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I tabled the second amendment, on legal representation, because I was shocked to discover that financial contributions to legal proceedings, or indeed to representation for a designated person in proceedings, are in themselves offences. I understand that the role of the Justices in the recent Supreme Court case was to act as intervener, because that was all that they could do. It seems to me to be a basic provision that legal services should be allowed to be available. I beg to move Amendment 10.

Baroness Scotland of Asthal: My Lords, I assure the noble Baroness that the Government share the concerns that she has expressed, both in making sure that those who may be affected have the necessary wherewithal to meet their living expenses and, indeed, in relation to legal representation. We agree that it is essential that the impact of the asset-freezing regime on designated persons and their families is proportionate and to ensure that they have full access to legal representation and funds to meet their everyday needs. However, we believe that the noble Baroness's amendments are unnecessary, since the Government already operate a licensing regime precisely to ensure that these needs are met, taking into account the specific circumstances of each case. She will know that that may vary and that what may be an absolute necessity for one family may be an unnecessary matter for another. For the moment, the licensing regime is able to recalibrate those issues directly in relation to the individual needs of the family concerned. I welcome the opportunity to make that clear to the House and to put those comments on the record.

I hope the noble Baroness will be pleased to know that the Treasury already takes measures to ensure that all reasonable expenses can be met through the operation of the active licensing regime. For example, it is already our policy not to restrict a family's access to benefits due to them. Currently, all families are receiving their full entitlement for benefits; for this reason, we do not believe that the amendment achieves anything not already achieved by the operation of the licensing regime. However, I absolutely understand that the noble Baroness was framing this to get an assurance on how it works.

On the amendment that deals with legal representation, I hope that I have made it clear that I completely agree with the noble Baroness that it is essential that persons subject to an asset freeze have unrestricted access to legal services. However, it is already the practice of the Treasury to issue a licence for legal aid immediately when someone is designated; that ensures that legal representation is provided immediately. The amendment is therefore in that regard unnecessary, as I hope the noble Baroness will agree. The Government consider it inappropriate to exclude all legal services from the prohibitions, for example when legal expenses are met by release of frozen funds. It may be necessary to conduct some checks to ensure that the funds are applied for the stated purpose. For those reasons, I hope the noble Baroness will understand that although I am resisting her amendments, I affirm her concern about both issues.

Baroness Hamwee: My Lords, I am grateful for that. It is clear from the Supreme Court judgment that it has taken the Government some time to arrive at the

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licensing arrangements that they now apply. The Minister mentioned benefits; we know from the judgment that that was not always the case. The argument again is that the amendments are unnecessary because this is what we do. The assurance that I hoped for and that I think I heard was not just that this is what we do now but that this is what we will be doing. The Attorney-General is nodding.

Baroness Scotland of Asthal: My Lords, I am happy to affirm that. The licensing provisions and process that operated under the old scheme will continue until such time as we have an opportunity to consider if there will be a need for any change in any new Bill that might come forward. The scheme in being will continue.

Baroness Hamwee: That, as I said, is the scheme described at some length in the Minister's Statement on 5 February. On that basis, I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendments 11 and 11A not moved.

Clause 3 agreed.

In the Title:

Amendment 12 not moved.

House resumed.

Bill reported without amendment.

Equality Bill

Bill Main Page
Copy of the Bill
Explanatory Notes
Amendments
2nd Report from the Delegated Powers Committee
3rd Report from the Delegated Powers Committee

Committee (6th Day) (Continued)

8.41 pm

Clause 157 agreed.

Clause 158 : Positive action: recruitment and promotion

Amendment 116

Moved by Lord Hunt of Wirral

116: Clause 158, page 100, line 28, leave out "reasonably thinks" and insert "can demonstrate"

Lord Hunt of Wirral: My Lords, I will use my best endeavours to make my remarks as brief as possible in view of the need to make progress.

This group of amendments refers to two different clauses. Amendment 116 has been tabled to Clause 158, which deals with positive action, recruitment and promotion. The others have been tabled to Clause 196, which is about harmonisation, and enables a Minister of the Crown to amend by order the Act which will result from this Bill, and the Equality Act 2006, in order to ensure consistency-both of provision and

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with European law. I will not go into the detail of this clause at this point. We have tabled amendments which will allow discussion later.

