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Thirdly, concerns were raised that this provision could lead to the introduction of quotas by the back door. I take this opportunity to make clear that it does not allow positive action measures that would otherwise be prohibited by the rest of the Bill. However, I appreciate noble Lords' concerns. I am therefore happy to support Amendment 42 and the related Amendment 43, which makes clear that the positive action in candidate selections allowed by Clause 104 must be proportionate. Parliament has already decided that the use of women-only shortlists is proportionate, hence the provisions in the 2002 Act which we are now extending so that they will apply until 2030. However, we agree that nothing else done under this clause should be subject to an express proportionality requirement.
Amendment 45, together with Amendment 59, gives the Equality and Human Rights Commission enforcement powers. Amendment 58 ensures that the regulations will be subject to the affirmative procedure. Amendment 57 provides that the amendment is an exception to the harmonisation provisions since there is no EU law which applies to the amendment.
Lord Graham of Edmonton: My Lords, this is a happy occasion in that the measure before us has already been substantially endorsed in principle by the parties through the vehicle of the Speaker's Conference. It is to the credit of all the parties to recognise that in the year 2010, through the vehicle of the Equality Bill, an opportunity has arisen to make progress.
Anyone who has been involved in party matters, especially election and selection, will be well aware of the sensitive nature of this issue. As I see it, the way in
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Baroness Royall of Blaisdon: My Lords, I thank my noble friend for his strong support, but I remind him that this is Report stage and though I was moving the government amendments, I was first disposing of Amendment 42. Therefore, while I am grateful for his support, I think it more appropriate to move back to the amendments.
(2) If the party had candidates at a relevant election, the party must, in accordance with regulations made by a Minister of the Crown, publish information relating to protected characteristics of persons who come within a description prescribed in the regulations in accordance with subsection (3).
(a) successful applicants for nomination as a candidate at the relevant election;
(b) unsuccessful applicants for nomination as a candidate at that election;
(c) candidates elected at that election;
(d) candidates who are not elected at that election.
(4) The duty imposed by subsection (2) applies only in so far as it is possible to publish information in a manner that ensures that no person to whom the information relates can be identified from that information.
(a) Parliamentary Elections;
(b) elections to the European Parliament;
(c) elections to the Scottish Parliament;
(d) elections to the National Assembly for Wales.
(a) marriage and civil partnership;
(b) pregnancy and maternity.
(a) must (subject to subsection (6)) relate to all protected characteristics or only to such as are prescribed;
(b) must include a statement, in respect of each protected characteristic to which the information relates, of the proportion that the number of persons who provided the information to the party bears to the number of persons who were asked to provide it.
(a) descriptions of information;
(b) descriptions of political party to which the duty is to apply;
(c) the time at which information is to be published;
(d) the form and manner in which information is to be published;
(e) the period for which information is to be published.
(9) Provision by virtue of subsection (8)(b) may, in particular, provide that the duty imposed by subsection (2) does not apply to a party which had candidates in fewer constituencies in the election concerned than a prescribed number.
(a) may provide that the duty imposed by subsection (2) applies only to such relevant elections as are prescribed;
(b) may provide that a by-election or other election to fill a vacancy is not to be treated as a relevant election or is to be so treated only to a prescribed extent;
(c) may amend this section so as to provide for the duty imposed by subsection (2) to apply in the case of additional descriptions of election.
"( ) To comply with the duties in this section, a public authority in the exercise of its functions, or a person within subsection (2) in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in subsection (1)."
Lord Ouseley: My Lords, this amendment is necessary to improve the obvious limitations of the public sector equality duty as it is set out in Clause 148. The limitations are evident by the partial success to date of the existing equality duty, with public bodies and authorities now thinking about their statutory equality responsibilities and having due regard to these, but not necessarily going beyond that point, in most cases, to deliver the outcomes required. I commend the Government on introducing the due-regard approach in existing race, gender and disability duties. It has got us to where we are now, but the proposed duty as set out in Clause 148 takes us no further. What we have now are volumes of equality strategies, schemes and policies, but not a great many desired and required outcomes that add up to recorded equality results.
