Prepared: 2:34 on 12th July 2011
Second Delegated Legislation Committee
Monday 11 July 2011
[Mr Christopher Chope in the Chair]
Draft Equality Act 2010 (Specific Duties) Regulations 2011
4.30 pm
The Minister for Equalities (Lynne Featherstone): I beg to move,
That the Committee has considered the draft Equality Act 2010 (Specific Duties) Regulations 2011.
It is a great pleasure to serve under your chairmanship, Mr Chope, and I am pleased to be leading this debate and to have the opportunity to explain the Government’s approach to the regulations. On 5 April, the Government brought into force the new single equality duty contained in section 149 of the Equality Act 2010. That duty requires public bodies and those discharging public functions
“to have due regard to the need to eliminate discrimination, harassment;…advance equality of opportunity; and…foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
The requirement to have due regard to the need to advance equality of opportunity and foster good relations applies to the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Just as with previous race, disability and gender equality legislation, the duty aims to ensure that the consideration of issues of equality forms part of the day-to-day routine of decision making and the operational delivery of public bodies. The new equality duty will follow the same structure as previous duties and be underpinned by the specific duties that we are discussing today.
The purpose of the regulations is to help public bodies in the better performance of the equality duty—we should not lose sight of that key point during the debate. The general duty is the key provision, which is in place and is broader than previous duties. The specific duties are designed simply to help public bodies to perform the general duty better.
With these regulations, the Government are proposing a radical new approach. As members of the Committee will be aware, the previous Government believed that the best way to help public bodies to comply with earlier equality duties on race, gender and disability was to impose detailed and prescriptive process requirements. Public bodies had to produce equality schemes, action and engagement plans, staff training schedules, annual reports and so on. Through guidance, they were also encouraged to produce vast equality impact assessments. The net effect of that was to bury public bodies under bureaucracy. This Government are committed to reducing burdens on public bodies, moving them away from bureaucratic processes.
Mr David Lammy (Tottenham) (Lab): The Minister cannot be suggesting that a race impact duty, the procedure undertaken by local authorities to ensure that they do not discriminate against black and ethnic minorities, could be described as a burden. Did I mishear?
Lynne Featherstone: I do not think that the right hon. Gentleman misheard, but he may have misinterpreted my words. The burden was in the bureaucracy, not in the need to ensure equality.
As I said, the Government are committed to reducing burdens on public bodies, and our aim is to shift public bodies from bureaucratic accountability to democratic accountability, with a key focus on transparency. Instead of the process requirements of the past, we propose just two specific duties: public bodies listed in the regulations should publish information to demonstrate their compliance with the equality duty, and they should set themselves equality objectives.
Fiona Mactaggart (Slough) (Lab): The original draft of the regulations required “sufficient” information to demonstrate compliance, but the word “sufficient” has since been deleted. What is the consequence of deleting that word? Is insufficient information sufficient for the purposes of the regulations?
Lynne Featherstone: No. As I continue my speech, that point will become clear. The information that must be demonstrated is that which would enable a member of the public to hold that public body to account. That is the duty.
Mr Lammy: I hope that the Minister will appreciate that, in matters of equality, the community impacted on is, by necessity, often a minority community, and sufficient information is important. For the minority—perhaps an ethnic minority in a rural part of England that is experiencing discrimination—the ability to use that democratic challenge is quite difficult.
Lynne Featherstone: I understand the right hon. Gentleman’s point, but the word “sufficient” does not add anything in legal terms. I hope to make clear what a public body has to demonstrate. We are following similar processes but the prescriptive nature is removed, thus allowing public bodies to choose how to demonstrate their progress towards the equality objectives more clearly, so that they can be held to account. Instead of the process requirements of the past, there are only two specific duties.
As for the information—this deals with the right hon. Gentleman’s point—we expect public bodies to publish information that will be useful to the public in holding them to account. It might include details of how they considered equality issues when exercising their functions, the information that they relied upon and whom they had spoken to, but we shall put all that into guidance. The key, however, is that we do not wish to be prescriptive.
Public bodies will have the flexibility to publish the most relevant information that they have, whatever it is, but not everything that is involved in the process of arriving at their equality outcomes. The point is to provide what is relevant and important to enable citizens, local groups or whoever to hold them to account. Our only stipulation is that they should include information relating to persons who share a relevant protected characteristic and who are affected by their policies and practices—for example, how a local authority’s provision of social housing affects women or people with disabilities. Additionally, those public bodies with 150 or more staff are required to publish that information in relation to their own employees.
