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Amendment 33 would remove the default age of retirement, and employers' ability to dismiss employees, at the age of 65 or over for no reason other than that they have hit the age of 65 or over.

We tabled Amendment 61 after reflecting on the comments of the noble and learned Lord, Lord Mackay of Clashfern, when this issue was debated in Committee. If the amendment were accepted, the default retirement age would exist only until the end of 2011, so it would allow a breathing space of approximately 20 months in which to bring this measure into effect.

When my noble friend Lord Lester of Herne Hill raised this matter in Committee, he indicated that the amendments were probing, but I think there is a widespread belief that their underlying aim to remove the default retirement age has a lot of substance and merit. In the most recent Equal Opportunities Review, Michael Rubenstein wrote:

"A fixed retirement age is fundamentally discriminatory. It is based on the assumption that age affects someone's ability to do their job. Unlike other protected characteristics, age can be used arbitrarily to fairly dismiss people".

The JCHR, in its report on the Bill, said,

It acknowledged that employers had a legitimate interest in workforce planning, but believed that other methods of workforce planning avoided the age discrimination inherent in a default retirement age.

Indeed, one can go back further than the most recent edition of the Equal Opportunities Review and the JCHR's report to the report of the Select Committee on Economic Affairs of this House, which was published in January 2004. Now more than six years ago, that report recommended,

That goes to the heart of the matter. Rather than seeing retirement as something arbitrary when one hits a particular age, the employer should look at the criteria for determining when a person's employment

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should be terminated. It should be objective rather than simply an arbitrary application of a birthday milestone, albeit that the age of 65 has been recognised as such for a considerable time. People should be treated as individuals, and the employer should look at the merit of what a particular individual can contribute in his or her place of employment. Many might be able to go on for some years beyond the age of 65.

If we were to be as arbitrary with some of the other protected characteristics, people would see an obvious unfairness. Perhaps we have become so familiar with the age of 65 as the default retirement age that it is not so immediately recognised as being discriminatory. That is why we wish to terminate the default retirement age, but we have set a timescale in which that can happen. I believe that the Government are ultimately sympathetic to reaching the same destination. Perhaps by tabling these amendments we can hurry them along the way. I beg to move.

Baroness Howe of Idlicote: My Lords, I certainly support the amendment today, as I did in Committee. It is absolutely crucial that we get rid of this default retirement age at the earliest possible moment. The age of 65 is pretty arbitrary when you consider our life expectancy, and it has a particularly bad effect at the moment on the older generation, who would like to stay in work but are more likely to get their marching orders as a result of the default retirement age. I join the noble Lord, Lord Wallace of Tankerness, in what he has said. If we can help the Government to move more swiftly in the direction of getting rid of it, that would be an excellent outcome.

Baroness Warsi: My Lords, our views on this issue are well known and we went through them at length in Committee. I shall therefore not hold up Report stage unduly by espousing them all over again. We on these Benches support in principle the removal of the default retirement age. We have long believed that retirement should be a process and not an event. However, we are concerned that a number of very complicated practical issues need to be taken into account when considering this matter, and that is particularly true in the context of the current economic climate. For example, we are worried that moves to remove the default retirement age might have a further detrimental impact on the large number of young people who are out of work at present.

Under the current law, if the default retirement age were removed, it could be difficult for employers to ask especially older employees who are not able to fulfil their job responsibilities to leave. This is a very important issue which needs careful assessment. Under the current law, it is realistic to suppose that if an employer were to ask an employee to leave, that could result in disciplinary action or claims of wrongful dismissal. We are concerned about that and the fact that it would be damaging to the relationship between employer and employee. As I said in Committee, perhaps there is a case for instigating some kind of neutral discussion in the workplace regarding retirement. Therefore, we on these Benches are concerned that while there is certainly a case for removing the default retirement age in principle, many options need to be

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considered carefully to ensure that all the practical issues are addressed. We look forward to seeing the government review which has been promised.

