Equality Bill

Public Bill Committee, 9 June 2009.

Vera Baird (Labour, Redcar)

I beg to move,

That the Order of the Committee of 2 June be amended by making the following amendments to the Table in paragraph (2)—

(a) in the first entry for Tuesday 9 June, in the third column, at the end insert—

‘Muslim Women's Network

Board of Deputies of British Jews’;

(b) in the second entry for Tuesday 9 June, in the second column, leave out ‘12.30 pm’ and insert ‘1.00 pm’;

(c) in the third entry for Tuesday 9 June, in the second column, leave out ‘6.00 pm’ and insert ‘5.00 pm’.

To put it straightforwardly, the motion amounts to adding two witnesses to this morning’s sitting—the Muslim Women’s Network and the Board of Deputies of British Jews—and extending the sitting beyond 12.30 pm, when it was to end, to 1 o’clock. That will give a little extra time for the second panel of witnesses. The third provision shortens the afternoon sitting—the Committee’s opportunity to question Ministers—by an hour, reducing the time from 4 o’clock to 5 o’clock, instead of 4 o’clock to 6 o’clock. I hope that that will be agreed by the Committee.

David Taylor (Labour, North West Leicestershire)

I remind members and witnesses that we are bound by the internal knives—the timetable agreed to last week—which means that this morning’s first evidence session must end no later than 11.30 am, and the second no later than 1 pm. I hope that I do not have to interrupt members or witnesses in the middle of their sentences, but I will do so if need be.

I welcome the various representatives—you are most welcome. We will first hear evidence from the British Humanist Association, the General Synod of the Church of England, the Catholic Bishops Conference of England and Wales, the Muslim Women’s Network and the Board of Deputies of British Jews. Would you please introduce yourselves to the Committee and then we will get moving?

David Taylor (Labour, North West Leicestershire)

Thank you. I am going to open up the questioning by passing the floor to Mark Harper.

Mark Harper (Conservative, Forest of Dean)

Thank you, Mr. Taylor. It is a pleasure to see you here this morning.

I want to raise two issues, one of which has been raised specifically by the Catholic Bishops Conference. I will question its representative first and then other panel members can comment. The issue is the employment exceptions for the purposes of religion, and the changes between the Employment Equality (Sexual Orientation) Regulations 2003 and the Bill. The Catholic bishops say that the Bill narrows the exception, while the Government’s position is that it simply clarifies existing law. However, you can read it both ways. This specifically looks at the extent to which a particular religion or belief is a genuine occupational requirement of a job. Can I ask you, Mr. Kornicki, to set out your position and the extent to which you feel the language in the Bill does or does not significantly tighten or limit the exceptions in existing law?

Mark Harper (Conservative, Forest of Dean)

Does anyone else have a comment on that, in either agreement or disagreement?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Others might want to come in on this subject, so I will not go on to a new topic. When you say “or whatever”, do you mean gay people as well? You gave the example of marital status, which means that gay people would fall into that category, would they not?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

If they behaved as gay people do, that would mean to have gay sex with someone, which would be outside marriage.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Let us say that an Anglican who is a youth worker does a good job, gets rave reviews, and is doing well. He then comes out as being gay, his work does not suffer, and he is still doing well. Would your organisation, or an organisation of a Church nature, have the right to sack that person when they come out? Alternately, say someone’s marriage breaks down and they are having a terrible time personally. Do you think that you should have the right—whether you choose to or not—to sack someone on the basis of that private trauma, even though they are still doing a good job by objective standards?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

So basically you are saying yes. We can argue about whether a youth worker is wholly or mainly involved in promoting and explaining the doctrine of the religion, or in providing activities for youths—that could vary according to the facts of the case. You are saying, just as when someone changes their religion, that if a person becomes sexually active, that is a matter for you, and it could be a factor in whether they continue with their livelihood.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

So you are saying yes.

David Taylor (Labour, North West Leicestershire)

I will call Lyn Brown and then Tim Boswell. I believe that Andrew Copson also wants to comment.

Lyn Brown (Labour, West Ham)

I want to pick up on a point that you have just made. You told us that different bishops might behave in different ways. The consistency of the Church of England’s position and the way in which it behaves across the country seems to depend on the attitudes of different bishops to different circumstances. Is that right?

David Taylor (Labour, North West Leicestershire)

Sorry, Lyn, but a lot of people wish to speak. Do you have a further point?

Lyn Brown (Labour, West Ham)

I would like to come back on that issue as I am interested in how much we need to understand about somebody’s life in the bedroom in order for them to be employed by the Church.

David Taylor (Labour, North West Leicestershire)

Mr. Copson, you wanted to contribute on this matter.

David Taylor (Labour, North West Leicestershire)

I will call Tim Boswell. Perhaps colleagues will make it clear whether their question is aimed at a specific member of the panel or whether it is open for response. I will call Maleiha Malik in a moment.

Tim Boswell (Conservative, Daventry)

Thank you, Mr. Taylor. My question is to the two Church representatives, unless others wish to contribute, and it is procedural. Are some of the difficulties that we are clearly already in related to the fact that these matters were not really consulted on? Can you give us a bit of history about when they were introduced to you, and your take on them?

Tim Boswell (Conservative, Daventry)

Thank you. It is understood from the earlier exchanges that we are trying to strike a relatively fine balance between the objectives of equality and not collapsing your position into an at-large licence for discrimination and the rather—as you see it—narrow provisions in the Bill. I noticed in particular that Mr. Fittall mentioned three tests: representational functions, pastoral functions and the third one, which came in as a side wind, teaching. I am not clear whether that is subsumed by the pastoral. Would an amendment along those lines achieve what you want, which is presumably to allow you to deal with situations of scandal or distress to the Church, but outwith the constraints of equality law, without collapsing your position to one of discrimination? How do you see the balance being struck?

