61 (1) Schedule 9 (provisions capable of inclusion in individual insolvency rules) is amended as follows.

(2) After paragraph 4 insert—


4A Provision for regulating the practice and procedure of adjudicators.4B Provision about the form and content of a bankruptcy application (including an application for a review of an adjudicator’s determination).”

(3) After paragraph 4B (as inserted by sub-paragraph (2)) insert—

“Appeals against determinations by adjudicators

4C Provision about the making and determining of appeals to the court against a determination by an adjudicator, including provision—

(a) enabling the court to make a bankruptcy order on such an appeal, and

(b) about where such appeals lie.”

(4) After paragraph 24 insert—

24A Provision requiring official receivers—

(a) to keep files and other records relating to bankruptcy applications, and

(b) to make those files and records available for inspection by persons of a prescribed description.”

62 (1) In the Table in Schedule 10 (punishment of offences), insert the following entry after the entry relating to section 262A(1)—

16 Oct 2012 : Column 226


False representations or omissions in connection with a bankruptcy application.

1. On indictment

2. Summary

1. 7 years or a fine, or both.

2. 12 months or the statutory maximum, or both.”

(2) In the application of the entry inserted by sub-paragraph (1) in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (limit on magistrates’ court powers to impose imprisonment), the reference in the fourth column to “12 months” is to be read as a reference to “6 months”.’.—(Jo Swinson.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 12

Equality Act 2010: third party harassment of employees and applicants

‘In section 40 of the Equality Act 2010 (employees and applicants: harassment) omit subsections (2) to (4).’.—(Jo Swinson.)

Brought up, and read the First time.

Jo Swinson: I beg to move, That the clause be read a Second time.

Mr Deputy Speaker (Mr Lindsay Hoyle): With this it will be convenient to discuss the following:

Government new clause 13—Equality Act 2010: obtaining information for proceedings.

Government new clause 17—Power to provide for equal pay audits.

Amendment 56, page 43, line 27, leave out clause 52.

Government amendments 35, 36, 45 and 47.

Jo Swinson: We come now to equality measures and various technical and consequential amendments relating to territorial nature and commencement. The new clauses relate to Great Britain’s legal framework on equality and human rights. New clauses 12 and 13 repeal provisions in the Equality Act 2010 that expressly place liability on employers for repeated harassment of their customers, and provisions related to obtaining information. New clause 17 enables Ministers to require employment tribunals to order equal pay audits where an employer is found to have broken equal pay and/or sex discrimination laws. Opposition amendment 56 seeks to remove from the Bill measures to improve the focus and effectiveness of the Equality and Human Rights Commission.

The Government’s amendments and clause 52 are necessary to clarify our legal framework on equality and human rights, and in doing so make it more effective. But they are also about laying the foundations for a sustainable economic recovery. In the current economic circumstances we simply cannot afford not to maximise the full potential of our work force. All hon. Members support making it easier for people to play an active role in our economy, and it is for that reason that I hope we can agree on the provisions. A vague legal framework, full of aspiration but lacking clarity, helps no one, and, worst of all, can hold people back.

16 Oct 2012 : Column 227

The shadow Secretary of State for Business, Innovation and Skills has described these measures as a sign of the Government rowing back on equalities. They are anything but. Rather they are a clear indication of the Government’s commitment to making a real difference on the ground. This is reflected not only in the legislative measures that we are debating today, but in what the Government have achieved since taking office in 2010. [Interruption.] The shadow Secretary of State asks what we have done for equalities. I will tell him.

We have established the first ever inter-ministerial group on equality and published the first ever cross-government strategy; legislated to allow civil partnerships on religious premises; published the first ever transgender action plan; introduced support for disabled people seeking elected office; launched “Think, Act, Report” to have gender equality reporting; established the Women’s Business Council, which is doing vital work to help identify the barriers holding women back in the work place; provided support for women to set up and grow their own businesses with more than 5,000 women mentors; and championed equality on company boards, with the number of FTSE 100 all-male boards halving and new appointments to boards rising from 13% women in the last year of the Labour Government to 34% under this Government. We have published the first ever sports charter aimed at combating homophobia and transphobia; all premiership and championship football teams are now signed up against homophobia and transphobia. We are of course consulting on equal civil marriage, something the previous Government did not do. We have also legislated to end age discrimination in the provision of goods and services.

3.45 pm

This Government have a proud record on equality, but of course there is more to do. In my dual role as Minister for Business and Minister for Equalities I see big opportunities, because new measures for growth must go hand in hand with continued measures to promote equality. The benefits of a more balanced and diverse work force are absolutely clear. Technology has transformed people’s ability to communicate and work in different ways, but too often our working practices are stuck in a time warp that values slogging away in a standard pattern of hours rather than doing whatever works to get the best results from the individual.

The coalition Government are committed to revolutionising how we work by introducing shared parental leave, sharing best practice on and challenging outdated assumptions about part-time work, and extending the right to request flexible work to everyone. The benefits of these changes are not just for parents and carers; they will help everyone to work in a way that suits the realities of modern life. They will also benefit employers through reduced staff turnover, greater productivity and fewer working days lost. However, these benefits can be realised only if we have a clear and robust legal framework that everyone understands and that is fit for purpose.

I will now turn to the specific measures set out in the amendments, starting with new clause 12, which relates to third-party harassment. We propose repealing the third-party harassment provisions, which are now unnecessary. They are confusing for many people,

16 Oct 2012 : Column 228

and employers and businesses have genuine concerns about them. It might be helpful if I give the House a brief overview of how these provisions came about in the first place. When the previous Government implemented the equal treatment directive in 2005, they introduced a specific protection against harassment by amending the Sex Discrimination Act 1975. The amended Act prohibited harassment “on the grounds of” a person’s sex. They published an accompanying explanatory factsheet stating that the harassment provisions would apply in a specific situation

“where an employer knowingly fails to protect an employee, for example from repetitive harassment by a customer or supplier.”

That claim, produced by the previous Government, was wrong. It was challenged by the Equal Opportunities Commission in 2007 and the court found that the new definition of harassment would not in fact cover that situation. The Government chose to comply with the ruling on that point by introducing the so called “three strikes” test into the 1975 Act. The test applies when an employee has been harassed at work on at least two previous occasions and the employer knows of the harassment but has not taken reasonable steps to prevent it from happening again. The test was later transferred into the Equality Act 2010, although to harmonise the law it was extended to most of the other protected characteristics, rather than just a person’s sex.

Introducing the “three strikes” test was in fact unnecessary, because at the same time the previous Government, crucially, also expanded the law by changing the basic definition of harassment within the 1975 Act to apply to conduct “related to” a person’s sex, which is a wider definition than “on grounds of” a person’s sex. The 2010 Act replicated that definition as well as the “three strikes” test. Therefore, depending on the specific circumstances of a case, section 26 of the 2010 Act also covers situations that are covered by the “three strikes” third-party harassment provision. Employers also have a general duty of care towards their employees and, in more extreme cases, the Protection from Harassment Act 1997 can apply.

Therefore, employers will continue to be liable for harassment of their employees by a third party even once the “three strikes” provision has gone. That may be the case, for example, when an employer knows that a customer has repeatedly harassed an employee but has not taken reasonable steps to prevent it from happening again. Those protections will remain. The fact that the “three strikes” provision is no longer needed is evidenced by our being aware of only one tribunal case being brought under the provisions in the past four years.

In addition, employers often find the test difficult to apply or misunderstand its purpose. For example, one NHS trust told us that it thought that it was intended to

“provide employers with additional tools to protect staff from the public discriminating against them”

and to

“provide further protection in the areas of stalking and domestic abuse.”

A number of respondents to the consultation provided what they thought, in good faith, were examples of third party harassment but which were nothing of the sort. That illustrates that the provision is easily misunderstood, and we intend to clear up this confusion. We consider that the provision is unnecessary and therefore unhelpful, and the new clause removes it.

16 Oct 2012 : Column 229

New clause 13 concerns the procedure for obtaining information by an individual. This was intended to be used to help individuals to decide whether to bring legal proceedings and, if proceedings are brought, to help them to build a case to prove that discrimination has taken place. As the law stands, the questions and answers given are admissible as evidence and the court of tribunal can draw inferences from a failure by the respondent to answer the questions posed within eight weeks, or from evasive or equivocal answers. Ministers can, and have, specified the content of the forms to be used. However, claimants and their legal advisers are free to add additional questions and frequently do, sometimes running to very many pages.

There is clear merit in ensuring that an individual can establish the facts of a potential discrimination case, but a statutory provision is not the right way to provide for this. There are better non-legislative ways of achieving the same end that are less burdensome to business. It is clear from the responses to our consultation that the procedure imposes considerable costs on business. We were told that the questions are often long and technical and can request disproportionate amounts of data that employers have to seek out through checking years of records. We have been told about answer forms as long as 60 pages. A lawyer advising a small business told us about a sex discrimination case where the questionnaire had 102 questions plus sub-questions. The British Chambers of Commerce reported 100 questions in one form, and another case brought to the attention of the Government Equalities Office included 43 additional questions, many with sub-sections. The procedure has been described by a legal organisation as “oppressive” for an employer, and the British Retail Consortium described the collection of information as

“very onerous and time-consuming”.

There is no limit on how many and what type of questions can be asked, and employers are at risk if they do not respond to them. Based on a sample survey, we estimate that some 9,000 to 10,000 businesses complete the forms each year, in each case taking, on average, five to six hours, at a cost of about £160.

Stewart Hosie: The Minister is describing an onerous list of questions, so perhaps she can tell the House how few need to be answered in order for the information to be provided so that someone can get proper redress.

Jo Swinson: This is a procedure about obtaining information. There are clearly differences between different cases. However, it is also clear from the consultation that this is being used as a sort of fishing expedition whereby additional questions are asked in order to produce an undue burden on business and perhaps sometimes to encourage the idea that the process might be seen to be far too burdensome and that a settlement should therefore be reached instead, even where there may not have been a breach by the employer.

John McDonnell (Hayes and Harlington) (Lab): Can the Minister say what percentage of responding organisations supported her position, because I believe that 83% were opposed to it?

Jo Swinson: It is certainly true that a wide range of views were put forward to the consultation. Among business groups, there was a very strong view that this

16 Oct 2012 : Column 230

costs a lot of money, and I will explain why. Based on the sample, the five to six hours spent on each form at a cost of £160 equates to a cost to employers of £1.4 million a year, and it could be considerably higher because many employers may use more expensive legal advice.

Mr Chuka Umunna (Streatham) (Lab): If the Minister’s complaint is about the quantity of questions, then why not limit the number that can be asked? We are all limited in the number of questions that we can submit at the Table Office, so why not apply similar principles to this procedure?

Jo Swinson: I have already outlined various circumstances in which there is a range of questions with many sub-sections. We are saying that it is helpful for business and employees to discuss these issues and to be able to provide information. However, this provision is placing requirements and fears on businesses, and the disproportionate costs that they are facing in complying with it represents a total cost to business of nearly £1.5 million a year. That is a significant cost that we should not take lightly.

Individuals can seek information from an employer about an alleged breach of the 2010 Act without relying on this provision; they can request that information verbally or in writing. Of course, it is in businesses’ interests to respond to reasonable requests of this kind, because the courts would still be free to draw inferences from any employer or service provider’s refusal to answer questions or from answers that seem evasive.

Kate Green (Stretford and Urmston) (Lab): I am sure the Minister would accept that in many businesses there is an imbalance of power between an individual employee, who might be in a non-unionised workplace—a small business—and the employer, who, after all, is paying that employee. The employee may therefore be reluctant to upset their employer, and the statutory questionnaire procedure at least means that the employee can look to a formal external process to try to elicit information.

