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15 Dec 2009 : Column 1464

Baroness Deech: I am grateful to the noble Lord for his intervention. My express intention in saying this is that I do not think that Clause 45 is necessary because of the great advances that the Bar has made. It makes it look as though the Bar has not made them. The biggest threat to young barristers is the Government's cut in legal aid in the crime and family areas where young women and black and ethnic minority practitioners are strongly represented and would expect to earn a living, albeit a modest one, doing family and criminal work. The cuts in legal aid are the factor that will most impact on the possibilities for advancement of young women and black and ethnic minority barristers at the Bar. The Bar itself is taking every possible step to help them forward, and I would wish that Clause 45 be regarded in that light. I know it has been brought over from other legislation, but its presence is now superfluous.

7.31 pm

Lord Graham of Edmonton: My Lords, it is a pleasure and a privilege to take part in this debate, although I missed the early part, for which I apologise. It is fascinating to find that in answer to the question, "Are we in favour of equality?", there is not a voice that would say, "No". However, I had not conceived of the range of inequality, but I listened with attention.

No one has worked harder than the Leader of the House recently and no one deserves a good holiday over Christmas more than she does. I shall give her a Christmas box: I do not intend her to say anything at all about what I say, except that it was a good speech, that she enjoyed it and that she will listen to what I have to say in Committee.

Declarations have been made. The House is well aware of my lifelong commitment to the Co-operative movement. I shall use this opportunity to remind the House that the Co-operative movement is an early example of an institution that practised equality. In 1844, when the Rochdale pioneers started, and for the next 160 years, the criterion for being a member of a co-op was one member, one vote. When it came to the sharp end-members of a board of directors-you could stand. I remember more women than men at the large parliaments of the Co-operative movement, and I know they played a full part. We practised equality, not discrimination, more than many a private company's board of directors. Last night, we heard that the SSRB has not a single woman member. That is a shame and regrettable. However, we are bringing attention to these things.

I have been a member of this House for 25 years and was in the other place for 10 years. I shudder to think of the awful debates in which people who had a deep-rooted objection or a passionate belief in an issue used the opportunity to get it out of their system. I listened and wondered how people could be so bigoted in their reaction to other people.

The Bill tries to produce a single body of legislation instead of it being all over the place. It may succeed. Time will probably be the biggest enemy of the people who want to see the Bill doing something. I have been a trade union member all my life. The TUC has pointed out the benefits of the Bill. It requires public bodies to take account of socio-economic disadvantage

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when taking strategic decisions. No one can object to that. It improves protection for disabled people and their carers. No one can object to that. In this House and in the other place, I have seen the march of disabled people-that is not quite the right phrase-but the wheels of the wheelchairs grind exceedingly slowly. I have seen the gradual place taken by blind, deaf and disabled people in this place and the other place. It is to the credit of Parliament and its Members that they have been willing to do this. The public ought to be grateful.

The Bill allows employers to take positive action in recruitment and promotion and extends protection from indirect discrimination to, and clarifies the definition of, gender reassignment. It includes enabling powers to introduce specific equality duties relating to the public sector. Those who have studied the Bill more closely than I have will acknowledge that these things are there, but there will still be hundreds of amendments, mainly not to take out, although we have an interesting point about what needs to come out of the Bill: Clause 45. However, a lot of people will say that they agree with what the Bill says, but it does not go far enough or extend to their special interest. The Minister and her colleagues will have the difficult job of possibly agreeing in principle with everything that has been said. However, there are limits on what can go in to the Bill.

I listened closely to the speech by my noble friend Lord Macdonald, who spoke on behalf of the British Humanist Association. As a member of it, I agree with every word he said. No doubt, there will be amendments. Like many other noble Lords, I received a brief from the Equality Trust. I had never heard of it until I got its brief. With a Bill of this kind, people have been waiting in the dark for parliamentary action to take place, and then they spring out, and we find that they are there. I liked what it said. It said that the Bill includes a requirement that public bodies have regard to the desirability of reducing socio-economic inequalities when making strategic decisions. It goes on to talk about the benefits that could come if a small amendment was made to the Bill. It says, but we do not know, that it would halve the homicide rate, reduce mental illness by two-thirds, halve obesity, imprison 80 per cent fewer people, have 80 per cent fewer teenage births, increase the proportion of the population who feel that they can trust others by 85 per cent and allow us to become significantly more environmentally sustainable. That is if we get economic equality.