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

I would be interested in what you think about the recent decision of the General Assembly of the Church of Scotland to enable a Church of Scotland minister to fulfil his calling in a church in Aberdeen? It was voted for by a majority in the General Assembly recently. My understanding is that he lives openly with his gay partner. Could anything in the Bill as drafted stop the Church of Scotland doing that? Would there be implications for how you want to amend it, for example?

I know that you cannot answer for the Church of Scotland and we have no representative of it here, but why did it believe that such action struck a balance between its pastoral care and not discriminating against a person?

Mark Harper (Conservative, Forest of Dean)

I want to probe a slightly different aspect. I am fairly relaxed in those cases where there is a genuine occupational requirement for the Churches to be able to exercise their right to choose. What I am not clear about, which is the start of my question, is whether the Bill narrows the law.

Under the existing regulations, it is already the case that being of a particular religion or belief can be a genuine occupational requirement of the job. It is already the case in existing law, to pick up Ms Malik’s point, that the requirement has to be proportionately applied. We seem to be arguing about whether the exact wording in the Bill around

“promoting or explaining the doctrines of the religion”

sufficiently captures those who are not doing so, such as those involved in pastoral work.

Looking at one of the examples given by the Catholic bishops, I would not think that a residential caretaker post was an instance in which being a practising Catholic ought to be an occupational requirement of the job, just because of contact with members of the Church. My reading of the Bill so far suggests that it does not actually—certainly not significantly—narrow the existing law, because the existing law says that it has to be a genuine occupational requirement of the job. What I am looking for is why you think it does.

The youth worker role, from what you have said about it involving the teaching of the religion and its nature, seems to me to fall within the exemption in the Bill. I am not clear what other roles you are talking about that would be excluded.

David Taylor (Labour, North West Leicestershire)

Please keep questions fairly concise; we have a lot to do before 11.30 am.

John Mason (Scottish National Party, Glasgow East)

We are quickly getting into the area of competing rights. In many ways, the Bill does not deal with it, or find any way out. Out of interest—if we have the time—I want to know from all panel members whether you have any suggestions about how we deal with competing rights. Is it your feeling that the courts have been tending to take the line recently that religion is at the bottom of the list, and if there are eight protected characteristics, will the Bill leave us with religion clearly at No. 8?

Vera Baird (Labour, Redcar)

As the Minister taking the Bill forward, it is my strong view that there is no narrowing in the definition. I would be pleased to follow the question that Mark Harper put to you, to try to get a clearer answer. Perhaps it is best expressed by saying that it is possible to have an exception. We are talking about licensing discrimination, and consequently you will all accept that that exception must be as narrow as possible. The explanatory notes best encapsulate that by stating that employment for purposes of an organised religion can exclude people if

“appointing a person who meets the requirement in question”

—presumably that is adherence to a faith—

“is a proportionate way of complying with the doctrines of the religion.”

That is the definition, which I do not think narrows down what went before. Perhaps you could help me. I assume that nobody wants a disproportionate way of complying with the doctrines of the religion. Why would you want more licence than merely that which is sufficient to comply with those doctrines? That is a two-pronged question.

David Taylor (Labour, North West Leicestershire)

I must interrupt: I am sorry but we are limited in time and I want to move the deliberations of the Committee to the part of the Bill that deals with the impact on religious organisations carrying out public functions. I call John Mason.

John Mason (Scottish National Party, Glasgow East)

On the question of public functions, the main distinction seems to be about whether the public sector as a whole has a duty to provide services. Within that, you could have lots of diverse groups providing those services, or does each individual group have to do everything? For example, the health service provides for abortions, but individual members can be involved in that or not. Similarly, with adoption agencies, schools or other organisations with public duties, do you feel that it is necessary that everybody deals with everything, or is it possible to have separate groups providing different ways?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

John Mason raised the question of opt-outs and conscientious objection, which exist in statute for abortion. Is it your contention, Mr. Kornicki, that there ought to be more opt-outs for people performing public functions—for them not have to do certain things on the basis of their conscience, religious or otherwise?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

One opt-out, and only one, exists in respect of IVF and abortion. There are calls—amendments have been tabled—which argue that doctors should be able to say, “I am not going to treat Muslims, because my religion will not let me” or “I am not going to treat unmarried women who come to me wanting contraception.” Is that the sort of thing that you would support?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

So you are not making it compulsory—I accept that. But are you looking for the right of doctors and nurses to say that they are not going to treat gay people, unmarried women, or Muslims if their religion does not like them to do that? Is that the point—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would certainly endorse that. May I ask a separate question of Mr. Benjamin? There is an exemption in the Bill that allows religious organisations—even, as Mr. Copson said, those performing public functions—to discriminate against people who are seeking to access those public functions, based on their religion. You gave an example of a care home. How do you feel about a Catholic adoption agency saying that prospective Jewish adoptive parents need not apply?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

My last area of questioning concerns harassment. Can I ask Mr. Fittall whether he thinks that, in terms of the Bill, it is reasonable that children in school should be exposed to unwanted conduct if they are gay—conduct, for example, that violates their dignity and creates an intimidating, hostile, degrading or humiliating environment? Can you picture any circumstances where you think that that would be acceptable in schools, on the grounds of sexual orientation, in the terms that I have given?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I accept that, but do you accept that there is a difference between adults seeking to book a hotel and children who are a captive audience in school, where we know that there is a problem—which none of us would support and I am not accusing you of supporting this—of homophobic bullying, and being subjected to an intimidating, hostile, degrading or humiliating environment in school in front of their peers? By the way, I left out the word “offensive” because that is highly subjective.

David Taylor (Labour, North West Leicestershire)

I will bring in Maleiha Malik, after which I shall bring in the Minister and finally, Tim Boswell, because I know that he wants to talk about public function and possibly multiple discrimination.

