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Equality Bill

Equality Bill

The Committee consisted of the following Members:

Chairmen: Mr. Joe Benton, John Bercow, David Taylor, Ann Winterton
Baird, Vera (Solicitor-General)
Baron, Mr. John (Billericay) (Con)
Boswell, Mr. Tim (Daventry) (Con)
Brown, Lyn (West Ham) (Lab)
Eagle, Maria (Minister of State, Government Equalities Office)
Featherstone, Lynne (Hornsey and Wood Green) (LD)
Griffith, Nia (Llanelli) (Lab)
Harper, Mr. Mark (Forest of Dean) (Con)
Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
Howell, John (Henley) (Con)
Keeley, Barbara (Worsley) (Lab)
Kidney, Mr. David (Stafford) (Lab)
Mason, John (Glasgow, East) (SNP)
Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
Penrose, John (Weston-super-Mare) (Con)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Alan Sandall, Eliot Wilson, Committee Clerks
† attended the Committee


Vera Baird QC MP, Solicitor-General
Melanie Field, Deputy Director, Discrimination Law Team, Government Equalities Office
James Maskell, Treasury Solicitor’s Department

Public Bill Committee

Tuesday 9 June 2009


[Mr. Joe Benton in the Chair]

Equality Bill

4 pm
The Committee deliberated in private.
4.4 pm
On resuming—
The Chairman: Thank you for coming, Solicitor-General. I am sorry, but it appears that you are the lone Minister this afternoon. Would you introduce your colleagues to the Committee please?
Vera Baird: I am fortunate to have with me my two senior officials. To my right is Melanie Field and to my left James Maskell. Perhaps they should introduce themselves and say a little more as to their role.
Melanie Field: I am Melanie Field. I work in the Government Equalities Office and am the lead official on the Equality Bill.
James Maskell: I am James Maskell. I am head of the Government Equalities Office legal team and the Treasury Solicitors, and I am the lead lawyer on the Equality Bill.
The Chairman: Thank you. Before we commence questioning, will everyone ensure that their mobile phones and BlackBerrys are switched off? I understand that there was some trouble with interference this morning from BlackBerrys, so I would be grateful if that was done.
Q 207207Mr. Mark Harper (Forest of Dean) (Con): It is good to see you in the Chair, Mr. Benton. My first question is a quick one about positive action, which follows on from this morning’s evidence and questioning that you did, Minister. May I check the Government and legal position on a company or business that has two equally qualified employees using one of the protected characteristics as a tie-break? Is that lawful or unlawful?
Vera Baird: That would be unlawful.
Q 208Mr. Harper: Right, so the Government’s view is that clause 153, given what you said this morning about it being fairly widespread or common practice for such a thing to take place, effectively enables companies to continue doing it without running into legal difficulties? Is that the motivation?
Vera Baird: Yes. It has two purposes. One is the ability to improve the numbers in an unrepresented work community, which we talked about, and the other is the one you have now pinpointed. You say it is fairly widespread. We have certainly had some evidence from senior stakeholders in business of the kind of example that I gave this morning, where someone wants to sell to a particular community and therefore deliberately chooses someone from that community as a marketing person. That is fairly commonly done and it makes a lot of sense from a business point of view, I would have thought, so it is important to make sure there is protection for that.
Q 209Mr. Harper: Okay, that is great. On disability, you will know from previous evidence sessions that a number of disability groups have expressed some reservations, asking whether the Bill is a step backwards. I know that the Government’s position is that it is not, as far as disability protection is concerned, but you will know that there are a number of concerns. Will you set out clearly for the Committee the Government’s position on disability protection in the Bill, so that we have a short statement about the Government’s position, or about what they think they are doing, and are clear for when we move into the debate on the specifics of the Bill.
Vera Baird: We intend to continue all the protection that is uniquely available to the disability strand because it allows for positive discrimination, which is essential. Meanwhile, there has been the case of Lewisham v. Malcolm, which changed the law to the disadvantage of disabled people. We have altered slightly how we describe the law about disability as a consequence of that case and we have dealt with it, but we do not think there is the slightest regression. We are confident that we have protected disabled people and left it open for there to be positive discrimination in their way.
Perhaps I should discuss concerns that have been expressed about specific things that the disability sector has said here. The first is that there might be some regression in that it is now necessary to show that someone has knowledge that a person is disabled before direct discrimination is indeed direct discrimination. That was raised here, I think. May I make points on that? First, the House of Lords made it very clear in the Malcolm case that that had always been the law. It interpreted the law in that way, so it has always been the case and we are only putting into statute what the House of Lords has declared always to have been the law.
The extra thing that disabled people have—I hope I am putting this correctly, but James will help me if I am not—is the availability of indirect discrimination, which they did not have before. That, of course, does not require knowledge, but relates to where a provision, criterion or practice disadvantages someone with a protected characteristic and is not objectively justifiable. That is a new strand of discrimination that will help disabled people. If anything, we think that we have moved forward. Certainly, we have not moved backwards.
There are more aspects. One is the problem of whether we have declared clearly enough the availability of positive discrimination. That is coupled with whether there is a danger of confusion because of the existence of the positive action clause that you have just talked about, Mark. That clause is weaker on the face of it than the positive discrimination provision.
There was even a suggestion that it might be better if we left positive action out of the disabled sector. We have made it as clear as we can that positive discrimination is still available, but if there is a better way of declaring it, we would have no problem at all in trying to do that. Since the disability sector came here the other day, we have engaged it to see whether it has any suggestions about how we can make what we want to be clear even clearer.