No one round here would disagree with the fact that, however wage structures have been made and whatever society has done, there is no such thing as economic equality. There are various slogans; for example, equal pay for equal work. We are all aware of them and agree with them, but this is the place that can do something about it. I am sure that the Government will have something to say that may inhibit my enthusiasm for what has been said. All I will say to the Minister and her colleagues is that I do not envy them their task not only in having to listen to a great many briefs which are coming forward from many places, but also in trying to satisfy people against a timescale. I wish my dear friend the Leader of the House well.

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7.39 pm

Baroness Pitkeathley: My Lords, without doubt we are engaged on hugely significant legislation and it is a privilege to be taking part. In view of the range of topics in the Bill, the richness of experience in your Lordships' House and the time, I want to concentrate only on the bits of the Bill that refer to carers. I declare an interest as vice-president of Carers UK.

I welcome the provision to extend protection against discrimination and harassment to someone who is associated with a disabled person, which in effect will give carers new rights in the workplace and in the provision of services. Your Lordships will be aware that, until now, the Disability Discrimination Act has applied only to disabled people. However, following the case of a Carers UK member, Sharon Coleman, against her employer, the European Court of Justice ruled, as my noble friend the Leader of the House mentioned, that the European framework directive did not specify that the person discriminated against had to have a disability themselves in order to be protected against direct discrimination and harassment. In introducing this provision through the Bill, the Government are implementing this ruling in British law, but they are going further than that. I congratulate the Government heartily on extending the protection to the provision of goods, facilities and services. That is a very welcome step.

Carers are a hidden but substantial minority of our population. They constitute about 6 million people in the United Kingdom, a number that is set to rise considerably. However, until the Coleman judgment and this Bill, carers have remained one of the very few groups against whom it is possible to discriminate. So it is not surprising that there is much enthusiasm for this Bill in the carers' movement and a commitment to making the law work for carers.

Clause 13 is the heart of the Bill as far as carers are concerned. It is good to see that the definition of direct discrimination is broad enough to cover cases where the less favourable treatment is because of the victim's association with someone who has that characteristic or because the victim is wrongly thought to have it. It is currently unlawful to discriminate against or to harass someone because they are linked to or associated with a person who is of another sexual orientation, race, religion or belief. But the same protection has not so far fully applied in respect of disability, age, sex or gender reassignment. The inclusion of protection against this type of discrimination, which follows the case of Sharon Coleman, is very much to be welcomed, as is Clause 14.

Clause 14, which refers to multiple discrimination, includes protection against discrimination because of a combination of two relevant protected characteristics. Currently, for example, more women than men are carers, which may mean that female carers are discriminated against in the workplace both because they are a woman and because they are a carer. However, we should remember that male carers, who are in a minority, may also suffer discrimination. For example, a male carer may be denied flexible working because the employer underestimates the nature of his caring role, where female employees with children are

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allowed to work flexibly. Certainly, carers from ethnic minority groups may face discrimination because of both their caring role and their ethnicity. That could be based on racial stereotypes and on attitudes about carers and it could lead them to be treated differently from a white carer or a non-carer from the same ethnic minority. The multiple rule is most welcome.

Let me mention discrimination in the provision of services. Many carers rely extensively on health and social care services because of their own health problems and to provide care for the person they look after. They often have problems accessing appropriate and affordable services. These practices are often discriminatory. For example, both health and social services assumed that a woman with a broken leg would be able to rest it, despite the fact that her husband was in the terminal stages of cancer and required 24-hour care from her. She was eventually provided with support, but it was too late. I am sorry to say that she was left with lasting complications and constant pain from the broken leg.

As to direct discrimination in employment, discrimination against carers can take many forms. At its most blatant, carers can be fired or demoted because of their caring role. I must mention the carer who went to a job interview with a local authority employer to be told that he should reapply for similar positions after his wife with MS had died because then he would be in a better position to take up a post. I should point out that some of the questions that used to be asked of women with children-many of your Lordships, or I should more pertinently say "your Ladyships", will remember questions about their responsibilities and how committed they were to their work and so on-are now targeted at carers. It is very important that this part of the Bill is also pursued.

Having given a warm welcome to those parts of the Bill, I must now mention what I believe is missing. Carers are not currently protected against indirect discrimination. The wording of Clause 19 ensures that protection is extended only to disabled people. For example, if a carer is forced to leave a job because the employer operates a shift pattern with which they cannot comply because of the provision of services locally, they would not be protected and have recourse to the law. Such indirect discrimination should also be unlawful and I hope to hear the opinion of the Leader of the House on that.