Vera Baird (Labour, Redcar)

I wanted to ask about multiple discrimination, but Tim was about to ask about it.

Tim Boswell (Conservative, Daventry)

The Government’s suggestion is that it should be possible to provide for multiple discrimination protection when there are multiple protective characteristics. Will that make the law simpler or will it create further complexities, which will be difficult to navigate other than through the courts?

Tim Boswell (Conservative, Daventry)

But is there an added benefit of looking at them ensemble?

David Taylor (Labour, North West Leicestershire)

Any further questions for this particular set of witnesses? I have speeded you up a little too much. We seem to have a minute left. If hon. Members have no further questions, I thank the witnesses very much for coming along today and answering their questions. I am sorry if I had to move them along from time to time.

I am now about to ask the next set of witnesses to take their place during which time my colleague, John Bercow, will take over as Chair of the Committee.

[John Bercow in the Chair]

David Taylor (Labour, North West Leicestershire)

Good morning to the next five witnesses. My name is John Bercow; I am the Member of Parliament for Buckingham and am in the Chair for the next evidence session. We are due to hear evidence from representatives of the Confederation of British Industry, the Association of British Insurers, the Federation of Small Businesses, the Chartered Institute of Personnel and Development and the Trades Union Congress. Welcome to our meeting this morning. I ask each of the witnesses, please, to introduce themselves to the Committee—starting with Stephen, on my left.

John Penrose (Conservative, Weston-Super-Mare)

It is a pleasure to have you in the Chair, Mr. Bercow, and at short notice.

I want to ask each of the panel members quickly some questions about gender pay audits. I was particularly struck by some of the estimates in the impact assessment—the costs of a gender pay audit for companies in the private sector. Pages 138 and 139 of the impact assessment say that the one-off implementation costs of a gender pay audit would be £92.24 per company and the ongoing, annually recurring costs would be £15.38 per company. Do any of you have views on how realistic those costs are?

John Penrose (Conservative, Weston-Super-Mare)

Do you have any idea, roughly, what order of magnitude you would expect?

John Penrose (Conservative, Weston-Super-Mare)

Does anyone else on the panel have a view on this?

John Penrose (Conservative, Weston-Super-Mare)

And the Government are only proposing it for businesses with 250 employees or more, I think. The Government would agree with you that it would cost more up front. They think the set-up costs would be £92 and then £15 ongoing. Does that seem reasonable to you? Does anybody else on the panel have any evidence? Have any of their members been consulted on whether these are reasonable?

John Penrose (Conservative, Weston-Super-Mare)

Sorry, I mean is the cost a reasonable estimate of the true cost?

John Penrose (Conservative, Weston-Super-Mare)

Thank you. Can I move on to the broader issue of the gender pay gap and how one addresses it? I expect and hope that everybody here would agree on the principle and importance of trying to deal with it. I am interested in how much of the gender pay gap you believe can be sorted out within companies, as opposed to it originating there and needing to be dealt with through action elsewhere in society and the community as a whole. Equal Opportunities Commission research says that 38 per cent. of the gender pay gap is due to

“other factors associated with being female”,

which include “direct discrimination”, and also a variety of indirect factors and “systematic disadvantage”. I am concerned that we might be looking at a relatively small proportion of the gender pay gap in company activity and action. Do any of you have views on whether that analysis is correct?

John Penrose (Conservative, Weston-Super-Mare)

I want to ensure that others have a chance to answer that point, but I think that the Government’s estimate is that there will be a 1 per cent. reduction in the number of tribunal cases as a result of this. Do you think that that is a large benefit—and is that figure right?

John Penrose (Conservative, Weston-Super-Mare)

That is useful—[Interruption.] I am sorry, I should allow others to respond.

David Taylor (Labour, North West Leicestershire)

Continuing the theme of gender pay audits and equal pay, I will call Lynne Featherstone, followed by Nia Griffith, Tim Boswell and Sandra Osborne.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I have one question each for Sarah and Katja. Last night I sat for two hours at the meeting of Unison and the Fawcett Society. The room was full, and every person who spoke said that the most important thing in the workplace was to have mandatory pay audits, yet they have been left out of the Bill. I wonder what Sarah thinks are the effects on women’s poverty in perpetuity if we cannot amend the Bill and include the audits.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It seems pretty much central to me, and we have seen that with exposure, publication and comparison—when people can see what is happening—you get it dealt with. That is the case in point.

Katja, we have met, and I have talked to the CBI, so we know where you are coming from: you do not think that that is the answer. Cost and the recession are often brought into the equation whenever this discussion occurs. The Government have said that this will be voluntary until 2013, which is, without question, four years too late. Two quarters of downward growth in returns signifies a recession. Would the CBI think that it would be a good move if I tabled an amendment to say that there should be two consecutive quarters of growth to signify the start of mandatory pay audits, so they would begin in either 2013 or after two quarters of growth—whichever came earlier?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

But how do we know?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

In terms of equal pay for equal work, in many companies the jobs of women are not the highest paid, and nor do women reach the highest end of the grade. There is discrimination that is about not equal pay for equal work, but what jobs are actually available to women. We cannot see that without exposure of the whole range.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am certainly not saying that there are not other issues.

Nia Griffith (Labour, Llanelli)

I am picking up a certain degree of negativity from the representatives from the CBI and the FSB about a form of compulsory pay audit. What sort of reporting would you regard as helpful for identifying pay gaps? Will you ask yourselves whether you really are an organisation that takes diversity and equality seriously? Most importantly, if you do not have some form of reporting, how do you measure progress?

Nia Griffith (Labour, Llanelli)

The point of reporting is to communicate something from one person or body to another. I am not sure how your knowledge of this, that and the other, regarding a particular member of your organisation, can rely on a descriptive method of saying what is going on, rather than arising from something that is easy to see and analyse.

