Equality Bill

Public Bill Committee, 30 June 2009.

Vera Baird (Labour, Redcar)

On a point of order, Mr. Benton. Good morning and welcome back to the Chair. May I mention that yesterday we published our consultation paper on ending age discrimination in public service? Copies are available here and in the Libraries. The document is about the order-making power in clause 190, which we shall debate soon.

May I draw the Committee’s attention to some important Government amendments that we tabled last Friday, which are about multiple discrimination, adding a new clause 26? I have written to all Committee members in connection with that.

Joe Benton (Labour, Bootle)

I thank the Minister for that.

Clause 143

Tim Boswell (Conservative, Daventry)

I beg to move amendment 242, in clause 143, page 105, line 13, at end insert—

‘(d) respect and protect the human rights of any person for whom it has responsibility, whether or not they have a relevant protected characteristic.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: amendment (a) to amendment 242, at beginning insert ‘fulfil’.

Tim Boswell (Conservative, Daventry)

Welcome back to the Chair, Mr. Benton. I am pleased to be back after leave of absence last week to attend the Council of Europe. I shall refer to that briefly.

I am grateful, first, to the Solicitor-General for her statement this morning, for publishing that document and for what she has done on multiple discrimination, which we shall need to consider at greater length. I am also grateful to my hon. Friend the Member for Forest of Dean for picking up the new clause on volunteering that I tabled for last week. There was a useful scoping debate on it, which was the intention of the new clause. Given the huge progress made, the Committee may heave a sigh of relief that I did not have to share with it the comments and jottings that I had made on parts 9 and 10. In that spirit, I shall be as succinct as I can this morning.

I return to discussing the Council of Europe, which is germane to my amendment. Attending the Council is healthy and always interesting, giving the opportunity of getting close to real human rights issues in a way that sometimes our debates do not, however good natured and well intended. In the same afternoon I found myself speaking in debates on the position of Roma in Europe, as part of the annual human rights discussions, and the widespread arrests in Armenia. As parliamentarians, we can across the board understand the need for action in such areas, those really serious breaches of human rights. In the same way 60 years ago, the drafters of the European convention on human rights—mainly British lawyers, incidentally—fully understood their human duty in the light of the holocaust and the events of the second world war. That is real human rights. I do not wish to pretend for a moment that what we are discussing is not real human rights, but that puts it in the context of immediate needs.

The clause does not open brand new ground but sets out fresh ground in relation to the public sector equality duty. I have to admit to being something of an initial sceptic as to the efficiency or efficacy of such forward-gear and declaratory duties. However, I have in the event been belied and am reasonably happy with how they have worked in practice with the obligations in relation to race, disability and gender, which informed the wider obligations of the clause.

In principle, therefore, I welcome the extension of those positive duties that the Government are introducing to the other protected characteristics. I shall leave others to speak about their specific concerns with the wording and details of the clause, but to some extent they will give us a chance to look back at some of the underlying issues, which are being considered throughout the Bill—notably the balance between a purely reactive mode for public authorities and what I call a more positive and forward-gear approach. We touched on that when we discussed clause 1, as we do here.

Secondly, the concomitant debate is about how much positive discrimination is required to meet a wish for equal treatment and fairness for all. There is an underlying concern about the extent to which human rights are seen as the rights of individuals or groups and how they should be expressed. At least the effect of last week’s recharging of the human rights batteries at the Council of Europe stimulated me to take such issues a little further. It is clear when we re-read the convention—which I do from time to time, at least the shortened part of it—that the genesis of the document is personal rights, or the rights of the individual. It starts with a pretty firm list: the right to life, the right not to be tortured, the right not to be enslaved, the right for a fair trial and the right for a measure of distance in a person’s personal and family life. They reflect not only the collective tragedies of the second world war, but their real-world emanation in the denial of the rights of the individuals who suffered under those tragedies.

It is quite interesting that the convention brings in anti-discrimination only a little later in the list, under article 14. That provision is conditional on the context of the application of the other articles of the convention. It is also worth remarking that the right to property, which some of us may think quite important, is brought in only under the first protocol.

The fact that the hierarchy starts with the individual is important and we should not lose it. I am not saying that that is wrong, but in the intervening years—in continental Europe and especially in the United Kingdom—there has been a shift to looking at human rights as collective rights, particularly as people sometimes recognise that public policies, or policies in the conduct and practice of public authorities, are defective and affect the rights of more than one individual.

I am thinking about institutional racism or the material failure of inclusive employment policies. I sometimes wonder whether local authorities or others have got round to thinking about them more than in name only, yet even if we are not collectively, as a society, setting out to kill or torture our citizens, and even if our public authorities are properly mindful, which they will be after the clause is enacted, of their public responsibilities to avoid discrimination and promote positive values, including the wider ones of community cohesion, something is missing in the debate.

We have to understand the deformation of the concept of human rights, which still takes part in public debate. In the survey conducted by the Equality and Human Rights Commission, to which I shall have occasion to refer specifically in relation to the amendment, the rather disturbing data from an opinion poll it conducted showed that 42 per cent. of the general public thought that human rights were for criminals and terrorists while only 40 per cent. thought they had something to do with them as well.

We are in difficulty as a society if we think that human rights belong only to those with first-rate lawyers, the politically correct and those who might be a threat to society, and that they are not shared with us. They are our rights, too. We benefit from them, and we should celebrate them. That brings me straight to the point of the amendment. As I have said, it arises from the recent EHRC inquiry on human rights, which was published two weeks ago. I attended the launch and, more to the point, the Secretary of State for Justice, who introduced it, spoke at it very well. It was a very positive occasion.

In these days of declaring even the most vestigial interest, I should make it clear that the commission did not commission me to table the amendment or new clause 18, which I shall touch on in a moment, but, fired by the enthusiasm of attending the launch, I could not resist the temptation to do so.

The amendment is essentially an attempt to recover the human rights debate from the idea that it is somehow the ground for individuals—people who sometimes might be malicious or contrary to the interests of society—who are wriggling to protect their position and that that debate is nothing to do with us. We have a problem of perception of what human rights are and of execution as to how they might be taken forward. Paragraph 30 of the executive summary of the report on the inquiry found:

“There were a number of factors inhibiting the assertion, provision and enjoyment of rights, including: a lack of leadership, especially from the Government, the Commission and politicians; a lack of knowledge and insufficient mainstreaming of a human rights approach in core processes; a lack of confidence inhibiting members of the public from asserting their rights; organisational culture and structure; the use of general rather than specific language; and inaccurate media reporting.”

When summarised, a report tends to emphasise the bad side and I would not like to suggest—I do not think the report does—that everything is negative, but it is clearly unfinished business. Evidence tendered by the Gwynedd local health board said:

“A lack of awareness of human rights issues can be a barrier to mainstreaming throughout the organisation.”

The distinguished chair of the inquiry, Dame Nuala O’Loan, who has hands-on Northern Ireland experience, was quoted in relation to public authorities that complained that all the human rights stuff got in the way of the day job. She replied—majestically and magisterially—that human rights “are the day job”. That is an eloquent statement of the approach of most members of the Committee, and I hope it is shared a little more widely.

Human rights are about our right to be fed properly when we are in hospital or a care home, and about reasonably law-abiding persons not being subject to excess surveillance by the security authorities. They include the loss of personal data by public officials. Those are all part of how the state interfaces with us. I believe strongly—this is the substance of the amendment—that public authorities need to mainstream human rights, and they should not be frightened of using human rights language and the human rights approach in forming their policies and drawing up their performance standards and evaluation of achievements. Is what they are doing fit for purpose in terms of the human rights we all have?

That human rights approach is intended to move somewhat away from what, with due respect to the Solicitor-General, I might term the legalistic, which she is not, or box-ticking, which she also is not, approach. It is, however, the approach taken by some public authorities. The question should not be simply or naively, “Did we avoid discrimination? Did we meet our statutory duties as set out in the clause?” It should not be, “Can we get away with it in court?” The questions that public authorities—their councillors, elected members and us—should be asking is, “Did we treat that person with fairness, dignity and respect?”

Bear in mind the fact that more than one authority might be involved because there are border issues, which are touched on in the report. We need to ask, “On the whole, was the outcome what we would have wished for ourselves or our loved ones or was it defective?” In other words, does the public service work for the public?

All that leads me inexorably to the specific recommendations of the inquiry, a lot of which are addressed to public authorities directly and are not really matters of law. The two recommendations that I want to touch on include my amendment 242, which would mean the Government consulting on whether a statutory duty should be imposed on all public authorities to take into account human rights before they implement new policies. That is precedented by what is already in the provision and, somewhat obliquely, by what the Committee has already approved in clause 1 in relation to socio-economic duties.

If we can do that in the one case, sauce for the goose should be sauce for the gander, so we could do something in relation to human rights, although I do not want to force the Solicitor-General to say yes or no to my amendment now. Incidentally, as the hon. Member for Hornsey and Wood Green is dutifully listening to me, I am perfectly happy with her amendment (a) to amendment 242. Although Rome is not going to be taken in a day, we should now be looking at extending the duty.

My second point is a little more sensitive, not least because the Government have already rejected it, and is encapsulated in new clause 18, which I tabled.

Joe Benton (Labour, Bootle)

Order. I have to point out to the hon. Gentleman that new clause 18 is outside the scope of the Bill. I am sure that he has enough ingenuity to keep to human rights, but we cannot discuss new clause 18 specifically.

Tim Boswell (Conservative, Daventry)

I can genuinely say, Mr. Benton, that you took the words out of my mouth, because I was well aware of that. New clause 18 is slightly outside the scope of the Bill, but the idea would be to give the commission the power of supporting litigation in strategic cases, if necessary. I do not think that we need argue that further; the point has already been made.

Essentially, if we are going to have public sector duties in relation to equality and to go beyond the mere concept of avoiding discrimination, we should be looking at whether public authorities should have a wider duty to promote human rights. After all, that is what I suspect we, as legislators and citizens, would want them to have anyway.

In the last analysis—I concede this to the Solicitor-General before she resists the amendment, which I suspect she feels is her duty—this is not simply a matter of law. The EHRC’s specific inquiry pointed out, and closed on, the importance of leadership on this issue, with which I agree. It is almost a matter of repatriating the human rights debate from the weirdos on the fringes and making clear that this concerns our human rights collectively. As it is about our rights, we should take the matter seriously and, in one way or another, we should incorporate the duty into legislation at some stage, if not now.

John Penrose (Conservative, Weston-Super-Mare)

It is a pleasure to see you in the Chair, Mr. Benton. My hon. Friend has taken a clause that deals with the public sector equality duty, and which seeks to create a higher purpose for parts of the Bill, and has elevated it to a higher plane still by talking about human rights. I shall confine myself to slightly more Earth-bound matters by sticking to the public sector equality duty as it stands in the Bill, and by speaking to amendments 19 to 21.

Tim Boswell (Conservative, Daventry)

As a postscript to my remarks, does my hon. Friend agree that although the clause as drafted is important—I look forward to hearing his comments about it—one of the dangers in this debate is that if we merely fulfil the obligation for what might be considered to be fairly narrow duties, we might somehow miss the point about being able to look at some of the wider issues and the collectives as well. It is much easier to go forward on discrimination legislation than it is on the human rights agenda.

John Penrose (Conservative, Weston-Super-Mare)

I thank my hon. Friend for his intervention, and I respond to him by quoting something that he cited earlier: of course human rights “are the day job”. All of us should keep them in mind, not just in this debate, but more widely and no matter what.

Emily Thornberry (Labour, Islington South and Finsbury)

There are times when the Committee’s proceedings are something of a revelation. We learned a few weeks ago that the hon. Gentleman was a feminist, and we now learn that he believes that it is his duty to ensure that human rights are implemented. Does the Conservative party now enthusiastically support the Human Rights Act 1998?

John Penrose (Conservative, Weston-Super-Mare)

We are learning a great deal about both my party’s position and the Labour party’s view of it. Without wishing to try your patience, Mr. Benton, I suspect that the hon. Lady knows that my party’s position on the Human Rights Act is that it should be modified substantially by introducing a British Bill of Rights, which would be importantly different in some respects and, we believe, better. None the less, I hope that we can agree on the importance of human rights, however we choose to pursue them.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the hon. Gentleman give way?

John Penrose (Conservative, Weston-Super-Mare)

With trepidation.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman need not give way with trepidation. I rise merely to ask in what significant way the human rights provisions that he wishes to see in a British Bill of Rights would be different from what is currently in place. It is impossible to understand amendment 242—

Joe Benton (Labour, Bootle)

Order. I think that we should return to the amendment.

John Penrose (Conservative, Weston-Super-Mare)

Thank you, Mr. Benton.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the hon. Gentleman give way?

John Penrose (Conservative, Weston-Super-Mare)

Yes, although the eagle eye of the Chair is watching.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am a little confused by your ruling, Mr. Benton. I sought to engage with the hon. Gentleman on amendment 242, which is designed to

“respect and protect the human rights of any person for whom”

there is responsibility. We need to debate that in the context of the Bill. My question to the hon. Gentleman, to get clarification, is: under his regime, what would the human rights be, and how would they differ from those that are currently engaged by the amendment?

Joe Benton (Labour, Bootle)

Order. I apologise if the hon. Gentleman misheard me. I understood that we were discussing a particular amendment, not trying to clarify any individual party’s approach to something. May we please return to the amendment?

John Penrose (Conservative, Weston-Super-Mare)

I will endeavour to ensure that we make progress on amendments 19 to 21 without trying your patience any further, Mr. Benton.

As I said, the public sector equality duty is, in many respects, a noble purpose. It takes the anti-discrimination requirements in the rest of the Bill and applies a higher standard and an additional set of requirements to public bodies and those who seek to exercise their public sector duties. It requires public bodies to eliminate discrimination, harassment or victimisation, to advance equality of opportunity, and to foster good relations between people who share a relevant protected characteristic. Those are noble causes to which I am sure that we would all sign up in principle. My concern is not with those principles or the attempt to achieve such things, but with some of the ways in which that is being done. I have a collection of questions that I hope the Minister will answer. I wish to inquire how effective the measures have been thus far, and look at proportionality with regard to how difficult the outcomes are to achieve, how much they cost, and whether the results that come through live up to the high ideals that the clause invokes.

Amendment 21 is an attempt to get more evidence out there to show the effects of the public sector equality duty. My office has attempted to find data on existing public sector equality duties, even though those are narrower and have not all been in effect for a long time. That was to check what was out there and what had been achieved—this is not a brand new idea; it has been around for some time.

In many respects, we have found that where public sector equality duties already exist, they are valued by the people involved with them. Many people, particularly in the world of disability equality duties, for example, believe strongly that the duty has so far resulted in people with disabilities becoming more involved in getting the public sector services aimed at them to be better designed, more applicable and generally of a higher quality and standard than they would otherwise have been. On its own, that might provide sufficient justification for the equality duty. Although people value such involvement, and believe that the services have been improved qualitatively, when the Minister replies, I want some kind of quantitative Government assessment about the outcomes that have been achieved from that involvement. From that, not only could we see that people have been involved in the process and value it—as I said, that is valuable on its own—but the Government could show that there had been a genuine reduction in discrimination and an improvement in the way in which public sector services have applied to the people on the receiving end.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend talked about the way in which the disability equality duty, in particular, had been valued by disabled people who have been involved by organisations producing such services. The other thing that is worth mentioning—this came through clearly from the Secretaries of State’s reports on disability equality published by the Office for Disability Issues—is that it was not just disabled people who valued involvement. The ODI promoted the involvement of disabled people in producing the reports. Although they did not legally have to, it was the Departments, in addition to the disabled people, that found it helpful to identify the areas to focus on. Therefore it is not just disabled people who benefit from being involved when identifying the areas of focus, but Departments and organisations themselves.

John Penrose (Conservative, Weston-Super-Mare)

I thank my hon. Friend for that helpful intervention.

Tim Boswell (Conservative, Daventry)

This is a rider to that intervention. Does my hon. Friend agree that one of the virtues of having it the assessment, if it is done sensibly, is that it is a resource for providing better customer service for people generally? When public authorities are aware of the interests of those service users who have protected characteristics, they often become more aware of the deficiencies of their service to all of us.