What assessment, if any, has the Minister made of the costs and savings in court time? Notably, many of the 83% of respondents in favour of the existing procedure were members of the judiciary, presumably because it makes for a simpler court process when cases do go to tribunal.

Jo Swinson: I thank the hon. Lady for her intervention. Some of the previous Government’s reforms were introduced, ostensibly, to try to reduce the number of cases coming to tribunal, but they have not that effect at all. We have seen a mushrooming in the number of cases at tribunal, which has resulted in a huge backlog. That is no good for employers or for employees, as the stress of waiting for a tribunal preys heavily on people’s minds. The other measures in the Bill are taking firm and important steps to encourage conciliation at an earlier stage to try to reduce the number of tribunals, and to consult on ways in which we can have a rapid resolution so that fewer cases come to tribunal. Those things will do what she suggests is helpful; we all agree that we want to reduce the number of tribunals, but those are the right ways in which to address the concerns, rather than having lengthy and cumbersome questionnaires for businesses. We have therefore concluded that this obtaining information procedure is disproportionate, and our amendment would repeal it.

16 Oct 2012 : Column 231

Stewart Hosie: The Minister has said that this onerous, form-filling, information-gathering exercise costs £1.4 million, but she went on to say that the information can still be requested, verbally or in writing. Presumably a great deal of time will still be required by the employer to provide the information. So what net saving across the whole of business does she envisage? Is it a third of that figure—is it just over half a million pounds? What is the quantum in this?

Jo Swinson: As the hon. Gentleman says, there will clearly be some taking into account of and familiarisation with the new procedures, which will have a cost attached. The impact assessment therefore suggests that £800,000 is what business will save on an annual basis, and that is still a significant sum.

New clause 17 relates to cases where an employer has been found to have broken equal pay law or to have discriminated between women and men in non-contractual pay. It introduces a power to make regulations to require employment tribunals to order such an employer to carry out an equal pay audit. The pay gap between men and women stubbornly persists. In 2011, it was still more than 20%, having fallen only five percentage points in the previous eight years. That is why we are acting under the coalition commitment to promote equal pay. We have followed the lead of the previous Government in introducing a voluntary initiative, “Think, Act, Report”, to encourage employers to have more transparency about pay and other issues. More than 50 of Britain’s leading employers, covering hundreds of thousands of employees, are now supporting this initiative. They include Tesco, which publishes details of its gender pay gap, and household names such as BT, IBM, Fujitsu, Morgan Stanley and Unilever, which are all taking steps towards greater transparency. For those companies, which are doing the right thing, a voluntary approach is appropriate. I would argue that it is also often more likely to be successful, because of the genuine buy-in from senior management.

At the same time as we pursue that voluntary, positive action, we still think that it is right to introduce stronger legislative sanctions for cases where employers have been found to have broken the law. We know that many businesses agree with this approach. For example, in response to the “Modern Workplaces” consultation, a large organisation told us that equal pay audits could be an effective way to increase transparency where the law was seen to be breached. Representatives of one small and medium-sized enterprise said:

“For the sake of all those employers who do make huge efforts to have a fair pay system, if others can ‘get away’ with discrimination and generally provide women with lower pay, this is anti-competitive and a burden on ‘good’ employers. So a compulsory audit is entirely appropriate”.

Any regulations made under this power would affect only employers who are found to have broken the relevant laws. These regulations will: set out the content of an equal pay audit; outline the procedures for verifying that an equal pay audit meets an agreed standard; set out to whom and how an equal pay audit should be published; and specify the non-criminal sanctions that should apply where an employer fails to comply with an equal pay audit order.

I remind the House that the regulations will not be applied to micro and start-up businesses during the moratorium on new rules, which will apply until 2014.

16 Oct 2012 : Column 232

I assure the House that we will consult further on the practical detail before any regulations are introduced, and that they will be subject to an affirmative resolution of both Houses of Parliament.

4 pm

Finally, I will speak to the Opposition’s amendment to remove clause 52, the purpose of which is to focus the Equality and Human Rights Commission on its core equality and human rights functions. Those important functions are: to promote understanding of the importance of equality, diversity and human rights; to promote awareness of equality and human rights; and to encourage good practice in relation to equality and human rights. Those duties, in sections 8 and 9 of the Equality Act 2006, remain. Likewise, the Government recognise the importance of the commission’s role as a strategic enforcer of equality and human rights law and as a guardian of legal rights. The commission’s powers in that regard remain unchanged. By focusing the commission on its core functions—on what it is uniquely placed to do—the repeals will enable it to become a more effective organisation.

I will address the measures individually. Although the general duty in section 3 of the 2006 Act reflects the best of intentions, it is an aspirational statement with no specific legal purpose. It does not, therefore, help to clarify the precise functions of the EHRC, and in its breadth and ambition section 3 is more akin to a mission statement than a legal duty. Moreover, we believe that the breadth of section 3 has actually hindered rather than helped the commission to define its role, because it has set unrealistic expectations, both positive and negative, about what it can achieve. John Wadham, the EHRC’s general counsel, said during his evidence to the Bill Committee—I know that this was well discussed—that the repeal of section 3 is not so problematic,

“because other parts of the legislation provide sufficient clarity on what our job really is.”––[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 19 June 2012; c. 79, Q177.]

As a consequence of repealing the general duty in section 3, we need to amend section 12, to require the EHRC to monitor and report on changes and developments in society that are consistent with its core equality and diversity and human rights functions.

Debbie Abrahams (Oldham East and Saddleworth) (Lab): What message does the Minister think this gives when one in two young black men, compared with one in four of their white counterparts, are unemployed? How can she justify this downgrading of the EHRC in such conditions?

Jo Swinson: I accept the hon. Lady’s genuine concern about the issue she has raised: there is far too much of an equality gap in our society and between young white and black men. Of course, the Government are committed to tackling that. However, I question whether she really believes that section 3 of the 2006 Act will do that. The message that this sends is that this Government are committed to equality but focused on really making a difference. [Interruption.] I hear the shadow Secretary of State, the hon. Member for Streatham (Mr Umunna), murmuring various things from a sedentary position, but if he really thinks that the EHRC, which was bequeathed to us by the previous Government, was functioning well and was effective, I do not know what

16 Oct 2012 : Column 233

planet he is living on. We should consider what has been said about the organisation’s effectiveness. Its accounts were not being signed off and it was wasting money; £866,000 was spent on a website that was never launched. It was not functioning well. It is important that we focus it on its specific duties, and that is what our amendments will do.

Jack Dromey (Birmingham, Erdington) (Lab): The hon. Lady has referred to the previous Government’s record. As deputy general secretary of Unite, I work very closely with the EHRC. May I give one example of effectiveness and ask her to comment on it? The commission conducted a ground-breaking analysis of the two-tier labour market in the supermarket supply chain, which causes division in the workplace and damages social cohesion. As a result, the supermarkets were brought to the table and told that enforcement powers would be used unless they changed the way in which they procured. Major changes were made as a consequence, so that all workers enjoyed equal treatment in the supply chain. Does the hon. Lady challenge that excellent example of the effectiveness of the EHRC?

Jo Swinson: I am not saying for a second that the EHRC did nothing right. We are committed to keeping it and refocusing it to make it more effective.

The general counsel said that

“other parts of the legislation provide sufficient clarity on what our job really is.”––[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 19 June 2012; c. 79, Q177.]

A raft of stakeholders has criticised how the EHRC was being run. Although it has done some good things, it was not being run in the efficient way that is required of an organisation with such an essential duty and such an essential role to play in the equalities and human rights make-up of our country.

Julie Hilling: I am very confused about the Minister’s statement that she will make the EHRC more efficient, when what she will actually do is to continue to cut its budget hugely. How can it be more efficient with a tiny percentage of the staff that it had? It will be unable to do the representative work that it used to do and a vast amount of the other work that it used to do. How will that make it more efficient?

Jo Swinson: The EHRC was not particularly efficient in some of the work that it was doing. For example, it cost its helpline far more to deal with cases relating to working rights than other Government and external providers. We are ensuring that the money is spent better. Opposition Members seem to forget that the financial situation left to this Government was an appalling mess. It does no good for equalities in this country not to have the effective use of public money. We should all want to see that. [Interruption.] I am answering the hon. Lady. We should all want to see the effective use of public money. It is wrong to suggest that there are no ways in which the EHRC could have been improved.

Mr Umunna: Have we said that?

Jo Swinson: We have heard from various Opposition Members that the EHRC was functioning fantastically.

16 Oct 2012 : Column 234

There are many ways in which the EHRC could improve. We are making a variety of changes to it, but we remain committed to this organisation and to improving it. Just this morning, we had the pre-appointment scrutiny hearing for the new chair, Baroness Onora O’Neill, which is a positive step. I am optimistic about how the organisation will move forward and improve its governance, which is badly needed.

Kate Green: The Minister is right that improvements were needed in the governance and management of the EHRC. Opposition Members have not disputed that. However, to confuse that with changing its legislatively provided remit is simply not being clear, as that is a very different point of principle. Nobody is saying that the organisation could not be run better. What Opposition Members are querying is the need to cut away the ground from under its feet by changing its very purpose.

Jo Swinson: I appreciate that Opposition Members are exercised about this issue, but it is not something that the organisation itself is exercised about, as is evidenced by the quotations from the general counsel in the Committee hearing.

A range of organisations responded to the consultation and gave their views on the change in the general duty. The Association of Chief Police Officers said that the general duty is

“broad in nature, open to wide interpretation and is more in the nature of a vision statement”.

The CBI said that it is

“too vague and creates unrealistic expectations”.

The Gender Identity Research and Education Society said:

“There is no essential specific legal function”.

I particularly like the way in which we managed to unite two organisations that are not usually in agreement—Stonewall and the Evangelical Alliance. The Evangelical Alliance said:

“It’s impossible to achieve and could lead to all kinds of unsatisfactory political interpretations”.

Stonewall said:

“We are not clear that the Commission has made a sufficient case for the retention of Section 3.”

I accept that many Opposition Members think that this change means that the sky is falling in, but the EHRC and its stakeholders do not concur with that viewpoint.

We are reducing the frequency with which the commission is required to publish reports.

Stewart Hosie: Will the Minister give way?

Jo Swinson: I am sorry, but I want to make some progress. I have taken many interventions.

Stewart Hosie rose

Jo Swinson: As a fellow Scot and in this week’s spirit of compromise and co-operation, I will give way.

Stewart Hosie: I am not sure about compromise and co-operation. The Minister spoke about the repeal of section 3, but it is also the repeal of section 10 of the Equality Act 2006. Although it makes sense to make the EHRC more efficient and cost-effective, I am curious to

16 Oct 2012 : Column 235

know how removing the specific duty to promote good relations between different groups makes any sense, given her declaration that she wants the organisation still to function and do the good things it was doing.

Jo Swinson: The hon. Gentleman does not need to worry about that because under existing duties in sections 8 and 9 of the 2006 Act, the EHRC still has all the requirements and focus it needs. In the consultation, a range of stakeholders spoke about the repeal of the good relations duty in section 10, and whether it was the Association of Chief Police Officers stating that a greater emphasis on its responsibilities in regulating the new public sector duty is broadly supported, or Stonewall saying that the need for the good relations function has not been sufficiently demonstrated, a wide range of stakeholders did not seem to think that there was a problem.