Nia Griffith (Labour, Llanelli)

So you would be encouraging your members to look at ways of reporting.

Nia Griffith (Labour, Llanelli)

I am still unclear about how we communicate that in the small print.

David Taylor (Labour, North West Leicestershire)

Does anyone else want to come in?

Tim Boswell (Conservative, Daventry)

I would like to ask Sarah Veale—others may want to contribute—a little more about part-time workers. My first question is a sort of technical one, which is whether the threshold would pose greater problems for employers who typically have a large part-time or fluctuating work force. I think you are nodding, but is that at least a potential—that setting a threshold for audit might create difficulty?

Tim Boswell (Conservative, Daventry)

And expensive, presumably.

Tim Boswell (Conservative, Daventry)

Thank you. I wanted to touch on the question of the discrimination that may or may not be inherent in part-time work. My suspicion would be that there is a structural imbalance between part-time employees and full-time employees—in terms of their remuneration—that is gender neutral. Secondly, there may well be an indirect form of discrimination, because females tend to occupy more of the part-time positions. There are two factors operating, both of which in a sense are discrimination, but one of which is not particularly inherent in the Equality Bill—it may be, but in a different way, and it is not gender discrimination. Would you see that as a reasonable interpretation? Do you think that you can differentiate the factors arising from gender discrimination from what I might call structural discrimination—by the nature of whether the employment is full-time or part-time?

Tim Boswell (Conservative, Daventry)

There could also be people with a mental health condition, for example, or a disability.

Tim Boswell (Conservative, Daventry)

Thank you.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

The legislation to date has not provided the remedy that it should have provided after such a long period, and there are all sorts of other complications that have been discussed, on which progress has also not been made. It is also difficult for individuals to seek redress in the current circumstances. What are the panel’s feelings about the idea of representative actions, in which groups of people could take action at the tribunals? Would that make the system more efficient and possibly even cheaper? Would it provide a better remedy for individuals and a more positive way forward?

David Taylor (Labour, North West Leicestershire)

Thank you very much. We will have a very brief interjection by Stephen Alambritis, then we will move to Evan Harris. I should then like us to move on to some of the other matters that need to be addressed.

David Taylor (Labour, North West Leicestershire)

Thank you. Evan Harris and then John Howell.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I just want briefly to clarify the CBI’s position because I do not want it to be misunderstood. Hopefully, these questions can be answered quite quickly. Do you accept that there is a pay gap between men and women at the moment that is unacceptable—for whatever reason?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Okay. I think that you have accepted that part of that gap, even if you do not think that it is the main part, is due to illegal, gender-based pay discrimination—on average; not in every company.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Is your problem, therefore, that you do not think that pay audits will solve the problem of dealing with this illegally caused and unacceptable gap, or is it that you think that it is at too high a price, or both?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

So you do not think that they would be effective? What evidence can you cite that the existing law, and/or the practices of leadership programmes about which you have talked have made a significant difference to reducing the pay gap? It may have kept it the same—it has not got wider thanks to all these little initiatives—but what evidence can you cite me, with a reference, that suggests that our existing legislation is dealing with the problem of the last 40 years?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Sarah Veale, is that your view?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

So all you can give me, Ms Hall, are some contentious figures to show that what we have at the moment is good enough. I am asking you for a reference to some academic work that shows that what we have at the moment—the current legal structure and practices—is solving the problem, and that we will eliminate the unacceptable pay gap, which we both accept, in five years’ time. Help me, please.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not want you to repeat everything that you have said.

David Taylor (Labour, North West Leicestershire)

Thank you. Can I just say to colleagues and witnesses that I would like to move on to other matters at 12.15 pm, because there are other issues to be explored. I have just called an Opposition Member, so I will now call Vera Baird and then John Howell. It would be helpful if both questioners and witnesses could tailor their remarks accordingly.

Vera Baird (Labour, Redcar)

Can I ask three quick questions? First, Katja, do you accept that equality and diversity are good for business, and not its enemies? Stephen and I are assuming that you do, because of what you said. Let me ask that of you as well, Dianah. You have made the position clear.

Secondly, you have talked a lot about direct discrimination and how small you think it is. Indirect discrimination can only really be disclosed by transparency, which requires some process to reach. Perhaps we are talking not about culpable employers, but about employers who do not know that they are paying unequally because of some historic system—they have never gone through it and done it in a systematic way. Do you agree?

Thirdly, you were looking, a short time ago, at what you think would work for businesses in terms of improving gender equality more broadly, but particularly the gender pay gap. You were talking about a quest for a basket of indicators, which would inevitably include pay. That is a good proposition, is it not? That, I think is what the Equality and Human Rights Commission is going to be asking the CBI to join in doing with the TUC, precisely to look for those indicators. That can fit on some metrics, and we can properly measure pay disparity—we seem to be allied there about that—but do you agree further that what is really important is that that should be done, and then everybody should be asked, however involuntarily it is put to them, to comply with disclosing those measures? That way, we can see, even if it has to be done differently sector by sector, what companies A to Z are doing about their pay. The point, surely, would be to get those metrics worked out between employers and employees as a group, and then move it into all of your sectors. Would you take responsibility, as the CBI, for driving that disclosure through all your businesses?

Vera Baird (Labour, Redcar)

I just wondered about the answer to the third question. Will the CBI take responsibility once the metrics are worked out with the rest of it for driving the requirement through its membership to comply with disclosing those metrics?

David Taylor (Labour, North West Leicestershire)

I have had expressions of interest from colleagues in asking questions about contract workers, agency workers, disability and positive action. I do not know what John Howell wants to raise, but he has been waiting patiently.