Baroness Royall of Blaisdon: My Lords, the intention of these amendments is to abolish the default retirement age or to introduce a sunset clause that would remove the default retirement age at the end of 2011. We believe that these amendments are unnecessary and inappropriate as the Government have clearly set out a process for reviewing the default retirement age. As the noble Baroness, Lady Warsi, said, retirement is a process and not an event. However, I understand the strong views expressed by the noble Lord, Lord Wallace of Tankerness, and the noble Baroness, Lady Howe of Idlicote.

We are committed to a review this year-a year earlier than originally planned-and to implementing any changes necessary, in light of the evidence, during 2011. I stated that very clearly in Committee. In between, there will need to be consultation on the detail of any proposals and an opportunity for businesses to prepare for any changes. However, I want to reassure the House that we will seek to implement changes flowing from our evidence-based review as quickly as reasonably practicable.

We are already collecting information from a variety of sources about both the views and the experiences of older people and their employers. We have recently concluded a call for evidence on the operation of the default retirement age in practice and the costs and benefits of raising or removing it. There were over 200 submissions from a wide range of stakeholders, including the representatives of older people, business, unions and the public sector, and many individuals and individual businesses. We are currently analysing these responses, which will need to be considered alongside the Government's own evidence.

Key pieces of government evidence will include the results of the survey of employers' policies, practices and preferences that was commissioned by BIS and DWP. This involves a representative sample of over 2,000 employers, with results due to be published in summer 2010 although we will be able to consider the raw data earlier. In addition, the BIS-commissioned fair treatment at work survey, with a boosted sample of older workers, will be published shortly. Those surveys and stakeholder evidence will be supplemented by statistics on the labour market, qualitative research on the experience of employees and businesses dealing with retirement, and comparative studies of a range of retirement practices in different countries.

This is a comprehensive look at the issue which will enable the formulation of policy on the basis of wide-ranging and credible evidence. It should be remembered that the review will not only consider whether the default retirement age is still appropriate and necessary but seek to understand best practice around retirement. That includes considering how to encourage flexible retirement and flexible working options and driving culture change. It also means that we can try to anticipate and mitigate any unintended consequences of changing the law. Making policy on the basis of evidence is the key to making good policy.

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As consideration of the evidence on the default retirement age is now under way, it is not necessary to make changes to the Equality Bill for evidence-based changes to the law to be made. We have set out a clear timetable. I therefore ask the noble Lord to withdraw his amendment.

Lord Wallace of Tankerness: My Lords, I am very grateful to the Leader of the House for that reply. I believe she indicated in Committee that there has been an acceleration of the review. I also think she said that she hoped that the matters emerging from the review could be carried forward during 2011. Although it would be helpful and encouraging for that process to be completed, the difference between us is now probably relatively small. The noble Baroness, Lady Warsi, has also given me an indication that the Conservative Party shares the same objective. I do not wish to test the opinion of the House on this issue. Therefore, I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

7.15 pm

Clause 84 : Application of this Chapter

Amendment 34

Moved by Lord Wallace of Tankerness

34: Clause 84, page 54, line 40, leave out paragraph (c)

Amendment 34 agreed.

Clause 85 : Pupils: admission and treatment, etc.

Amendments 35 and 36 not moved.

Schedule 13 : Education: reasonable adjustments

Amendments 37 to 41

Moved by Baroness Wilkins

37: Schedule 13, page 188, line 31, after "paragraph" insert "-

(a) "

38: Schedule 13, page 188, line 33, at end insert ";

(b) the reference in section 20(3) or (5) to a disabled person is-

(i) in relation to a relevant matter within sub-paragraph (4)(a), a reference to disabled persons generally;

(ii) in relation to a relevant matter within sub-paragraph (4)(b), a reference to disabled pupils generally"

39: Schedule 13, page 189, line 11, after "is" insert "-

(i) in relation to a relevant matter within sub-paragraph (4)(a), a reference to disabled persons generally;

(ii) in relation to a relevant matter within sub-paragraph (4)(b) or (c), a reference to disabled students generally;

(iii) "

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40: Schedule 13, page 190, line 9, at end insert ";

( ) the reference in section 20(3), (4) or (5) to a disabled person is-

(i) in relation to a relevant matter within sub-paragraph (4)(a), a reference to disabled persons generally;

(ii) in relation to a relevant matter within sub-paragraph (4)(b), a reference to disabled persons generally who are enrolled on the course"

41: Schedule 13, page 190, line 23, at end insert ";

( ) the reference in section 20(3), (4) or (5) to a disabled person is a reference to disabled persons generally"

Amendments 37 to 41 agreed.