We are reducing the frequency with which the commission is required to publish a report on progress from every three years to every five years, and by allowing a longer time scale between reports, we believe the commission will be able to capture more meaningful change over time. We accept, however, that seismic societal changes or developments do not always happen conveniently every five years, and there is no reason why the commission cannot report more frequently if it wishes.

I know that many Opposition Members have concerns about the repeal of the good relations duty in section 10 of the 2006 Act, but we are clear that a separate mandate is not necessary. The commission’s most valuable work in this area—for example its inquiry into disability-related harassment—can be carried out under its core equality and human rights functions, which we are not amending. That view is supported by the evidence I have outlined that was provided to the Public Bill Committee by the EHRC’s general counsel and other stakeholders.

We are repealing the power associated with the good relations duty in section 19 of the 2006 Act because other organisations gather the information that that legislation permits the commission to monitor. For example, since 2011, police forces in England and Wales have been required to collect data on suspected hate crime relating to race, religion or belief, disability, sexual orientation and gender reassignment. The commission will retain the ability to review and use those data under its existing equality and human rights duties which—I repeat—we are not amending. In Scotland, where the EHRC’s human rights remit is limited, the Scottish Human Rights Commission will be able to use its powers accordingly.

On the power to make arrangements for the provision of conciliation in non-workplace discrimination disputes, as set out in section 27 of the 2006 Act, unfortunately the commission has consistently failed to deliver a well-targeted, cost-effective service. The free conciliation service funded until March 2012 by the EHRC offered poor value for taxpayers’ money. Average costs were more than £4,000 per case, compared with £600 to £850 when going through the Ministry of Justice website, “Find a civil mediation provider”.

16 Oct 2012 : Column 236

A good and effective conciliation service should—of course—be available to those who need it, to help people resolve disputes without recourse to the courts. Good quality, accessible and effective mediation is readily available at reasonable cost throughout England, Wales and Scotland through the MOJ’s website that provides access to a full range of civil mediation council-accredited mediators at set fees, and in Scotland through the Scottish Mediation Network’s “find a mediator” website. For that reason, we are repealing the commission’s power to make provision for conciliation. The new Equality Advisory and Support Service, launched at the beginning of this month, will signpost individuals with discrimination disputes to those alternative, more cost-effective, mediation services. In evidence in Committee, the general counsel of the commission agreed that it is not

“particularly important for us to provide the service for conciliation.”––[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 19 June 2012; c. 79, Q175.]

Contrary to accusations from the Opposition, these legislative measures do not represent an attack on equalities or undermine the commission’s important role. On the contrary, we believe that they will help the commission to become more effective in delivering its core functions of promoting equality of opportunity and human rights, and creating a fair environment for jobs and growth. I am therefore unable to support amendment 56, and I commend the Government amendments to the House.

Mr Umunna: I will speak first to amendment 56, which is my name and those of my right hon. and hon. Friends. We propose to remove clause 52 in its entirety. I shall then speak to Government new clauses 12, 13 and 17 and related measures on third-party harassment, discrimination questionnaires and equal pay orders.

4.15 pm

Clause 52 seeks fundamentally to alter the remit of the Equality and Human Rights Commission, which was established to promote equality and human rights in this country. The clause proposes to remove the general duty on the commission to promote human rights and a society free from discrimination and prejudice, and seeks to abolish the duty on the commission to promote, among other things, good relations between different groups in society. That duty led, for example, to the Kick Racism Out of Football campaign.

Numerous third parties have objected to the changes in the clause. Tomorrow, a letter signed by more than 20 stakeholder groups will be published. The letter makes it clear that the changes will leave “a much weaker body”. It is signed by the heads of Justice, the Fawcett Society, Mind, the Refugee Council, the Equality Trust and others.

Leading members of the Liberal Democrats—the Minister’s party—have also strongly objected to what she and her colleagues are doing in the Bill. The Liberal Democrat founder of the National Association of Black, Asian and Ethnic Minority Councillors has said he is deeply ashamed of what the Government are doing to the resources and remit of the commission. The chair of the ethnic minority Liberal Democrats wrote to the Minister’s predecessor to express alarm, stating that the Government’s actions

“amount to effectively abolishing the EHRC by stealth, which could potentially reverse progress made on equalities over the past decades”.

16 Oct 2012 : Column 237

The Opposition agree with those concerns and believe the clause is totally objectionable, and I will explain why. First, section 3 of the Equality Act 2006, on the general duty on the commission, which will be repealed by the Bill, provides that the commission should

“exercise its functions…with a view to encouraging and supporting the development of a society in which…people’s ability to achieve their potential is not limited by prejudice or discrimination…there is respect for and protection of each individual’s human rights…there is respect for the dignity and worth of each individual…each individual has an equal opportunity to participate in society, and…there is mutual respect between groups based on understanding and valuing of diversity…equality and human rights.”

Those duties enjoyed cross-party support during the passage of the 2006 Act. Six years on, they are dismissed by Ministers.

The Minister’s immediate predecessor, the hon. Member for North Norfolk (Norman Lamb), having raised no objections to the duties in 2006, called them?

“vague motherhood and apple-pie duties”—[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 12 July 2012; c. 601.]

in Committee in July. I am not sure quite what has changed since 2006—aside from the acquisition of red boxes—but those duties should not be casually dismissed in that way. They make clear the vision and mission of the commission, not only to help to enforce anti-discrimination laws but proactively to promote human rights and a society free from discrimination and prejudice. As the Secretary of State—he is absent from the Chamber—pointed out in his leaked letter to the Prime Minister and Deputy Prime Minister earlier this year, vision is incredibly important.

The Opposition’s second objection is this: the repeal of section 3 and the abolition of the duty on the commission to promote good relations between different groups would not be so alarming were it not for all the other things the Government are doing to the commission. They have cut its budget by more than 60%—so much so that the United Nations High Commissioner for Human Rights was moved to write to the Government in June and July this year. The commission has confirmed that the cut will lead to a reduction in staff headcount of more than 50%. More worrying are the reports—this was raised by the chair of the ethnic minority Liberal Democrats in the letter I mentioned—that virtually all the commission’s employees who are black, from an ethnic minority or disabled are among those to lose their jobs. Will the Minister provide important clarification and reassurance on that?

In addition, as of this month, the commission’s helpline has been contracted out. Many who previously worked for it were highly respected and experienced advisers and there is deep concern that much of that expertise has been lost in transition. Furthermore, the Government are stopping the commission’s grants programme funding local support services for victims of discrimination.

I turn to our third main objection to clause 52. The Bill is supposed to promote long-term growth and simplify regulation, but the clause will achieve neither aim. Leaving aside the issue of whether our fundamental rights should be sacrificed at the altar of growth, no

16 Oct 2012 : Column 238

evidence has been produced during the passage of the Bill showing that the measures on the commission will promote growth.

Debbie Abrahams: It was rather telling that, in response to a question from my hon. Friend the Member for Stretford and Urmston (Kate Green), the Secretary of State said that this was just legislative tidying up. It is absolutely outrageous.

Mr Umunna: I agree that it is absolutely outrageous. Furthermore, on the issue of simplifying regulation, let me say this to Government Members: the promotion and protection of equality and human rights is not, and should not be seen as, regulation. The unrelenting pursuit of these things helps to make this the fair and decent country that Britain is to live in. It is something that we should celebrate.

What is the Government’s defence? What is their justification for pressing ahead with including clause 52 in the Bill? In Committee, the Minister’s predecessor—she did the same today—sought to rely heavily on the comments of the commission’s general counsel in the public evidence session. I have read that evidence in full, and it is true that at the end of it he said:

“The commission is not opposed to the Bill.”––[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 19 June 2012; c. 80, Q180.]

As the general counsel made clear, however, it is not for him or the commission to take a position on the Bill. It is a political matter for the Government. That said, he made some interesting comments to which, I note, the Minister did not refer. He was clear that resources were being cut. He said that

“if the commission is given fewer resources, we will have fewer staff and less money to do the work that we would want to do.”––[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 19 June 2012; c. 74, Q162.]—[Interruption.]

From a sedentary position, the Under-Secretary of State for Skills, the hon. Member for West Suffolk (Matthew Hancock), says, “Who racked up the debt?” I do not think that we can put a price on human rights and equality in this country.

On the commission’s remit, the general counsel was unequivocal. He said:

“This Bill reduces our powers and our remit… We would prefer to keep the remit we have, so we have not promoted the amendments in the Bill.”

Finally, on the repeal of the general duty in section 3 of the Equality Act 2006, he said that the section

“sets out a vision for a kind of society that I guess most people here would want to live in”––[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 19 June 2012; c. 79, Q176-79.]

and confirmed that the repeal of the duty “lowers the vision”.

Before moving on, it would be remiss of me not to turn to the Minister’s comments about the commission’s recent problems. Yes, the Joint Committee on Human Rights and the Public Accounts Committee have been very critical of the commission, and, yes, the National Audit Office has qualified its accounts, but none of these inquiries concluded that its remit should be changed in the way the Government are doing in the Bill. The most recent accounts were unqualified, and the running of the organisation has not been helped by the Government

16 Oct 2012 : Column 239

preventing it from recruiting a permanent chief executive and senior management team for more than two years. These recent problems are hopefully in the past and certainly do not justify the winding down of the commission.

The Minister, and the Secretary of State in his letter to me earlier this month, said that it was not the Government’s intention to water down, wind down or abolish the commission. Nevertheless, we know that many Government Members would like to see the back of it.

Andrew Gwynne (Denton and Reddish) (Lab): Of course, one of the benefits of the commission is its independence from Government and Ministers. Does my hon. Friend share my concern that altering the commission’s remit will fundamentally undermine the independence of what is left of this organisation?

Mr Umunna: Absolutely, and I would say two things about what my hon. Friend has just said. First, when it comes to the comments of the general counsel, one has to consider that he is passing comment on his masters who are cutting his budget massively. To suggest that that does not weigh on his mind when he makes comments about the Bill is probably quite naive. The second thing I would say is that the independence of the organisation is paramount, and its ability to do its job will be compromised by the changes being made.

Let me point out to the Minister that what people are entitled to do when making a judgment about her party and her Government’s intentions for the commission is to look at the actions they have taken. The catalogue of things that I have just listed has meant not only that people in her own party are incredibly worried about its future, but that many of the stakeholders who work in this area are also worried about it. At the moment, the general view among many people is that we are effectively seeing the abolition of this important organisation by stealth. That is what seems to be happening.

Luciana Berger: I should share with my hon. Friend the fact that I worked for the Commission for Racial Equality before it merged into the new body. I know that there are always challenges with any organisation, but the work it did was crucial. Does he, like me, share the concern raised only a few days ago by Brendan Barber, the TUC general secretary, that what the Government are doing essentially makes a mockery of their claim that equality is at the heart of the coalition Government?

Mr Umunna: Absolutely. I completely agree with what my hon. Friend has just said.

Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op): My hon. Friend hit the nail on the head when he talked about abolition by stealth. Anyone who has ever had cause to take an issue to the Equality and Human Rights Commission knows that going to an independent body that has rights over other bodies to take action is vital. Taking an internal route through an organisation is sometimes too slow and inadequate. Will he make a commitment about what the Labour Government will do when we are back in power in 2015?

16 Oct 2012 : Column 240

Mr Umunna: I am proud to be associated with a party that was responsible for setting up many of the predecessor bodies of the Equality and Human Rights Commission. Let me be absolutely clear: we thoroughly support this organisation. It is incredibly important, not only in taking an anti-discrimination stance towards some of the things that unfortunately happen in our society, but in being proactive in promoting that. I have just returned from a visit to Israel, where I learned more about the situation there. I met the Israeli and Palestinian Governments, and one of the things that I felt so proud of was the fact that an equalities commission was recently created in Israel. We know that society there has major challenges in that respect, but that commission is being modelled on ours. I think that says something about the body we have in this country.