John Penrose (Conservative, Weston-Super-Mare)

Both my hon. Friends are absolutely right. They have illustrated the high purpose of the clause and the importance of its aims. It looks as though there is some early evidence of progress in the ways that my hon. Friends and I have mentioned. What we should therefore see is not just evidence of people being involved—valuable though that is—or evidence of public sector authorities becoming involved with the people to whom their owe the duty, but differences in outcome. We should see genuine achievements and differences on the ground resulting from improvements in quality, which people think they can see at the moment. That should become visible in outcomes and be measurable on the ground.

If the Government do not have evidence of that just yet—as I said, some of the equality duties are at a relatively early stage—I hope that the Minister will be able to give us examples of Government plans to measure those outcomes in the future, to report on them systematically, and to demonstrate regularly that the process is working. I hope that the Government would do that anyway but, just in case, amendment 21 would insert a requirement for that, which I would regard as normal, good government anyway. The Minister has a chance to show that the Government have got the process under way. If they have not, they can accept the amendment.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend makes a good point about the data. Again, if we consider the Secretaries of State’s reports on disability equality duty, one of the themes that emerges is a variation in how the relevant data were recorded across the Government. Just on that one equality duty, Departments treat data in different ways. Therefore, if we are now going to have a single public sector equality duty, thought will need to be given, probably by the Government Equalities Office, to how that data can be looked at across the Government so that there is some consistency in the tracking. The Secretaries of State’s reports that were co-ordinated by ODI looked just at the disability equality duty. The Minister might think about Secretaries of State having to produce something similar on the public sector duty as a whole so that progress across the Government can be made.

John Penrose (Conservative, Weston-Super-Mare)

That is a helpful suggestion. If the Government do not already have something similar in mind, I hope the Minister will be able to take up that idea or tell us the Government’s alternative approach.

It is important that we can all see the concrete results of the equality duty. One reason why is because there has been some criticism—I am sure that we all, including the Government, have heard it—of the equality duties that have been established thus far, particularly from people who have been saying, “Well, it is just a box-ticking, form-filling and paper-based exercise. There are no practical, concrete outcomes that are coming out of it other than employment for consultants, auditors and similar people.”

It is therefore vital that we have such information so that we can refute those charges. The Government are already aware of that. In fact, in their response to the report on the Equality Bill carried out by the Work and Pensions Committee a few months ago, they alluded to some of the criticisms. They said that they were aware of them and that they were concerned to ensure that they switched from outputs to outcomes, whenever possible. I hope that their thinking on how to deal with such issues is under way. It is important that it is, and that they take the chance to put their approach on the record this morning.

Without the evidence and without the response, the charge of box-ticking, the charge of bureaucracy and the charge of form filling will continue to be levelled, and the only way to shoot them down is with evidence of outcomes. It will also allow the Government to assess costs and benefits. Even if a substantial benefit is being created once the evidence is available, as a Parliament, we will clearly need to see the costs. We will have to weigh up the costs and benefits. We will have to ask whether we can achieve the same benefits at a lower cost and more efficiently and effectively and, if we can, how that can be done. All those things require facts. All those things require evidence, and we do not have enough of that at the moment. Amendment 21 would fill that gap and provide us with some more crunchy data on which to build policy decisions.

Mark Harper (Conservative, Forest of Dean)

The ODI published a specific example in the Secretary of State’s report on higher education. The then Department for Innovation, Universities and Skills said that there had been an increase in the proportion of undergraduates who received disabled students allowance, but recognised that, due to differences in how the data were collected, there was simply not enough information to look at the number of disabled students in further and higher education compared to the wider population. It is now working with the ODI to look at more consistent data. That is a good example of a situation in which there is not the data even to know what the baseline is, let alone whether further progress is being made.

John Penrose (Conservative, Weston-Super-Mare)

That is another helpful example of the problem that I am describing. To pursue that example, if it were clear that the changes that my hon. Friend described were purely ghosts in the data and not real progress, and all that was happening was some other alteration that looked impressive until we genuinely got to the bottom of it, that would be a great cause for concern. We would be kidding ourselves if we thought that it was real progress. However, if the data showed that things were advancing rapidly, everyone here could give themselves a collective pat on the back and say that it is something that is genuinely working and worth doing, and that perhaps we should be doing more of. But we cannot make either of those decisions. We cannot make a firmly based decision until we have the data, which give us the firm foundation on which to make it.

John Howell (Conservative, Henley)

Does my hon. Friend recall that the Select Committee of which he was a member was worried that an authority that was genuinely excellent in promoting equality failed in its duty because it did not undertake the right impact assessments, while an authority that was absolutely hopeless in its equality duty was seen as good because it simply assessed all its policies and procedures in the right way? That was one of our concerns about the way in which the lack of information was directed.

John Penrose (Conservative, Weston-Super-Mare)

I thank my hon. Friend for his intervention. He is absolutely right. He illustrated the difference between outcomes and outputs. We can measure all the intermediate matters and have all the necessary wonderful files of policies that show, in theory, that we are doing x and y but, actually if the outcomes do not change on the ground and the reality does not alter as a result, we are just wasting time, paper and resources when we should be doing something different. That is when the difference between box-ticking and outcomes is crucial.

We look forward to the Minister’s response about how the Government are addressing the issue. I know that they have made some early responses, but we look forward to some more detail.

Moving on to amendments 19 and 20—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Before the hon. Gentleman moves on, my hon. Friend the Member for Hornsey and Wood Green and I have tabled an amendment to his amendment 21. Rather than me spending Committee time speaking separately on that, I wonder whether by way of intervention he might respond to the suggestion that it might be better—and more productive; there might be even less box-ticking—if the actual outcomes, which are the intention of the equality duty, were part of the metrics, rather than simply part of the need to “have regard”. Otherwise we shall have some firms saying, “Yes, we have regard to that, we have regard to that.” Why not, along the lines he is suggesting, ask them to be more specific about what they have actually achieved?

John Penrose (Conservative, Weston-Super-Mare)

To be honest, I have not spent a great deal of time weighing up the relative merits of the hon. Gentleman’s addition to my amendment. He has made the case in his intervention, so I shall leave the Government to respond, rather than editorialise around it for him.

Tim Boswell (Conservative, Daventry)

Stimulated only by that comment, does my hon. Friend not agree that there are at least two approaches, both of which the Government probably need to adopt? Who knows, he may well have a role in that himself, in due course.

One approach is perfectly proper, although I find it rather maddening sometimes, and that is for Governments to cite case studies, evidence of a particular change that has happened in a particular case or group of cases. Separately, and not subversive of the first approach, is for the Government to produce decent metrics, which can show collectively what the impact of policies could be. In other words, what we sometimes rudely call the anecdotal approach and the generalised, systematic approach can be valid, and one should not subvert the other.

John Penrose (Conservative, Weston-Super-Mare)

My hon. Friend is exactly right. In fact, he is elucidating further a point already made by my hon. Friend the Member for Forest of Dean about some of the reports already produced by the ODI, which might be a good foundation for a broader approach.

Vera Baird (Labour, Redcar)

In the interests of saving an unnecessary speech, although the speeches of the hon. Member for Oxford, West and Abingdon are always fab, we shall indeed measure the outcomes. That is in the consultation document about the specific duties. Measuring whether someone has had due regard is difficult anyway, but it is outcomes that we care about.

John Penrose (Conservative, Weston-Super-Mare)

I thank the Minister for a helpful and reassuring intervention.

I shall take amendments 19 and 20 as a pair. What they seek to do is to pursue a concern that was, again, originally raised by the Work and Pensions Committee, when it was looking at the Equality Bill. The concern is that in parts of Government, and the Department for Work and Pensions is a good example, many public sector functions are being outsourced. The DWP is a good example because in its current welfare-to-work work, it is increasingly aiming for third party organisations, be they private companies, charities or third sector organisations of one sort or another, to take over the welfare-to-work programmes for people who are members of the long-term unemployed or whatever reason. The Department has found that to be an extremely promising avenue and is ramping that up steadily. That is done—I use it as an illustration of a potential problem with that approach—by taking what it calls a “black box” approach to outsourcing. In other words, it does not specify what the charity that is undertaking the work must do.

The Department does not specify the process or the work to be performed; it specifies the outcomes to be achieved. Speaking to a charity, one could say, “It is your job to get a certain proportion of the people who have been out of work for six or 12 months that we are handing to you into work. If you do get them into work, which is sustainable employment that lasts for more than a period of weeks, then we shall pay you according to the results achieved. We shall not pay you according to what you have done to achieve it, we shall pay you according to whether you have the outcomes that we are mandating.”

That is important for several reasons. It means that there is far less intervention by Government in the work being undertaken to get people back into work. In addition, it allows a far greater variety of approaches to get people back into work. Clearly, that can be important for a number of reasons: first, because every individual may have different problems and barriers between themselves as they are today, as a member of the long-term unemployed, and as they are getting back into work at some point; secondly, the employment market in different areas of the country will be very varied. The types and numbers of jobs available, and the skills required in Weston-super-Mare—my own constituency—might be very different from those up the road in Bristol. They will certainly be different from those in Manchester or other parts of the country. That variety and flexibility is crucial, which is one of the reasons that the Government have decided that this is a profitable, sensible and effective approach to pursue, and why the Conservative party also supports it in principle.

Subsection (2) states:

“A person who is not a public authority but who exercises public functions must”

also exercise the equality duty. I am concerned that, unless amendments 19 and 20 are accepted, it will be impossible for bodies such as the Department for Work and Pensions to pursue the “black box” approach. They will have to check on small, voluntary sector organisations. For example, there might be a small charity in Leeds that is involved in getting members of the gay community who are suffering from HIV back into work in central Leeds. It might be small, specialised and potentially very effective at what it does. However, if we are not careful, we could end up applying the public sector equality duty to that charity, which might be too small, too dedicated and—quite rightly—too focused on what it is doing to be able to cope with that. That would be a tragedy.

John Mason (Scottish National Party, Glasgow East)

I understand the hon. Gentleman’s point and have some sympathy with it. Does he agree that we are looking for a balance? There is a danger in either extreme. There are dangers in putting money into an organisation and letting it do what it wants, but on the other hand, there are dangers in over-regulating.

John Penrose (Conservative, Weston-Super-Mare)

I completely accept the hon. Gentleman’s argument. I was going on to say that it is not as if such organisations will be completely unregulated as a result of the rest of the Bill. They will still be subject to all the normal requirements of anti-discrimination legislation and ensuring equality that any other private sector organisation would be required to uphold, as we have discussed in debates on other clauses. We are not talking about a contrast between zero rules and regulation and the public sector equality duty. These are the same rules that we have been debating—and, to a large extent, agreeing on—in the rest of the Bill. The public sector equality duty is a higher standard again.

Tim Boswell (Conservative, Daventry)

May I introduce my hon. Friend to another concern? This public sector equality duty is, by definition, a matter for public bodies. There could be an outsourcing of back-office functions that takes place outwith the jurisdiction—to India, for example. This is a separate point from the one that he has been rehearsing in relation to charities that operate in the UK. Suppose there is a public sector duty on public bodies in this country, but those public sector bodies outsource their activities outwith the jurisdiction. Ministers come along and say, “This is all a matter of contract and we have tied it down”, but it would be impossible to pursue misconduct—including the widest possible breaches of equality legislation—towards those operating for our public sector and within our general remit of duties, but outwith our jurisdiction. Does he feel some unease about that?

John Penrose (Conservative, Weston-Super-Mare)

That was an intriguing intervention from my hon. Friend. I will leave the Minister to respond to that as it is potentially quite an issue. I hope that the Government have already considered questions of territoriality. It is a valid point to raise and I thank my hon. Friend for doing so.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thought that part of the point was that if someone is to outsource a contract or put it through the voluntary sector, they would choose to award that contract to those likely to perform the public sector equality duty. It would be a way of checking retrospectively that that duty had been performed. It is about being careful to whom contracts are awarded.

John Penrose (Conservative, Weston-Super-Mare)

Amendments 19 and 20 would gloss the public sector equality duty so that if a Department, or indeed any other public authority, subcontracted a particular part of its public sector duties to any organisation—a charity, a company or whoever—it would still have a duty to ensure that the services provided by the other organisation were provided in a way that was compliant with the public sector equality duty, as it is received by the people who are experiencing it.

However, the amendments would not require a small charity in central Leeds, or any other organisation providing subcontracted services, to apply the public sector equality duty within its own organisation in terms of employment law. We would make them subject to the same employment requirement that any other external, non-public firm or organisation will be subject to as a result of the rest of the Bill. However, we would make it easier for them to deliver public sector services for the reasons I have described.

The Solicitor-Generalrose—

Dr. Harrisrose—

John Penrose (Conservative, Weston-Super-Mare)

I am spoiled for choice. Let us start with the Minister.

Vera Baird (Labour, Redcar)

I credit that that is what the hon. Gentleman intends to do, but he would not do that with the amendment at all. Subsection (2) will do exactly that as it will extend the duty to someone who is not a public authority—in a private business or the voluntary sector—because they are delivering a public function, in so far as they are doing so. That seems to us to be right.

The amendment would extend the equality duty to everything that that separate body did, not limited to when it was delivering public functions. For example, we could have a business that was contracted by the Government—for example, Group 4—to deliver a private prison. Under our provisions, while it is doing that, it is a public function, so it is covered. However, when delivering money to Barclays bank in one of its vans, it is not covered, but the hon. Gentleman’s amendments would cover it.

John Penrose (Conservative, Weston-Super-Mare)

I thank the Minister for her helpful intervention. Since she is the one with the extensive legal back-up, we will accept her interpretation of the amendment. If we stick to what we are trying to do, perhaps the Government will address the point that we are trying to make. There is an issue of principle, and if the Government feel that it is wrong, I hope they will explain why. If they feel that it is something that has merit, perhaps they will take it away and consider it.

Vera Baird (Labour, Redcar)

If the hon. Gentleman’s purpose is to ensure that the delivery of public functions by private businesses is covered by the duty, it is exactly what the clause will do.

John Penrose (Conservative, Weston-Super-Mare)

I thank the Minister for her intervention. I would like to push her for a little more clarification. She can either intervene again or deal with the point in her speech. I am concerned that in applying the public sector equality duty to public sector services delivered by third parties, those third parties may have to comply with the requirements of the public sector equality duty within their own organisation, in terms of their employees and internal organisation, systems and processes. That may be a duty that is altogether too serious and too high for a small charity in central Leeds, even while it is delivering a public sector equality duty-compliant service. That is the distinction that I am trying to draw, the principle that I am trying to elucidate.

Tim Boswell (Conservative, Daventry)

To take the Minister’s point, if a company or a small charity providing the services has to configure itself sensibly—for example, it is on the one hand providing a private prison, which would not be the case for a small company, as that is a major undertaking, and on the other delivering bullion to Barclays bank—it probably is not very sensible to have two entirely separate overhead operations. It would be much more sensible to have a single structure. If it has to be formed in a way to meet the equality duty, it may not be the best way of hypothetically delivering the bullion services to Barclays bank.

John Penrose (Conservative, Weston-Super-Mare)

That is a very fair point. I hope that the Minister either reassures us that provisions elsewhere in the Bill exempt the internal operations of a company or charity that is delivering a public sector service on behalf of a public authority from the public sector duty, even while it delivers both services in a way that is compliant with the public sector duty, or, if she says the Bill does not do that, explains why the Government think it right to make the internal operations compliant.

In respect of the Department for Work and Pensions and outsourcing of the kind that I have been using as an example, I am gravely concerned that the whole “black box”, outcomes-based, payment-by-results approach—which is, by all accounts, proving pretty successful, effective and important—may be subverted. We do not want to put that at risk or in peril. With any luck, the Minister will be able to explain how the Government propose to navigate their way through those particular shoals and rapids. If she feels that that is wrong, perhaps she will explain why the principle is incorrect.

I am conscious of the fact that I have taken up quite a lot of the Committee’s time. I have explained why the amendments were tabled and what we want to achieve with them, so I will sit down and await the Minister’s response.

David Drew (Labour, Stroud)

I rise to speak to my amendments 279 and 280 with the active support of the EHRC. These are two small amendments to an important part of the Bill. I hope to prove that we need clarification of and sensitivity on what is at the root of discrimination when people take action by word or physical assault on those who suffer discrimination.

The provision requires public authorities to address negative and hostile behaviours, not just the attitudes and beliefs underpinning them. That is already a specific duty that impacts on disability and it has given the EHRC its legislative tool. The duty is already on the EHRC and all I ask is that it be put in the Bill so that we have consistency in the way that body operates in relation to all other public bodies.