Clause 104 : Selection of candidates

Amendment 42

Moved by Lord Wallace of Tankerness

42: Clause 104, page 67, line 2, at end insert ", and

(c) which, subject to subsection (7), are a proportionate means of achieving that purpose."

Lord Wallace of Tankerness: My Lords, this amendment stands in my name and in the names of my noble friends Lord Lester of Herne Hill and Lady Northover and the noble Baroness, Lady Morris of Bolton. My noble friend Lady Northover will speak to the substantive new clause on the diversity of candidates and I shall speak to the amendments in this group.

Our purpose in tabling the amendment is to try to determine why Clause 104 does not contain an explicit reference requiring that the action taken by political parties to address under-representation among their candidates must be taken in a proportionate manner. The amendments would introduce an explicit proportionality test which would require that any action taken by a political party in regulating the selection of its candidates to reduce any inequality in the party's representation in a particular elected body must be a proportionate method of achieving that aim. Furthermore, the proportionality test will not apply to Clause 104(7), which contains a provision allowing the use of women-only electoral shortlists.

We believe that this amendment is needed because Clause 104 as drafted contains a very broad power for political parties to take action to support those with a protected characteristic that is under-represented within the party. Effectively, the clause permits a form of disproportionate action that we believe would be at odds with the principle of equality which the positive action provisions are intended to support. For instance, a political party can provide financial and other support to candidates with one form of protected characteristic but refuse any such support to other prospective candidates, even those with a different protected characteristic that was also under-represented within the party. The effect could be to prevent other candidates having a proper chance of getting on an electoral shortlist.

We therefore think that it would be inappropriate for political parties to be able to take forms of action that would not be a proportionate means of reducing inequality in the party's representation, albeit that that is a valid objective. Therefore, we want to import the proportionality test within this clause. By parallel

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argument, it would bring Clause 104 into line with other clauses in the Bill, specifically Clauses 157 and 158, which propose positive action provisions, and each of them contains an explicit proportionality test.

However, we seek to exempt from that test the reference to single-sex shortlists, which should be done for a limited period. I confess that one of the great disappointments of my time as leader of the Scottish Liberal Democrats was that I did not manage to persuade my party in Scotland to go down the road of single-sex shortlists, particularly when the Scottish Parliament was established and there was no problem of incumbency. There was an opportunity then to ensure a much better gender balance. Indeed, the other political parties in Scotland took the opportunity to ensure this. One of the reasons why my own party opposed it-and I hasten to add that it was often opposed as much by women as by men-was the wonderful Liberal Democrat principle that the centre cannot tell the local parties what to do. Furthermore, there were concerns at the time that we could run the risk of legal action. If my memory serves me correctly, I tried to amend the Scotland Bill to enable us to achieve this aim but was unsuccessful.

The other parties, to their great credit, took positive steps to secure a better gender balance among their candidates in 1999. This has resulted in the Scottish Parliament being probably one of the most gender-balanced Parliaments of the democratically elected Parliaments of western Europe. I want to encourage that, which is why we seek to make an exception and introduce the test of proportionality in this case. I beg to move.

Baroness Northover: I support the government amendments on diversity. We need to work together across all parties to ensure that those whom we put forward to represent us fairly reflect the society in which we live. We know that Parliament currently does not fairly reflect the diversity of our society. We therefore seek not to discriminate but to flatten the playing field. For some years, outside organisations such as the Fawcett Society have monitored how many female candidates are put forward, and that serves to encourage us all to do better. Within the Lib Dems we have gathered much of the information about candidates which these amendments also propose.