Mr John Redwood (Wokingham) (Con): I would be grateful if the Opposition addressed the proposals that we are meant to be debating. The Government are not saying, “Just strip it all away”; they are proposing equal pay audits and other mechanisms. It would be useful to know what the Opposition think about them.

Mr Umunna: I have just addressed each point about the commission that the Minister raised in her speech. I understand the right hon. Gentleman’s impatience; I shall turn to the other points now.

Let me turn to the Government’s new clauses. Last week the Government tabled new clause 12, which provides for the repeal of the provisions in the Equality Act 2010 relating to employer’s liability for third-party harassment of employees. That, of course, was a key recommendation in the infamous report of the Prime Minister’s employment law adviser Adrian Beecroft. To find the reason for the original introduction of those measures—I am basing my remarks on my legal practice and study: I was an employment lawyer before being elected—we have to return to the mid-1990s. In 1994, there was a well-known case in which two black hotel waitresses were made to serve drinks in Manchester during a performance by the notorious late comedian Bernard Manning. They were subjected to racially and sexually abusive remarks by Manning, and they took their employers to a tribunal. They should never have been put in that situation, and they issued proceedings and won the tribunal. After that case, however, case law was uncertain—I can say that, having dealt with the case law that existed before the Equality Act 2010 came into force. Through section 40 of that Act, which the Government are partly repealing, we legislated to put protection against such third-party harassment on to a firm footing and cover all types of unlawful discrimination.

4.30 pm

That statute is relatively new, but in the tribunal case to which the Minister referred, which I believe was heard last year, we saw the value of section 40 in action. A care worker in a care home was subjected to repeated sexual harassment by a resident. When she complained to her employer, she was just told to be patient and wait for the resident to stop touching her. In no small part thanks to section 40, the tribunal was left in no doubt of the protection that should be afforded that worker. Before the implementation of section 40 it was not clear what the law was, because of the numerous examples of case law that there had been at different levels. The

16 Oct 2012 : Column 241

tribunal found the employer liable, holding that it could have taken a number of reasonable steps to protect the care worker, such as ensuring that she was always accompanied by another member of staff or maybe adjusting her rota to minimise contact with the resident in question.

Despite what I have just said about that case and about how section 40 of the 2010 Act came into being, Adrian Beecroft said in his report that the Government should repeal that law. It is worth repeating and recalling that Mr Beecroft was very clear at the Public Bill Committee’s evidence session that his findings were based not on proper evidence but on conversations with people. It was proper back-of-a-fag-packet policy making by the Government.

When my hon. Friend the Member for Stretford and Urmston (Kate Green) questioned the Secretary of State on the Government’s intentions on Second Reading, he assured the House that he had no intention of implementing that Beecroft proposal, yet that is precisely—

Jo Swinson indicated dissent.

Mr Umunna: It is absolutely true. The Minister should check Hansard.

With this latest new clause, the Government are doing precisely what they said they would not, and we oppose it, as do more than 70% of those who responded to the Government’s consultation.

Meg Hillier: My hon. Friend is making his point very powerfully. My worry is that under the umbrella of saying that they want to get rid of regulation, the Government are affecting some of the most vulnerable workers in our society, who do not have the protection of a well-paid job and education to argue their case but rely on the law in question. Without it, they will just have to shut up and put up with the harassment that they face daily, often in domiciliary situations such as the one that he described.

Mr Umunna: My hon. Friend hits the nail on the head and identifies the Government’s real motivation. We are in the third quarter of a contraction, which we will hopefully come out of in the next quarter. We were promised many things in relation to the economy that have not turned out to be the case. In their desperation to get the economy moving, and with their complete refusal to stimulate the economy, the Government are now doing the traditional thing and looking to water down people’s rights at work as a substitute for a proper growth plan.

New clause 13 would abolish discrimination questionnaires, which employees can submit to their employers to obtain further information and make up their minds about whether to institute proceedings, or maybe to assist them in reaching a settlement with their employer. I know those questionnaires well, because I was professionally involved in drafting them on behalf of employees. I was also involved in drafting the responses on behalf of employers.

From the employees’ point of view, there is no doubt that those questionnaires help them access evidence at an early stage, which is incredibly important so that, as I said, they can determine whether to litigate or precipitate a settlement. They will now be all the more important

16 Oct 2012 : Column 242

because of the large fees that the Government are levying on people who wish to institute claims in an employment tribunal.

Turning to the employers’ point of view, the Government’s own Equalities Office carried out research on the questionnaires and found that only 2% of private sector employers had had to complete one in the past three years, and that most of those who had done so agreed that responding to them had been straightforward. We do not need to abolish the questionnaires, and I do not accept the reasons for doing so that have been put forward by the Minister. I say that not only from a political point of view but in the light of my professional experience of working for a number of years on these matters.

Julian Smith: Will the hon. Gentleman give way?

Mr Umunna: I want to make some progress; I have given way a few times now.

I welcome the addition of new clause 17 to the Bill. It will enable tribunals to recommend that an employer who loses an equal pay or sex discrimination case be required to carry out an equal pay audit. I simply want to raise one question about the scope of the measure. Is my understanding correct that it will apply to private sector employers only? Perhaps the Minister will expand on that point.

Jack Dromey: My hon. Friend is making a powerful case. Procedurally, a number of barriers are being put in the way of people seeking justice and the enforcement of their rights. Does he share my view that closing the regional offices and reducing the commission to a rump of its former self will mean that those who are powerless, when challenging those with power who are denying them equality and equal treatment, will no longer have an Equality and Human Rights Commission that is fully behind them?

Mr Umunna: I completely agree with my hon. Friend.

I have absolutely no doubt that if the Minister were in opposition, she would be making many of the points that I am now making. She would be jumping up and down and objecting in the strongest terms to what the Government are now doing. I have referred to the assurance that was given, then broken, by the Secretary of State, which the Minister does not seem to recollect. May I also remind her of something that she said to the Deputy Prime Minister in this House? She said:

“Will the Deputy Prime Minister reassure my constituents that the Government will resist any siren calls to water down the Equality Act as part of the red tape challenge?”

The Deputy Prime Minister replied:

“I can certainly confirm that, as far as I am concerned, there will be no move to dilute incredibly important protections to enshrine and bolster equality in this country under the guise of dealing with unnecessary or intrusive regulation.”—[Official Report, 24 May 2011; Vol. 528, c. 770.]

Well, if that is not a broken promise, I do not know what is.

Jack Dromey: My hon. Friend has repeated back to the Minister something that she said on a previous occasion. Does he agree that she is conspicuous in her silence in now refusing to stand up and defend what she said at that time?

16 Oct 2012 : Column 243

Mr Umunna: Quite right. One argument that has been consistently advanced by Liberal Democrat Ministers, as well as at the Liberal Democrat conference the other day, is that the Liberal Democrats are a check on the worst excesses of their coalition partners. I believe, however, that people will look at their actions. Their words do not marry up to what they are doing in Government. The Secretary of State said at his party conference that if Britain wanted

“competence with compassion, fairness with freedom and more equality…that government must have Liberal Democrats at its heart.”

The measures in the Bill really do call that claim into question.

John McDonnell: I shall speak to amendment 56. Far be it for me to correct my hon. Friend the Member for Streatham (Mr Umunna), but I think the amendment is in my name. I say that only to give notice formally that I intend to move the amendment and divide the House on it. It is in my name only because of my speed of pace in getting to the Vote Office—that is all.

This is not one of those parliamentary knockabout debates, but a fundamentally important one. I have been a Member since 1997 and I have noted that in every debate on equalities during that period, what emerged was a near consensus about the approach towards, and the commitment to, the legislative framework. When we debated the Equality Act 2006, near consensus was achieved in this House about the legislative framework that was being put in place. I thought that that was one of those occasions on which the House rose to its full height, and it was held in esteem for reaching that consensus.

To be frank, there is an element of tragedy to what is happening. We are going dramatically backwards here. The Minister listed a range of reforms that the Government had introduced, most of which I believe the Opposition supported. I welcome them, but the difference between those reforms and the one we are considering is that there was consensus about most of them, both in this House and outside it.

As my hon. Friend the Member for Streatham has said, a vast range of organisations have expressed concern. I received a briefing from the Equality and Diversity Forum—I hope that other Members have received it, too—which basically urged the Government to think again and provided a detailed brief, setting out point by point its arguments for opposing the Government’s proposals. Some of these organisations deserve listening to. They include Age UK, the British Institute of Human Rights, the Children’s Rights Alliance for England, Citizens Advice, Disability Rights UK, the Discrimination Law Association, End Violence Against Women—the list just goes on and on—the Fawcett Society, Friends, Families and Travellers, Justice, the Law Centres Federation, Mind, the National AIDS Trust, Race on the Agenda, the Refugee Council, the Royal National Institute of Blind People, the Runnymede Trust, Scope, the TUC and the Women’s Resource Centre—and there are many more. As my hon. Friend said, tomorrow there will be a further letter from organisations that supported this House for almost a generation as we devised the legislation and the legislative foundation of our equalities law. This Government are now breaking that consensus.

16 Oct 2012 : Column 244

To be frank, there were concerns that there would be a Conservative party attack on equalities after the election. We were hoping that that would not be the case. I argued that many of the legislative debates we had had over the last generation would be put to bed and would not be reopened. Many feared such an attack, but most of us hoped when the coalition was born that the Lib Dems would head it off. I know that there are those who have tried to do so. We have heard today of letters coming in from different Lib Dem groups, urging the Government to think again. Unfortunately, they have failed. As a result of that failure to convince the Government to think again, we are faced with the most significant step backwards on equalities that we have seen in the last 20 years.

Kate Green: I share my hon. Friend’s distress and sorrow at what is happening under this Government. Is it not also the case that when the Equality Act went through the previous Parliament, it was Liberal Democrat Members, including the Minister’s own predecessor, who were particularly at pains to push our Government, a Labour Government, to go further? Is this not an appalling and distressing reversal of position?

John McDonnell: To be fair—

Stephen Pound (Ealing North) (Lab): Don’t: there is no need. It is not necessary.

John McDonnell: This is a serious debate and, to be fair—my hon. Friend was here at the time—there were Conservative and Lib Dem Members who sought to push things further. What I thought was important about that debate was that we reached a consensus. We reached a fairly high plateau of agreement. It was recognised that some wanted to go even further, but no one wanted to go backwards, which is what this legislation does. This is a backward step.

4.45 pm

My amendment should be considered in the context of what the Minister said about the future of the Equality and Human Rights Commission. I was one of those who did not agree with the proposal to bring together all the individual bodies, such as the Commission for Racial Equality, in a single organisation, but it was agreed to nevertheless, and I thought that at least we had reached a point at which we could proceed with a well-resourced organisation implementing a body of legislation, duties, powers and responsibilities. However, as the Minister has said, the Equality and Human Rights Commission is now under financial review, and as has also been said, its budget has been cut by 62%. The staffing loss is not just “above 50%”, as has been claimed; it is 72%. There has been review after review, and now, adding to the uncertainty, there is the promise of a zero-based budgeting exercise and a further review that will take us into 2013. I think that the organisation is being deliberately destabilised, and is being set up to fail.

Julian Smith: I am listening carefully to what the hon. Gentleman is saying. Does he agree that John Wadham, the director of the EHRC, specifically said during an evidence session in Committee that he and the organisation did not have any problems with the Government’s Bill?