This group of amendments relates especially to the use of "thinks" rather than "can demonstrate". We have been having detailed discussions on the semantics of this Bill-around the definitions of "reasonable" and "proportionate"-and I am sure noble Lords will also have an opinion on the use of "thinks" in these clauses. Our main contention is that, given that the powers provided by these clauses are quite wide, it is sensible to have a less subjective test for when the provisions can be used. If the test were to be made more objective, the person or Minister responsible could be properly held to account for their actions. A test based on a subjective opinion, however, will be much more difficult to judge.

In another place, the Minister dismissed these concerns, stating that this,

I am sure that for most people it would not be. However, there is nothing in this Bill or the Explanatory Notes which makes that clear. Can the Minister please explain what the "thinking" process would include? We obviously expect and hope that the Minister making decisions regarding harmonisation, and the person making decisions about the use of positive action, would do so with the utmost regard for best practice. However, the use of "thinks" seems to belie the serious implications of the use of these powers. Does the Minister agree that, given the strength of these powers, it would be beneficial if the test for their use were made stricter?

8.45 pm

In another place, the Minister commented that it would be unproductive if an employer were to be put off using the clause relating to positive action if the test were raised and he had, for example, to find an expensive consultant to provide some statistical analysis to demonstrate that the use of the powers was justified. As I pointed out a little earlier, we on these Benches support the provisions for positive action as long as that does not give way to positive discrimination. However, I wonder whether our amendment would really have as damaging an impact on the use of the clause as the Minister in another place feared would happen. Does the Minister agree that most employers would be able to demonstrate, first, that persons who shared a protected characteristic suffer a disadvantage connected to that characteristic or that, secondly, participation in an activity by persons who share a protected characteristic is disproportionately low? One would not need to spend a lot of money to have a consultant find statistical evidence; instead, it would just raise the bar for the thinking process.

This would mean that it was clear in the Bill that this is an important decision that requires reasoned, objective thinking and an evidential basis. I am sure that most employers would be doing that anyway. The aim of the change would be to catch only those who were not, to provide them with clear instruction about

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when is the appropriate time to use these broad powers, and to make sure that there is sufficient justification. That would not be off-putting to employers, as surely that sort of thinking is what the Government mean to encourage when they use "thinks". If not, can the Minister inform the Committee what the word is supposed to denote?

The use of the word "thinks" in these two clauses raises further concerns when it is noted that in Clause 158 the person must "reasonably" think, but that in Clause 196 the Minister does not even have the limitation of "reasonably" in order to use the powers contained there only on a thought. Given that the Minister in another place specified that those thoughts could not just occur over the breakfast table, can the noble Baroness account for the fact that "reasonably" has not been included here? I feel sure that the Minister will reassure us that all decisions are expected to be reasonable. If that is the case, why is that word included in Clause 158? Surely, the noble Baroness cannot be claiming that Ministers are intrinsically more reasonable than other employers?

Again, we advocate the use of "can demonstrate", with the intention that the Minister should have to be able to demonstrate the objective thought process and to be held accountable for the decisions made. I do not feel that the change that these amendments would effect would have too great an impact on a process that the Government are assuming would occur anyway. The noble Baroness will correct me if I am wrong-indeed, I suspect that she may wish to do so-but we on these Benches think that it would be sensible if the need for an objective and justifiable decision was laid out in the Bill rather than using a word which, to many, denotes a more subjective decision without the need for demonstrable evidence. I beg to move.

Lord Lester of Herne Hill: My Lords, this is not a taxing or a penal statute; this is a remedial statute, and it is to be approached in a liberal way. The principle of proportionality is a two-stage process. The first stage is that one must show that there is a legitimate aim; the second is to show that the means employed are reasonably necessary to achieve the aim. One does not need to raise the bar or to treat this as a coercive provision to be strictly construed because it is very important-the most reverend Primate has already indicated this-that the gateway into using these voluntary measures of affirmative positive action to overcome disadvantage and the effects of past discrimination is showing that it is a reasonable view. The word "reasonable" has an objective meaning. It means that you cannot take leave of your senses. Reason has to be applied.

