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We accepted that the Government's explanation of the reason behind the exclusion of children from these clauses was reasonable and proportionate. Of course, we hope that the Minister will take on board the concerns raised here and the fact that it would be helpful to keep under assessment the effect of the public sector equality duty in this area and whether it continues to be appropriate for the services and public functions clauses not to apply to under-18s. We must ensure that protection is extended to all for whom it is necessary and it is vital that children too are protected from discrimination.
However, this review may not be the ideal way of exploring the issue. The review would take place no later than 12 months after commencement of the Act. Will that allow enough time fully to assess the implications and effects of the provisions? It appears to be a very tight timeframe and perhaps too tight to produce useful results.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Thornton): My Lords, Amendment 47A, tabled by the noble Baroness, Lady Howe of Idlicote, would add a new duty on a Secretary of State to undertake a review of the extent to which public bodies have discharged the equality duty imposed by Clause 148 in relation to the protected characteristic of age for persons under the age of 18. The review should be conducted no later than 12 months after the commencement of the equality duty. The noble Baroness, Lady Morris, made a reasonable point that that is almost certainly too soon, even if it were something that we would wish to happen.
The amendment revisits the issue of the treatment of children-an issue that we have discussed at some length at each stage of the Bill. Let me first clarify and assure noble Lords that children will be extensively protected under the Bill. Just like adults, they are protected against discrimination because of race, disability, sex, religion or belief, sexual orientation and gender reassignment in both employment and the provision of services and the exercise of public functions. The new equality duty will require public bodies to consider the need to eliminate discrimination and advance equality of opportunity for people of all ages, including those under the age of 18.
Children, parents and children's organisations can contribute to the effectiveness of the duties. The general duty will be underpinned by a number of specific duties in secondary legislation, to assist better performance of the equality duty. These specific duties will require public bodies, including government departments such as the Department for Children, Schools and Families, to consult and involve relevant people in setting equality objectives, including young people and their parents in certain circumstances-for example, when maintained schools exercise some of their functions-and to report annually on their progress. They will be required to review these objectives every three years.
Consultation and involvement are key to our proposals for the specific duties. We believe that involving people from different age groups, including children and their parents, is crucial to understanding problems and tackling them effectively. We want public bodies to be
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There are mechanisms in place to review public bodies' compliance with equality duties. The general duty can be enforced through judicial review by individuals, third sector organisations and the Equality and Human Rights Commission. The commission will enforce the specific duties. If it thinks that a public authority has not complied with the equality duty, it will have the power to serve a compliance notice. Failure to comply with a compliance notice can result in the commission applying to the court for an order requiring compliance. Inspection bodies such as Ofsted can carry out thematic reviews to assess the extent to which young people are protected and will take into account equality considerations in carrying out those inspections. For example, school inspectors will assess the extent to which pupils feel safe from different forms of harassment and bullying.
The EHRC is under an obligation to review progress towards equality and to produce a state of the nation report every three years. The commission is also required to keep under review the effectiveness of equality legislation. If children's organisations are concerned that the protection of children has been insufficient, it is entirely right and proper that they should raise their views with the commission.
The noble Baroness mentioned a survey indicating that young people feel that they have suffered discrimination. The children's rights report says that 45 per cent of young people surveyed felt that they had been unfairly treated because of their age. This is a high figure and reflects young people's strong sense that they are entitled to dignity and respect, a view with which I have great sympathy and which echoes the remarks made by the noble and learned Baroness, Lady Butler-Sloss. However, we have to recognise that poor treatment cannot necessarily be defined as unlawful age discrimination and dealt with by age discrimination law. Many of those reported grievances, for example, amount to a sense that older people do not treat them with enough respect in some circumstances, such as in formal relationships, and these do not fall within the law at all.
The means to review and assess compliance with the duties, and to take account of the views of children and parents, already exist and will continue to exist when the new equality duty is enforced. I therefore ask the noble Baroness to withdraw her amendment.
Baroness Howe of Idlicote: My Lords, I thank the noble Baroness for her response. I cannot say that I am very happy. For example, I mentioned Australia, and I wonder whether an assessment has been made of why treating children to the same extent as adults seems to have worked so well in Australia. I am very grateful for the support of my noble and learned friend Lady Butler-Sloss and for the comments of the noble Baroness, Lady Morris of Bolton, even though she was not exactly 100 per cent on the side of having a review within 12 months.
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I should like to consider what has been said and I am rather sad that there does not seem to have been any intention of having an overview of how the policies are working. Looking at particular complaints and issues is not the same thing as giving an overview of how it is working for all children. In the circumstances I have no alternative but to withdraw the amendment. However, I hope that the Minister will give more thought as to how the Government might please more than their answer has done those who have put forward the amendment. I beg leave to withdraw the amendment.