16 Oct 2012 : Column 245

John McDonnell: With the greatest respect, I do not think that that is the case. I know John well—he is an old friend—and I do not believe that he used that exact form of words. What the organisation said was that it was for the House to decide on the Bill. I think that what the staff and board of the EHRC are trying to do is survive, and I think that some things have been said simply so that they can survive.

Debbie Abrahams: The briefing from the EHRC uses very neutral language, but it nevertheless expresses blatant concern about, in particular, the removal of important functions such as the helpline, funding for voluntary organisations, and legal advice. The idea that people should have to pay to issue a challenge when they have been discriminated against is outrageous.

John McDonnell: I agree. I think that what John Wadham and others in the organisation have said is that they will do their best and will live with what legislation there is, but I also think that when they gave evidence to the Committee, their intention was not to support the Bill. It is for us to decide.

Julian Smith: Either the hon. Gentleman is calling me a liar, or he has not read Hansard. The written record of the evidence sessions shows that John Wadham said that the organisation did not have a problem with the Bill.

Madam Deputy Speaker (Dawn Primarolo): Order. Had the hon. Member for Hayes and Harlington (John McDonnell) referred to the hon. Member for Skipton and Ripon (Julian Smith) as a liar, I should have picked him up on it, but he did not.

Julian Smith: He implied it.

Madam Deputy Speaker: No, he did not imply it. He did not raise the issue of the hon. Gentleman’s integrity in any way. There seems to be a dispute about what was actually said, and I think that that is different.

John McDonnell rose—

Madam Deputy Speaker: Perhaps the hon. Gentleman will clarify the point.

John McDonnell: Let me assure the hon. Member for Skipton and Ripon (Julian Smith) that I would never call him a liar. What I am trying to say is this. The organisation has previously made it very clear that the House will be the determinant of the Bill. I believe that John Wadham has been a good and effective civil servant over the years, and that he will implement whatever comes out of the House as effectively as possible, but I also believe that he and his colleagues are simply trying to survive in whatever way they can, and will speak accordingly.

Mr Umunna: As I said earlier—and as my hon. Friend will know, because he has read what John said—John did say that he was not opposed to the Bill. However, I have just given chapter and verse on all the problems that he has raised in relation to it. He is, of course, an existing employee of the commission, so it is very difficult for him. Why should we not consider, for example,

16 Oct 2012 : Column 246

what the commission’s former director of human rights and director of disability rights said in July about what the Government are doing? He said:

“By repealing section 3 of the Equality Act 2006, the Commission will cease to be an agent of social change harnessing the law and its powers to address entrenched inequalities.”

John McDonnell: We will come on to the individual elements, but it is clear from the representations that have been received that there is sufficient concern. Let me put it no more strongly than that. For any Government whose members have arrived at consensus on a contentious issue to come along and break that consensus warrants much deeper consideration than is being given by the Government. The messages from the organisation itself, which is seeking to survive in whatever form it can, have been clear enough to most of us to suggest that it has an underlying concern that it will be unable to fulfil the role we have expected of it up until now.

Jack Dromey: My hon. Friend makes a powerful point about the organisation’s inability to fulfil its role in the future. I have met the staff in the Birmingham office on the issue of disability access to public transport, from buses in Wolverhampton to the de-staffing of stations in the region by London Midland. The disabled are saying that they are being turned into second class citizens who are unable to access public transport and that the support of the Birmingham office of the EHRC is essential to them. Does my hon. Friend agree that if that office goes, so too will the champion of the disabled?

John McDonnell: I chair the PCS parliamentary group, which represents the union that represents the staff. I have therefore been involved in the discussion with them about the cuts that have taken place. The pressures that existing staff are under are immense. Reducing staff numbers still further will lead almost to the breakdown of the organisation.

Let me return to the Bill. We have been saying that there is real worry about the Government’s intent and the future of the organisation. The cuts in resources and staff are being compounded by the undermining of the legislative basis on which the organisation operates. It is that legal basis that we must consider.

On clause 52, the original legislation laid out a general duty to send out the message to which my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) referred. As a community we needed and continue to need the message that there is an organisation advising the Government that will encourage and support a society based on freedom from prejudice and discrimination—a society based on individual human rights, respect for the dignity and worth of each individual, equal opportunities to participate and a mutual respect between groups based on understanding and valuing diversity and shared respect for human rights. I do not think that society has changed so dramatically that that statement is irrelevant—it needs to be embodied in legislation and repeated time and time again. It had all-party support in 2006.

Andrew Gwynne: My hon. Friend is absolutely right, and I am proud to have been part of the Government that introduced the Equality Act. However, does not this provision shed light on the Government’s real motives?

16 Oct 2012 : Column 247

By stripping down the commission and stripping it of its remit, they are undermining the equalities that we cherish and hold dear.

John McDonnell: I do not see how it can be interpreted any differently. The argument has been made that this provision has been included in the Bill for a purpose and that it is all to do with removing restrictions on businesses so that they can be encouraged to be more enterprising and create better profits, which might somehow contribute to tackling the recession. The argument is almost that we cannot afford equality, but our argument is that we cannot afford inequality. That is exactly why we enacted that legislation in 2006. There were strong arguments about not just fairness but efficiency. If there is discrimination against people, sections and groups in society, they cannot make their contribution. That was why we made a strong economic argument for the 2006 Act.

Stella Creasy (Walthamstow) (Lab/Co-op): I note that the Minister talked about value for money. Does my hon. Friend agree that the value-for-money argument for dismantling the commission is a very bad one, because of its impact on our economy through the added cost to businesses of failing to tap into the potential of people against whom there is discrimination in our society?

John McDonnell: Exactly. In 2006 we had a lengthy debate on all sides when we identified groups in society that had not been given a fair crack of the whip and which, if they had, could contribute so much to our economy. Clause 52(1)(a), which removes section 3 from the Equality Act 2006, removes that statement.

It is interesting that only a few months ago the European Commission, in its recent report on equality, recommended to other Governments that they follow the example of the UK and embody in legislation a vision of an organisation that can contribute towards developing a society based on equality. Here we are, taking a step backwards from what is happening elsewhere across Europe. This is not just a tidying-up exercise. It is not about creating unrealistic expectations. It undermines the legislative basis of the organisation.

At the recent conference on discrimination law, Sir Bob Hepple QC made it clear what section 3 stands for. He said that it provides the link between the promotion of equality and good relationships between groups and society, and that without it we are rudderless. That was his statement. We included the measure in the original legislation to give direction.

It is extraordinary that in the Government’s own consultation, which has been cited time and again today and which was entitled “Building a fairer Britain”, there was overwhelming opposition to the abolition of section 3. The opposition was 6:1 against removing that visionary statement from the legislative basis of the commission.

Clause 52(1)(b) repeals the duty to promote good relations between members of different groups. MPs who have been working in their constituencies as MPs, councillors or community activists will recall that it is these sections that we have used to protect individual

16 Oct 2012 : Column 248

groups against racist attacks, attacks on Travellers and against undermining and stigmatising people with mental health problems. This is the legislative base that we have used time and again to ensure that the commission can play its full role.

As my hon. Friend the Member for Streatham said, this is the measure that we used to tackle racism in football, so it has been used in campaigns and it has been effective. We have used it to undermine the development of extremist racism in our society and to ensure that we give advice to public authorities, particularly local authorities at elections, to set standards.

It has been argued that other organisations will be available to do this, such as the Runnymede Trust and the Fawcett Society, but both of them are reliant on public funds and some of the public funds that go to those organisations are from the EHRC. The EHRC is having its grant-making cut so those organisations will not be out there to fulfil that role.

On the removal of the duty in section 10, I want to raise an issue on behalf of organisations such as DPAC—Disabled People Against Cuts—and the group in Scotland, Black Triangle. Section 10(5) places a duty on the commission

“to promote or encourage the favourable treatment of disabled persons.”

Over the past year we have had debate after debate on hate crime against people with disabilities. We thought we had a breakthrough with the Paralympics in raising the profile of people with disabilities and extolling what they can do if given the chance. What message does it send out that we are scrapping that duty of the commission?

Chris Ruane (Vale of Clwyd) (Lab): Four or five categories of hate crime are monitored—race, religion, gender, sexuality and disability. Over the past year disability hate crimes are the only hate crimes across all the categories that have gone up, and the reason is the language used by the Tories. Does my hon. Friend agree?

5 pm

John McDonnell: In debates in Westminster Hall and in this Chamber, Member after Member has raised the issue of the rise in hate crime against people with disabilities. They have cautioned Conservative Members and others about the language that they use and about their actions. This proposal sends out a message that the Government are not interested in this matter, and it undermines the very organisation that has the statutory responsibility. We are not the only ones who are anxious about this. The Government’s consultation shows that the proposal was opposed by 7:1.

On section 12, the Government seek to reduce the frequency of monitoring progress from three years to five years. It is extraordinary that in the debate on the introduction of the monitoring process, it was Conservative Members who argued that three years was not enough, because there would be only one report every Parliament. Now it is to be every five years. That was opposed by 5:1. It is argued that further reports can be brought forward at the commission’s will, but the most important thing is the requirement that the House places on the organisation. The monitoring process every five years will prove totally ineffective.

16 Oct 2012 : Column 249

The repeal of section 27 and the powers to provide conciliation services to resolve disputes involving alleged discrimination is extraordinary. In other parts of the Bill the Government promote conciliation to resolve disputes, yet in this area we are removing that role from the commission. The argument is that the commission has not been particularly effective. If we are concerned about the effective operation of the commission, we should reform the commission, not undermine its legislative base and remove its powers. If the pre-appointment hearing for the new head is today, we should give that person a chance to reform the organisation before we take away the opportunities to exercise effectively the powers that were bestowed upon it by previous legislation.

I will deal with new clause 13 and the abolition of the questionnaire only quickly, because, like my hon. Friend the shadow Secretary of State, I have dealt with these questionnaires from a trade union point of view. As has been said, only 2% of employers have ever been involved and none has claimed the duty was onerous. To be frank, when the questionnaires come back a trade union representative can tell his member, “This isn’t a runner,” or he can say, “This is a runner. We had better start negotiating.” When it can be proved that a case has merit, usually the employer will realise that there is something real to address.

Jack Dromey: Again, from my experience in the trade union movement I support what my hon. Friend says. As a result of the process of using the questionnaire, for every one case that goes forward, three cases do not, precisely because it is established that there is no case to pursue. That means that the hopes of individuals are not raised, but neither is any unnecessary burden imposed, in this case on employers.

John McDonnell: Exactly. Part of the role of a trade union representative is to ask the individual, “Do you really want to put yourself through this when there is so little chance of success bearing in mind what information has come back?”

Mr Umunna: What I find so reprehensible about what the Government are doing to these protections in this Bill—the same applies to the points that we will be discussing tomorrow in relation to employment law—is that in many respects the people for whom these protections are so important are those who are not represented by a trade union because they provide backstop protections for them in the event that they cannot get assistance elsewhere.

John McDonnell: Exactly. Amazingly, the questionnaire process has been operating effectively since 1975, and in the consultation, 83% opposed this proposal. Most people just want to get on with the practicalities of conciliation, not resort to law because of its expense and risk, and the questionnaires enable us to do that. The Discrimination Law Association offered example after example of the questionnaire’s effectiveness, but they seem to have been completely dismissed by the Government.