John Howell (Conservative, Henley)

I would like to move on to a couple of questions relating to age discrimination. The first one relates to issues around the mandatory retirement age. My first question is about attitudes towards that and whether you think that will help. The second is to try to get a sense of where you see the balance in terms of helping to end age discrimination. Is abolishing or decreasing the mandatory retirement age going to achieve more compared with a lot of other measures that can be introduced to encourage employment for people in the 50 to 69-year-old bracket?

John Howell (Conservative, Henley)

What about the CBI?

John Howell (Conservative, Henley)

I think I saw the TUC representative shaking her head.

John Mason (Scottish National Party, Glasgow East)

I would like to press Dianah and Sarah on their answers. My gut feeling is that I like what you are saying, and I do not like people having to retire at a specific age. However, I wondered about the practical issues for an employer, especially a small employer, where there is no retirement age at all, be that 70, 80 or whatever. Suppose that somebody who has been a very good employee starts deteriorating a bit. Does that not put the employer in an impossible position?

John Mason (Scottish National Party, Glasgow East)

Would 70 or 75 be a compromise?

John Howell (Conservative, Henley)

I want to push the discussion on to a connected aspect of age discrimination that relates to goods, facilities and services. The insurance industry has made a big case for retaining age discrimination or age categorisation, and although I can understand some of the points that have been made, it does lead to pronounced difficulties, particularly for older people. I am thinking of some constituents of mine who are over 85. They have led a very active life and although insurance for travel is available, after having shopped around they find that having to pay £3,500 for insurance to go to Australia is having a major effect on their lifestyle and ability to conduct what one would consider a normal life.

David Taylor (Labour, North West Leicestershire)

Thank you. Whenever witnesses want to come in, please indicate and, subject to the constraints of time, I will always try to include people. We should now move on to the subject of contract workers and agency workers. I call Jim Sheridan.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

Unfortunately, there has been a growth in the use and exploitation of temporary agency workers across all disciplines, all workplaces and of both genders. Those temporary agency workers are discriminated against in the sense that they have lower terms and conditions, pensions, holidays and everything else. Part 5 of the Bill seeks to deal with part of the problem. I wonder whether it addresses the concerns from the perspective of the TUC and employers. Does it comply with the EU directives?

Jim Sheridan (Labour, Paisley and Renfrewshire North)

I am absolutely amazed that the CBI is saying that temporary agency workers are not discriminated against, because I see it every day of my life. Some 700 agency workers at Hewlett-Packard have just been made redundant simply because it is easier to make them redundant, so I would like to see the evidence that suggests that agency workers are not discriminated against.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

What is the incentive for an employer to take on agency workers?

Jim Sheridan (Labour, Paisley and Renfrewshire North)

That is a technical term.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

To suggest that those people are not discriminated against is incredible.

David Taylor (Labour, North West Leicestershire)

Thank you. Does any other Member want to come in on this subject? No, in that case, we will move on to disability.

Mark Harper (Conservative, Forest of Dean)

I have a brief question for everyone. When making recruitment decisions, employers are allowed to use pre-employment questionnaires to ask a range of health and disability-related questions of people whom they plan to hire. We have been urged to include within the Bill amendments to prohibit the use of such pre-employment questionnaires, although employers would still retain, as they do in the United States, the ability to withdraw a job offer, if the potential employee disclosed information that made them unable to perform the role, but that withdrawal would have to be on good grounds. Would any of you, particularly the business organisations, have any problems if such an amendment were tabled and accepted? Katja, will you answer first?

Jim Sheridan (Labour, Paisley and Renfrewshire North)

Before asking this question, I want to make sure that I have the right person. Are you the Mr. Starling who received a prestigious award for the work that you did in denying compensation to people with pleural plaques?

Jim Sheridan (Labour, Paisley and Renfrewshire North)

I would like to establish whether you are the Mr. Starling who got an award for the work that you did in denying people compensation.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

The question that I want to ask is, given the work that the insurance industry has done in denying people compensation for pleural plaques, there is a significant school of thought that suggests when you are diagnosed with that illness, you are disabled. Certainly, if it develops into full blown mesothelioma, you are disabled—if not dead. Given that, I want the insurance industry to clarify whether the measures in the Bill will assist it in denying people who have been diagnosed with mesothelioma or pleural plaques proper compensation.

David Taylor (Labour, North West Leicestershire)

I allowed the question, Mr. Starling, because the issue that we are covering is that of disability. It seems to me that the question is clearly within that category, and for that reason I allowed it. However, you are, of course, at liberty to answer as fully, as comprehensively or, indeed, as briefly as you think appropriate.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

You said that you do not discriminate against people with disabilities. Do you recognise that mesothelioma is a disability?

Jim Sheridan (Labour, Paisley and Renfrewshire North)

So you discriminate against people with mesothelioma.

Mark Harper (Conservative, Forest of Dean)

May I come in briefly on this, because it illustrates whether we are correct in using the word “discrimination”? On Mr. Sheridan’s point, if you have a terminal illness and you know that you have it, clearly you are not going to be able to take out a life insurance policy. That is straightforward and, particularly in relation to age and other types of discrimination, it goes to the heart of what discrimination means. Clearly, an insurer has to have a range of facts at their disposal to price the risk appropriately, and the extent to which you can price the risk appropriately is an issue raised by the Bill. If you cannot price the risk appropriately, will that mean that insurance is available to people? Will insurers then cease to write that business at all? Will you expand on the ability to price risk and particularly on the extension, which is around age?

David Taylor (Labour, North West Leicestershire)

Evan Harris wants to come in on the subject of positive action.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I just want to ask members of the panel who have a view on the new provisions what their views are. If you have a strong view, now is your chance. I am happy to start with Stephen if he has a view on the provisions whereby positive action is allowed in making employment decisions between “equally qualified candidates”.