The first step in addressing under-representation of groups is simply to recognise that very fact. The next step is to collect information to see what the patterns are. With that knowledge we can set about analysing why things are as they are, and then how we might address that. There is now huge understanding of, for example, why it has been particularly difficult for women to participate. They have lower earnings, less time, more childcare responsibilities, and they care for elderly relatives, all of which all militates against political participation. It is excellent that the Bill allows positive action so that special measures can be taken to address this; and, of course, the Lib Dems have done it for the European elections.

The Speaker's Conference on greater diversity among candidates more generally was very welcome and its conclusions heartening. I am glad that we have

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together found a way of incorporating many of its recommendations in the Bill. I look forward to further discussions on how these things are to be put into practice in due course so that not only are unintended consequences protected against, as the noble Lord, Lord Wallace, indicated, but the principles of greater diversity among those who seek to represent us are taken forward.

Baroness Morris of Bolton: My Lords, my right honourable friend David Cameron made clear in his evidence session to the Speaker's Conference that he accepted the principle of reporting candidate data, as, indeed, did all the leaders of the main political parties. He explained that the desire and determination to make progress on the diversity of our candidates means that we monitor closely their gender, ethnicity and any declared disability. He also made clear, however, that we do not ask our candidates about their sexual orientation. For this reason I welcome the new clause and thank the noble Baroness the Leader of the House for taking on board the concerns regarding the sensitivity of collecting data around some of these characteristics, particularly sexual orientation and gender reassignment, and for arranging important cross-party meetings before Report.

I was therefore grateful to hear confirmation-actually, I have not yet heard confirmation, but I look forward to hearing it-from the Minister that the regulations will initially cover only the reporting of gender and ethnicity. In this way, the success of the data-gathering can be judged before any further steps are taken. It is most welcome because it addresses the concerns that were raised regarding more personal data. However, as a party, we accept that there may be benefits in monitoring sexual orientation, and so we will monitor sexual orientation internally, using similar methodology to that used by blue chip companies such as Barclays and Goldman Sachs. However, we remain concerned about the privacy of data, and for this reason the information we gather will be used to help us internally and will not be published.

We also welcome the amendments on proportionality in the names of the noble Lords, Lord Lester and Lord Wallace, to which I have added my name. It is important that action taken in pursuit of a legitimate aim should also be proportionate. I am grateful for the clarity that Amendment 43 provides on the potential use of all-women shortlists, which will be allowed even within the framework of proportionality.

Baroness Royall of Blaisdon: My Lords, I shall speak to government Amendments 44, 45, 57, 58 and 59 and to Amendments 42 and 43.

In Committee, in the light of some of the concerns expressed, I decided to withdraw the amendment in order to consider these concerns. Like noble Lords opposite, we believe that the principle of the amendment remains sound. Our intention in this amendment is to identify under-represented groups from the data collected with a view to identifying barriers causing or contributing to that under-representation.

First, in dealing with the concerns raised, I assure noble Lords that the Government will fully consult with political parties and others before the regulations,

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which will be subject to the affirmative procedure, are issued. The regulations will cover, among other things, which protected characteristics the duty will apply to, how a party will publish the data and to which parties the duty will apply. In practice this might mean, for example, that depending on the consultation, only information on candidates' gender and ethnicity will be published. However, we must consult on those issues.

Secondly, in relation to smaller parties, concerns were expressed about how individuals could be identified from the published data. The Data Protection Act 1998 imposes strict safeguards about how the party collects, stores and publishes the data in question. These safeguards will apply in full to the data collected under this amendment. The data will amount to personal data, such as gender, or sensitive personal data, such as disability, as defined in the Act. Sensitive data are given a higher level of protection under the Act. However, all data collected under this amendment will be treated as sensitive data, which means that they will be collected and published only if the explicit consent of the candidate has been obtained. A breach of the Act can result in the party being fined. All data provided voluntarily will be aggregated nationally and anonymised. However, in the unlikely event that individuals could be identified, subsection (5) makes it clear that the party will not be required to publish the data.

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