New clause 12 relates to third-party harassment which my hon. Friend the Member for Streatham eloquently addressed. I do not think that scrapping the duty set out in the legislation will in any way clarify matters. In fact,

16 Oct 2012 : Column 250

I think that it will cause more confusion. At least when cases are brought up with employers, even informally, representatives can point to the legislation and the duty and it is then clear what the employers have to do. Example after example has been pointed out, but I will give one that was raised with us some years ago. Black firefighters arriving at a scene were being discriminated against and targeted, so their employers had to put in place additional protections. Another example was of discrimination taking place in jobcentres. With regard to the consultation, if the Government were listening to people they would hear that 71% are opposed to these proposals.

Reference has been made to other cuts that have been made to the commission. The Minister raised the issue of the helpline, which has now been transferred to the Government Equalities Office. It only takes referrals from other organisations and does not advertise its services, so I think that the Government are effectively hoping that it will simply wither on the vine and there will no longer be a service for people.

I am also concerned—the Minister has not mentioned this—that a new framework document is now being discussed with the commission that, I think, threatens to limit its future freedom of operation. There is to be a further budget review, as I have said. If the Government are planning to abolish the commission, I would rather they came clean about it and were up front, rather than killing it off by stealth, by cuts and by undermining its legal powers. That would be more honest.

It is not the case that equalities are no longer relevant; discrimination is taking place in our society. We extol the virtues of British society but the reality is that, as everywhere else, discrimination takes place daily and has to be confronted, and we need an effective organisation to do that. If we want an effective organisation, it has to have legal powers that are set out clearly in law. This legislation will undermine those powers and make them less clear than ever before.

I think that this flies in the face of everything this House has worked for over the past generation and the joint work that has been done across parties to promote equality and give effective powers to a body and underpin them in legislation. That is now being thrown to the wind, and for what? I think that it is the result of a combination of ideology and the desire to make savings that, frankly, I do not think will be realised. The proposals will most probably cost more than they actually save. I urge the Government to think again. I urge the Liberal Democrat partners in the coalition to return to their first principles and to what they said a number of years ago. If the Government do not amend the Bill, I hope that the other House will take a role in this and stand up for equality in our society once again.

Kate Green: It is a pleasure to follow my hon. Friend the Member for Hayes and Harlington (John McDonnell) and to endorse his comments. We are genuinely shocked, disturbed and surprised that the Government, and particularly the Minister, have brought forward the amendments to the Equality and Human Rights Commission’s remit and by some of the specific changes proposed to employment legislation.

As my hon. Friend has just said, despite progress—progress that we can be proud of across this House and in society at large—in addressing inequality and injustice

16 Oct 2012 : Column 251

in this society, despite the fact that much good work has been done in our communities to boost and strengthen community harmony, despite the many efforts that have been made to create better educational opportunities for young people from all backgrounds, and despite many examples of progress for women, disabled people, black and ethnic minority people, lesbians and gay and transgender people, despite all that progress, we are still a fundamentally very unequal society.

We are a society where there is still a gender pay gap of 20%; where young black men are still disproportionately more likely not to be in employment, and even when they achieve good degrees still find that they end up with fewer employment chances and lower earnings; where disability hate crime is reported to be on the rise; and where great offence and hurt can still be caused within our communities, as we have seen only recently with the “Innocence of Muslims” film. It is really important that we do not take progress on equality for granted, because there is a very long way to go.

Stephen Pound: Many people of my generation thought that the days of overt racism in football died when bananas stopped being thrown at people like Clyde Best, but when we see such incidents as recently occurred at the Chelsea-QPR game, we realise that a fetid, bubbling sewer of racism still runs through the veins of our society. Does my hon. Friend agree that there has never been a time when it has been more important to have a strong, well-funded, supportive, proactive commission than now, because old Adam is not dead and the old evil has not gone way?

Kate Green: That is absolutely right. One of the great dangers of the Government’s proposals is that they assume that the problem is sorted and we can take our eye off the ball when that is clearly not the case.

It is important to think about the language we use and the provisions we make in legislation, because that sets a context, an ambition and a sense of priority for the country and for the institutions within it. Equally, beginning to weaken that language and remove provisions sends the message that this is not all that important and other things are more important.

I am particularly concerned that these changes are being made in the context of an enterprise Bill, as though equality were in some way inimical to enterprise, when in fact it lies at the heart of successful enterprise. The most socially and economically successful societies are also the most equal societies. It is wrong to seek to weaken our commitment to equality in an enterprise Bill, of all places.

Seema Malhotra (Feltham and Heston) (Lab/Co-op): My hon. Friend raises the very important issue of the “Innocence of Muslims” film and the inter-faith concerns that have been caused. Does she agree that a strong equalities body is vital for promoting a sense of good will, cohesion and understanding between communities that will not be there without the mechanisms in society to help to deliver that?

Kate Green: It is absolutely right that we need a strong institutional infrastructure to promote and encourage greater equality, respect for human rights and good

16 Oct 2012 : Column 252

relations between different sectors in society, particularly as regards the interests of marginalised and more vulnerable groups.

Julian Smith: Does the hon. Lady not welcome the equal pay audits in the Bill, the Government’s same-sex marriage proposals, and the many equality proposals that they are taking forward? Are those proposals not more important than this body, which has, in a number of reviews, been given quite a lot of criticism?

Kate Green: The hon. Gentleman confuses the operation of the body with its remit. We are not saying that nothing can be done to improve the operation of the EHRC, but that is a different matter from its remit and the context that the Bill is important in setting. While the Government have made one or two grudging steps forward in relation to improving equalities, the proposal on equal pay audits is a watering down of our commitment to have such audits across the board for larger businesses, not only when they have been unsuccessful at tribunal, and the proposals on equal marriage now appear to have been kicked into the long grass. I am glad to see the Minister shaking her head and look forward to the legislation coming forward very shortly. Yet again, the Government have chosen not to go as far as Labour Members were calling for, by wanting to limit equal marriage to civil marriage. There seems to be no good reason not to take that further and for religious institutions that would like to offer a religious ceremony to be able to do so. The hon. Gentleman picked on one or two instances of progress set against a backdrop of failure to take the most progressive action, and in many instances an unwinding of progress on progressive action. It is unlikely that this Government can claim to have done much strenuously to promote equality—in reality, the opposite is the case.

5.15 pm

It is important that we have a framework where the EHRC is responsible not just as a regulator but in terms of driving forward social progress, setting an ambition and a vision, and looking at the mechanisms that can help to bring that about. Because it has had that role and status under the Equality Act 2010, we have been confident of our United Nations A-rated status as an international human rights body. I am concerned that these proposed changes may put that exemplary status at risk.

Seema Malhotra: Does my hon. Friend share my grave concern that the removal of the general duty under clause 51—now clause 52—was described by the Business Secretary as

“a bit of legislative tidying up”?—[Official Report, 11 June 2012; Vol. 546, c. 75.]

Does she agree that it is far from just “tidying up” and that it is in fact a watering down of a duty that is vital for our social well-being?

Kate Green: It is shocking that the Secretary of State regards this simply as legislative tidying up, because it goes to the heart of our vision for equality and human rights. I am also concerned that it has been suggested—indeed, the Minister alluded remarks—that other bits of the legislation are going to be good enough and we

16 Oct 2012 : Column 253

are not going to lose anything really. For example, the Government have mentioned the possibility of relying on the public sector equality duty, but that, too, is being reviewed by this Government.

What we have had with the red tape challenge, with this Bill and now with the consultation on the public sector equality duty is the piecemeal dismantling of our equalities infrastructure. It is utterly disgraceful that the Government have set about it in this way. They have made proposals today on the statutory questionnaire and on third-party harassment. The consultation on those has just closed and there has been no formal response from the Government; we have simply seen proposals brought forward in this legislation. The Secretary of State assured me personally on Second Reading that he had no plans to bring forward such measures, yet here they are today appearing in the Bill so I am very concerned that the Minister’s assurances that the equalities context is safe in the Government’s hands and that other aspects of legislation will continue to protect it are simply not worth the paper they are written on, given the Government’s track record on this matter over the past few months.

I now wish to examine the good relations duty, a really important duty that has been in place since the time of the Commission for Racial Equality and some of the shocking racial discrimination that we saw in earlier decades. That all culminated in the Macpherson report following Stephen Lawrence’s murder. That was a time that brought home a real shock to our society about how we had failed to address discrimination and inequality in our country. As I say, we have made progress in the intervening decades in our treatment of, and the opportunities afforded to, some minority groups in our society, but victimisation, discrimination, hate crime and disrespect to minorities continue today.

My hon. Friend the Member for Hayes and Harlington highlighted some of the groups that, even today, experience that discrimination: disabled people; people with mental health difficulties; and Gypsies and Travellers. There is still racism and there is still religious hatred. There are still women who are experiencing and are victims of violence, or who are at risk of it. All those groups continue to suffer from derogatory language, discriminatory behaviour, prejudice and public hostility. It is quite wrong to think that we do not need to continue to protect in legislation a positive duty to promote and improve good relations, particularly to protect the interests of minority and disadvantaged groups.

The situation is not helped when some of this hostility is whipped up by Ministers’ own language; it is not helped by language that implies that people on disability benefits are benefit scroungers or that Gypsies and Travellers are all involved in illegal encampments, arriving one Friday night, parking up with their tents and disappearing by Monday. There is too much condemnation based on anecdote, which fuels this culture of hostility. It is really important that we have a strong commission that is able positively and proactively to tackle that and promote good relations between different groups.

Julian Smith: Could the hon. Lady give some tangible examples of how the general duty actually helped the groups of people she has mentioned?

16 Oct 2012 : Column 254

Kate Green: The hon. Gentleman should realise that we are talking about the good relations duty, not the general duty, which is a duty to promote equality and reduce discrimination. However, we have heard some examples this afternoon of how it has been used. It was used, for example, to create the Let’s Kick Racism Out of Football campaign, and it has been used recently to underpin what I think all Members would recognise as an important report published by the EHRC last year, “Hidden in plain sight”, which addressed the issue of disability hate crime. I am not saying that there is no more work to be done; I am saying that the removal of the good relations duty does not inspire confidence that the commission will have its eye on the ball of doing more work. It is important that we do not lose sight of the progress that we still need to make.

Mr Umunna: My hon. Friend is absolutely right. We need a commission not only to act as an anti-discrimination vehicle that identifies discrimination and deals with it when it happens, but proactively to prevent such things from coming up in the first place. The section 3 duty makes it clear that the organisation has those twin purposes.

Kate Green: My hon. Friend is right. Opposition Members are wary of the commission being reduced to a mere regulator between two parties, rather than seen as an agent of social change. There is a real opportunity for a highly regarded, well-resourced public body, with the right remit, to shape and influence public attitudes. The Government’s proposals will put that work and ambition at risk.

Julian Smith: Does the hon. Lady really think that a body can make such changes? Is this not about leadership in all our public sector organisations and private companies? Does she really think that a body, however much resource it has, can achieve those changes?

Kate Green: The hon. Gentleman is right to say that we need leadership in all walks of society—of course we do. We need to see it in our businesses, schools, public services and communities. I am sure he is not saying that there is no need whatever for the state to sign up, positively and proactively, to endorse and create an institutional mechanism and infrastructure to help achieve that. But if that is what he is saying, he is very much at odds with best international practice and the relevant directives of the United Nations and the European Union. As I have said, in a country where there is still gross inequality, it would take a great leap of faith to say that we can afford to dismantle the equalities infrastructure; surely what we should be doing is building it up.

Andrew Gwynne: My hon. Friend is right to say that the great advances that have undoubtedly been made in race equality, disability rights and so on do not mean that there is not unfinished work to be completed. There is an awful lot of progress still to be made and that is a case for a stronger commission, not the rolling back of provisions.