I also believe that carers should have the right to reasonable adjustments in their desire to demand and expect flexible working, a view that is supported by the Work and Pensions Select Committee. I believe that more provisions should be made for that. I wish the Bill extremely well and a speedy passage through the House.

7.47 pm

Lord Low of Dalston: My Lords, I, too, very much welcome this Bill. Having grown up piecemeal over 45 years and more, equality law has become an overgrown and impenetrable jungle spread over more than 100 pieces of primary and secondary legislation and thousands of pages of guidance and statutory codes of practice. It is inaccessible to rightsholders, employers and service

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providers alike and is overdue for consolidation, rationalisation and simplification. Some wish that it could have been even more streamlined than it is and consisted of something much more like a framework Bill setting out the purpose and principles of the legislation in a manner that would have been easier for the general reader to grasp, leaving much to regulations and guidance, along the lines of the Bill introduced by the noble Lord, Lord Lester of Herne Hill, in this House a few years ago. But we have the Bill that we have. However you look at it, it is clear that it will deliver a legal regime that is a great improvement on what we have.

The Government have made clear their commitment to ensure that the Bill provides at least the same level of protection as current law and that, in the jargon, there is no regression. They have largely done a good job. They have listened to concerns expressed by colleagues in another place and have made further welcome changes. But that does not mean that the Bill is incapable of improvement. Without wishing to be unduly parochial, but simply because it is what I know most about, let me say that aspects of the Bill remain of concern to disabled people. Having said that, I should add that the Disability Charities Consortium, which represents the larger disability charities-I declare my interest as a vice-president of RNIB and an officeholder in a number of other disability charities, all of which are declared in the Register of Interests-is clear that it wants the Bill and is not fazed by the bureaucratic burdens that have been alleged. I shall therefore be anxious to facilitate the Bill's passage into law. However, that does not absolve us from our duty to subject it to proper scrutiny and I shall be seeking further changes designed to address the concerns to which I have alluded and which I will outline further. I feel sure that, with reasonable give and take, we can arrive at a solution that we can all live with. For today, I will content myself with simply touching on a few of the disability community's priorities for improvement.

Before I do that, it is only fair to mention some of the things in the Bill that are particularly welcome to disabled people. I particularly instance here: the provision that makes it clear that, where a defence of justification is available to claims of discrimination, that defence must be objectively grounded; the establishment of a single threshold for the point at which the duty to make reasonable adjustments is triggered, though some slight tweaking of the wording may still be required here; the elimination of confusing variations in the definition of discrimination as it relates to disability; and, perhaps most welcome of all, the reversal of the Malcolm decision which threatened to wreak so much havoc with the concept of disability-related discrimination.

As for the points where I feel that changes are still necessary, I will just mention half a dozen or so. The noble Baroness, Lady Campbell, has already mentioned three of them so I shall be very brief. First, there is a need to ensure that the public sector equality duty reflects the distinctive nature of disability discrimination as fully as current legislation does. In its desire to establish a common conception of discrimination that goes across all strands, the Bill does not adequately reflect the asymmetrical nature of rights and duties as between disabled and non-disabled people. If we fail to get this right, we risk regression.

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Secondly, there is the public sector duty itself. As the noble Baroness, Lady Campbell, pointed out, this does not yet have the precision that the disability equality duty has had for disabled people, which has been such a welcome feature of the Disability Discrimination Act 2005 and has been welcomed by service providers as well since it gave them much more clarity as to what they needed to do to address systemic discrimination against disabled people.

Thirdly, as a frequent flyer, I am particularly concerned about the regression in the Bill's failure to retain the provision in Section 20(5) of the DDA that the cost of reasonable adjustments may not be charged to the disabled person. The definition of "reasonable adjustment" takes account of the service provider's ability to bear the cost, so there is no hardship to service providers in retaining this provision. I hope that we will be able to see it back in the Bill.

Fourthly, the Minister will be aware of the uncomfortable history in which qualifications bodies have misguidedly chosen to demonstrate their commitment to standards that we all share by taking measures that disadvantage disabled people. They have lost the confidence of many disabled people by doing so. Clause 96 of the Bill explicitly authorises an exam system that disadvantages disabled candidates and says in terms that minimising this is merely desirable, not necessary. The wording does not sit comfortably in an Equality Bill. The Government is usually such a champion of the life chances of disabled people and their foundation on basic qualifications that I hope very much that we will be able to move this issue forward through a process of discussion.