There is widespread evidence that individuals face such discrimination. At the very least, it is important that we debate that. More importantly, we should look at what the reality of discrimination means to people in their everyday life. At one extreme it includes the attacks and vile behaviour that, sadly, we have all seen towards certain groups of MPs, but it also includes low-level harassment such as name-calling and the sending of notes that imply that people are different and inferior. More particularly, there is also the threat that the internet poses. Discrimination can take different forms.

The criminal law recognises and penalises criminal acts, especially hate crime and incitement to hatred. It does not of itself require public duties inside or outside the criminal justice system proactively to eliminate such behaviours or activities, and the amendment states categorically that that should be the case.

I have already said that the duty exists in relation to disability. Again, the amendment would make it more proactive and more general in how action was implied. Such behaviours are likely to be adequately or comprehensively captured by unlawful harassment provisions in employment, education or goods and services measures, as they happen outside or in the gaps between the spheres and more often between private citizens.

The commission’s research, particularly relating to disability, shows a high level of violence and hostility. Along the continuum, that hostility becomes just as prevalent at a lower level, but more pervasive and pernicious.

I hope, therefore, that the measure finds favour and that we both tackle prejudice and promote understanding of how people relate to this important legislation. As I have said, it mirrors what the EHRC is already expected to do.

I shall make a couple of points before I finish. We can debate for as long as we like how proactive such organisations ought to be, but there are two particular caveats that I hope my hon. and learned Friend the Solicitor-General will refer to. The first is the need for clarification of exactly which public bodies are encompassed by the new legislation. In these days of quangos, hybrids and outsourcing—the hon. Member for Hornsey and Wood Green mentioned that—the provision needs to be carefully worded in terms of which bodies we expect to be subject to the public sector equality duty.

There is concern, certainly in the commission, that through this part of the Bill we could be lessening accountability, rather than ratcheting it up. Will my hon. and learned Friend make it clear that there is no diminution of the number of bodies that will be included within the provision?

Mark Harper (Conservative, Forest of Dean)

I am listening to the hon. Gentleman with great care, but I may have missed something. Will he explain in more detail why he and the EHRC think that there might be a diminution in the number of bodies covered by the provision? I did not quite follow that point in his argument.

David Drew (Labour, Stroud)

This relates to the relationship between clauses 143 and 147, which I will not go into, and schedule 19. There is a view that unless we have it in the Bill that there is at least the recognition that the bodies relating to disability legislation are linked across the board to other forms of discrimination, disability could be considered at a lesser level in terms of the hostility that people can relate to.

My second point concerns behaviour that is acceptable and that which is not. It would be helpful if the Minister said how that is clarified in the legislation. There is a view that, rather than strengthening the work of the commission, we could be weakening it.

I do not want to speak to clause stand part because I have made my points. However, I wish to look at one other issue, which is how the clause relates to religion and belief.

Joe Benton (Labour, Bootle)

Order. I point it out to the hon. Gentleman that that matter comes under the next group of amendments.

David Drew (Labour, Stroud)

If you wish me to leave that until later, Mr. Benton, I shall come back to it.

To conclude, will my hon. and learned Friend clarify the nature of the relationship between the commission—its powers and duties that it is responsible for—and how the Bill will ensure that there is no diminution, certainly not in terms of disability, and that the disability duties relating to public bodies at least relate to every other form of discrimination that we have discussed. That is why this part of the Bill is crucial and why the commission is keen for the provision to be in the Bill—so that its duties are explicitly recognised in terms of all the other public bodies, if we can identify what those public bodies are, which is not an easy thing to do. Therefore, I will take guidance from my hon. and learned Friend. I hope that she and the Government look favourably on my proposal as clarifying rather than mystifying the situation.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I have one clause stand part issue, which I shall raise first, and a couple of points on the amendments in the group. The clause stand part issue on which I would be grateful for a response was raised in the EHRC briefing on the need not to have regression from the current disability equality duty. Public authorities have a responsibility to take account of disabled people’s disabilities even if that involves treating disabled people more favourably. The EHRC briefing calls for more probing on whether clause 143 effectively reproduces section 49A(1)(d) of the Disability Discrimination Act 2005, which amends the Disability Discrimination Act 1995 and which places a duty on public authorities to take account of people’s disabilities—this is the important bit—

“even where that involves treating disabled persons more favourably than other persons”.

The EHRC points out that the

“statutory code of practice...states that whilst the goal of the general duty is the promotion of equality ‘the underpinning principle is the requirement to take steps to take account of disabled persons’ disabilities even where that involves treating disabled persons more favourably than other persons. The understanding that to deliver true equality for disabled people requires more than treating them the same as everyone else underpins the requirement to combat discrimination (most notably the Act’s requirement to make reasonable adjustments) and to promote equality of opportunity’.”

The EHRC’s view is that the provision has been extremely useful

“in raising awareness amongst public authorities of their obligations under the reasonable adjustment duty.”

It is concerned that that is not made explicit in the clause. We might expect it to be made explicit in subsection (5), which states that

“Compliance with the duties in this section may involve treating some persons more favourably than others”,

but that does not go as far as section 49A(1)(d), which does not create an obligation to do anything specific, but does create a general obligation to do something. The second half of clause 143(5) states:

“but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act”.

The whole point of clause 143(5) is to deal with another issue, which is contained in the second half of the subsection, and its first half does not usefully tackle the point that the EHRC is making.

The basic EHRC point is that the disability equality duty in section 49A was so explicit that it might appear to those who have not been involved in the passage of the Bill that there is no longer a specific requirement in relation to disabled people and, thus, that the duty in respect of disability has somehow been diluted. The EHRC thinks that a solution would be—I would be grateful for the Minister’s view as to whether she would consider the point, because there is no specific amendment—a provision to require public authorities to have due regard of the need to take steps to take account of a disabled person’s disabilities. The duty in respect of disabled persons has already been elevated beyond what is required or expected of public authorities in respect of the other strands. It would be the EHRC argument, and I see its point, that that could be usefully reproduced in some form in the clause.

Dealing with the amendments before us, I have already by intervention made the point about our amendment to the excellent amendment tabled by the hon. Member for Daventry. I am delighted that he is willing to accept it and I look forward to the Minister’s response. I make the point, as the EHRC has done, that unless public authorities take active steps to fulfil, protect and foster human rights of individuals in this country, both in respect of equality and more broadly, we will not get anywhere. All that we seem to be doing at the moment is firefighting myth-based attacks on the 1998 Act, instead of recognising what it can achieve. I think that Government and Parliament need to be more proactive in promoting that Act. I cannot go any further into my thinking behind that issue, because it would stray outside the scope of the Bill and the amendment, but it is important.

I hope that the hon. Member for Daventry will recognise that if a commitment to promote human rights is to mean anything, it must include the human rights of the most vulnerable, who are often not British-born and bred. The worry is that movement away from the human rights that I thought he was talking about—the rights under the 1998 Act—to some British Bill of Rights could mean that the most vulnerable and in need of protection, especially in terms of discrimination, could be abandoned. The Bill would somehow not apply to Gypsies or asylum seekers, but only to the British man in his castle.

Tim Boswell (Conservative, Daventry)

I am of course at one with the hon. Gentleman on the wish to create a climate of credibility, which I think the present situation has tended to lose. For the record, as I pointed out in the Council of Europe the other day, as my name is of Romany origin, I have a rather strong affinity with that community—that is one of the reasons why I take an interest in it.

The rights are indivisible, and the hon. Member for Hornsey and Wood Green has already made the point that even if people are not citizens, it does not mean that they are second-class human beings—of course that is right. I hope that any legislation will take that into account.

I am also entirely at one with the hon. Member for Oxford, West and Abingdon on the need to respect, particularly, the vulnerable, who often have no political base. Even if they are British citizens, they typically do not vote or participate—they do not vote Labour, or for anyone. We need to be conscious at all times that it is not an issue just for minorities, but equally, the proper protection of minorities is implicit in the convention and what we should do.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the hon. Gentleman. I had not realised that “Tim” was a Romany name.

Tim Boswell (Conservative, Daventry)

It is an Irish name.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Of course, the hon. Gentleman means “Boswell”, and he says that “Tim” is Irish. I wish him luck in his remaining time in this House, and after he leaves, when urging his Front-Bench colleagues not to dilute the 1998 Act in the way that they imply that they would.

I move on to amendments 19 and 20. The Minister has already pointed out the fundamental problem in their drafting. Clause 143(2) quite reasonably refers only to non-public authorities having the duty

“in the exercise of those functions”,

that is, public functions. The hon. Member for Weston-super-Mare has made a mistake, I think. By taking out lines 15 and 16, he would take away the restriction and therefore, “except in relation to...employment”, expand the duty to the other functions. I accept that that was not his intention.

As far as the hon. Gentleman’s intention is concerned, I do not think that it is sustainable. There are some quite large non-public authorities that do quite a large amount of work in delivery of public functions. Indeed, they may be the lead deliverer of public functions—even more than a public authority. It would be bizarre for the users of that public service in that geographical area if, because the public service is delivered exclusively through an agent of a public authority, there were no need for the provider to have regard to the public duty. It would essentially create a postcode lottery—or at least, a geographical variation, which is the expression I prefer to use rather than “lottery”—where, for example, people delivering prison services would have to “have regard” to these matters. It would be arbitrary, and the way the Government have framed the provision in the Bill is not arbitrary in that way, and therefore ought to be defended.

John Penrose (Conservative, Weston-Super-Mare)

To clarify, the intention behind the two amendments is to ensure that the service, which is being provided by a company or a charity, is subject to the public sector equality duty. But the company or organisation delivering it should not necessarily be so in its internal processes and functions. That is vital. The hon. Gentleman is right to point out that there are large subcontractors as well as some small ones, and if we do not make an exception or at least make the Government address the matter, we could constrict the pool of people who can bid for public sector contracts to only large organisations that can deal with the particular set of requirements. As a result, the richness and potential improvement in quality of many small organisations could be lost.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I need to apologise for not talking about the matter in relation to the work force, rather than users. I shall now go back to that and deal with the hon. Gentleman’s second point later. It would be arbitrary whether the work force, which might be quite large, benefited from the need of their employer, in delivering a public function, to be covered by the positive duty. He needs to deal with why, just because of the nature of the employer—even though the function is the same—there is arbitrariness about whether the work force, and the community from which they are drawn, benefit from the positive duty.

I shall give the hon. Gentleman an example that I have used before. Someone in the work force of a public authority might be transferred into the employment of a non-public authority while doing the same job. I have argued that that should not mean that there is suddenly a new occupational requirement, if the job is the same—I think that the Minister gave me comfort on that—simply by virtue of the employer changing. By virtue simply of that contracting out, there would no longer be a positive duty for what might be a large work force. That would be a deterrent for the Government to contract out work that might be delivered more efficiently by non-public sector organisations. They would suddenly see things that were done to promote all that we want to see, go backwards because the work force, and the community from which they are drawn, would no longer benefit from regard to be had to the need to promote equality in respect of employment matters that previously existed.

John Penrose (Conservative, Weston-Super-Mare)

I take the hon. Gentleman’s point. The evidence so far on the ground suggests the opposite to what he is describing. Parts of the Government are already outsourcing such things. I cited as an example the Department for Work and Pensions and its work on the welfare-to-work programme and getting long-term members of the unemployed back to work. The difficulty would be that, if the duty were applied to the workings of the mythical small charity in central Leeds, the charity would not be able to participate or bid, so the things that are currently being outsourced could not be outsourced in future. I suspect that the traffic would be in the opposite direction from the way that he suggested.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman is coming back to the point that I was about to touch on. In the delivery of the same service, it would be arbitrary whether the work force were covered by the need to have regard to positive duties. There would also be the problem for the work force who were transferred. His main point is that it is an onerous duty and must therefore not apply to small organisations. However, it applies to small public authorities. If it is a question of size, I would have expected him to table an amendment that referred to 100 workers, 30 workers or five workers, rather than make another arbitrary distinction between a small public sector body and a small private or third sector body that was doing the same work.

There should be a level playing field and it cannot be right for a public sector body that is bidding for a contract, a tender or the delivery of public services to be faced with more duties to have to have regard to. I do not think that they are onerous, so I shall not use that term. I do not like the term “burden” for doing something that is right and not particularly onerous, because it is only “having regard”. It seems wrong not to have a level playing field. If it is a burden, as the hon. Gentleman sees it, that will automatically penalise public authorities. They would not have to have this as part of their overhead, such as it is.

John Penrose (Conservative, Weston-Super-Mare)

My argument is slightly different from the hon. Gentleman’s. I was talking about not just the size of an organisation, but the type of contract that the outsourcing involves. He is saying that he fundamentally does not agree with the black box, payment-by-results style of outsourcing contract currently being used to some great effect in Departments such as the Department for Work and Pensions. It is an inevitable part of such a contract that we do not open the box. We say, “It’s up to you how you deliver that, provided it is done in a way that is fundamentally legal.” If, on the other hand, we are going to require a public sector equality duty to apply to the internal operations of that organisation, we have to start checking up on how things are being done. We then have to go back to the old-fashioned way, which has been abandoned or moved away from in places such as the Department for Work and Pensions, of checking process, mandating process and requiring things to be done, rather than outcomes to be achieved.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I know what the hon. Gentleman is saying. Perhaps there is a philosophical disagreement between us in that I do not think it is right that there should be an uneven playing field between the public and private sectors when providing services. While I am not totally ideologically opposed to the private sector providing services—they do so very effectively with care services, and the same applies to charitable sectors—there has to be a level playing field. Although I will not go into great detail, there is far too often not a level playing field. For example, independent treatment sectors were given huge advantages over the poor old NHS—for a start, they did not have to train anyone—and there is an outrageously uneven playing field. If something is a good thing to do when delivering of public services—I believe this is, and I think the hon. Gentleman believes it is, although I am not sure what his view is about the clause overall—it should apply to everyone.

This is not the same as opening the box and saying, “How are you delivering welfare to work?” There will be consultation on specific duties, but this is saying, “Are you doing the things that your public sector competitors are doing?” If the hon. Gentleman is a believer in a fair market, as I know he is, I urge him to see things not in terms of Government interference in how something is done, if he thinks that the outcome is all that matters, but in terms of the fact that an unfair competitive advantage should not be given to private sector organisations. There is already a great deal of unevenness. If, as generally happens, the public sector trains people, they can then be used by the private sector free of training costs. That happens in many care organisations, for example, and we should not make that unevenness any worse.

Tim Boswell (Conservative, Daventry)

I have some sympathy with the hon. Gentleman’s comments. I have experience of cases in which there has been outsourcing in the health service and a row about the obligations of training. To help the debate along, would he not concede that if there is to be a duty on those persons—we await the Solicitor-General’s comments—it might be reasonable to look at the fulfilment of that duty slightly differently depending on the scale of the organisation and what it is doing? A large charity such as Leonard Cheshire Disability would be in a different position from one that was small and specialist and perhaps should not require exactly the same level of HR function as a bigger organisation or a public authority discharging the same duty.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was going to come on to the point about smallness. I have already said that if that is the argument, there ought to be a particular requirement that there should be a cut-off, and that should apply to both the public and private sector. I do not think that there should be a size cut-off, especially with regard to employment. If there are only 10 people employed, it should not be that hard to seek to have regard to the need to eliminate discrimination, harassment, victimisation and other conduct prohibited under the Bill. The employer knows the 10 people and can ask them whether they feel that they are suffering, while that is harder in a bigger organisation. I do not think that such a thing is onerous. It is not the same argument that we had on pay audits, which I also do not accept—this is different. This is not something that scales up by employee in the way that has been suggested. There are small organisations with only one contract with the public sector that exist wholly to take public sector money to do what they do—and good luck to them. However, those organisations are 100 per cent. funded by the public sector to do the job. They are equivalent, and they would have an unfair competitive advantage if they did not have regard to the requirement.

Finally, I am delighted that the Government accept that there is a difference when delivering public functions as far as the positive duty is concerned. I have already indicated that my party will seek to return to this issue at a later stage of the Bill’s proceedings. We will argue that for people in receipt of public services, as opposed to other services, there is a stronger argument for some of the protections that are not being offered—protection from discrimination on grounds of religion, for example, or protection from harassment on grounds of sexual orientation.