Kate Green: My hon. Friend is right. It is regrettable that we are having a debate about watering down the commission’s remit. There is no evidence of public

16 Oct 2012 : Column 255

support for that and there is not even much evidence of business support for it. Opposition Members believe that it sends the wrong the signal at a time when we still need to make so much progress.

Stephen Pound: On that point, this Bill is called the Enterprise and Regulatory Reform Bill, and in a spirit of generosity and open-heartedness I have been trying to identify the coalition Government’s motivation. I can only assume that they believe that industry is like a group of greyhounds, straining at the slips and longing to burst forward in a great explosion of entrepreneurial activity, that are somehow being held back by these fetters of legislation. If that is the case, I ask my hon. Friend why she believes that the most successful economy in Europe—that in Germany—has no call to abandon the protective mechanisms that make society a better place and that underline the old saying that this country would not be a good place for any of us to live in until it is a good place for all of us to live in?

Kate Green: I cannot begin to say why the Government want to weaken the equalities infrastructure. I cannot work out whether it is because of ideology; whether they genuinely believe that there is a business case for it, although they have not managed to demonstrate that clearly this afternoon; or whether there are pressures on them to be seen to be passing legislation in this field because there is not much else for the House to do. I regret that the fact that the Government have put this particular structure into this position, because that says something very profound about what is valuable and important in our society. I am very disappointed that the Government and this Minister are bringing these provisions forward this afternoon.

Jack Dromey: In the Bill, the Government pray in aid enterprise to deny equality. Does my hon. Friend agree with the automotive and engineering personnel managers whom I met in Birmingham, who said that the work of the commission had been invaluable in getting the best out of their work force and that they wanted to get the best out of the work force of the city? As one of them said, enterprise and equality are not opposites; they are partners.

Kate Green: Absolutely. That is also true in the public sector. In my constituency, a major public sector institution is even now working with the Equality and Human Rights Commission to marry up its human resources practices and its service delivery. That demonstrates exactly the kind of strong institutional body that we want and that we ought to be protecting and promoting today.

My hon. Friend the Member for Hayes and Harlington mentioned the concerns that Opposition Members have about the framework agreement that covers the operation of the commission, its relationship with Government and, crucially, its independence. There are worries that the combination of the changes to the framework agreement and the fact that it will report only every five years, as opposed to every three years, as now, will seriously weaken its independence and the balance between the independent commission and the Government Equalities

16 Oct 2012 : Column 256

Office, which I think is still within the Home Office, although I am happy to be corrected by the Minister if it has moved.

Jo Swinson indicated assent.

Kate Green: The Minister is indicating that it has moved. We are concerned that the balance of power and influence in determining strategy has shifted from an independent commission to an internal Government body. In the context of the international A-grade status, that is a cause of concern.

Mr Umunna: That is exactly what Neil Crowther, the former director of human rights and director of disability rights at the commission to whom I referred earlier, has said. He stated that as a result of what the Government are doing,

“where now the EHRC is empowered to determine measures of Britain’s progress towards equality and human rights and the outcomes towards which it will focus its resources, in future government will do so.”

Kate Green: Exactly; I think that all Members will be concerned about that.

Mr John Wadham, who has been much quoted in this debate in support of the Government’s position—although that support was not the position that the EHRC took in its first public submission on these matters—has identified the concern over the independence of the commission. He suggested that if the measures proposed by the Government were to come in, he would like to see a compensating measure that would see the commission report to Parliament. Of that compensating measure, today there is no sign.

I will move on to two of the Government new clauses that relate to employment rights. The first relates to third-party harassment, which has been mentioned by my hon. Friends. The Minister said that the relevant provisions in the Equality Act 2010 were not necessary because employees have other forms of redress. However, the fact that there is a specific legislative provision to cover third-party harassment highlights the possibility for employees to have redress. They might be unaware that their employer has such a liability and obligation to them. In smaller and un-unionised workplaces, it is particularly difficult for employees to understand that they may be entitled to redress.

It is also important for employers to recognise the good practice of many exemplary employers in focusing on their responsibility for their staff’s welfare. I was struck, as were some of my hon. Friends, by some of the employers who strongly endorsed the provisions of the 2010 Act and said that they were an important tool in protecting and reinforcing the rights of their employees. They were concerned that other employers might not follow the same good practice and they regretted the change.

Luciana Berger: Does my hon. Friend share the concerns echoed by the TUC that the removal of third-party harassment provisions will lead to life getting much harder for thousands of people who work in care homes, as well as health workers and teachers—the three groups specifically highlighted by the TUC?

16 Oct 2012 : Column 257

5.30 pm

Kate Green: One concern is that the workers affected are likely to be low-paid—often women—or people with low levels of qualifications, and they will lose out most by the removal of third-party harassment provisions. The Union of Shop, Distributive and Allied Workers—I draw attention to my membership of that union and its support for my constituency party—is aware of cases in which shop staff have been victims of harassment, sometimes by customers or perhaps outside the store if customers have been asked to leave for disruptive behaviour. Those staff have used third-party harassment provisions to work with employers and ensure that steps are taken to protect shop workers, particularly late at night when few staff may be on site. The Opposition are worried that the provision has worked well to protect more vulnerable workers, and we regret that the Government now seek its removal.

The statutory questionnaire procedure has been in place since the sex discrimination legislation of the 1970s, and Labour Members are at a complete loss to understand the Minister’s objections. Far from being costly and burdensome to business, we see the procedure as helpful and something that businesses can use to focus on the essentials of a problem, and make clear to employees—and potentially to their representatives—whether there is a case to answer. As colleagues with trade union backgrounds have pointed out, in many cases, the advice received by the employee following the completion of a statutory questionnaire is that there is no case. Where there is a case, however, or structural discrimination in the workplace, surely we want to offer employees who are the victims the best possible means of uncovering and dealing with it, and maintain the strongest possible regulatory framework to enable information to be elicited, analysed, and used by employees when discrimination has occurred.

The Minister suggested that the statutory questionnaire procedure was burdensome for business. As colleagues have pointed out, however, over a three-year period only 2% of businesses—0.7% a year—completed the questionnaire. To the best of my knowledge, no micro-businesses—none of the smallest businesses for which the Minister may argue that the measure could be more burdensome—have ever completed a statutory questionnaire. If they have, it was not in the written evidence received during the Government consultation. I therefore suggest that the burden on business that the Minister seeks to portray, and the cost to business of around £1 million—as I think we were told—is pretty negligible in the context of other costs borne by businesses for the protection of workers in the workplace.

Julian Smith: The hon. Lady knows full well that the smallest businesses in our country do not really get a look-in at the written evidence sessions. They do not have time to participate, and therefore they are not represented. To pretend otherwise would not be correct.

Kate Green: I accept what the hon. Gentleman says. The problem, however, is that we did not get any evidence from micro-businesses, although perhaps for the best of reasons. I accept it may be difficult for those businesses to find the time and resources to make submissions to formal Government processes, but equally, no evidence has been presented that many micro-businesses

16 Oct 2012 : Column 258

have a problem and have used the statutory questionnaire procedure. The legislation comes from speculation rather than information and evidence, and that is much to be regretted.

Andrew Gwynne: I agree with my hon. Friend. Does her case not underline the real point that these regulations—and the legislation—is working, and that the framework in place means that the statutory questionnaire procedure has not been used in the numbers suggested and is not the burden that it is made out to be by the Government?

Kate Green: That is absolutely right. It is also important to recognise that in an employer-employee relationship, there is an imbalance of power, even in many of the smallest businesses. One thing that the statutory questionnaire procedure helps to do is redress that power imbalance—that has been specifically noted in European directives as one of the purposes of such procedures. It is a regret that Ministers have decided that that protection for employees should be removed.

The statutory questionnaire procedure promotes efficiency in the workplace—cases can be abandoned or issues clarified early—but the fact that the judiciary has come out in the Government’s consultation largely in favour of it suggests that it also leads to efficiencies in the courtroom and the tribunal, because the issues will have been well analysed and distilled. Given the many pressures being brought to bear on employment tribunals, I would have thought that the Government would want to give serious consideration to the cost-effectiveness of the statutory questionnaire procedure in respect of tribunals.

These highly regrettable measures have been thrown into the legislation at the eleventh hour. It appears that they are more a sop to the prejudices of a small number of business organisations rather than a recognition of any business hostility to legislative provisions that have existed for many years.

Finally, I should mention what is happening to the general landscape of places where people can go for redress and advice. My hon. Friends have mentioned the ending of the commission’s grants programme to the voluntary sector; changes to its helpline provision; and the ending of its ability to offer conciliation services in non-employment matters. As the Minister well knows, that is happening against a backdrop of swingeing cuts to legal aid funding and to local authority funding for advice organisations. Those who have suffered discrimination or injustice now have real difficulty even to get to the means of presenting and taking their case. I would understand it if the Minister argued that that is not exactly the EHRC’s core function if it were not for the fact that all other provision of such advice and information is being dismantled. It is extremely difficulty for the Minister to argue that there is no need for the EHRC to provide such a service when the same service is being removed from every possible place where people in need might look for it.

The Opposition are distressed and saddened by the proposals in the Government’s new clauses and amendments. We are concerned that they speak either to Government Members’ intrinsic hostility to the concept of equalities and the landscape to protect them, or to a casual dismantling of provisions that work extremely well. We are concerned that the signal sent to wider

16 Oct 2012 : Column 259

society is a negative one—the suggestion is either that equality is a job done, which it plainly is not, or that it is no longer important, even though there is agreement across the House that it is very important.

I hope the Minister takes the opportunity to think again this afternoon about some of the Government’s proposals, but I can absolutely assure her that if that does not happen, the subject will be a matter of live debate in the House of Lords. Their lordships take a great interest in equality and social justice and will be very concerned about provisions that appear to weaken the institutional infrastructure to protect and promote equality. I look forward to many more robust arguments. I hope that, in the end, the provisions will be seen as damaging and that they will be withdrawn, so that we will be able to move forward as an exemplar country in our commitment to equality and our determination to make continuing progress.

Jo Swinson: Although this debate has not been as consensual as the previous one on insolvency measures, I recognise none the less that Members have raised genuine concerns, on which I hope to reassure them.

Various Members referred to the Second Reading debate and, in particular, the question that the hon. Member for Stretford and Urmston (Kate Green) posed to my right hon. Friend the Secretary of State, who said that there were no proposals, at that point, to bring forward the measures in the amendments today. Of course, in June, when Second Reading was undertaken, a consultation was under way, so we did not have firm proposals at that point. My right hon. Friend said, though, that there was nothing to stop people proposing amendments, and since then, of course, the consultation has ended. In answer to the hon. Lady’s specific question about the consultation, I can say that the Government published their response on 10 October. She is right that the Government Equalities Office has moved, following the reshuffle, and is now housed in the Department for Culture, Media and Sport, where the Minister for Women and Equalities is also Secretary of State.

I can provide a range of clarifications. The shadow Secretary of State asked about the scope of equal pay audits, in particular, and whether they would apply only to private organisations. I can confirm that they will also apply to public sector organisations, so it will be the case for all employers, although we must bear in mind the moratorium on additional burdens on micro-businesses until 2014. It is certainly not our intention, however, to limit its scope to the private sector.

The hon. Member for Vale of Clwyd (Chris Ruane) made a helpful intervention pointing out the unfortunate increase in disability hate crime. It was helpful because it reminded us of the issue. I share his concern, and he should not be under the impression that such concern is limited to the Opposition.