Yes, there are statements of intent, declarations, aspirations, commitments, warm words, policy reviews and mountains of reports, all in order to satisfy the requirement to have "due regard". Many of our public service authorities will do as much as they have to in order to meet the standard of compliance required to keep the EHRC from enforcement action, but that standard of due regard is, in my view, woefully inadequate. The amendment is not nearly as radical as I would like, or would have hoped for, or as many of the intended beneficiaries would want and need, yet, as drafted, it is absolutely required to give total clarity to all concerned, such as public authorities, private and voluntary bodies carrying out public functions, the EHRC as the lead enforcement agency, the audit and inspection bodies and members of the public, about the proportionate steps they must take across all relevant functions in order to comply with this duty.
If the duty is to achieve its full potential, it is crucial that the Bill should make clear that the obligation to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations includes a requirement to take proportionate steps towards the achievement of those aims. Nothing in the amendment would increase the burden on public authorities; in fact, it would do the opposite, as it provides a specific focus to ensure that a duty is applied appropriately and eliminates any doubt as to what the duty requires in order to meet the essential compliance standards. Nor does it limit what a public authority should do to comply with the duty. It would preclude any possibility of adding to the existing tick-box approach by public bodies, as they would be compliant only by meeting their obligation through taking appropriate and proportionate steps towards equality.
Proportionality is central to the meaning of the equality duty. To have due regard involves giving weight to equality in proportion to its relevance to each of an authority's functions. Equality will be more relevant to some public functions than others: for example, for an NHS trust, equality will be highly relevant to all aspects of patient care, communications with family members and provision of information,
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This amendment has been developed in conjunction with the Discrimination Law Association and the Disability Charities Consortium in collaboration with the Equality and Human Rights Commission. It is fully supported by a wide range of expert equality groups, including Citizens Advice, Unison, Race on the Agenda, the 1990 Trust, the Equality Bill alliance, the National AIDS Trust, the Children's Rights Alliance for England and the Equality and Diversity Forum. This wide support amongst key stakeholders representing all the equality groups is not accidental. It reflects the concerns of people in communities with experience of the existing race, disability and gender equality duties who want to ensure that the new public sector equality duty will amount to more than a paper exercise. They want to see public authorities instituting effective changes to policies and practices to achieve real progress towards equality. Many of these organisations have been disillusioned and frustrated by the failure of public bodies to meet their existing duties across all their relevant functions. They support this amendment because they want the legal obligations on public bodies to be clear from the outset, including a minimum standard of compliance.
The EHRC, which is the enforcement body, will be the sole agency with statutory powers to enforce the Clause 148 public sector duty and it is important that it is clear about what it is enforcing. It can carry out a formal assessment of compliance with this duty and can serve a compliance notice. By putting into the Bill what a public authority, or other body exercising public functions, must do for minimum compliance, this amendment will give the EHRC a clearer basis to challenge any public authority, or other body, with poor evidence of compliance. It should enable the EHRC's enforcement procedures to be faster and more robust. It is very likely that the courts will continue to play a role in enforcing equality duties. This amendment, which builds into the statute a test for compliance, should also assist the courts when they are asked judicially to review certain acts, or omissions, of a public authority in relation to the authority's compliance with its equality duty.
It is also important that we provide a standard for the audit and inspection bodies to measure the equality performance of public authorities. The third aspect of clarity provides for members of the public. The amendment will provide a standard against which equality groups, community organisations, trade unions and members of the public can assess compliance with the equality duty. That is important because, by specifying the basic test of "taking all proportionate steps" towards achieving these matters, this amendment offers a useful baseline for organisations and individuals to hold public authorities to account.
In my view, it would be incomprehensible for the Government not to accept this simple amendment to improve Clause 148. The arguments for it are powerful,
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Lord Low of Dalston: My Lords, the noble Lord, Lord Ouseley, makes an important point. We are all familiar with the problem of equality duties being complied with, with the boxes being ticked punctiliously, but without any difference being made to the outcome. I hope that the Government can appreciate the risk of the public sector equality duty being prone to this drawback and I hope, therefore, that they will reflect seriously about whether some strengthening of the wording on the public sector equality duty in the Bill might not be called for.