Clause 143(2) sets out a specific recognition that when public services are being delivered, the situation is different, because public funding is often involved. There is an expectation that the people concerned, particularly the users of those services, are a captive and often vulnerable population who deserve more protection than the ordinary person in the marketplace trying to book into a hotel or lodging house.

Amendment 280 was tabled by the hon. Member for Stroud for the EHRC. I have a great deal of sympathy with it, but it slightly misses the point. The hon. Gentleman argues that a local authority, for example, should have a positive duty to have regard for the need, inter alia, to

“eliminate hatred and hostility towards members of different groups”.

We know that gay people in schools might well be victims of that sort of hatred and hostility. Would it not be better for gay people in schools to be covered under clause 143(1), which states:

“A public authority must, in the exercise of its functions, have due regard to the need to...eliminate...harassment”?

For reasons that I cannot understand, protection from harassment on the grounds of sexual orientation is excluded from schools, as is protection from harassment on the grounds of sexual orientation and religion for people seeking to receive public services. I cannot understand on what basis there would be any need to harass people receiving public services on the grounds of religion, but that is not covered by the Bill.

I urge the hon. Gentleman—and the EHRC, which I have spoken to about this—to work for the extension of harassment provisions when necessary, perhaps under a narrower definition than currently exists, so that such situations would be covered by legislation on unlawful conduct. That would automatically bring those areas within the public sector duty without any requirement for an amendment that says that we should try to do something to eliminate hatred and hostility, but that allows the framework of the legislation not to make unlawful the delivery of that hostility and hatred through harassment. The approach seems to be upside down. If the EHRC recognises that this is a problem, it should readdress the question of whether the harassment provisions could or should be extended carefully to vulnerable groups in respect of education and public services. To a certain extent, such things apply only to public services, so we are talking about the same territory. I hope that the hon. Gentleman recognises that a combination of approaches might be needed to deal with this.

If the amendment were to be accepted, there would have to be regard to the need for public authorities to protect freedom of speech. An amendment relating to that subject is in the next group, so I will not take that matter further, although it kind of ties in, and I meant to table it as a response to the sort of debate that we are having on this group of amendments. It is difficult to get public authorities to start eliminating hatred, as that would automatically lead them to not allow someone to book a room if they believed that that person hated certain groups of people. It is not a crime to hate certain groups of people, although I deprecate it enormously. I have campaigned for more than two decades against racism, but it is not the job of a public authority to say who has free speech within the law. I urge the hon. Gentleman and the EHRC to look towards the law.

My hon. Friend the Member for Hornsey and Wood Green and I tabled amendment (a) to amendment 21 to set out on the amendment paper an argument that the hon. Member for Weston-super-Mare might wish to consider. That was a bit of a waste of time if he is saying that the Minister can respond to my criticism of his amendment. There is no need for the Minister to deal with amendment (a) to amendment 21, as I had hoped that the hon. Gentleman would. However, as I said in an intervention, it might be better to be even more specific about what the reporting requirements are, rather than just having regard. The Minister said that that would be picked up by the specific duties, which I welcome, and I do not think there is anything more to say on amendment (a) to amendment 21.

We support the measure, with the caveat that we will deal with in the next group. We wish it well, but we think that it could be improved, as we will set out specifically during our next debate.

John Howell (Conservative, Henley)

It is a great relief to be able to give my undivided attention to this Committee. The Finance Bill Committee has been running in parallel for the past few weeks but, mercifully, it has now ended, which allows me to devote my attention to this Bill for the remainder of our sittings.

In my first contribution to the Committee, I mentioned my experience in relation to the public sector equality duty during my time in a local government role, because I saw that as a chance to move the debate on to outcomes. I welcome the Solicitor-General’s comments about the shift towards an outcome focus. I also welcome the positive-action orientated wording in clause 143(1), such as “eliminate discrimination”, “advance equality of opportunity”, and “foster good relations.” A lot is set by words and that wording paints a good picture.

When I came to producing and delivering the public sector equality duties, as they were, in a local government context, I looked at not only the issue of fairness—of course—but what one might call enlightened self-interest. One of the last things I signed off in that role had the words:

“by ensuring we do not exclude we ensure that as an employer, we tap into the talents and abilities of all our people and the users of our services benefit on a lasting basis.”

It is perhaps early in one’s parliamentary career to be quoting oneself, but it was a great pleasure to bring that to bear. That picks up the point made by my hon. Friend the Member for Daventry about the general benefits of customer service that come from focusing on equality duties and improving services overall.

I was also interested in the earlier discussion about whether there was any evidence that the existing equality duties had worked. There are some indications of success and that equality issues have been forced into a position of higher priority—indeed, a small amount of mainstreaming has also taken place. In both the Schneider-Ross report and the Work and Pensions Committee’s report, I was struck by the fact that those results were still difficult to tie down and prove in terms of metrics. There was no link between the metrics that were there and the outcomes.

Perhaps one good example of that issue is contained in the January 2007 Ipsos MORI report on the disability equality duty, which revealed that 72 per cent. of public authorities covered by the audit that had taken place had published a disability equality scheme and that at least 54 per cent. had published a scheme that contained evidence that the authority had involved disabled people in its production. Those statistics are encouraging, but they do not tell us, or measure, what difference was achieved as a result. Of course, we really need to understand that aspect when considering the clause. It is impossible to discuss the merits of the clause without a better understanding of the monitoring and compliance regime that will underpin it. My feeling is that existing monitoring and compliance are inadequate and more about process than outputs. It is one thing to change the focus to outcomes, but if the measurements are still about outputs, the process will not be taken any further.

During the Work and Pensions Committee’s inquiry into disability, which was aimed at the Bill, I was keen to pursue the matter with several organisations, one of which was the TUC. It was covered in question 86 in the evidence volume to the Committee’s third report of the 2008-09 Session, which was entitled “The Equality Bill: how disability equality fits within a single Equality Act”. When I asked where the current disability equality duty was working, the TUC said that there were some excellent organisations, but it was interesting that even it could not refer to any specific bodies, and that none immediately jumped out as good examples that could be used as case studies. The TUC admitted that there were an enormous number of “laggards”, but more importantly then confirmed that the EHRC was investigating 170 bodies for failure to comply. It talked about the need for “pushing and shoving”. We are familiar with the use of “nudging” as a means of delivering policies, but the suggestion was somewhat more forceful than that.

I was asking essentially whether the overall picture of the disability equality duty example was negative and whether anyone out there was doing it really well, without having to be pushed and shoved. The answer that I received from Citizens Advice was, “Yes, it was a negative picture.” That was amplified by the TUC, which said that in its estimate only about 10 per cent. of organisations delivered it well, 10 per cent. did it really badly and the rest were somewhere in the middle.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend had a previous role in delivering such things and he mentioned the important duty of improving the customer service of organisations. Given that many organisations are not doing it well, is there an approach that it might be helpful for the Government pursue? If they could get organisations to understand that adopting those duties, particularly engaging with different groups, made them better at delivering their core business—the issue that they think about each day—that might be a way in which to get organisations not only to take the matter seriously as an add-on, but to make it a central part of what they do each day.

John Howell (Conservative, Henley)

I thank my hon. Friend for his remark. He is absolutely right. The way in which I approached the matter was twofold. First, it was not seen as something that was separate. I committed my local authority to being the first English county council to go for a charter mark for the organisation as a whole. Therefore, there was a context and a process in which it could sit. In parallel to that were a series of workshops with groups that represented all those with the protected characteristics that met regularly to look at how different aspects of the organisations were working. We asked them to tell us what outcomes they wanted and to say how we could integrate them in a more fundamental way. There are some extremely good examples of what my hon. Friend was saying, such as by taking an holistic view of an organisation and not making the issue too separate, a lot could be achieved within the organisation by mainstreaming it.

I return to a bit of pushing and shoving. As a practical example of the difficulty, Citizens Advice commented, “With a little bit of pushing and shoving, the public duties are effective, but the problem is that pushing and shoving does not occur a lot of the time”. The difficulty of the EHRC monitoring so many organisations and the difficulty of read-across between them came out in several pieces of evidence that have been delivered both to the Committee and to the Select Committee. The example that I cited earlier came from the public interest research unit, which referred to a public authority that was excellent in promoting equality, but which did not undertake impact assessment so it is in breach, against an authority that assesses all its policies and procedures, but is appalling in terms of delivering equality.

There were ticked boxes around the current schemes, which is probably the description that has been used most by those who have looked at them. It is certainly something that we need to move away from, but we need to understand what it is in terms of the monitoring of compliance that underpins the delivery of what the clause sets out to achieve.

I reinforce the point that I made earlier to my hon. Friend on his intervention: moving away from the schemes and the bureaucracy, and talking and listening to people is by far one of the most effective ways of ensuring that real outcomes are delivered, and that people are not trammelled by bureaucracy and the ease with which one can slip into an output-based culture, rather than an outcome-based one.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I want to understand why the clause is somewhat limited in its scope. I cannot understand why we would not wish to impose the public sector equality duty on the organisational side of anyone who receives a contract. I understand the size argument, but, like my hon. Friend the Member for Oxford, West and Abingdon, I do not agree with it. To me, the whole essence of a contract from the Government or a state authority is that people will be certain of getting aid, and they would want that contract—it is a wonderful contract to get in an uncertain world. Then, in doing so, the expectation of those getting the contract should be that they should have regard in all the functions, whether they are a private sector company that is executing a public function or a supplier contracted to a public authority. I simply seek to probe the Minister as to why the Government have not gone even further in the clause.

Mark Harper (Conservative, Forest of Dean)

I have a specific question for the Minister. It refers to a written answer that the Parliamentary Secretary, Government Equalities Office, gave to an MP. The question was:

“To ask the Minister for the Cabinet Office what steps the Government is taking to tackle discrimination against same-sex couples during adoption processes.”—

a perfectly reasonable question. However, I was a little concerned. In the answer, the Minister said:

“The Equality Act (Sexual Orientation) Regulations 2007 introduced the right for same sex couples to be treated the same as other prospective adopters.”—

a perfectly reasonable and fair point, which we support. He continued:

“The new Equality Bill maintains this right. It also introduces a new public sector Equality Duty”—

which is why it is relevant here—

“which means that local authorities will have to consider the needs of lesbian, gay and bisexual people when they are planning their policies and services, including adoption services.”—[Official Report, 23 June 2009; Vol. 494, c. 794-5W.]

My concern is that when they are planning adoption services, local authorities should not really have the needs of any prospective adoptive parents in mind, gay or otherwise. Under the Children Act 1989, the only thing that they should think about—the primary thing, which courts should also think about—is the welfare of the child. When the Minister comes to conclude, will she confirm that section 1 of the 1989 Act, which makes the welfare of the child paramount, is the main thing that local authorities should think about when they are planning adoption services? They should not really be considering the needs of adoptive parents, whether gay or straight, but should be thinking about the needs of the child. That should be the paramount consideration in mind.

Vera Baird (Labour, Redcar)

I will return to that point later if there is a need to. But I do not see any clash between the answer given by my ministerial colleague and the principle that is in section 1 of the 1989 Act, which has been there for ever—that the welfare of the child is always paramount. Of course, the welfare of the child might be best suited by a local authority having adoption services with particular interests—a religious or a gay interest. That might well be in the interest of the welfare of a child being paramount. Therefore, I cannot see a clash between the two.

Mark Harper (Conservative, Forest of Dean)

I thank the Minister for that answer. I was simply making a point. She is quite right. She characterised it by having the local authority starting from the interest of the child and thinking about the range of prospective adoptive parents? That is absolutely the right way. The written answer, which may not have been phrased in the best way, said that the local authority would consider the needs of prospective adoptive parents. That should not be the starting point, which should be, as the Solicitor-General said, the needs of the child, and the range of parents that the child might need should then be considered, not the other way round. The Solicitor-General helpfully characterised that this morning, and I am simply drawing her attention to the written answer because it was less than helpful.

Vera Baird (Labour, Redcar)

I cannot see any lack of helpfulness in the answer. The hon. Gentleman was asking about the provision of adoption services, and the obvious answer is that they should be able to offer every option for a child, including gay adoption if necessary. The quibble is about a question that was answered by someone else, but I hope that I have satisfied him that nothing has undermined—it would be earth-shattering if it did—section 1 of the 1989 Act.

We have had an interesting and wide-ranging discussion on this group of amendments to clause 143, which creates the new equality duty on public authorities that will replace the three existing public sector duties on race, disability and gender. Those three equality duties were innovative and pioneering, and shifted responsibility, as many speakers have acknowledged, from combating discrimination and disadvantage after it had happened—a passive model of waiting for discrimination to occur and then tackling it—to putting the onus firmly on public authorities to consider how to prevent and protect against that discrimination in the first place.

There is broad consensus that the existing duties have been valuable tools in promoting race, disability and gender equality, and I am glad to be able to add the hon. Member for Daventry to that broad consensus following his acceptance of it this morning. Some 82 per cent. of respondents to the discrimination law review consultation supported the concept of introducing a single equality duty on the basis of the efficacy of what had gone before.

The Schneider Ross research, to which the hon. Member for Henley referred, was published on 11 June with the consultation document and our proposals for the specific duties to underpin clause 143, and was favourable. That research was into the effectiveness of the current specific duties. Some 97 per cent. of the respondents to the research reported either a significant improvement, or some improvement in one specific outcome. That word and that research run together well to indicate that they have worked, and that it is now time to build on that success and to extend the benefits of the duties to the other protected strands.

The hon. Member for Daventry would build even more on the good foundation by adding to the clear requirements in the clause a requirement for public authorities to have due regard to the need to “fulfil”—he accepts that minor amendment from the Liberal Democrats—respect and promote the human rights of people for whom they are responsible when exercising their functions, regardless of whether such persons possess a relevant protected characteristic under the legislation.

It was good to have a Council of Europe flavour in our discussion, and we have lamented its absence in our recent few sittings. There is no doubt that the EHRC report and our experience indicate difficulties with public acceptance of human rights. The press do their level best to ensure that everyone misunderstands those rights. A couple of examples were quoted, but the Committee may recall a siege when someone on a roof was given something to eat by the police, and the press asserted the following day that he was entitled to a Big Mac as one of his human rights. The police were just sensibly keeping him happy and comfortable in the hope of persuading him to come down. I believe that they were successful in that, but that was not how it was depicted.

Another example was the convicted murderer Nilsen, who wanted some pornography in prison, and it was reported that his human rights would facilitate that straight away. Not surprisingly, bad feeling was whipped up, although it was never on the cards; it was just some strange attempt of his, and the authorities, of course, dismissed it appropriately.

I will not be critical of Opposition Members, because they have all made it clear that they value people’s rights, but I can particularly recall responding to a debate about human rights in which the Tory party was not very supportive or helpful of the Act. It had too many overtones of Europe for some of them, I think. There is undoubtedly a job to be done, and the EHRC report has disclosed that it is sizeable. The EHRC will spearhead it, of course; that is essentially part of its function.

I note that the report suggests—I say this a little out of self-defence—that human rights have not been used extensively in court. That is certainly not my experience, particularly in the criminal field. When I was still at the Bar, I was a lecturer in the faculty set up by the Criminal Bar Association and the Bar Council to teach barristers about the Human Rights Act. The Crown Prosecution Service helpfully indicated that it would not instruct anybody who had not been on such a course, so all prosecutors had to go on it, which meant that the defence lawyers also had to go on it so that they would be able to match the prosecutors. It was an excellent way of spreading the knowledge. I think that the legislation is used pretty frequently now.

Tim Boswell (Conservative, Daventry)

I agree with the Solicitor-General on that specific point. Does she agree as a practising lawyer that one of the elements is not what goes to court but the threat of proceedings that might be taken? I advert to the case where I wrote to a prison director and said, “If you don’t do something about this immediately, I shall think you’re in prima facie breach of article 2,” and the decision was changed within a week, without the need to go to court.

Vera Baird (Labour, Redcar)

That is exactly right. I was going to come to an analogous point. The hon. Gentleman made the point that we must mainstream human rights in the delivery of public services. That has been helpful in some ways.

For instance, hon. Members might reflect on the emergence of a community called carers. Historically, before the Human Rights Act, scant regard was given even to the existence of such a community. If somebody had a sick or elderly person in their home, they were just seen as having a duty as part of family life to look after them. Now that Human Rights Act rights attach to everyone, it is possible to ensure not merely that the cared-for person is adequately protected but that the carer’s interests are balanced as well. Human rights have played a role, not in a court-based way but through the medium of negotiations within local authorities and in the delivery of welfare services, in redressing that balance so that we now have a better picture. We have a mixed picture on how well human rights have proceeded, and I see the point of the hon. Gentleman’s proposal that we should try to take them further.