Schedule 18: Public sector equality duty: exceptions
Clause 158 : Positive action: recruitment and promotion
Baroness Morris of Bolton: My Lords, this is an area in which we have strong views. As noble Lords are aware, we are very much in favour of the clauses on the use of positive action by employers so long as it remains just that and does not descend into positive discrimination. We have therefore tabled an amendment that would change "as qualified as" into "equally qualified to". We are concerned that the Government's intention might have changed in this regard and that the clause's language allows flexibility that looks more like positive discrimination. We cannot support this.
In Committee, the Minister attempted to reassure us by saying:
"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".-[Official Report, 9/2/10; col. 658.]
We have heard different arguments from the Government as the Bill has passed through its stages in both Houses. It would be useful, therefore, if the Minister could tell us whether she sees the clause being used for such tie-breaker situations between two people.
The Minister tried to reassure us further by saying that you cannot set the bar very low simply to pick someone who is less qualified but who has the relevant protected characteristic. She referred to people being 95 per cent qualified or 51 per cent qualified, for example, and we are grateful for this reassurance, especially as this is the situation that we wish to avoid. However, does she concede that it might be difficult to define precisely how qualified people are? This is why the clause remains open to abuse. The bar would not have to be set extraordinarily low before positive discrimination could be used to pick from a pool of
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We want to ensure that the clause is used only as a tie-breaker. Even if this seems to be the Government's intention, we argue that the language does not tie down the clause specifically enough. The Minister expressed concern that to make it very specific might discourage employers from using it. We argue the opposite; surely a more specific clause and more precise guidance are the way to encourage employers to use them, as there will be no doubt about what exactly they are allowed to do. The CBI has made it very clear that one of its major concerns is the vagueness of the clause and that it is unsure how it will work in practice. The British Chambers of Commerce has also expressed the concern that the language is "too confusing". Thus, we argue that the vague nature, rather than the too precise nature, of the clause will be to blame for employers being unwilling to use it. I look forward to the response of the Leader of the House. I beg to move.
9.45 pm
The Chancellor of the Duchy of Lancaster (Baroness Royall of Blaisdon): My Lords, the amendment would change the current wording of the provisions in Clause 158(4)(a) from "as qualified as" to "equally qualified to". The amendment was discussed in Committee and in the other place, and, as previously pointed out, while the suggested change in the wording seems very similar to the current wording in the clause, we consider that amending the wording from "as qualified as" to "equally qualified to" may have unintended consequences.
If the requirement was for job candidates to be "equally qualified to" be recruited or promoted, the employer might interpret this as requiring the candidates to have equal academic qualifications or other formal qualifications of a similar nature. However, when we refer to a candidate being qualified for a job, this is not a direct reference to any form of formal qualifications: rather, it is about ensuring that candidates must demonstrate that they meet the employer's particular requirements for the specific post in question. They are qualified to do the job according to whatever criteria the employer has identified as being appropriate for that job.
Any assessment of candidates' suitability will depend on a number of factors relevant to the job in question, such as experience, aptitude, physical ability and performance during an interview or assessment. Formal qualifications are only one way in which a candidate's overall suitability may be assessed and there may be many jobs where there is no need for any sort of formal qualification whatever. How an employer assesses whether an applicant is qualified to undertake a specific job would be up to the individual employer to determine. We are not attempting to interfere with how employers establish who is the most suitable person to work for them.
Any amendment that may make employers focus solely on academic or formal qualifications would be misleading and could cause employers to be reluctant to use those provisions unless they have a situation in which candidates have identical qualifications. The
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During debates here and in the other place, there were some concerns that employers might set artificially low thresholds for determining suitability for a job in order to be able to claim that a candidate was qualified to do the job although better candidates were identified. We do not consider that these provisions could be misused in that way. Most criteria that an employer uses to establish the best candidate for a particular role within the organisation will establish whether one candidate is better qualified in terms of their ability, competence or experience. We have always been very clear on this matter: where there is a superior candidate then he or she should be offered the job. For example, where the assessment process, in whatever form it takes, evaluates one candidate as having scored, say, 95 per cent and another, say, 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 currently drafted achieves that effect. It is for those reasons that I ask the noble Baroness to withdraw the amendment.
Baroness Morris of Bolton: My Lords, I thank the Leader of the House for her very clear explanation. We have probably argued this one out in both Houses and, given the hour and the fact that we still have a number of groups of amendments to debate, I beg leave to withdraw the amendment.
50: Clause 196, page 122, line 21, at end insert-
"( ) It is not a contravention of this Act for-
(a) a person or organisation which provides tourism or holiday services to place age limits on group holidays or holidays catering for people of particular ages;
(b) a person or organisation to design and provide financial products for specific market segments qualified by age or age groups;
(c) a person or organisation to provide insurance programmes where the calculations of the premiums for such programmes are based on reasonable evidence of the underlying differences in risk based on the purchaser's age or age group."