Mark Harper (Conservative, Forest of Dean)

I want to pick up on one point that Dianah made. Dr. Harris’s question was specifically about clause 153, which is about recruitment and promotion decisions. My reading is that the explanatory note applies only to people who are equally qualified, whereas the language in the Bill—which we will probe in Committee—talks about people who are “as qualified”. That does not seem to be the same thing. The measure does not allow you to have a policy of discriminating in favour of particular people. It must be done on a case-by-case basis. I agree with the broad consensus that it will not be possible to use it very often. The chances of there being two equally qualified candidates are pretty slim. There must also be evidence that they are equally qualified. Given that—one or two of you have already picked this up—is this really the right way? If you look at clause 152, you will see that it focuses much more on the positive steps that employers can take to reach out into different groups that they perhaps do not recruit from. Is that a more productive way of approaching this matter than clause 153?

David Taylor (Labour, North West Leicestershire)

We have less than 14 minutes to go. I am going to call Vera Baird and then John Penrose.

Vera Baird (Labour, Redcar)

On the same point about positive action, my understanding from conversations with some business organisations is that this kind of step is being taken now. For instance, if somebody wants to market something to a black and minority ethnic group, and if two sales people apply for the job, one of whom comes from the group, they would want to favour the person who comes from the group, given that they would be under-represented in the community of employees and that it would be appropriate and helpful for the marketing prospects of the business. If that happens now—it would be surprising if it did not and the evidence that we have garnered is that it does—the danger is that it would be discriminatory at the moment. Protection will come from this clause in this Bill.

Vera Baird (Labour, Redcar)

Forgive me for pressing, but I do not believe that you have answered my question. Leave disability out of it; it is not what I meant. I referred to race. It would be discriminatory to do what I have suggested happens at the moment in business, whether you have any experience of it or not. Will this clause give some protection to managers who wish to take steps of that kind?

Vera Baird (Labour, Redcar)

Thank you very much to both witnesses.

David Taylor (Labour, North West Leicestershire)

We have just more than 10 minutes to go. Do colleagues have further questions? If so, does someone want to indicate an interest?

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

Can I ask you about the public procurement provision in the Bill? Do you welcome it, and how do you think that it will be implemented? What would be the best way of implementing and monitoring it?

Vera Baird (Labour, Redcar)

May I pick up on Katja’s example? I am sorry; I am not deliberately directing all my questions at the CBI.

Katja, you talked about the difference between delivering welfare-to-work in a place where there is a large BME population, where you would have thought that procurement to assist equality and diversity is appropriate. By contrast, regarding the delivery of pencils in Devon, the suggestion is that it would not be thought appropriate. However, you would not want public authorities to procure stationery from a stationery manufacturer in Devon that had repeatedly broken equality law and that had been brought to the tribunal for being racist, sexist or for discriminating against disability, would you? So, in that situation it would be relevant as to whether or not that company was included in the pool, would it not?

David Taylor (Labour, North West Leicestershire)

Before the answer is given, I just want to say that I would like all four colleagues to get in and ask questions. Therefore, really pithy answers would be appreciated.

Vera Baird (Labour, Redcar)

It would have to be proportionate, would it not, to exclude them? However, that possibility of exclusion ought to be available.

Vera Baird (Labour, Redcar)

“Relevant”? It would be a good reason to exclude that company. As a public authority, with your equality duty, you would not buy public services from somebody who paid black people less than white people, would you?

John Penrose (Conservative, Weston-Super-Mare)

I want to pick up that precise point, and I particularly want to ask Stephen and Katja a question. If we are going to talk about “outcomes-focused duties”, which I think both of you have mentioned, the example that Vera just gave is quite important, because you would be most interested in obtaining the best value for money from your pencil supplier regardless of what that supplier had done, providing that it was operating within the law. If it had not operated within the law, it would have fallen foul of the law in some way.

I am interested in whether, if you believe in outcomes-based procurement, that alters the answer you gave the Minister just now.

Sharon Hodgson (Labour, Gateshead East and Washington West)

There will still be a provision in the Bill for a default retirement age or forced retirement at 65. You are probably aware that this issue is currently being considered by the High Court. Do you believe that this form of direct age discrimination is justified?

David Taylor (Labour, North West Leicestershire)

We have discussed this issue.

Sharon Hodgson (Labour, Gateshead East and Washington West)

I am sorry.

David Taylor (Labour, North West Leicestershire)

So very brief answers.

David Taylor (Labour, North West Leicestershire)

I have given a business voice a sentence or two, so I shall give the same to a trade union voice.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I want briefly to ask the gentleman from the insurance industry a question. Do you recognise that there is concern that there might be discrimination against people who have genetic factors that put them at risk when it comes to getting fundamental insurance, such as life insurance associated with a mortgage, if the moratorium were to go?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

So if it went—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

After 2014, unless you can see the future, it might well not be there and the insurance industry would presumably want to stratify, because that is its job. Do you recognise that there is a risk—it may not be your problem, but it may be a public concern—that there would be an uninsurable group of people who therefore, essentially, could not get insurance because of their genetic characteristics?

David Taylor (Labour, North West Leicestershire)

Thank you.

I thank Stephen and Nick, Dianah, Sarah and Katja for their evidence.

Joe Benton (Labour, Bootle)

Thank you for coming, Solicitor-General. I am sorry, but it appears that you are the lone Minister this afternoon. Would you introduce your colleagues to the Committee please?

Joe Benton (Labour, Bootle)

Thank you. Before we commence questioning, will everyone ensure that their mobile phones and BlackBerrys are switched off? I understand that there was some trouble with interference this morning from BlackBerrys, so I would be grateful if that was done.

Mark Harper (Conservative, Forest of Dean)

It is good to see you in the Chair, Mr. Benton. My first question is a quick one about positive action, which follows on from this morning’s evidence and questioning that you did, Minister. May I check the Government and legal position on a company or business that has two equally qualified employees using one of the protected characteristics as a tie-break? Is that lawful or unlawful?