The amendment draws on the report on human rights in England and Wales by the EHRC and its distinguished chair, to whom I pay considerable tribute. However, the report said that the Government should consider consulting on whether to introduce a human rights duty alongside the existing public sector duties. Interestingly, it did not suggest incorporating human rights into the equality duty, although the commission has been closely involved in the development of that duty. It seems that the commission would prefer to keep the two concepts separate, whereas the hon. Gentleman’s amendment would merge the two. At present, the EHRC’s only proposal on the matter is a significant commitment, by which I am pleased, that it will assist public authorities to develop mechanisms to integrate their current positive obligations under section 6 of the Human Rights Act with their work on the equality duty. I look forward to the outcome of that work.

Perhaps the key question in considering the amendment tabled by the hon. Member for Daventry is whether it would add anything to the obligations on public authorities. It would require the public authority to fulfil, respect and protect human rights. Section 6 of the Human Rights Act 1998 already requires public authorities to act in a way that is compatible with people’s human rights. Of course, certain of the rights also create positive obligations, which can require not just that a public authority should have regard to rights, but that action can be demanded from it to protect a person’s rights. An example that is close to my heart is that a local authority’s domestic violence unit may secure new accommodation for victims of domestic violence to protect their freedom from inhuman and degrading treatment and, in some situations, to protect their right to life. Therefore it may be that a duty along the lines of the amendment would not add to existing provision.

To consider briefly the qualified rights, such as the right of everyone, under article 8 of the ECHR, to respect for their private and family life, home and correspondence, public authorities must, of course, have such respect. That is everyone’s right, and it is up to public authorities to act compatibly, so they must respect it. The hon. Gentleman wants to inject that requirement into public authorities’ conduct of their business, but they already have such a duty. If there is a danger that they would act incompatibly with that right, they have a duty to protect it by avoiding doing so.

The amendment would add nothing to the existing obligation on public authorities to take the steps outlined. However, it might be a disadvantage: it would bring the commission’s power to issue compliance notices against public authorities into the field of human rights, when those compliance notices are generally intended for systemic breaches of equality. The EHRC has many duties and powers to promote human rights. It can initiate judicial review proceedings if it thinks that someone has acted in breach of the Human Rights Act; that is all the more appropriate if a public authority is concerned. The commission’s functions are wide-ranging and I am not convinced that we need to bring in its compliance notices, which would be not the main thrust but a side-swipe, as it were, of the amendment.

I welcome the debate that the hon. Gentleman has opened up with the amendment; I welcome again the impact that section 6 has on public authorities, and the fact that the EHRC will specifically consider, as the Bill progresses, how to integrate its new duties with section 6. I respectfully suggest that the hon. Gentleman can now withdraw the amendment. It will add nothing to the provisions and is arguably in the wrong place, as this is not a human rights Bill.

As I and the hon. Member for Oxford, West and Abingdon have pointed out, amendments 19 and 20 would extend the reach of the equality duty into the non-public functions of private bodies, although I am not sure whether that was their purpose. However, since there is a question of reach, as it were, perhaps I might mention the current reach of the equality duty, which will also play on issues raised by my hon. Friend the Member for Stroud.

The equality duty requires all the public authorities listed in schedule 19 to have due regard to the three matters listed in clause 143. Clause 144, which I refer to because we are considering the reach of the provision, introduces schedule 19, which lists the public authorities. Clause 143(2) extends the duty to bodies that are not public authorities: they are not in schedule 19 but nevertheless carry out public functions. That is a recognition that public functions are increasingly being carried out by private bodies; they must not escape the scope of the duty simply because they are acting as a sort of agency. Schedule 19 lists public bodies, and the flexibility of clause 143(2) allows us to specify those other bodies that deliver public functions. It is pretty comprehensive coverage, but there is a little more to say.

Schedule 19 lists most public authorities—Government Departments, local authorities, NHS bodies and so on. It covers about 90 per cent. of public authorities, but that is not the end of the story. We are setting out publicly the requirements of the general duty, and our officials are talking further with a number of other bodies that we believe should be included—beyond those already listed in schedule 19. We shall complete the list before the new duty comes into force.

Essentially, we have put together the list-based system of the race equality duty with the definition of public functions under the Human Rights Act to give a broader reach. However, by the time the duty comes into force, we envisage that schedule 19 will list the same bodies that are subject to the current duty. We have a little work still to do, but there will be no reduction in the coverage of the duty across the full range of bodies.

David Drew (Labour, Stroud)

May I be clear about this? Will there always be the opportunity to use secondary legislation to add or exclude bodies that are implicit in schedule 19?

Vera Baird (Labour, Redcar)

Yes, that is correct. If my hon. Friend is concerned about the matter, I have with me a complete list of the bodies currently subject to the general race duty, or the specific gender and disability duties that we hope to add to the schedule. If he wishes to read it, he will see that it is extremely comprehensive. Although no one has raised the point to which he refers, it is important to emphasise that although we have 90 per cent. now, and we will add the definitions of public functions, which should cover everyone, we intend to specify more in the interests of safety.

Amendments 19 and 20 would change clause 143(2) to read as follows:

“Subsection (1)”—

that is the application of the duty—

“will also apply to a person who is not a public authority but who exercises public functions except in relation to matters of employment”.

The effect would be a significant widening of the provision. As currently phrased, it states:

“A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard”

to the equality duty. We have confined the application of the equality duty to non-public bodies that deliver public functions. The amendments tabled by the hon. Member for Weston-super-Mare would widen it to cover all business—those who happen, in one small department of their business, to be delivering a public function, except employment functions. I confess that I have not followed the logic between what he said about the black box and the employment functions, although I am sure that it must be there.

The other defect of amendments 19 and 20 is that they would apply only to those bodies subject to the duty because they are carrying out public functions. Anyone listed in schedule 19 would be covered for employment functions in any case, so the proposal is not remotely workable.

If we extended the equality duty to every business in all its operations, that would be a significant extension of the equality duty into the voluntary sector, and it would be very uneven in its application. I think I mentioned in an intervention that the way in which Group 4 ran a private prison would be subject to the duty. Under the hon. Gentleman’s amendment, it would be subject to that duty when delivering cash to a bank and also when doing all the other things it does. Securicor, however, would not be subject to that duty when delivering cash to a bank. No one would know who was and was not subject to it because they would not know, in any event, who was delivering a public function somewhere else.

John Penrose (Conservative, Weston-Super-Mare)

I apologise if there is a technical flaw in the amendment; but when the Solicitor-General helpfully intervened during my earlier remarks, I was driving at whether or not that subsection (2) will make it impossible for Departments, such as the DWP, or any other public authority to pursue the black-box, payment-by-results approach to subcontracting, and if so, I was trying to ensure that that is not prevented in future. Even if the amendment falls on a technicality, I hope that she will consult her colleagues about it to ensure that such a problem is not an inadvertent and unintentional consequence of an otherwise sensible approach.

Vera Baird (Labour, Redcar)

It is not a technicality, and the hon. Gentleman has done the opposite of what he set out to do. I simply cannot see how it relates to the kind of black-box doctrine to which he seems so attached. The point is that the equality duty passes on to the exerciser of the public function, whether black box or green box and however it is begun, but that will not affect whether or not one micro-manages from within the Department how new jobs are set up. All it does is pass on that duty and obligation—enforceable in the ways that we are beginning to become familiar with—to the deliverer of public functions, so it does not really play on that issue at all.

The duty will, of course, only impact on bodies carrying out public functions within Great Britain. The hon. Member for Daventry mentioned outsourcing to India, but back-office services are not a public function in any event, so any worries about that are without foundation. In such cases, we would have to ensure that public bodies used their procurement processes to ensure that anything outsourced abroad was subject to strict contractual terms that required the delivery of equalities, and that would be enforceable on a contractual basis, even though we are talking about things across the sea. I hope that I have dealt with the questions that the amendment raised on impacts upon the delivery of public functions.

I will now address the point that employment might be singled out as a function that should not be subject to the duty. It seems to us that employment is part and parcel of the way in which public functions are delivered, because it is difficult to deliver that if one cannot consider the technical abilities of the people one employs to do it. How could a private contractor be required to make arrangements for advancing equality in all the aspects of running a prison but not in relation to the people it employs or how it employs them? Employment functions have not been excluded from the current duties.

My final answer to the hon. Member for Weston-super-Mare is that the amendments miss their target completely, as we have been unable to find any problem at all resulting from employment functions being included in the existing duties. I respectfully suggest that he should not press his amendment, having had a satisfactory answer from me, even though he was in many ways asking the wrong question.

I will speak relatively briefly to amendments 279 and 280, which would require public authorities to have due regard to the need to eliminate hatred and hostility. I very much agree with the sentiment behind the amendments, as public authorities should tackle hatred between groups and the resulting hostility, where possible. However, clause 143, as drafted, encapsulates that concept, and fostering good relations must inevitably include tackling hatred and its manifestations. We cannot see the point of glossing the concept further.

My hon. Friend the Member for Stroud made some significant points about the disability duty and whether it had been in any way weakened. The equivalent provisions of the disability duty, which currently are eliminating harassment and promoting positive attitudes—this is no reflection on the amendment—are carried forward and are fully covered in the first limb of clause 143. Eliminating discrimination, harassment and so on are included in clause 143(1)(a). And, of course, we are extending the elimination of harassment in respect of goods, facilities and services for disability for the first time. That is a significant broadening.

Elements of the disability duties to eliminate harassment and promote positive attitudes are to be found in the third limb, which is

“to foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

There is absolutely no stepping back from that duty in this duty. The need to take steps to take account of people’s disabilities is set out elsewhere in the Bill, in the duty to make reasonable adjustments, and this duty makes it clear that public bodies must have

“due regard to the need to advance equality of opportunity”

for disabled people.

If my hon. Friend casts an eye over clause 5, he will see that it involves treating some people more favourably than others, if necessary, but there is an even more express permission in clause 13(3), which makes absolutely clear the asymmetric nature of protection for disabled people. I hope that he is reassured by that.

Amendment 21 logically comes next. It is about reporting on all of this; it is important that we do so, and I agree entirely with everything that has been said about the futility of such measures if they are not well monitored. The amendment would place an annual reporting requirement on public bodies to demonstrate that they have complied with the requirements of the duty, and amendment (a) to amendment 21 would require public authorities to show annually how they have eliminated discrimination, advanced equality and fostered good relations. Amendment (a) points to the need to report on outcomes, not just to the fact that there has been due regard to these matters.

We intend—we will come to this more fully when we discuss later clauses—to follow the same structure as that for the current duties. The general duty in clause 143, which gives broad aims, will be underpinned with specific duties, processes and detailed steps to be set out in secondary legislation. The consultation document on the specific duties has been out since June. Secondary legislation seems to us the right place to set out detailed processes, because of the need for greater flexibility to tighten things up or do whatever might be needed.

The amendments would impose a data reporting requirement on all public authorities. We think that it is right that specific duties are lighter, for instance, on a parish council—this is not unrelated to the issue about size—than on a major metropolitan council. So, again, it is better not to have a sweeping impact, as the amendment would. It is better to look at specific duties in secondary legislation, so that we can target the right bodies—the ones that are big enough, significant enough or otherwise suited—to carry out the duties.

As members of the Committee know, the commission is developing an equality measurement framework, if I can call it that. It is intended, first, to assist in providing public authorities with a robust standardised baseline of evidence to determine where there is inequality. Its second purpose is to ensure that public authorities report data in a standardised manner, so that citizens, politicians and so on can compare across the board.

Specific duties will undoubtedly require public authorities to report annually on their progress on objectives. We intend that they must also report on the gender pay gap, black and minority ethnic employment rates and disabled employment rates in a standardised manner.

Tim Boswell (Conservative, Daventry)

Will some effort be made by the Government to ensure that a consolidated report is made to the House, with the intention of encouraging an annual debate, whereby we can actually see and hear how we are getting on collectively?

Vera Baird (Labour, Redcar)

That might be a good idea. The commission must produce an annual report in any event, which will feature some of those aspects, so there will be opportunities, I think, for debate. However, so that no one is concerned that the specific duties will be softer than the duty mooted in amendment 21, let me make it clear that, although the general duty requires due regard to be paid to the need to take all the steps in clause 143, the reporting requirements will focus on outcomes. Indeed, one of the main drivers behind the design of the new suite of specific duties was a move away from processes towards outcomes. The EHRC will have the statutory role of enforcing compliance with those duties.

The consultation document is available. I think that I pointed that out when we issued it at the beginning of the Committee. I shall mention some highlights of what we propose, and it should be remembered that this is everyone’s opportunity to say, “This must be tougher. That should be different.” Examples are that public authorities have to develop and publish equalities objectives and set out the steps that they intend to take to achieve them, that they will report annually on progress against their objectives and review the objectives at least every three years, that they will have to show how they have taken into account evidence of the impact on equality of the design of their policy and service delivery initiatives and—this point was raised what seems like eons ago by the hon. Member for Forest of Dean—that Secretaries of State should report on key equality achievements across their policy sectors at least every three years.

The consultation runs until 30 September. It relates to a series of proposals that we believe will show how and what to measure and will make it clear that the process is outcomes-based. The EHRC will do an overall state-of-the-nation report, which will be a macrocosm of all this, at least every three years.

I therefore hope that hon. Members are satisfied that the reporting and monitoring will be good, that the duty does not at all step back from other duties, notably the disability duty, that the application to private businesses delivering public functions is appropriately balanced and that there is no need to add the human rights duty.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was listening carefully and I wondered whether the Solicitor-General addressed the point that I raised. She addressed the issue of disability duties in relation to a point made by the hon. Member for Stroud, but I was not sure whether she identified whether there was indeed full non-regression—if that is not a contradiction in terms—from section 49A of the Disability Discrimination Act 1995, which was a point that I raised on a clause stand part basis.

Vera Baird (Labour, Redcar)

I apologise because I referred only to my hon. Friend the Member for Stroud at the time and not to the contribution from the hon. Member for Oxford, West and Abingdon, but there is no regression.

Tim Boswell (Conservative, Daventry)

This has been a wide-ranging debate, and I am grateful for the contributions made by hon. Members on both sides of the Committee, either in support of my lead amendment or on other matters. It has been right to raise them, and as has been characteristic of the Committee, they have been raised constructively. That is true also in principle of the Solicitor-General’s response. I am particularly grateful to her for the point that she made about the overseas reach of the legislation, which I raised specifically, and for other comments that she made about concerns expressed on both sides of the Committee. What she said was, as ever, courteous—generous, even—well argued and therefore apparently convincing, not least because she appeared, on the merits of the case, to have been somewhat convinced by the substance of the amendment that I had tabled and then proceeded to find good reasons for not adopting it. That is the area where I have some continuing concerns, and I can bring them down to about three.

The first point is that the Equality and Human Rights Commission has in its title two remits, and it seems to me to be not beyond the wit of man, or the ability of the commission to discharge its statutory duties, to deal with issues about equalities reviews and that side of things, while dealing with—to use the language of this field—the strand of human rights. I do not think that it will be confused or that it will be difficult for the commission to comply with that.

My second point for the Solicitor-General concerns the Human Rights Act—as one does, always walking around with a copy in front of one, I happened to have it with me this morning. If we look at section 6, following on to section 7, although she is right that it is unlawful for a public authority to act in a way that is incompatible with the convention, that is in a sense the substance of the argument that we have been putting this morning. There needs to be a proactive element in the forward gear, whereas manifestly what is in the statute is a reactive and responsive one and no more than that. She is absolutely right that woe betide a public authority that takes no notice and says, “Not invented here.” However, there is not the forward gear that we wish to see.

That leads me to my final point. I forget of whom it was said that he was an old man in a hurry, but I think it was probably derogatory.

John Penrose (Conservative, Weston-Super-Mare)

It was Gladstone.