As regards the term "reasonably thinks", the first stage, which is the easy stage, is to show that there is a legitimate aim. As I said earlier, the legitimate aim is spelt out in the Bill. If one were to raise the bar, it would completely stultify the effect of these voluntary provisions. I have said before that when Margaret Thatcher was Prime Minister and introduced in 1989 far more radical and coercive measures that still apply, have worked for 70 per cent of the workforce and have reduced discrimination against Protestants and Catholics in Northern Ireland, there was no approach of this

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kind, which, frankly, is inappropriate in a remedial statute. I should have thought that if the Conservatives win the election and govern the country, they would welcome the fact that these positive-action provisions will be taken up voluntarily by the private and public sectors. We can then begin to deal with patterns and practices of unjust discrimination in a more positive way, avoiding the need for unnecessary individual litigation. I cannot put it as well as the most reverend Primate who spoke from a common-sense, non-lawyer point of view, but it is absolutely vital that we keep the threshold as it is.

Baroness Turner of Camden: My Lords, I cannot really see what advantage one would get by replacing "reasonably thinks" with "can demonstrate". How does one set about demonstrating that there is a disadvantage in a work situation? I should have thought that it was reasonable to take on board this wording where an individual responsible for appointments or whatever in a work situation would reasonably think. I cannot see anything wrong with that, but to wait until you can demonstrate something is much more difficult. I much prefer the wording proposed by the noble Lord, Lord Lester, of "proportionate means". That is very good. Therefore, I see no advantage at all in replacing "reasonably thinks" with "can demonstrate"-quite the contrary.

Baroness Thornton: My Lords, this group of amendments relates to two different clauses-158 and 196, so I shall address the relevant amendments separately. Amendment 116 would make it a requirement for employers to rely on the statistical evidence to support the use of positive action measures to tackle disadvantage or underrepresentation within an organisation's workforce. This same amendment was tabled in another place. The Government resist this amendment. The Bill uses the formulation "reasonably thinks", so it already requires a decision-maker to act in a reasonable way when deciding whether to use positive action measures. We believe that "reasonably" introduces an element of objectivity and raises the threshold for decision-makers. It means that, when making the decision, the employer must apply logical and rational principles and a failure to do so would give rise to a challenge. Therefore, any use of these measures must be backed by some form of evidence or justification that supports the belief that people who share a particular characteristic are disadvantaged or underrepresented; otherwise, such a decision would be open to challenge, so clearly the employer cannot simply opt to use positive action measures on a whim.

Clause 158 sets out the circumstances in which employers could apply these positive action measures and the action that is permitted. Clause 158(4) also ensures that employers would not be able to abuse the provisions by ensuring that any action taken must always be a proportionate way of accomplishing the intended outcome. As has already been mentioned by noble Lords, using the formulation of "can demonstrate", as proposed in the amendment, would create a higher threshold based on undisputable statistical evidence, which we consider would have a chilling effect on the willingness of employers to use positive action measures. I am not saying that it is devastating, but that it is

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chilling. It would discourage employers from using the positive action measures, even when they had identified the need to tackle disadvantage or underrepresentation -the gateway mentioned by the noble Lord, Lord Lester, and the right reverend Prelate.

Amendments 130 to 133 will be discussed in a later group, so I will limit my remarks. They would limit ministerial flexibility in deciding whether use of the harmonisation power in Clause 196 is appropriate and, if so, the timing and extent of its use.

The provision grants Equality Ministers of the future the flexibility they need in order to keep the Bill, when enacted, a coherent and harmonised piece of legislation in the years ahead. I can offer reassurance to noble Lords, should they require it, that use of this clause would not be at the whim of a Minister dreaming something up over breakfast. While the initial trigger on its use would result from ministerial consideration following advice from officials, there are a number of constraints on the power's use and in-built requirements to explain and demonstrate why it would need to be deployed in any given case. The word "thinks" in Clause 196(1)(a) concerns the question of whether the Minister considers the relevant criteria are met and the Minister is therefore bound by public law principles to act reasonably.