Mark Harper (Conservative, Forest of Dean)

Right, so the Government’s view is that clause 153, given what you said this morning about it being fairly widespread or common practice for such a thing to take place, effectively enables companies to continue doing it without running into legal difficulties? Is that the motivation?

Mark Harper (Conservative, Forest of Dean)

Okay, that is great. On disability, you will know from previous evidence sessions that a number of disability groups have expressed some reservations, asking whether the Bill is a step backwards. I know that the Government’s position is that it is not, as far as disability protection is concerned, but you will know that there are a number of concerns. Will you set out clearly for the Committee the Government’s position on disability protection in the Bill, so that we have a short statement about the Government’s position, or about what they think they are doing, and are clear for when we move into the debate on the specifics of the Bill.

Mark Harper (Conservative, Forest of Dean)

As we move into consideration in Committee, it is helpful to know where we are approaching that matter from. We will seek to be as constructive as the Minister has been in getting to that.

Mark Harper (Conservative, Forest of Dean)

Two brief points on employment. I shall put them together and the Minister can then reply to them together. Employment rates for disabled people are still fairly low—much lower than for non-disabled people. Will you set out briefly any changes in the Bill that help to improve that situation? The second issue is linked to that and follows on from this morning’s discussion about the gender pay gap: there is a disability pay gap.

I have some information about the pay gap in Government. A number of Departments pay their disabled employees, on average, a significant amount less than their non-disabled employees. I suspect that mostly it is a case not of people in the same jobs being paid different amounts, but of seniority in the civil service being reflected. However, I do not have that level of detail.

Will the Minister perhaps address that point? There is nothing specifically in the Bill about the disability pay gap. Given the conversations we have had about the gender pay gap, do the Government intend to look at that?

Mark Harper (Conservative, Forest of Dean)

That is helpful, thank you.

John Mason (Scottish National Party, Glasgow East)

It has been suggested that maybe there should be a kind of equality guarantee or purpose clause in the Bill, as that would help the courts when they come to interpreting the legislation. To follow on from that, what is the Government’s thinking if there is a conflict between some of the eight protected characteristics? For example, what if one person’s right does not quite fit in with someone else’s right?

John Mason (Scottish National Party, Glasgow East)

There is a feeling in some circles that when religion gets to court, it is treated as the least important of the strands. I do not know whether you feel that that has been the case and whether it will continue to be the case.

John Mason (Scottish National Party, Glasgow East)

Perhaps we can come back to that when we have the debates later on. May I ask a final point? How would you see the place of an individual employee’s conscience? We had the idea that with abortion, employees are allowed a certain amount of latitude. Are there issues in the Bill that might benefit from an individual employee having a degree of latitude—for example, over a civil ceremony for a same-sex couple?

John Mason (Scottish National Party, Glasgow East)

The local authority as a whole would have to provide the service, but it would not force every individual employee to carry out that same service, as happens with abortion.

John Mason (Scottish National Party, Glasgow East)

Thank you.

Tim Boswell (Conservative, Daventry)

This is directed to the Solicitor-General. First, I have a point on the purpose clause. You know that I am a declared supporter of the concept. I understand that the EHRC has argued that, had a purpose clause been in place, it would have been unlikely that the Malcolm case would have been adjudicated in the same way because a wider interpretation of discrimination would have been applied. I appreciate that that case is now in the past. Do you have any comment on that?

Tim Boswell (Conservative, Daventry)

Okay. I fear that I am going to ask one more rather general question and then a much more precise one. Would you like to say another word or two on your take on the issue of diversity? I appreciate that this is the Equality Bill, not an equality and diversity Bill, and that there may be difficulties in interpretation if we try to drag in something else. By diversity I do not necessarily mean the narrow issue of the hierarchy of strands, whether one is higher than another and how that is to be resolved. As I understand it, you are relying on guidance for that rather than on decisions or statutory or judicial interpretation.

Do you see it as at least part of the Bill’s function to try to maintain diversity? I mean that not only in terms of all the aspects that are discriminated against, but in terms of the actual participation in certain areas of people, for example, of different religious groups or none, or from different ethnic backgrounds. Is there a wider agenda, which many of us would be sympathetic to, that is not quite encompassed by the legal framework of the Bill?

Tim Boswell (Conservative, Daventry)

Okay, thank you. If I may, I will divide the practical question in two. I was pleased to hear you refer a number of times to mediation. There are a number of areas where reaching for the judicial revolver is not helpful. Are you at least prepared to reflect on whether what is written in the Bill delivers sufficiently or would be likely to lead to processes of mediation as a precursor to any necessary litigation—that is, people should try to sort problems out first? I am thinking, for example, of the analogy of employment tribunals.

My second question is in the same spirit and is about the procedure of the Bill. You would not expect Opposition Members to subvert the whole purpose of a Public Bill Committee by saying that we need all this done behind closed doors, so I am sure that you will not interpret my question in that way. Some of these matters are legally very complex and, frankly, are outside the competence of some of us. Nevertheless, they are exercising a number of people, including some who are legally advised. Over and above the public debate, would you at least be prepared to look at whether there are particular cruces in terms of the interpretation of something, and to caucus to try and see whether we can reach some kind of common understanding?

Tim Boswell (Conservative, Daventry)

I understand that, although we heard evidence this morning regarding some of the concerns held by the Church representatives, who did not feel that they knew exactly what the provision was before. I did not raise the issue for that purpose, I just record it.