Tim Boswell (Conservative, Daventry)

It was, as my learned Friend reminds me. We shall borrow his party for the purposes of the argument, bearing in mind that he started as a Tory, even if he did not go on with it. We have an opportunity here to take further the concepts of human rights by inserting them into the public sector duty. We have an opportunity. I shall have no further opportunity in this place to take forward the argument. We should seize the opportunity that we have. I sense that we stand on the high ground of the issue. In the light of the Solicitor-General’s response, which, although right up to a point, I did not feel was sufficiently positive, I am minded to press the amendment to a Division.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 249, in clause 143, page 105, line 13, at end insert—

‘(2) Subsection (1)(b) does not apply in so far as it relates to religion or belief.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: amendment 49, in clause 143, page 105, line 32, at end insert—

‘(4A) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves ensuring a proper balance between the rights of persons who share a relevant protected characteristic and the rights of persons who share a different relevant protected characteristic.’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

This is an important group of amendments, dealing with a difficult area. I want to stress from the outset that I am not opposed to the intentions behind extending the public sector equality duty to all strands, including religion and belief. However, there are specific special factors about religion and belief that create drawbacks to so doing. The drawbacks outweigh the advantages, particularly—a point that I have made before and will make again—when taken with the exception allowed in schedule 23, discrimination in the delivery of public services on the basis of religion with very little in the way of any threshold to be met.

I want to make it clear that it is the combination of the two that is the problem. I shall restrict my remarks to two broad concerns—first, the general problems with, versus the advantages of, extending the positive duty to religion and belief, and secondly, and most importantly, the fact that that is being done at the same time that the delivery of public services is being allowed to be done in a discriminatory way on the basis of religion and belief with very little protection or justification.

It is necessary for the Government to reassure us on both of those issues, and for the EHRC to consider whether the combination of the schedule 23 exemption and the positive duty to provide for equality of opportunity will lead to a balkanisation of services where each religion has its own public service delivery. If one religion has its own public service delivery, every other religion might claim that it should have its own bespoke service. I do not see how the issue is not going to put pressure on public authorities to provide in that way; first, because they can, secondly, because they are asked to, and thirdly, because the clause, in combination with schedule 23, allows and invites them to do that.

David Drew (Labour, Stroud)

The hon. Gentleman will have had the same briefing as me from the EHRC, whose strong view is that the issue is not about the promotion of religion or belief, but about protecting people who, because of their religion or belief, may be being discriminated against. Would it not be better to listen to their clear explanation of the clause, rather than try to prove a negative?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Let me reassure the hon. Gentleman by explaining the thrust of my amendment. There are two ways of doing that. If he looks at clause 143(1), he will see that the public sector equality duty has three provisions, the first of which is to

“eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act”.

My colleagues and I have absolutely no objection to extending that to religion and belief. I hope that he accepts that, because it relates to his question. There is no intention to limit or eliminate subsection (1)(a). Indeed, my hon. Friend the Member for Hornsey and Wood Green and I have tabled amendments that seek to ensure that harassment protection in relation to religion and belief goes further, and that children in school, on a narrower definition of harassment, are protected. At the moment, children in school are a vulnerable and captive population who are not protected by harassment provision, so the public sector duty in subsection (1)(a) does not extend to that particular group.

We have also argued that harassment in the delivery of public services on a narrower definition than currently exists should be protected on the basis of religion and belief, which the Government have rejected. It is not these Benches—this Bench, or sub-Bench—that is arguing against extending protection in relation to religion and belief on the basis of eliminating

“discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act”.

In response to the hon. Gentleman, it is the fact that the Government have so far rejected the idea of extending harassment protection that is limiting the application of the public sector duty to people who share the protected characteristic of religion or belief. It is not just us.

Our concerns centre on subsection (1)(b) and we would actually argue for an extension to subsection (1)(a). Again, to reassure the hon. Gentleman and others, we have no intention to limit the application of the public sector equality duty for all the strands, including religion or belief, covered by subsection (1)(c), which states that a public authority must have due regard to the need to

“foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

Our concern specifically relates to subsection (1)(b), which states that a public authority must have due regard to the need to

“advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”.

Amendment 249 is a probing amendment that seeks to remove that limb.

I accept that that may be a clumsy way of making a point, so it might be better to look at clause 143(3), which is the analogous section. It states:

“Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—”.

Subsection (3)(b) then says:

“meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;”.

I have fewer problems with limbs (a) and (c), which describe how the advance equality and opportunity duty is to be implemented. We should be able to find a compromise to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that is connected to that characteristic and, of course, encourage participation, which is limb (c). Many of the examples given in the EHRC briefing can be dealt with by paragraphs (a) and (c) and do not require paragraph (b). Are those needs, referred to in paragraph (b), legitimate? There is no question being asked about what those needs are.

John Mason (Scottish National Party, Glasgow East)

We discussed dictionaries earlier on. I assume that the courts have a definition of “needs”. “Needs” is a strong word. The courts are presumably not going to count any whim as a need. The fact that the word “needs” is in legislation should be sufficient protection.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I agree that the courts would not think that any whim was a need. One could argue that that was covered in the Nadia Eweida case. She was the Christian woman who wanted to wear a cross visibly and said that it was her religious duty. The court judged that there was no such requirement to wear a cross openly in the Christian faith. It was, no doubt, her clear, genuine and sincerely felt wish, but it could not really be ascribed to religious instruction in the Bible. I would, therefore, accept the hon. Gentleman’s point that “needs” is more than any request.

However, there may be needs—genuinely held and doctrinally based needs—that we would still not see as the job of a public sector organisation to meet. Those needs may be something that the community should provide, or individuals should arrange for themselves privately, but they should not intrude on the public sector. A religion may have a need for marriages to be dealt with under Sharia law. That is clearly something that is laid down in their doctrine and I accept that that would be felt to be a genuine need. There is no qualification to that in this duty and I think we will see increasing pressure on public authorities to provide for Sharia solutions in the delivery of public services.

I would be grateful if the hon. Member for Glasgow, East told me how he does not think that the phrasing, with the relatively unqualified reference to needs, protects against that. I see that he is not rising. I am happy for him to deliberate. I did not want to put him on the spot, but if he is willing to rise I would be grateful.

John Mason (Scottish National Party, Glasgow East)

I take the point the hon. Gentleman is making. There can be a conflict, or a clash between different rights, or different needs. I am just questioning the solution. If we take one of the protected characteristics out of the list, does that not then automatically mean that there is a hierarchy and, if religion is taken out of it, it would then be at the bottom?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am interested in the practical consequences of legislation. I am not that interested in allegations of a hierarchy. I was not concerned that disability is at the top of any hierarchy, because there are particular positive duties that have always been placed, rightly, on organisations in respect of reasonable adjustment. Whether the hon. Gentleman describes it as a hierarchy or not, what matters is the outcome and he must accept that our law already provides for differentiation and, essentially, a hierarchy in dealing with religion or belief. One of the key planks of my argument is the way that incitement to hatred legislation, quite clearly and rightly, deals with those matters differently, because the nature of religion and belief is different from some of the other protected characteristics.

Ann Winterton (Conservative, Congleton)

I remind the Committee that with this we are discussing the following: amendment 49, in clause 143, page 105, line 32, at end insert—

‘(4A) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves ensuring a proper balance between the rights of persons who share a relevant protected characteristic and the rights of persons who share a different relevant protected characteristic.’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is a pleasure to welcome you back to the Chair, Lady Winterton.

I had set out why we were particularly concerned to deal, in our amendment, with the quality of opportunity limb of the positive duty and its relation to religion and belief, not limbs 1 and 3 and limbs A and B of subsection (1). I also explained that, even if subsection (1)(b) survived—my probing amendment would delete it—changes to subsection (3) would be needed, because of the concern about how subsection (3)(b) might work in practice in relation to religion and belief. It may not even be necessary to delete that paragraph; it may be necessary only to qualify it in some way to ensure that we gain the intended benefits without the drawbacks.

I was discussing with the hon. Member for Glasgow, East whether “needs” was an objective term. I am concerned that nothing in the structure will require a public authority to judge whether the needs that are cited, which may be genuine from the point of view of the individual or the religious community that claims to have them, are reasonable to meet. Will the Minister clarify whether it is her view that some form of reasonableness test exists in relation to that?

Clearly, having regard to something does not require one to do it, and the public authority may still not consider it reasonable to do. I am concerned that the expectations of individuals who seek to have their needs met may be raised, but that they may not realise that, although public authorities should have regard to something, that wording still allows them to say that, in all circumstances, either it is legitimate for them not to meet those needs or that meeting them would not be the most effective way to deliver services.

Our concerns about this matter are set out by the Equality and Human Rights Commission in its briefing, which seeks to rebut those concerns, and stem to a certain extent from work done and concerns raised by Lord Lester of Herne Hill, who has been engaged in correspondence with the EHRC and has recently published an article, co-authored with Paola Uccellari, in a law journal, setting out his concerns in more detail.

The fundamental questions in relation to the provision are, first, whether there is a judgment about whether the needs are reasonable and, secondly, whether this will lead to a call for and a meeting of the demand for services to be delivered to people on religious grounds. This is different from the other strands, as I was saying when discussing the point with the hon. Member for Glasgow, East, because there are no other grounds on which public services can be delivered, to the same degree, in a discriminatory way. There is no exception in any schedule for services to be delivered on the basis of an ethos specifically to people of one gender, race or form of ability or disability—that is no surprise—but there is a wide exemption in schedule 23 that enables public services to be delivered by organisations of a religious ethos only to users of those services who pass a religious test. That is why, when considering public authorities and public functions, one cannot claim that religion is therefore just like every other strand.

John Mason (Scottish National Party, Glasgow East)

The hon. Gentleman seemed to suggest that no other strand or protected characteristic is allowed special exemption or protection. However, I understand that virtually every strand is. He mentioned disability. Clearly, many organisations, including public authorities, are allowed to favour and help those who are disabled.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was very careful about what I said. I spoke about the structure of the exemption in schedule 23. Of course the Bill allows for services to be provided in specific ways that are appropriate to individual needs. However, schedule 23 is different. The hon. Gentleman must accept that. Paragraph 2(10) states:

“This paragraph does not permit anything which is prohibited by section 27”—

which is about not discriminating in the provision of services—

“so far as relating to sexual orientation,”

but not to religion. That applies to services provided on behalf of a public authority or

“under the terms of a contract between the organisation and the public authority.”

Things are entitled in relation to religion that are not entitled in relation to sexual orientation, which is peculiar.

There is a wide exemption for religion elsewhere in schedule 23, relating to religious ethos. A restriction is permitted

“relating to religion or belief only if it is imposed...because of the purpose of the organisation, or...to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.”

That is a pretty wide provision that is not allowed in respect of any other characteristic—for example, sexual orientation.

Before we broke for lunch, I was about to explain another reason why religion is different. The hon. Member for Glasgow, East said that to exclude religion and belief from part of the positive duty provision would be setting it aside for different treatment from the other strands. However, it is already treated differently by legislation and by the House, which voted to have different approaches for religion and race in respect of incitement to hatred, even though the mischief makers might be similar, because it recognised that religion was different—it relates to belief, which is not as innate a characteristic as the other strands.

Inevitable conflicts arise between different religions because of freedom of speech. That does not exist for the other strands. One person’s strong expression of religious belief is another religion’s blasphemy. Long may that continue. I am a strong believer in the right to religious belief and the right to express religious belief, even if it offends other people. That is the nature of having free speech for religions. However, one cannot say that about any other strand to the same extent. My point is that religion is already recognised to be different. The organisations that have supported the hon. Gentleman’s amendments were on my side of the argument—they may say that I was on their side of the argument—when we debated the need to ensure that incitement to religious hatred was treated differently from the other strands. I stress that there is precedent for this.

The arguments about why there is a problem boil down to four or five areas that I will go through. I will try to deal with the rebuttals that might come. The first problem is that a duty to advance equality of opportunity for religion or belief may inspire and entrench resentment, rather than dispel it, even though that may not be the intention. It will engage public authorities, such as local councils that are already overstretched, in matters that should not concern them and that are a distraction to their main mission. There is a real problem that organisations or individuals of a certain religious belief will seek to say, “Why can’t I have this service delivered to me in the way that I want? You have a duty to do it.” Such cases will occur quite frequently, and the corollary will be absurd calls for local authorities not to engage in Christmas celebrations because they do not advance equality of opportunity across all religions.

Essentially, subsection (3)(b) involves the meeting of needs on an equal basis. The Government may not intend to cover specific and unique support by a public authority for a religious festival such as Christmas, which is the most important festival of the most commonly held religious belief in this country, but that is what may flow from the measure. That already happens, and the danger is it will happen even more.

Another concern is that there will be a blurring of the boundary between needs that are based on holding a religion and needs to implement, or see manifested more widely, the consequences of that religion. For example, public authorities may be asked, regardless of whether it is the intention of the statute, to make extra provision to allow employees to discriminate in line with their religions beliefs on the basis that they have that need. I do not doubt that many religious people genuinely feel that they have a need not to be forced to register gay partnerships. The Minister has been clear—perhaps not as clear as she could be if the measure was set out in statute—that it is unacceptable for an employee of a public authority performing a public duty to discriminate on another ground in the exercise of those public functions. However, there will be calls for that based on the public duty, which would be regrettable given that, even before we have the public duty, there are already those calls that cannot be justified.

Another concern is that organisations and individuals will argue that public authorities need to support their religion in the way in which the state supports the established Church and other Churches more broadly through certain exemptions for places of worship and so forth. If the authorities do not support their religions in cash terms, they will argue that it is not equality of opportunity.

Naturally, many of the views and opinions held by religious people are dictated by religious doctrine, and they relate to areas of public policy. On the basis of public sector duty, does the Minister understand the risk of public authorities being asked to have regard of some religions that do not want to have gambling in the local authority area or sex education in state-run schools?

If evolution is being taught in schools, some may argue that creationism should be taught as well. Again, it is hard to argue that that is a need. Moreover, it is hard to argue that that is not a need that is different from the needs of people who do not share the belief, or the “relevant protected characteristic”. I can see nothing in the provision’s construction that will give an obvious defence to local authorities that will enable them to strike out such a claim at the outset. We need something that can be pointed to in statute that shows that the public authority can say, “No, we are not going to do that. It is not justified.” If we do not have that, the public authority will have to say, “Okay, we will investigate it and see if we can reach a compromise, and we accept that you have a need that is specific to your religion” and more and more claims will be made under the duty.

I should be grateful to the Minister if she told us how a local authority and an education authority will respond to an argument made under subsection (1)(b) and (3)(b) that their need to have creationism taught should be met on the basis of equality of opportunity. We have already debated the fact that people cannot claim discrimination if creationism is not taught in the curriculum, because the curriculum is exempted from such claims. However, I am not talking about that. What comes into play here is the positive duty outside of simply not discriminating

A further concern—my real one—that I hope the Minister will be able to address at some point is that religious organisations funded by public authorities are involved in the provision of public services. We know that such organisations claim that they need to provide services for a particular group of people, which I can accept in principle, or that, because of their ethos, doctrine or the need not to offend people who are of their belief, they want the right to discriminate in the provision of public services on the grounds of religion and belief. That means—and we can see it happening now—that public services are delivered by religious organisations under contract to a public authority to specific religious groups. Such organisations say that they are catering only for those religious groups. I have concerns about that, which I will discuss in relation to schedule 23.

My point is that if we couple that with the right of everyone to have their needs met, what is to stop every religious community saying, “Well, you fund this organisation with cash to provide this service to their people. We think you should provide this service to our people through our organisation.” Again, I cannot see how the local authority will be able to resist that request or, at least, not feel under great pressure to do so and, indeed, to defend itself in court if necessary. Such a measure will have created the start of what I have described as the trend towards the balkanisation of services.

We are asking for some stop on that process—perhaps through some restriction on discrimination on the grounds of religion in respect of the exemption permitted under schedule 23. I say to the hon. Member for Glasgow, East that that would still allow the sort of provision that is already allowed in other areas, but not under such a wide exemption. Alternatively, there should be some stop within the measure that enables public authorities to have due regard to the matter. I know my feelings about the splitting up of public services in that way are shared by many people, especially in the House of Lords.

I have already said that there is a concern that the provision will be misunderstood by religious organisations. They will say, “If there are Christmas celebrations, we should be entitled to our own celebrations funded and backed by the public authority.” I do not think we should go down that path. Perhaps the Minister thinks that that is a path down which we want to go, but sooner or later one has to draw a line.

