wash-up to deal with the rest of the Bill. That might have to stretch into April, depending on when the election is called-assuming, of course, that an election is held on 6 May. I think that that is most people's working assumption, although it could be later.
The date of 31 July, proposed by the noble Baroness, Lady Hamwee, causes real problems in the context of the general election, which is why if she chooses to test the opinion of the Committee, we will not support her on it. If the Government do nothing in respect of the draft Bill in Command Paper 7806, a new Government formed in early May would not have enough time to process the Bill in the ordinary way-that is to say, using the normal intervals and processes by 31 July. I would hope that if my party formed that Government, we would review and amend the draft before putting it before Parliament. A July sunset would be the most undesirable outcome in that context. If we cannot deal with the issue this side of an election on an expedited process, then, as I explained, we will need a longer period-quite possibly until the end of this year-to prepare legislation and then subject it to scrutiny in the normal way.
I could have done as the noble Baroness, Lady Hamwee, has done and tabled detailed amendments to the Bill in order to debate the substantive concerns that remain with the formulation that appears in the 2009 terrorism order, but that is merely to tinker with an interim solution. Our strong preference is for Parliament to scrutinise the detailed legislative proposals in the context of draft legislation set out in Command Paper 7806 or something like it. I cannot force the Government to bring a draft Bill to Parliament, but if the sunset clause is set at a modest end-April date, that would require the Government to act now by introducing a draft Bill or something else, rather than sit on their hands and wait for another Government to clear up the mess.
Of course I hope that my party will form the next Government and that Treasury Ministers will be led by my honourable friend Mr George Osborne. If we come to power, those Ministers will have quite enough to do to clear up the economy and the mess that it is in without having also to deal with the aftermath of a decade of incorrect use of statutory powers. That is why I hope the Government will think again and put proper primary legislation through the House as rapidly as possible.
Lord Elystan-Morgan: My Lords, there is an overwhelming case for the sunset clause to last at least as long as 31 December this year. There may well be a case for having an even longer period, but it seems to me that if any of the amendments proposing other dates were carried, the House would impose on itself a wholly unnecessary straitjacket. Of course, when we are dealing with legislation that is accelerated in this way, there is a legal and moral incumbency on us to see that it is operated for as short a period as is humanly possible. However, we are dealing with extremely complicated situations that need a great deal of thought. Although the draft Bill has been proposed for this short term, it has to be considered from all possible angles. It seems to me that there should be the maximum consultation with all manner of bodies. Why, therefore, confine it to a matter of weeks or, indeed, a few months, if one is speaking of 31 July as a time limit? That is the first reason. It seems to me that there is no case for a wholly unnecessary spectacle of speed and, indeed, of thoughtlessness in this matter, when there is every possible reason for taking as much time as is reasonably necessary in the circumstances.
The second reason is perhaps somewhat less clear, and that arises from the speech of the noble Lord, Lord Myners, at Second Reading, when he indicated-I hope that I do him no injustice-that the Government's mind was not closed not only in relation to the idea of a longer-term Bill on this matter but in relation to consolidating powers of confiscation, freezing and exercising authority over the property of persons who may be involved in serious crime or, indeed, in terrorism. I appreciate that the noble Lord, Lord Myners, most certainly did not give any undertaking in that regard. I also appreciate that consolidation is now rather different from what it was about 40 years ago when I was a Member of another place and served on one or two consolidation Bill committees, when it was a very mechanical exercise altogether. One did not have to
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Lord Pannick: My Lords, I take a different view from that of the noble Lord, Lord Elystan-Morgan. We are being asked today to approve a temporary measure on the basis that we will not have a proper opportunity fully to debate the substantive measures. I think that we all accept that those substantive measures will have a very serious effect on the individuals concerned. It is therefore incumbent on the Committee to ensure that the sunset clause is as near to today as is reasonably practicable. As I see it, the only issue is how long it will take as a matter of practicality before the substantive Bill can be properly scrutinised. That covers pre-legislative scrutiny, as well as the debate in this House and in the other place. I am surprised that the Government take the view that it will take as long as another 10 months for that to occur, even allowing for the general election and the Summer Recess. I suggest to the Committee that it is incumbent on the Minister to explain-with respect, he has not yet explained this, nor was it explained in the other House yesterday-why it is not practical for Parliament to address the substantive matters more speedily than a sunset clause of 31 December suggests.
The Financial Services Secretary to the Treasury (Lord Myners): My Lords, we believe that 31 December is the right deadline to set for the expiry of this temporary legislation. As we have discussed today, the issues raised by the asset-freezing legislation are clearly complex and very important. Essentially, we all want to strike the right balance between the needs of national security and the protection of human rights, but reasonable people can and do differ about where the appropriate balance lies. Should the legal test be reasonable suspicion or something higher? Is the judicial review procedure a sufficient legal check on executive power in this area, or do we require more? These are very significant issues that require careful analysis and consideration and where we need to take account of the views of a wide range of interested parties. With a deadline of 31 July, or the end of April, as proposed by the noble Baroness, Lady Noakes, I do not think that we leave ourselves sufficient time to address these and other important issues.
I will attempt to answer the question that the noble Lord, Lord Pannick, raised about timetables. We can reasonably expect pre-legislative scrutiny to take three
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Noble Lords should bear in mind that 31 December is the latest point at which the existing regime will expire. If we are able to legislate more quickly than that, a new regime approved by Parliament with full consideration will come into force earlier. But I believe that the deadline of 31 December ensures that we will have all the time that is required, in a reasonably practicable manner, to complete parliamentary processes.
Lord Pannick: Why would pre-legislative scrutiny take three months? It would not take your Lordships' Constitution Committee or the Joint Committee on Human Rights anything like three months to address the important and, I agree, difficult questions that are raised.
Lord Myners: Pre-legislative scrutiny requires us to consult widely with a broad group of people who will be affected by this legislation. We have every reason to believe that, given the speed of representation that has already been made and some of the important points that have been raised by your Lordships today, there are critical and complex issues here that require serious scrutiny.
To pick up an observation from the noble Lord, Lord Elystan-Morgan, we should be careful not to put an unnecessary straitjacket on Parliament that would be inappropriate given the complexity of the issues and the need to give them close scrutiny. If we had put an earlier date on the sunset clause such as the end of April or the end of May, the predominant view expressed in the House is that we would be allowing inadequate time for scrutiny and that that ran the risk of legislation that had not been critically examined. Parliament would wish to see us strike a balance. We would like to be able to complete the process before 31 December and, with a fair wind, that is possible. The noble Lord, Lord Elystan-Morgan, is right in observing that we should not impose such a tight straitjacket that we would not permit Parliament sufficient time to carry out the necessary review.
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