Baroness Morris of Bolton: My Lords, as in Committee, we have considerable sympathy with this amendment. We feel that it is of the utmost importance that the public sector equality duty is not allowed to become just vague gesture politics, which encourages a culture of box-ticking rather than real action. Nevertheless, we remain unconvinced that the amendment would add much to the Bill to change that. We believe it is most important to assess the outcomes of the duties contained in this clause, as in this way authorities can be held to account and necessary changes can be made to the duty in order to ensure maximum compliance and effect.
Baroness Young of Hornsey: My Lords, I support the amendment, based as it is on a substantial body of opinion and experience of the successes and failures of previous legislation. The term "proportionate" has been mentioned several times this evening and in other contexts in the legislation before us, and it is important that we ensure that "all proportionate steps" are taken.
In my view, the amendment represents an opportunity to ensure consistent compliance with standards across all the bodies covered, discouraging the tick-box mentality, which we all abhor, of some public bodies. These standards will apply not only to public authorities but also to private and voluntary sector bodies in the exercise of public functions. The use of the term "proportionate" ensures that an inappropriate burden is not placed on public authorities. The amendment seeks to provide standards which the EHRC and the courts can use to enforce compliance, and for audit and inspection bodies it gives the necessary guidance for the measurement of equality performance. Of course, I agree with the noble Baroness, Lady Morris of Bolton, that it is very important to focus on outcomes and, although the wording may not be perfect, that is certainly implicit in what we are trying to achieve here.
As my noble friend Lord Ouseley said, the amendment will enable equality groups, trade unions, community organisations and the public to assess the compliance with, and progress of, the equality duty. I re-emphasise the wide and impressive range of organisations that have supported the amendment.
Baroness Coussins: My Lords, I also support the amendment for all the reasons set out by my noble friend Lord Ouseley but also because I have given some thought to what the Minister said in her reply to me in Committee when I put forward a similar amendment with a similar purpose. She said that these matters
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Baroness Thornton: My Lords, Amendment 46 tabled by the noble Lord, Lord Ouseley, and the noble Baronesses, Lady Young and Lady Coussins, is similar to the amendments tabled by the noble Lord, Lord Ouseley, and moved by the noble Baroness, Lady Young, on his behalf in Committee. We have not changed our mind about this amendment. We do not believe that it would improve the Equality Bill; instead, it would disturb the balance achieved by the current wording of the equality duty.
I appreciate that the amendment is intended to clarify Clause 148(1) but it would not have this effect. It would instead create further confusion by introducing additional requirements for public bodies to take all proportionate steps towards the achievement of a number of matters.
I shall try to explain what "due regard" means and how the courts interpret it. The courts have made it clear that having due regard is more than having a cursory glance at a document before arriving at a preconceived conclusion. Due regard requires public authorities, in formulating a policy, to give equality considerations the weight which is proportionate in the circumstances, given the potential impact of the policy on equality. It is not a question of box-ticking; it requires the equality impact to be considered rigorously and with an open mind.
The noble Lord, Lord Ouseley, implied that the only enforcement of the equality duty would be through the EHRC. Clearly, that is not true. The general duty can be enforced through judicial review by individuals and third sector organisations, as well as by the Equality and Human Rights Commission, but only the commission can enforce specific duties. The Bill makes it clear that in certain circumstances the duty will involve taking action to meet the needs of particular groups.
The purpose of the equality duty is to oblige public bodies to consider equality issues in respect of all their functions. However, the amendment appears to be an attempt to take away an authority's discretion as to
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If bodies subject to the duty are required to "take all proportionate steps" to advance equality of opportunity in respect of all eight protected characteristics, it is inevitable that public bodies will be required to spread their finite resources more thinly and that some persons with more pressing needs will end up with less.
The general duty will be underpinned by a number of specific duties to assist better performance of the equality duty. The secondary legislation sets out the detailed steps that a public authority should take to meet the duty, and in our opinion that is the right place to set them out.
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