The harmonisation provision, particularly the important procedural safeguards that we propose, will be debated more fully when we reach Clause 196, but I remind the House that this power can be used only where a community obligation is to be implemented through the Equality Acts. There will be little by way of subjectivity on this point. It will be clear that action is needed when regulations are brought forward to implement, for example, a directive under Section 2(2) of the European Communities Act 1972. With regard to consultation, it is inherent in such an exercise that the Government will need to demonstrate why the power needs to be used in those particular circumstances.

In addition, in response to concerns of the Delegated Powers and Regulatory Reform Committee, the Government are proposing amendments that would add further checks on its use-for example, by requiring further consultation if the initial consultation led to changes to the proposals and an increase in the frequency of reporting to Parliament on the power's use is proposed. We will explain that when we reach Clause 196.

I conclude by highlighting that all regulations intended to be made under this power must be laid before and debated by both Houses of Parliament. As with the consultation, the Minster will by definition need to demonstrate to Parliament that regulations under Section 2(2) of the 1972 Act trigger a need to retain harmony in the law through use of this power, and that any consequential adjustments are necessary. A new clause proposed by the Government after Clause 196 also requires that an explanatory document be laid before Parliament along with the draft regulations describing the results of the consultation, among other things. Ample accountability is built into this provision and it is important to understand that particular pieces of language taken in isolation do not provide the complete picture. I urge the noble Lord to withdraw the amendment.



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Lord Hunt of Wirral: My Lords, I thank the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Lester of Herne Hill, for their important contributions. I also thank the Minister for her reassurance. The concept of Ministers dreaming something up over breakfast is chilling, but perhaps we will leave it at that. She has given me the reassurance that I sought so I beg leave to withdraw the amendment.

Amendment 116 withdrawn.

Amendments 117 and 118 not moved.

Amendment 118A

Moved by Baroness Thornton

118A: Clause 158, page 101, line 3, at end insert ", and

( ) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2)"

Amendment 118A agreed.

Clause 158, as amended, agreed.

Amendments 119 and 119A not moved.

Clause 159 agreed.

9 pm

Amendment 120

Moved by Lord Hunt of Wirral

120: After Clause 159, insert the following new Clause-

"Private hire vehicle accessibility regulations

(1) The Secretary of State may make regulations (in this section referred to as "private hire vehicle accessibility regulations") for securing that it is possible for disabled persons-

(a) to get into and out of private hire vehicles in safety;

(b) to do so while in wheelchairs;

(c) to travel in private hire vehicles in safety and reasonable comfort;

(d) to do so while in wheelchairs.

(2) The regulations may, in particular, require a regulated private hire vehicle to conform with provision as to-

(a) the size of a door opening for the use of passengers;

(b) the floor area of the passenger compartment;

(c) the amount of headroom in the passenger compartment;

(d) the fitting of restraining devices designed to ensure the stability of a wheelchair while the private hire vehicle is moving.

(3) The regulations may also-

(a) require the driver of a regulated private hire vehicle which is plying for hire, or which has been hired, to comply with provisions as to the carrying of ramps of other devices designed to facilitate the loading and unloading of wheelchairs;

(b) require the driver of a regulated private hire vehicle in which a disabled person is being carried while in a wheelchair to comply with provisions as to the position in which the wheelchair is to be secured.

(4) The driver of a regulated private hire vehicle which is plying for hire or has been hired commits an offence-



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(a) by failing to comply with a requirement of the regulations, or

(b) if the private hire vehicle fails to conform with any provision of the regulations with which it is required to conform.

(5) A person guilty of an offence under subsection (4) is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(6) In this section-

"passenger compartment" has such meaning as is specified in private hire vehicle accessibility regulations;

"regulated private hire vehicle" means a private hire vehicle to which private hire accessibility regulations are expressed to apply."

Lord Hunt of Wirral: My Lords, we tabled Amendment 120 because we wanted to raise the issue of accessibility of private hire vehicles for people with disability. The intention is to probe this area and discover what changes could be made, what changes should be made and what changes the Government hope to make to ensure that private hire vehicles are accessible to people with disability.


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