All public bodies listed in the regulations except schools have to publish the information by no later than 31 January 2012 and at least annually thereafter. Schools must to the same by 6 April 2012, and at least annually thereafter. The additional time for schools—it is an extra term—is intended to help them to prepare for and implement the new regulations in compliance with the preparation time scales for regulations on schools, as recommended by the Merits of Statutory Instruments Committee.
As for the objectives, each public body listed in the schedule must prepare and publish one or more specific and measurable equality objectives. For example, they might aim to increase the percentage of people from ethnic minorities whom they employ over the business cycle to reflect the local population; or they might aim to increase the percentage of older people who access a service over that period, to ensure that the service genuinely promotes equality of opportunity for all. All public bodies are required to publish those objectives by no later than 6 April 2012, and at least every four years thereafter. That will ensure that public, voluntary and community sector organisations understand the key inequalities that public bodies are aspiring to tackle and to track progress against them.
Mr Lammy: The Minister will recall that, when the matter was debated in the House, a lot of emphasis was placed on having a positive duty. Will she explain what will happen if public bodies do not publish? She says that they should aim to publish, but what happens if they ignore the number of ethnic minorities that they employ or the elderly in their communities who want to come forward? I am worried that we are losing any sense of a positive duty. The emphasis is very much on what the Government would like them to do, not on what they should be doing.
Lynne Featherstone: I think that the right hon. Gentleman misunderstands: this is a point of law. Public bodies must publish information that is relevant. That is a duty—it is not optional—and it will be enforced by methods that I shall describe. Individuals should be able to see such information and challenge that authority, and if they do not get a satisfactory answer, they can go to the Equality and Human Rights Commission, which will enforce the duty to comply.
Mr Lammy: The Minister says that public bodies must publish information that is relevant. Is the test of what is relevant objective or subjective? Is it what I would like to publish, or is there some requirement about what is published? If someone who is part of an ethnic minority feels discriminated against, perhaps because they live in a rural area and cannot access services, is the information that is published what the local authority would like, or is there some objective analysis of what must be published?
Lynne Featherstone: There are two things there. The public body will choose which information it believes is the most relevant to publish, to demonstrate that it is achieving its equality objective. The individual will have the right to challenge and the right to data and can request any information that is held by that authority. Under the Protection of Freedoms Bill that is going through Parliament at the moment, the data that must be released have been increased to include anything and everything that the public body holds and must be published in a usable, comparable and accessible manner. As the hon. Member for Slough said in the Chamber, holding public bodies to account should be understandable and easy to do. The Government Equalities Office and the EHRC will work on the guidance with public bodies to ensure that people understand how to challenge.
The objectives must be published no later than 6 April 2012 and every four years thereafter. Let me take the opportunity to explain why we are proposing that all public bodies, except schools, publish their information in advance of setting their equality objectives. It is to help ensure that the public and voluntary and community sector organisations have the opportunity to review the data based on which public bodies set their objectives. Therefore, before anything happens, objectives can be measured. That key element of Government policy will ensure that public bodies’ work on equality is transparent and accountable to the people whom they serve.
Committee members will be aware that there was a full public consultation on an earlier draft of the specific duties last year and a further public engagement exercise earlier this year. The Government are grateful for the many responses that we received and have considered them carefully. Plainly, the regulations have sparked a good deal of debate. As Opposition Members mentioned, some equality lobby groups would have liked us to set very prescriptive regulations, particularly about what needs to be published. Equally, other organisations would have preferred us to have set no regulations at all. The Government have been careful to steer a path through such competing views to ensure that the regulations promote equality and drive transparency and accountability, but without burdening public bodies with bureaucracy.
The position that we have reached—requiring public bodies to publish information to demonstrate that they are complying with the law, while giving them the freedom and flexibility to publish the most useful information that they have—is the best possible outcome. In particular, it will enable public bodies to publish information that is proportionate to their size and type. For example, some smaller local authorities were concerned that complying with the earlier proposals would have been too onerous and expensive. The Government have listened to that view, too.
The need to publish information will ensure that public bodies continue to consider equality when making decisions. They may choose to publish the information that they have considered, their analysis of it and any engagement that they have had with relevant stakeholders and parties in regard to it and so on. Our guidance will make that clear. However, crucially, the regulations will ensure flexibility, so that public bodies are not burdened by the need to comply with very prescriptive requirements. I think that that is the right balance, and I commend the regulations to the Committee.