John Mason (Scottish National Party, Glasgow East)

I am restraining myself from intervening too often, but on that point, is the picture that the hon. Gentleman paints not a little bit away from reality? The reality in Glasgow, with which I am familiar—I believe it is also the case in other cities and boroughs—is that councils support the celebration of religious and other cultural events across the spectrum. They might support a larger group a little bit more, but my experience of local authorities is that they are very good at supporting all sorts of groups in the community. Is that not the way we want to go?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Local authorities do not need legislation of this kind to do that. The provisions might mean that they have a duty—not discretion—to do such things. Every religious group might say, “We have a right to be funded to the same extent as every other religion is funded or supported by you”—by which I mean the public authority. There is no bar to that expectation in the drafting of the provision. I am all in favour of there being discretion, but the duty to have regard to the need to provide equality of opportunity coupled with the fact that public authorities are already funding some religions to do certain things, will lead to more not less religion-specific provision. It will also lead to more divisiveness and more segregation in the delivery of public services. That is not something we should be looking towards.

John Mason (Scottish National Party, Glasgow East)

Again, I wonder about the gap between the theory and the reality. If, for example, a religious group is giving out soup to homeless people at night, it will give it to every single homeless person who is there. It would not know what someone’s religion was, if they had a religion or about any such issues. Surely there is a danger, if we go to the other extreme, of squeezing out all the religious groups that hand out soup, and the people who will suffer are the homeless people who will not get any more soup.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

There is nothing wrong with local authorities giving contracts to religious organisations. My concern is where religious organisations discriminate on the basis of religion or belief. An example is given in the explanatory notes to another part of the Bill. Public funding may be used for adoption agencies, which perform a critical public function. It is the Government’s intention, apparently, to allow adoption agencies to discriminate against people of the wrong religion in deciding who can apply to adopt a baby.

Perhaps Catholic adoption agencies are a particular attraction to prospective Catholic parents. There is nothing wrong with that—indeed, they could market more among those people—but to say, “No Protestants can access services through us” seems to me to be wrong in a public function, whether or not it is funded by the public. It means that a Muslim organisation or Muslim individuals will say, “Wow, there’s a Catholic adoption agency and we can’t apply there. Equality of opportunity means by definition that we should have our own adoption agency, which caters only for us.” Then the Jews might say, “Well, we can’t apply to the Catholic or the Muslim adoption agency. We want our own” and then Protestants will want their own. The only group that would not want their own—although they might be forced to have one—is the atheists.

A balkanisation of services would result, founded on the basis that discrimination is allowed, for no good reason. I do not think the parents’ religion matters, in the end, in terms of whether babies will be well placed with them. I agree that Catholic adoption agencies might encourage Catholic parents to come forward. They might be good at recruiting parents, who are desperately needed; I do not have a problem with that. But to have a blanket ban on people of other religions accessing a public service is unjustified. Coupling that with an equality duty will result in the same thing with every single religious organisation, and only religious organisations. An adoption agency cannot say, “No blacks,” so that balkanisation would never occur in race; it occurs only in religion. The cat is already out of the bag, unless we close it in this clause. I have made that point enough times, so I promise not to return to it.

In the paper provided to hon. Members, the EHRC makes the point that a possible benefit of the public sector equality duty in respect of religion and belief is improved access to health or other public services

“by enhancing responsiveness to religious sensitivities and practices, such as greater consideration of the impact of Ramadan observance in the context of providing health care, support for students and even in terms of adjusting scheduled timetables”.

I have not argued that there is no merit in the proposal whatever; this is just a series of risk-benefit analyses. However, many of the examples given by the EHRC are clearly covered by subsection (3)(a), for example. If my amendment is not made, and an amendment were later made to remove subsection (3)(b), leaving in subsections (1)(b) and (3)(a), any disadvantage suffered by people who cannot access services could be covered. I would be prepared to see it covered; I cannot speak for Lord Lester, who I suspect feels more strongly about the public sector duty as it applies to religion. If a clear disadvantage is suffered by people who share a relevant protected characteristic, the provision can be left in, but that is different from a cited need. That is why many of the EHRC’s examples can be addressed without the need for subsection (3)(b), although I accept that some of them are arguable.

Many of the EHRC’s examples are examples of unjustifiable indirect discrimination. If one criterion for accessing health services in a hospital is wearing a very immodest gown—both women and men are made to wear them, but in this case, it is of concern to Muslim women—and people cannot comply with that criterion because of their religious belief, that is unjustifiable indirect discrimination. Hospitals should provide—many do, and they all ought to—appropriate hospital gowns that do not create such discrimination. I do not believe that it is a question of need as laid out here.

Other examples given by the EHRC involve improving police practice and attitudes across the public sector towards particular religious groups. It is not my view that a public sector equality duty is needed to achieve that, where it is required. That has been happening for a long time, and I do not think that the public sector duty should hinge on whether that is done.

The EHRC gives the example of the provision of women-only gyms, but the Bill already permits women-only gyms or swimming periods to be provided. A public sector equality duty is not required to allow that for, for example, Muslim women. Interestingly, the EHRC cites the Southall Black Sisters in defence of extending the public sector equality duty to religion and belief, but, in fact, that group has written to the discrimination law review consultation strongly opposing extension of the public sector equality duty to religion and belief.

I quote from the organisation Women Against Fundamentalism, which

“is opposed to the extension of the single equality duty to religion and belief. We strongly feel that an extension will not promote equality but will instead reinforce inequality...We would remind the Equalities Office, that the right to manifest one’s religion, unlike the race and gender equality duties, cannot be treated as an absolute duty.”

It says “duty”, but it is a right, of course. Women Against Fundamentalism goes on to state that there is

“an urgent need to address the complications that arise when religious discrimination is treated unproblematically as an ‘equality’ strand. At national and local levels, religious identity politics is being contested by women and others within minority communities, as well as in the wider society in their struggle to be free from racism, gender violence or other oppressive restrictions whose persistence are themselves an indicator of inequality.”

That group has concerns, and I know that the Minister will be aware of other organisations that share them.

Southall Black Sisters wrote to say similar things about its opposition to the provision relating to religion. It stated in its letter of 8 October to the discrimination law review team:

“Our concerns about extending the equality duty to religion and belief stem directly from our day to day casework experience and our struggle to maintain a service for all black and minority women in a context where the politicisation of religion (a deeply reactionary and discriminatory development) worldwide, has resulted in the shrinking of secular spaces—a necessary precondition in our struggle for women’s human rights.”

The letter goes on to explain the background of Southall Black Sisters, which is a respectable organisation. That is why I am not surprised that the EHRC should seek to cite it in support, but, in fact, the group is clear that it is opposed to the duty. It states:

“By seeking to include religion in the promotion of equality, our concern is that the state will be signalling the view that the promotion of equality involves supporting organisations of a particular faith or belief even if they have beliefs that are profoundly exclusionary and discriminatory. By extending the equality duty to cover religion, the state will be implicated in promoting indirect discrimination and inequality and indeed in human rights violations, leading to a watering down of human rights standards where minority communities are concerned.”

I do not say that the group is saying that that applies to all religious organisations or, for example, to Muslim organisations in general, but it is clear that its experience from the work that it does shows that there is a problem. It does not want what it sees as the subjugation of women by some religious organisations to be helped by the state through a public sector duty.

I have raised with the EHRC, as has Lord Lester, a concern about this matter of public policy: religious organisations will say that equality of opportunity means that their need to have creationism taught in schools, or not to have casinos in their area will be supported by an equality duty. For some reason, in its response, the EHRC seems to feel that the concern is about legislation—that there would be a positive duty in legislation to promote equality of opportunity. We are talking about public policy, not legislation.

Finally, I return to the main concern. We must decide, when considering how to proceed carefully and get the balance right, whether we will be a bulwark to the increasing trend, and the fear of an increasing trend, for public services, whether adoption, counselling or hospice services, to be delivered on the basis of one religious group receiving from one provider, and another religious group receiving from another. That trend goes against the rest of the public sector equality duty, which talks about fostering

“good relations between persons who share a relevant protected characteristic and persons who do not share it.”

It is a matter of concern that an attempt to promote equality might lead to greater conflict.

We must be certain that the promotion of equality will not be used by public authorities to suppress free speech. Some people feel very strongly about other people, and that might be because of those other people’s religious views or behaviour. The people who feel strongly are often, though not exclusively, of their own religious view. There is a concern that public authorities will feel pressured to restrict freedom of speech, to meet people’s need not to be attacked—short of unlawful incitement to hatred and violations of the Public Order Act 1986—and will say, “We are not going to allow you to hold your meeting in our hall.”

I should like an assurance from the Minister that, although we might not agree with strongly held religious views being expressed against the followers of other religions, the public sector duty will not be used by public authorities to justify not allowing, for example, a fiery Baptist preacher to preach in strong terms to his followers against followers of other religions, short of breaching laws on incitement to religious hatred. In promoting community cohesion, there is a natural concern to prevent such activity, but we must recognise that the protection of free speech trumps much of that concern when the speech itself is not unlawful. I should be grateful for clarification and support from the Minister on those grounds.

Amendment 297 is about exactly that need to protect free speech when public authorities perform their duties. It is only a probing amendment, but I want reassurance from the Minister that the duty will not be used to undermine the free speech of individuals, whether they are religious or not.

John Mason (Scottish National Party, Glasgow East)

I appreciate the opportunity to speak this afternoon, Lady Winterton. I want to start by touching on the final remarks of the hon. Member for Oxford, West and Abingdon, who painted perhaps a slightly extreme picture of where we are, or where we are going. He used the word “balance”, which was encouraging; we are looking for some kind of balance and compromise. We do not want one group to be dominant over others.

I was interested in the hon. Gentleman’s view that society might be moving more towards religious organisations running things. I had felt that things were the other way round. In Scotland, virtually all the schools were started by Churches and have gradually come to be run by the state and to become more secular. The trend that I and, I think, other religious people perceive is away from religion and towards secularism.

I am happy to welcome the clause and its intentions. The idea of a public sector equality duty is good, and I welcome it on the whole. In the Equality Act 2006 and the 2007 sexual orientation regulations, the Government decided against extending the public duty on the grounds of religion and sexual orientation because of the controversy that it could have caused. The Government wanted to take their time. The question remains: have we got the right balance?

Clearly, some want the duty to do more, and others want it to do less. The BBC and Channel 4, as publicly funded broadcasters, say that they are worried that the duty goes too far and that it might affect their editorial independence. I assume that the Conservative amendments in the next group would address that. The TUC, however, says that the duty does not go far enough and that it should apply to charities. Of course, much of the detail on how the duty will apply is yet to be thrashed out in secondary legislation, which we will come to when we debate clauses 145 to 149.

The Government have taken on a monumental task in trying to square this circle. Amendment 49 goes to the heart of what I have been trying to achieve throughout the Committee, which is a recognition of the need for balance between the various competing rights and the fostering of good relations and mutual respect between people of differing views, rather than one side being given a stick with which to beat the other. I hope that I have found some support for that.

I am also grateful that, although the Minister has not accepted any of my amendments, she has sought to offer reassurance to religious groups that religion does not come bottom of the equality pile. My amendment would make that clear. In fact, it would make it clear that no strand comes bottom of the pile, but that public authorities promoting equality must balance all strands.

Subsection (1)(c) mentions the need to “foster good relations”. I must admit that that is one of the phrases in the clause about which I am most enthusiastic. My amendment would make it clear that fostering good relations involves a

“balance between the rights of persons who share a”

particular

“protected characteristic and the rights of persons who share a different...protected characteristic”.

Clearly, as is now obvious to all, a clash is most likely to arise between rights based on religion and belief and rights based on sexual orientation. Some people feel that one strand dominates another. We have previously talked about the case of Lillian Ladele, the Christian registrar. I understand that since last week, one of Miss Ladele’s colleagues has gone public about the fact that she too has been disciplined and threatened with dismissal by Islington over her conscientious objection to registering same-sex civil partnerships. Supporters and opponents of Miss Ladele both feel that the Employment Appeal Tribunal ruling on her case, which is being appealed, means that every time religion conflicts with sexual orientation, the latter wins. Adam Fuge, a principal at Matthew Arnold & Baldwin solicitors, wrote in Personnel Today magazine in May that the Ladele case means that there is now

“a pecking order of competing equalities”

in which religion often loses out.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the hon. Gentleman not accept that that is a statement that the right not to be discriminated against in the receipt of a public service—on whatever ground, because a religious person could want to racially discriminate—always trumps the right of someone who is delivering the public service to manifest their religious belief in a discriminatory way? That is nothing to do with religion versus sexual orientation; it is to do with the right not to be discriminated against versus the right to discriminate while delivering a public service.

John Mason (Scottish National Party, Glasgow East)

I would word it slightly differently. I suggest that the right not to be discriminated against applies to both the gay couple and the employee. The gay couple have a right to have their relationship registered and the employee has a right not to be discriminated against by their employer. That is what I am trying to raise in the Committee. Ultimately, it is for Parliament to decide how to bring together those two apparently conflicting examples of being discriminated against.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Let us say that there was a registrar with British National party sympathies. Let us suppose that, because of their strongly held beliefs, they did not want to register gay couples. Would it be right for the council to say, “All right, we’ll schedule you something else,” or would the council be right to say, “No. Whatever your views, you have to do your job”?

John Mason (Scottish National Party, Glasgow East)

At the beginning, we discussed the link between sexual orientation and sexual behaviour, and the link between religious belief and religious behaviour. That is what I am discussing now. Clearly, I am not trying to deal with the separate question of what happens when someone is in the BNP and a racist.

Mark Harper (Conservative, Forest of Dean)

Looking at the detail of the hon. Gentleman’s proposals, and thinking back to a debate on a previous clause, I remember that he raised the issue of how, in such a circumstance, the two different sides—employee and management—behave and how they deal with and resolve the clashes of rights. Does he think that a proposal such as his amendment 49 would effectively get those public bodies to think a little harder about how they manage those clashes of rights? Perhaps they would still have the same outcome, but they might get there a little more sensitively and have at least made a better effort at balancing those competing rights.

John Mason (Scottish National Party, Glasgow East)

I appreciate that intervention, because the hon. Gentleman put it very well—getting people to think a bit harder. That is why I was keen to be part of the Committee and to see the provision reflected in the legislation and put into effect by the public bodies concerned.

The lawyer to whom I referred says that although equality laws are supposed to protect religious believers from discrimination, case law has tended to place religion at a disadvantage compared with other protected characteristics. Michael Rubenstein, publisher of Equal Opportunities Review and by no means sympathetic to Miss Ladele’s position, has said that he, too, believes that the Employment Appeal Tribunal ruling is wrong.

The view seems to be that since the law requires public authorities to provide civil partnerships, a registrar who does not feel able to do that should get another job. However, we do not take that view with teachers. Schools are required to provide religious education and, as was mentioned the other day, to provide a daily act of collective worship that is

“wholly or mainly of a broadly Christian character”.

That is a legal requirement placed on a public authority, just as the Civil Partnership Act 2004 is a legal requirement placed on a public authority. Does that mean that all teachers must take part in fulfilling that duty? No.

Sections 59 and 60 of the School Standards and Framework Act 1998 specifically allow a teacher to opt out of providing religious education or participating in collective worship, which is quite right. That is the pluralistic society that I am looking for. The law creates space for atheists and for people of differing religious convictions not to be compelled to take part in promoting things to which they conscientiously object. Why can we not do the same for issues of religious conscience in other settings?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is all backwards. The problem with collective worship and sections 58 to 60 of the School Standards and Framework Act is that they create religious discrimination. My position and that of the Liberal Democrats is consistent: there should not be that religious discrimination. If we did not have the discrimination of forcing people in school, potentially, to deliver a prayer that they did not want to, we would not have to have the exemption. The hon. Gentleman must remember that section 60 of the School Standards and Framework Act allows a state school to sack a maths teacher for not believing in God, if it is a reserved post. I do not think that he can defend that as a paradigm of fairness in religious terms.

John Mason (Scottish National Party, Glasgow East)

On that point, I am perhaps more in agreement with the hon. Gentleman than I usually am. On whether there should be religious worship in schools and his reference to the maths teacher and so on, I broadly agree with him. My point is that in other parts of legislation there is scope for the individual to have a little freedom of manoeuvre—that is what I am asking for here. I am not seeking a “get out of jail free” card, which would make it impossible for a local authority to fulfil its functions, but simply some reasonable accommodation for individuals. The opt-out works well for teachers, and pupils do not suffer. Why could the same not be true for registrars?