Baroness Morris of Bolton: My Lords, I realise that at this late hour there is little appetite for delving back into a debate which we have already fully explored. Therefore, I shall keep my comments almost prohibitively short.
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The intention of these amendments is just to gain absolute and certain clarity from the Government regarding their intentions in this area. In Committee, the Government provided helpful reassurances. I should like to pray on the patience of the Leader of the House once more to confirm that the exceptions will be made in regulations, that those regulations will come into force on the day when the age discrimination legislation comes into force and that they will be in one statutory instrument.
These amendments have been retabled because the noble Baroness, Lady Thornton, stated in Committee that the Government were "strongly minded"-that is like a definite maybe-to proceed on the results of their consultation. These results showed that age was considered a legitimate factor to be used by those providing financial services. Can the Minister inform the House whether the Government have any more definite reassurance than "strongly minded"? I beg to move.
Baroness Royall of Blaisdon:My Lords, Amendment 50 inserts exceptions for age-based holidays, financial services products for particular age groups and insurance based on evidence of risk.
We entirely appreciate how keen noble Lords and businesses are to have certainty about what the ban on age discrimination in services will mean for them and we are equally keen to reassure them about our policy and approach on these matters. Exceptions to the ban on age discrimination will be in secondary legislation, in some cases supported by statutory guidance. The exceptions will come into effect on the same day as the ban itself.
The policy statement we issued on 27 January reiterates that the future of age-related group holidays offered by Saga and other holiday providers will be secure when the ban comes into force. It makes clear that the financial services exception will allow firms to specialise in particular segments of the market by age. It clarifies that it will be possible to use age in financial services where it is relevant to risks or costs provided this is based on evidence.
The policy statement also makes clear that firms will be required to help consumers find a quote for motor and travel insurance through signposting or referring them to another provider, and that there will be publication of some data about how age is used in some products in a form that the non-expert can understand, as is already undertaken for gender.
I understand why there is an appetite for these kinds of exception to be written into the Bill now rather than later, but it is important that we get them right. We do not want any unintended consequences for valuable services or inadvertently to allow unjustified discrimination to carry on. That is why we will consult again in the autumn on a draft order containing exceptions, along with draft Treasury guidance on signposting, referral and transparency. Companies such as Saga and those in the financial services sector will have the opportunity to be involved in what the final legislation looks like, well before it is implemented in 2012.
Amendment 51 closely resembles a new clause that we debated in Committee. It is worth stressing that age used properly is a valid criterion for pricing risk.
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The financial services exception to be set out in a draft order will allow financial services providers to treat people of different ages differently, but only where this is proportionate to risks and costs. This amendment focuses only on insurance and aspires to a particular outcome-that no one should lose out-but it does not help deliver it. It would be difficult for an insurer to demonstrate that there is no detrimental effect due to age, when there are so many different factors involved in pricing insurance. Where a complaint is made, it will be for the insurer to demonstrate that the provision does not create significant detriment by reference to age and leaves unanswered what would or would not constitute significant detriment in this area, thereby creating significant uncertainty. This shows how framing an exception is challenging, and why further discussion with stakeholders is required to develop an appropriate exception, and which, in particular, keeps uncertainty to the minimum.
On the basis of these explanations and the reassurance that I have given, I ask the noble Baroness to withdraw her amendment.
Baroness Morris of Bolton: My Lords, I thank the noble Baroness the Leader of the House for the clarity and force of her language. I beg leave to withdraw the amendment.
50A: Clause 196, page 123, line 15, at end insert-
"( ) For the avoidance of doubt, section 39(1) shall not apply to discrimination against persons with the protected characteristic of age if they are, or look as if they are, between 18 and 25 years old and the reason for the discrimination is to comply with voluntary or statutory codes of practice which require that people used in marketing communications for alcoholic drinks should be and appear to be over 25 years old."
Baroness Meacher: My Lords, this amendment would add a new subsection to Clause 196, which deals with the general exceptions in the Bill in relation to age. The purpose of the amendment is to try to ensure that we avoid the unintended consequence of undermining one of the ways in which the drinks industry and the Government try to minimise the appeal of alcohol to children.
Several codes of practice, both self-regulatory and statutory, cover alcohol advertising in broadcast and non-broadcast media and the wider marketing and promotion of alcoholic drinks brands. One rule in common to all these codes is that the people used in filming or photography, for example, must be and must look over 25. Even though the legal purchase age for alcohol is 18, there is a general and long-standing agreement that a buffer zone is desirable to prevent undue appeal to under-18s, which is why the rule
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I do not want to see the age discrimination provisions of the Bill inadvertently open a loophole that would provide actors who are, or look, under 25 with a legitimate cause for complaint if they were denied work to promote alcohol brands. Neither do I want to see a loophole that would allow unscrupulous brand owners to use images of young people in their advertising and feel that they had the protection of this law rather than the restraint of the codes of practice.
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