The purpose in keeping disabled people in the positive action arena is to allow positive action, such as between groups of disabled people. So, for example, if Tesco wanted to have a specific programme on people with learning difficulties, it would be protected from discrimination against other disabled people through that provision. Both those aspects are important and if there is any deficiency in how we have declared them, we are happy to have the provision corrected, strengthened or whatever is necessary.
It is absolutely clear—I hope I am making it absolutely clear—that the political will is to make sure that disabled people are protected and given all that they have always had since the Disability Discrimination Act 1995 came into force.
Mr. Harper: As we move into consideration in Committee, it is helpful to know where we are approaching that matter from. We will seek to be as constructive as the Minister has been in getting to that.
Vera Baird: May I just check whether there is anything to add? No.
Q 210Mr. Harper: Two brief points on employment. I shall put them together and the Minister can then reply to them together. Employment rates for disabled people are still fairly low—much lower than for non-disabled people. Will you set out briefly any changes in the Bill that help to improve that situation? The second issue is linked to that and follows on from this morning’s discussion about the gender pay gap: there is a disability pay gap.
I have some information about the pay gap in Government. A number of Departments pay their disabled employees, on average, a significant amount less than their non-disabled employees. I suspect that mostly it is a case not of people in the same jobs being paid different amounts, but of seniority in the civil service being reflected. However, I do not have that level of detail.
Will the Minister perhaps address that point? There is nothing specifically in the Bill about the disability pay gap. Given the conversations we have had about the gender pay gap, do the Government intend to look at that?
Vera Baird: There is, of course, the positive action provision, which we have already talked about. That provision will try to help the imbalance in relation to employment for disabled people. There is also a duty to report to the companies registry on the levels of disability employment—it is already there. We are consulting on whether there should be reporting of the disability pay gap on much the same basis as there will be of the gender pay gap because transparency would help.
Those are the things that I would point to straightaway as providing a first response to your question.
James Maskell: It is worth making it clear that there are obviously two separate elements here: the public sector and the private sector. On the public sector, a consultation will shortly come out in relation to specific duties, which will potentially cover disclosure of disability employment issues and so forth. In the context of the private sector, at this point we will be looking more for the first stage to be a voluntary element in terms of what people would want to disclose.
Vera Baird: Our approach is the same as with the gender pay gap: oblige the public sector and request the private sector. That is what we are looking at. James’s point that you have to distinguish the two was well made. We obviously intend that the public sector will drive it.
Mr. Harper: That is helpful, thank you.
Q 211John Mason (Glasgow, East) (SNP): It has been suggested that maybe there should be a kind of equality guarantee or purpose clause in the Bill, as that would help the courts when they come to interpreting the legislation. To follow on from that, what is the Government’s thinking if there is a conflict between some of the eight protected characteristics? For example, what if one person’s right does not quite fit in with someone else’s right?
Vera Baird: I do not myself find the prospect of a purpose clause a very helpful likely tool for court interpretation. It is not something that we have as a rule in many British statutes. I do not think that the courts will have real difficulty understanding what the purpose of this is. It is fairly manifest from the content of the Bill what it is intended to promote. You could quote the equality duty as setting out most clearly what its intention is.
I do not think that a purpose clause would be a useful tool of interpretation. There has certainly been no pressure from the judiciary to lead us to think that they would find it difficult to look at the Bill without such an aid. A purpose clause is not part of what we usually do in English statute, and there is no particular reason to put it in here. I do not know whether any statement of purpose would go beyond the full contents of the statute itself to help where there is a conflict between strands. I would guess that there are likely to be, at some point, conflicts between strands, although it is not that marked an experience that there have been a lot of conflicts between strands in the past. Clearly, religion and sexual orientation are likely to be the ones, if there are any. We would hope that the Equality and Human Rights Commission will give guidance about how the public sector should deal with this, and there will be every prospect of it being involved in mediation if there were some issue.
A few people in the EHRC in Manchester have picked up cases in which there has been discrimination or a question mark over whether there is discrimination—some are large, some small. They are an obvious repository. They have, in a number of cases which they quoted to me when I visited them just a few weeks ago, been able simply to indicate to the person, perhaps the church hall organiser or some bigger affair, that they are discriminating—they have not realised that they are and have rectified it.
In other cases, the people at the EHRC have facilitated mediation between people who have not intended to get at cross purposes but represent separate interests. Obviously, one hopes that the tenor in which the Bill will be carried forward will be to try to promote good relations between the groups. That is for the EHRC to be at the forefront of, so I hope that it will be much more about mediating, facilitating and making sure that there is a positive approach to each other among the strands, which, after all, is what the Bill is about. Obviously, if you have to go to court, then you have to go to court.
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Prepared 10 June 2009