Perhaps I can give you a gloss—this is very much a personal view. Rather than drawing political lines in the sand, if we are stuck on a definition and there is still a doubt about it, it would be helpful, in practical terms, to leave the issue open for further consideration before reaching a final view. I do not suggest that you do not have a job in Government, but if we are to get this right, a degree of tentativeness would be helpful to the process.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am struggling with the socio-economic inequalities bit. The intended outcome is very laudable, but I do not see a mechanism that will actually deliver change and whether that change is measurable. Will you expand on your hopes for that? It seems such an important area and such a very small paragraph.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It says that an authority must have regard, but it does not say whether that regard has to translate into action. It does not say how you will look at what effect the legislation has had. If it is meant to be beneficial in reducing the socio-economic gap, how will the legislation help us to look at that retrospectively? I cannot see where it will be effective. Perhaps I have missed something.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

To focus on it.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Forgive my lack of legal knowledge, but a public duty to “have regard” does not just mean that they have to think about it and can then ignore it. It means that they have to think about it and then deliver it.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Yes, I understand that it is the strategic authorities.

John Penrose (Conservative, Weston-Super-Mare)

I want to return to some of our earlier questions this morning, starting with public sector procurement. In particular, I was struck and a little concerned, because, for example, whenever you listen to Ministers from the Department for Work and Pensions talking about welfare to work, they are most insistent that all the outsourcing they are doing of welfare-to-work programmes has to be done on what they are now calling a black-box basis. That means it is outcome-based: they pay by results. They do not, within some very basic legal minima, ask how the results are achieved. They just pay according to how many people get back into work, how fast, and how long they stay there. If we start requiring the subcontractors to comply with public sector equality duties of one sort or another and to provide information on how they are going to satisfy all these other duties, rather than just asking questions about what they have achieved, is there not some kind of conflict or tension there with some of your colleagues?

John Penrose (Conservative, Weston-Super-Mare)

She referred to Bradford.

John Penrose (Conservative, Weston-Super-Mare)

My concern is that that may not be the intention, but it may none the less be the outcome, because it is hard to think of a way in which you can maintain the black box and payment by results while also requiring the various different contractors and subcontractors to provide all the information and prove they are complying with all these additional bits and pieces. I cannot see how you can have both at the same time. In particular, I am concerned that it might very adversely impact on some of the smaller subcontractors, particularly those that may be private sector or third sector, who are very focused and dedicated and high-quality providers of services to particular niches. It might be somewhere in Bradford, it might be gay HIV sufferers in Leeds, it does not matter where, but some of them are very focused and very effective within their area, but are small organisations that find it very onerous to comply with some of those things.

John Penrose (Conservative, Weston-Super-Mare)

That is a helpful explanation of where we are coming from. We can explore it in more detail in our later debates.

John Penrose (Conservative, Weston-Super-Mare)

One more small issue. I want to pick up on the points about the gender pay gap, which we were discussing this morning. I want to get the Government sense of how much the gender pay gap is as a result of actions by employers as opposed to other, structural or indirect problems in the rest of society, often public sector goods and services that have been delivered at another point in an applicant’s life, be that in the education system or elsewhere. What proportion is the fault of employers, which needs to be fixed by them, and how much of it is from elsewhere in the public sector?

John Penrose (Conservative, Weston-Super-Mare)

Thank you.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

May I go back to the socio-economic duty? I very much welcome it, although it is quite limited, because it once again acknowledges the persistent class inequality that we still have in this country, where people are denied opportunities because of where they happen to come from. But I note that the explanatory notes say that this duty does not apply to Scotland,

“except where such matters are reserved to the United Kingdom Parliament.”

In terms of tackling socio-economic inequality, that is quite often done in Scotland on the basis of partnership working across the board between, for example, health authorities, local authorities, DWP and other such bodies under the guise of community planning. To say that I am disappointed that my constituents may not benefit from this duty in the same way that people will in England and Wales would be putting it mildly. How has it come about that Scotland has been excepted?

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

You say “extend it”. Would that have been possible through a Sewel motion? Is that how it would have been done to be included in the Bill?

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

Yes.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

So it could not be done without their agreement?

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

That is extremely regrettable. This morning, we heard diverse views on whether pay audits are a good idea per se and whether they would take things forward. Given the persistent lack of progress on equal pay, why have the Government not considered making pay audits compulsory now, rather than leaving them to be done on a voluntary basis, which has not worked in the past?

John Howell (Conservative, Henley)

May I ask some questions on age discrimination? I will begin with age discrimination outside the workplace in relation to goods, facilities and services. At the moment, we are in a position of wanting to have our cake and eat it. We would all want that. We want to remove negative discrimination but retain the best of positive discrimination, for example, bus passes and Saga Holidays. I do not quite understand how that fits together and where you draw the line. The conflict comes out most in what we heard this morning from the insurance industry. Could you give an overall picture of your thinking on that?

Joe Benton (Labour, Bootle)

Order. I am sorry to interrupt, but as the Committee knows, we are bound by the knives agreed last week, and we finish at 5 pm, so this will probably have to be the last question.

John Howell (Conservative, Henley)

In that case, let me move on to another issue, which we have heard a lot about—the default retirement age. Where are we going to end up with that in your view?

Joe Benton (Labour, Bootle)

Very quickly, Sharon—the last question?

Sharon Hodgson (Labour, Gateshead East and Washington West)

Yes, please, thank you for letting me ask one, Mr. Benton. I have a couple of quick questions on pregnancy discrimination—it will probably have to be my only question. The National Union of Teachers is concerned about clause 16(7) and the use of the word “reasonable”, which we keep seeing in a lot of legislation at the moment. The NUT feels that employers could defend discrimination against pregnant women on the ground that complying with anti-discrimination measures is inconvenient or costly.

Sharon Hodgson (Labour, Gateshead East and Washington West)

The YWCA is concerned about clause 79 with regard to education for pregnant girls in school. Evidence shows that a significant proportion of them are treated less favourably in school.

Joe Benton (Labour, Bootle)

Order.

Joe Benton (Labour, Bootle)

Order. On behalf of the Committee, I thank you, Minister, and your colleagues, for your evidence.