Chris Ruane: I hope that the Minister noticed that I did not say “the Liberal Democrats”. I said “the Tories”.

Jo Swinson: I thank the hon. Gentleman for that clarification, but given that I speak on behalf of the Government, it is only fair that I point out that many of

16 Oct 2012 : Column 260

my Conservative colleagues also share his concerns. Very often, on the issue of people with disabilities who require support, the reporting in some sections of the media leaves a lot to be desired.

Jack Dromey: Were the disability organisations right or wrong in their recent powerful report making a direct link between the tone set by the Government and the rise in hate crime?

Jo Swinson: Every organisation is entitled to put forward its views and concerns. It is important that language is used carefully, as has been pointed out by various Members. Whether they are a member of the Government or not, everyone needs to be careful about the language they use in these discussions. That is not to say, of course, that we should never make any changes to provisions affecting people with disabilities, but that debate should be conducted responsibly.

The hon. Member for Hayes and Harlington (John McDonnell) was rather dismissive of many of the Government’s measures on equalities, and said that there was much consensus in these areas. These are measures that the previous Labour Government did not undertake during their 13 years in power, so if there is such consensus, the question needs to be asked, “Why didn’t they get on with it?”

John McDonnell: The hon. Lady completely misinterpreted what I said. I was not dismissive at all. I welcomed the measures and said that they were supported across the House. This measure, however, is one of the first steps on equality in nearly a decade that has not been taken consensually.

Jo Swinson: I take the hon. Gentleman’s point that there has not been a consensual debate today, although I do not think it would be accurate to say that there is a consensus on, for instance, the Government’s measures to tackle discrimination in the trans community or our proposals on equal marriage. I can say that as a constituency MP, and my mailbag, and no doubt those of others, would attest to it. The Government have a positive record, including on measures that the previous Government did not address.

On the reasons for new clause 12, the shadow Secretary of State gave a version of events that differed from mine in referring to the case in 1994. For the record, according to the GEO’s lawyers, the reasoning and rationale for bringing forward that provision is as I set out in my opening remarks. It is also worth pointing out that even though the 1994 case to which he referred happened before that provision was in place, those individuals rightly won their case. Ultimately, the important change is the change in definition, which took place as a result of the case, which I mentioned, in 2007.

Mr Umunna: The point is that after the 1994 case was won, the principal point of law that was the subject of the case was called into question several times and the law changed various times—I know that from my own practice—which is why we did what we did in the Equality Act 2010.

16 Oct 2012 : Column 261

5.45 pm

Jo Swinson: The change made in 2007 was made for the specific reason that has been mentioned, and that was what was replicated in 2010, but in any event, I reiterate what I said earlier about the fact that significant protections remain. This is not to say that by removing the three strikes test there is no remaining protection for people, so that employers do not have to have regard to ensuring that their employees are not harassed at work; rather, employers retain a common-law duty of care to their employees, and they will still need to ensure that they do not fall foul of the Protection from Harassment Act 1997.

Let me turn to the Equality and Human Rights Commission. I am glad that we are not assuming, on both sides of the House, that the position was perfect under the last Government, and I welcome the comments that various Opposition Members have made to that effect. It is worth bearing in mind that we had significant concerns, as did many of the stakeholder organisations, about the EHRC’s ability to fulfil its core duties. On human rights, for instance, Liberty said:

“We have…watched the turbulent”


“of the EHRC with some disappointment…The EHRC has a vital statutory duty”

to defend human rights, and

“notwithstanding considerable staffing and other resources, this is a duty which it is yet to fulfil.”

The Equality and Diversity Forum expressed concern that the human rights inquiry was

“the only visible work EHRC has done that is explicitly concerned with fulfilling its duty to promote respect for human rights.”

The Public and Commercial Services Union listed human rights debates from which it said the commission was absent due to a

“failure to communicate its role effectively”.

In addition, concerns were expressed by the Joint Committee on Human Rights, so there was indeed a problem with the basic statutory duties that are the core functions of the EHRC not being properly undertaken previously. That is why our amendments seek to focus the duty and make it crystal clear that that is the priority.

Kate Green: The hon. Lady has mentioned a number of organisations and their concerns about how the commission was fulfilling or failing to fulfil some of its core responsibilities, but does she not accept that not one of the organisations she has named—neither Liberty, the Equality and Diversity Forum nor the PCS—has called for a reduction in the commission’s remit? What they have called for is improvements in governance and management, some of which, I accept, we are now seeing.

Jo Swinson: It is certainly the case that there is wide agreement that improved governance and management are necessary. Much of that has been happening, which is definitely to be welcomed. However, this comes back to whether we should have a legal duty—something that is tightly drawn and focused—or something that is more akin to a mission statement or vision statement. The purpose of a legal duty is about something being manageable and achievable, and although the duty that the shadow Secretary of State read out described what

16 Oct 2012 : Column 262

we would all want to achieve, it would be ambitious for a Government, with all the resources available to them, to say that they would achieve them, let alone for a solitary organisation to try to achieve such a wide range of ends, albeit good ones.

Mr Umunna: I am grateful to the Minister for giving way to me again. We are not the only ones who have raised concerns about what she is doing to the commission in this Bill; they include members of her party, as I have said. Councillor Lester Holloway, the head of the BAME Councillors Association, has said:

“A combination of biting budget cuts and the stripping away of many of its powers threatens to turn the commission into little more than a glorified equalities thinktank.”

The head of the Ethnic Minority Liberal Democrats has said:

“I have heard the argument that if it wasn’t for the Lib Dems the Conservatives might have abolished the EHRC altogether by now. However that argument is unlikely to cut much ice”—

Madam Deputy Speaker (Dawn Primarolo): Order.

Mr Umunna —“with the public.”

Madam Deputy Speaker: Order. Mr Umunna, when I say, “Order”, you sit down. I also need to remind you that interventions are supposed to be brief. I appreciate that you were using a quotation, but using several quotations is not in order.

Jo Swinson: I meet and speak to those Liberal Democrat colleagues regularly, and I spoke to Lester Holloway last week about these issues. Some of the points that have been made have been based on inaccurate information, such as that about black and minority ethnic staff in the commission. The commission has corrected a lot of inaccurate information and misunderstanding about the impact that the restructuring plans will have on its staff. Of course, diversity is taken very seriously in all public sector organisations, but in the EHRC perhaps more than most there is acute awareness of how vital it is.

The duties that will remain in sections 8 and 9 of the Equality Act 2006 are the core functions of the EHRC. Several Members referred to the Let’s Kick Racism Out of Football campaign, which was an excellent initiative but contained nothing at all that could not be done under section 8. It is a false argument to take something excellent that the EHRC has done in the past and say that such an initiative could not be taken in future because of the changes that we are making to section 3. It absolutely could be taken under section 8.

Several Members asked whether the changes to the EHRC were about growth. I am not going to pretend that making its remit more structured is specifically a growth measure, but that does not mean that it is not a helpful thing to do. I have outlined the impact that the provisions coming out of the red tape challenge will have on business. Business will welcome that, coupled with all the other measures that we are taking in the red tape challenge to bear down on unnecessary regulation.

Several comments have been bandied around that many Government Members wish to see the back of the EHRC and that the change is abolition by stealth. I hope that I can reassure hon. Members that that is not

16 Oct 2012 : Column 263

the case. We certainly have not heard any suggestions to that effect from Government Members. Perhaps if that was what they believed, they would have come to the House to say so today.


I am sure that if any of them had wished to say that, they would have done. Even if that were the case, it is not the coalition Government’s position. We recognise that the EHRC is an important institution and that equalities law is vital. It is vital to our economic recovery, because we need to ensure that we use the talents of all the people in our work force and potential work force. That is why we are ensuring that it is focused on what is most important. We want to focus the EHRC on its core functions and, as I have mentioned, strengthen its governance and accountability, in which we have already had some degree of success.

A few Members mentioned the consultation and suggested that there was not necessarily unanimous support for the Government’s measures. However, if we examine the responses that were received from individuals—for clarification, they were not Members of Parliament—we see that more than half advocated the abolition of the EHRC. Opposition Members should be slightly careful what they wish for if they urge Governments always to follow consultation results exactly. We obviously have to take views into account, but we must also ensure that important provisions and protections are not undermined. Even if there were to be a groundswell of support for doing such a thing, the Government would recognise the important protections that the EHRC ensures are in place.

The hon. Member for Hayes and Harlington (John McDonnell) asked questions about the equality advisory and support service helpline, which opened on 1 October. It has some advantage compared with the previous commission helpline. It is open for longer—from 9 am to 8 pm Monday to Friday and from 10 am to 2 pm on Saturday—and is therefore more convenient. It handles conversations that people might not want to have while they are at work, so having longer opening hours is helpful and makes the service more accessible. It is free to phone from landlines, and it will soon be free from most mobiles too.

The inaccurate suggestion was made that the helpline can be used only when there are referrals from other organisations. That is not the case. It is there to help people with discrimination problems, and there is nothing to prevent a member of the public from approaching the EASS directly, although we accept that most people probably will access it via a referral.

John McDonnell: Can the hon. Lady explain where it is advertised?

Jo Swinson: It started on 1 October and there are not massive advertising budgets at the moment, but—[Interruption.] The hon. Gentleman clearly wants some huge advertising campaign, but we do not have massive budgets available at the moment. It is important that the advice is out there, that referrals are there and that the information is available when people wish to access the service.

16 Oct 2012 : Column 264

The hon. Gentleman also said that he was concerned about the zero-based budget exercise that was being conducted on the EHRC. However, I understand that that is now Labour party policy. At its recent conference, the shadow Chancellor said that

“the public I think would expect this, to have a proper zero-based spending review where we say we have to justify every penny and make sure we are spending in the right way.”

Perhaps the hon. Member for Hayes and Harlington does not agree with the concept of a zero-based budget review, but his shadow Chancellor certainly does.

John McDonnell: There is a difference between conducting a zero-based budget exercise when seeking to ensure the effective operation of an organisation and having one when 62% cuts have just been made and the Government are threatening to close it.

Jo Swinson: I can say from the Dispatch Box that there is no such threat to close the organisation. The EHRC is an important part of our equalities infrastructure and the Government are committed to ensuring that it is maintained—

Mr Umunna: Will the Minister give way?

Jo Swinson: The shadow Secretary of State might wish to let me respond to the point raised by the hon. Member for Hayes and Harlington; then I will see whether I have an opportunity to hear from him.

The hon. Member for Hayes and Harlington mentioned the percentage of cuts and bandied about a figure of 62%. It is important to bear in mind that removing functions such as the conciliation service, which are now being provided elsewhere, will clearly result in a reduction in the number of individuals required. That service is no longer being provided by the EHRC. When we take into account the functions that have been transferred, the cuts that the EHRC is dealing with are broadly in line with other public sector cuts. Yes, it would be lovely to be in a situation in which we did not have to make any cuts but, unfortunately, the nature of the economic circumstances that we were left with in 2010 means that that is not possible.

Mr Umunna: I think it is fair to say that we remain deeply concerned about this matter. Will the Minister give us a guarantee now that, for the remainder of this Parliament, there will be no move to make any further changes to the statutory remit or footing of the Equality and Human Rights Commission?

Jo Swinson: The shadow Secretary of State does not surprise me greatly when he says that he is not convinced by our arguments today. This was never going to be the most consensual of debates. He is now asking me to look into a crystal ball, but I am clearly not going to make any predictions for the future. I will, however, say that the EHRC is a vital body that is hugely important to our equalities protection. We are conducting a zero-based review to ensure that it can undertake its functions in a more focused way, and that is what we will continue to do.