Fifthly, there is an unfortunate gap in the duties between the DDA and the special educational needs framework. That needs to be addressed. I feel a bit guilty about this as, when we considered this matter on the Disability Rights Task Force, which prefigured the creation of the Disability Rights Commission back at the end of the 1990s, I was concerned to preserve a clear dividing line between the two systems so that they should not get confused with each other. I have to confess that it has not worked out in practice. Schools' current duty is to use their best endeavours to secure provision and they are exempted from the duty to provide auxiliary aids and services as part of the reasonable adjustment duty under the DDA. This has given rise to a gap in provision as a result of the way in which the rights framework and the SEN framework do not mesh with each other. Removing schools' exemption from the duty to provide auxiliary aids and services would mean that the rights framework placed on schools a clear responsibility to ensure that all their pupils could access the curriculum and fill the gaps that have grown up in meeting the practical needs of disabled children.

Finally, there is one omission from disability legislation that must now be corrected. What ramps are to wheelchair users, large print and other forms of accessible information are to blind and partially sighted people. There are 2 million of us and, with an ageing population, that number is increasing year on year. Large print is easy to produce now, yet even eye hospitals fail to provide it for appointment letters and even intimate matters like test results. Older people are resigning themselves to

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simply stopping reading. This is neither necessary nor acceptable. It is also a perfect example of where the law should be judged against the outcomes that it produces and not merely against its procedures. I will therefore be tabling an amendment in Committee to introduce an explicit duty to provide accessible information.

I welcome the Bill and look forward to constructive discussions in Committee designed to resolve the few important issues that remain.

7.56 pm

Baroness Gibson of Market Rasen: My Lords, I, too, welcome the Bill and I believe that it was changed for the better in the other place. I am among those in the Chamber who have been campaigning to combine the many discrimination laws into a single act for more years than I care to remember. As a former trade union official, I know how this harmonisation will make life simpler and strengthen protection for those relying on the Bill to improve the lot of some of the most vulnerable in our society.

Like other noble Lords, certain parts of the Bill are more important to me than others, but I shall not outline these tonight because of the time. Rather, I shall concentrate on queries and comments that I have about the Bill. My first comment is about the approach to gender discrimination in pay and contractual terms-vital issues for trade unions and their members. The Bill replicates the existing provisions of the Equal Pay Act 1970 and this for me is extremely disappointing. The Government are missing a great opportunity to improve on the Equal Pay Act. They could have overhauled what is currently a complex, time-consuming and costly legal process to close the gap between men's and women's pay by allowing a hypothetical competitor to be used. Secondly, in relation to the new public sector duty proposals, I would welcome more details of these in the Bill, most especially the inclusion of the requirement for public bodies to consult their recognised trade unions on these issues. This would certainly pave the way for better industrial relations.

My two most important queries relate to women bishops and to equality representatives. I will start with women bishops and I place on record my thanks for my briefing from the Women and the Church task force. WATCH has anxieties about the Bill. It believes that within the Equality Bill, the Church of England may need to claim exemptions under Schedule 9, concerning gender, for two reasons. First, some Episcopal appointments may only be open to men who do not ordain women. Secondly, does Paragraph 2(6) of Schedule 9 mean that those opposed to female bishops and/or opposed to male bishops who consecrate them may be exempt from the Act under this non-conflict clause? When I read the clause, it made me wonder if it really should be removed from the Bill altogether because it appears to give a licence to any group that wishes to hold the Church, or indeed any other religious body, to ransom when such a body is considering changing its stance on issues of gender, sexuality, et cetera. I would welcome the Minister's response.

I should be grateful if the Minister could clarify these issues, because WATCH believes that the best future for the Church of England will include women

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and men as bishops without any discrimination between them in terms of functions, responsibilities for care or geographical territory. As a member of the Church of England, I support this view, hence my raising these points today.

I know that the TUC and the Government have fairly recently discussed equality representatives. The Government have identified a clear business case for promoting equality and diversity in the workplace, including enhanced profitability, attracting and retaining talented staff to fill skills gaps and, importantly, more productive employees who are selected, trained and promoted because they are the best people for the jobs. I am surprised, therefore, that the Government have not sought to recognise the valuable contribution already made by union equality representatives by using this Bill to place them on the same statutory footing as other union representatives.

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