My amendment would focus the minds of decision makers in local authorities on the need for such give and take in all their functions. Even if the public sector duty does not apply specifically to employment, it would affect the culture, which the Minister is very keen on doing through the Bill. There is a danger that, without my amendment, the new duty could be used against religion, pushing it further out of the public square. Leaving sexual orientation aside, there are lots of stories about how existing equality requirements are used to remove expressions of religious faith from the public square.

Oxford city council was criticised in November last year for deciding to hold a winter light festival in the city instead of traditional Christmas celebrations. Interestingly, the strongest criticism of the council came from non-Christian religious leaders.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman mentions my constituency, so I rise to support the actions of the Oxford Inspires group. The event was not a substitute for Christmas light celebrations at all. That was a typical myth produced by one of the newspapers, and it has been denied. Everyone in Oxford who is aware of the facts accepts that that was not so. The allegations about Winterval are exactly the sort of thing that we are likely to see if this public sector equality duty is red in tooth and claw regarding religion or belief. We should downplay that aspect in respect of the public functions so that public authorities can get on with delivering what is required, rather than have scare stories about Christmas lights being taken down.

John Mason (Scottish National Party, Glasgow East)

I am happy to accept that the hon. Gentleman’s knowledge of the detailed case is greater than mine. All we are trying to say is that there is a tradition of Christmas and Easter—and Muslim festivals as well—which we are all happy to celebrate or, at the very least, happy to allow other people to celebrate. We do not have to water everything down to a minimalist secular position.

People over-interpret concepts of religious equality as requiring the eradication of religion, especially the traditional religion, which in our case is Christianity. There needs to be a rebalancing of how public authorities handle the different equality streams. Good relations between strands are not possible where religion is ignored. I feel, as do others, that something needs to be done, and where better to start than in this Bill?

Amendment 249 would leave religion out of the public sector duty altogether. If the proposal had been to leave out religion and sexual orientation, that would have had the virtue of avoiding the main clash of rights that I am concerned about. However, leaving out only religion, yet again, relegates religious people. The explanatory wording to the amendment talks about removing the duty

“on public authorities to have regard to promoting equality of opportunity between religious people”,

as if it is just about stopping inter-religious strife, but it is also talking about potential strife between religious people and others. I hope that the Minister will not accept the amendment.

Vera Baird (Labour, Redcar)

Let me speak to Amendment 249, which would provide that public authorities would not be required to have due regard to the need to advance equality of opportunity between people who share a religion or belief, and those who do not share such a religion or belief.

The duty is about getting public authorities to think about whether there is any evidence of individuals suffering disadvantage, and then to think about whether there is anything that they can or should do to tackle that. My hon. Friend the Member for Stroud put his finger on that at the outset. He was right that that is the primary aim.

We have approached this from the position of finding out whether there is any evidence that some people with religious beliefs are suffering disadvantage or have different needs. That is a narrow question, and we think that the answer is yes. Let us take different needs first. Because of their religious beliefs, some members of religious groups might have different needs when it comes to accessing or engaging with public services. For instance, to cite a tried and tested example that nevertheless makes the point, some Muslim women might not feel able to receive medical care, particularly gynaecological care, from a member of the opposite sex. For a primary care trust or a hospital trust not to deliver that service to them would not be discrimination, and would not therefore be dealt with under paragraphs (a) or (c). This is about equality of opportunity. Given that there are poorer ante-natal, post-natal and infant health outcomes for Muslim women now than for anyone else, would one not want the local authority or PCT to acknowledge that need and to ensure that it was met?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the Solicitor-General give way?

Vera Baird (Labour, Redcar)

No, not all. How long have we listened?

There is a similar argument about opening swimming pools to women-only groups—Muslim women, for instance, who would not be happy swimming in scanty swimwear with men around. We would not want a special swimming pool demanded by the Muslims, and then one for the Jews, one for the Catholics and one for the British Humanist Association. Instead, a special time could be designated when women could swim on their own, as often happens now. This requires local authorities, primary care trusts and all public authorities to think about the impact of their policies on people who have religious beliefs. It certainly does not mean separate services on demand, and it is fatuous to suggest that it will lead to balkanisation. Where there is evidence of need, we must ensure that public services are responsive to that need for the benefit of people who use the services. It will not lead to balkanisation, let alone the abolition of Christmas.

The hon. Member for Oxford, West and Abingdon wanted to know whether need involved an objective element. This is very straightforward. The duty is on the public authority, which will have to decide whether there is a need to be met and exercise due regard in making that decision. It will have to behave and determine the issue in an appropriate and proportionate way. Evidence will be required; it will not be possible for some fatuous or supposed religious organisation to suggest that it, too, should have something that other people have without any evidence at all. The hon. Gentleman will say that there must be equal provision for every strand of religion. He says it again and again—and again and again and again. That simply is not the case. We are talking about need. This is not a difficult provision to understand, and I do not know why it causes such a lot of anxiety. However, it does—and has done so about eight times now.

Another aspect to advancing equality opportunity is that of encouraging participation in public life. We want local authorities to think about how they can encourage Muslim women. I think that nine Muslim women are councillors in England and Wales. Local authorities would be encouraged to use the provision to ensure that they brought in more people. If we accepted amendment 249, we would return to a hierarchy of inequality that would bleed into the other limbs. For instance, if the current unfair patchwork of coverage survives, Jews and Sikhs would still be covered under the race strand, whereas Christians, Muslims and humanists would not.

There seems to be a sense among Opposition Members that gay people and religious people hate each other relentlessly all the time, that that happens throughout life, and that every day is full of perpetuated hatred between those groups. That is a wholly unrealistic position. We took a lot of evidence from witnesses from Stonewall, and the hon. Gentleman tried to prod them into saying that there were deficiencies in the Bill and that they were insufficiently protected as gay people. They repudiated that entirely and try as he might—several times—they simply would not have it. Stonewall’s “Living Together” report makes it clear that about 84 per cent. of people of faith do not think that homosexuality is morally unacceptable in all circumstances. Let us be more realistic with our submissions and they might be a bit shorter.

Amendment 49 would make explicit the concept of “due regard” by involving an additional element of ensuring a balance. We think that due regard, which is central to the operation of the duty, is better. It requires the public authority to take into account all relevant factors and arrive at a proportionate decision. Instead of requiring all that, the amendment would turn the process into a simple balancing exercise that we would find unwelcome. Inherent in the concept of advancing good relations is the need to ensure that one part of the community is not unfairly favoured over another. One could not describe a public authority as fostering good relations if it had ridden roughshod in any way over one section of the community and unjustly prioritised another. There is already a concept of balance in the duty, and the legislation does not need this gloss. That would make it a less sophisticated process than the one that we feel is appropriate for all groups. We do not favour the amendment, although we understand why it was tabled.

Amendment 297 would require public authorities not to inhibit free expression when complying with a duty. Subsection (5) is clear about where the duty sits in relation to the law. It does not trump or override the law, but operates within its limits. A public authority will have to obey the law and ensure that it does not infringe the lawful rights of anyone, whether intentionally or otherwise. The Human Rights Act 1998 enshrined the right to freedom of expression in law. Although it is a qualified right, people are free to think and say what they like within the boundaries of the law.

There are powerful reasons why we need these provisions in the Bill. They will form the leverage that we use to transform the culture, and it is a pity that that is not evident to other Committee members.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful for the Minister’s words about amendment 297, in which she gave a clear defence of free speech and explained the duty for public authorities to protect it. That should send a message to universities in particular that no platform policies are acceptable. They should not infringe the right of lawful free speech, even for unpleasant organisations and individuals. That is especially true on campus when whom is deemed to be unacceptable is determined by some kangaroo court on the basis of who the National Union of Students or the local student union thinks should not be allowed to speak. Of course people are allowed to demonstrate. However, public authorities should not be involved in preventing people from speaking. They should allow people to speak, even if the police then listen carefully to what they say.

On amendment 249, I regret that I could not persuade the Minister to address the distinction, if there is one, between “disadvantages” in subsection (3)(a) and “needs” in subsection (3)(b). I accept her example about the importance of access to health services for hard-to-reach groups, some of which may share the protected characteristic of religion or might have poor access because of the manifestation of their religious beliefs. That puts them at a disadvantage and would automatically enable subsection (3)(a) to apply.

Amendment 249 would take out subsection (1)(b), which is the stem for the whole of subsection (3). I accept that it goes wider than just the question of needs. In respect of what a need is when it is not an established disadvantage, the Minister relied on the fact that local authorities and public authorities would have to determine whether there was a need that they ought to meet. As I said, my concern is about the expectation that needs will automatically be met. That causes a reciprocal expectation by public authorities that such needs, however unwarranted or however much they cause inefficiency—or what I have called balkanisation—ought to be met.

The assertion that Opposition Members—whether me or the hon. Member for Glasgow, East—think that there is widespread conflict between gay people and religious people is misplaced and creates a straw man. However, it is true that the nexus between religion and sexual orientation is being tested in case law. Another issue is the ability of employers to restrict the manifestation of religious belief in employment, irrespective of issues of sexual orientation. That is where the case law is. It is not unreasonable when debating the Bill to concentrate on where the problems are and not on where there is broad agreement.

Amendment 249 has not found favour. It might be too wide, so perhaps it would be more appropriate to table a narrower amendment at a later stage. I beg to ask leave to withdraw the amendment.

Schedule 18

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 281, in schedule 18, page 215, line 25, leave out paragraph 1.

Vera Baird (Labour, Redcar)

Let me make it clear that the equality duty will require the vast majority of public authorities to think about how they can advance equality for people of all ages, including children, when designing policies and delivering services. For instance, that might involve ensuring that swimming pools and leisure centres are accessible to children, or considering whether bus services cater adequately for children. Although the prohibition on age discrimination in the provision of goods and services does not cover under-18s, children will still benefit from the proactive duty in clause 143.

However, we do not think that clause 143, in so far as it relates to age, should apply to the exercise of functions relating to education and services to pupils in schools, and accommodation and services in children’s homes. Schools are based on the premise that children need to be treated differently according to their age, ability and aptitude. Advancing equality of opportunity for children of different ages makes much less sense than advancing equality of opportunity for children of different races or sexual orientations, for boys and girls, or for disabled children. That is where the focus should be.

The hon. Lady gave an example involving children’s homes and siblings being split so that a 13-year-old could not go into the children’s home that started at age 14 and a 14-year-old could not stay in a children’s home with a 13-year-old sibling. However, her example makes exactly the opposite point. The arbitrary right to insist on placing a child of inappropriate age in a facility that provides for children of a different age, on the grounds that age inequality provisions apply, is exactly what we want to avoid. We want the child to be put with its sibling if it is good for the child to be with its sibling and the environment is acceptable, and not to be if it is not. That would be a decision taken on the basis of the welfare of the children, not an arbitrary test of age discrimination or advancing equality of opportunity for children of different ages. With great respect, the hon. Lady damages her own argument with that particular example.

Concern has been expressed by the hon. Lady and others that not having an age-related duty for under-18s in schools and children’s homes means that nothing will be done to tackle some older children’s problems accessing child protection services or being safeguarded, but those are functions of a local authority, and the duty applies to local authorities. The examples that I have heard are usually found to relate to functions of local authorities or other bodies, which are all covered. All that the exception covers is the actual environment of the care home or school. I know of no concrete examples so far of any mischief that has arisen from the duty not being in place, so we do not think that we will put it in place—in fact, we are quite sure that we will not.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister for her response. I think that we have a basic disagreement about the benefits of promoting opportunities for different ages and that we will not see eye to eye. I understand some of her rationale, and I will reflect on what she said. For the time being, I beg to ask leave to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 298, in schedule 18, page 215, line 41, leave out

‘, race or religion or belief’

and insert ‘, nationality’.

The amendment probes why the language in this part of the schedule is as it is, even if it is historical. The provision deals with exercising of immigration and nationality functions. Clause 143 will have effect as if subsection (1)(b), which I will not discuss further, did not apply to the protected characteristics of age, race, religion or belief.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I want to probe this part of schedule 2. The amendment has two functions. The first function is to explore why religion and belief are included in the exemption. Perhaps we might disagree for the same reason that we disagreed on the direct discrimination exemption. The Committee will remember that we had a debate about why one needs to keep out religious extremists. One cannot justify doing so simply on the basis of indirect discrimination, given the views that they express. I do not know whether the inclusion of religion and belief mirrors that, or whether there is another reason, such as rules to do with the immigration of imams and so on. It does not seem logical just to exempt religion and belief, since the immigration authorities would have to have a good reason and justification for taking action against someone whose immigration status is threatened because of a particular manifestation of their religion or belief.

The second function is to ask why the provision applies broadly to race, which includes colour, nationality and ethnic origins, and why it does not simply refer to nationality. One can understand why nationality needs to be exempted from a positive duty, since it is exempted, understandably so, from the discrimination legislation. It seems strange that there should not be a positive duty to ensure that immigration services are provided equally on the grounds of colour, given that people of colour—ethnic minorities—may face difficulties in dealing with the immigration service that other people with immigration issues who are white Australians or Americans are not as likely to face. The onus is on the immigration service to have regard to its need to deal with that, so it would be unfortunate if all references to race were taken out of a positive duty in respect of immigration. I would be grateful for the Minister’s clarification of those two separate points.

Vera Baird (Labour, Redcar)

We do not believe that the amendment is helpful. Extending the duty to have due regard to the need to advance equality of opportunity on the grounds of race, religion or belief may not always be compatible with the UK Border Agency’s functions to provide effective immigration control that is consistent with Government policy and with public safety.

The Bill will permit the UKBA to differentiate between people on the grounds of ethnic or national origin, or of religion or belief in particular circumstances. Such circumstances do not occur frequently, but, when they do, it might not always be possible to say that due regard had been taken to the need to advance equality of opportunity. We would not want to open up a new avenue of costly and time-consuming challenges against the Government.

For example, the UKBA has a policy of excluding from the country individuals whose so-called religious beliefs are so extreme that it would not be in the public interest for them to enter or remain. We would not want to open ourselves up to a hopeless challenge from a representative of an extremist group who suggested that, by excluding him, the UKBA was in breach of its obligation to have due regard to the need to advance equality of opportunity. None the less, it is important to make it absolutely clear that immigration policies will continue to respect the fundamental religious freedoms that are protected by the Human Rights Act.

The times when the UKBA would want to differentiate on grounds of ethnic or national origin are even more rare, and there has been no ministerial authorisation under section 19D of the Race Relations Act 1976 that would permit differential treatment on those grounds since 2002, but we cannot rule out a crisis abroad occurring at some stage in the future, when we may need to bring certain groups to this country for protection but not others of the same nationality. In such rare emergency situations, it may not be possible to have due regard to the need to advance equality of opportunity.

The exception is not designed to be a blank cheque to permit the immigration authorities to evade their responsibilities. It is there so that, when necessary, they can exercise their essential functions in these respects without the possibility of a challenge, and to ensure that the important new equality duty that we are creating is not misused and brought into disrepute by those who seek to frustrate the immigration system.

Diane Abbott (Labour, Hackney North and Stoke Newington)

I listened with interest to the Solicitor-General. I do not want to detain the Committee, but I am curious about why we are allowing skin colour, which is part of the race strand, to be a means by which the immigration service may discriminate. The Solicitor-General has not had my experience, but almost every black professional has experience of being singled out by immigration authorities, whether in this country or elsewhere, purely and solely on the grounds of skin colour. When they discover that someone has a British passport or even that they are an elected official, they back off—[Interruption.] Yes, it has happened to me. Black people are singled out because of skin colour. I listened to the Solicitor-General, but she did not explain why the immigration authorities need to be able to discriminate against people on the basis of their skin colour. It causes considerable bad feeling among people who otherwise do not interact with immigration authorities.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Lady makes my only residual point more eloquently from her direct experience than I could have done. I do not know whether the Minister has an answer, but I am not minded to press the amendment. If she does not rise now to respond, will she write to me about it?

Vera Baird (Labour, Redcar)

I am happy to rise. Colour is part of the definition of race. That is all. We do not want to use the power in connection with colour—far from it. All the examples that have been given are appalling and should not occur. I have seen them at airports, but race includes all those characteristics, and there is no fundamental point in seeking to slice out any aspect of the definition. The race exemption has not been used since 2002, and it has not been authorised. It is likely to be used, as I said, when we need in an emergency to take in one group of people and leave out another.

I shall not satisfy the hon. Gentleman or my hon. Friend that we can solve the problem with the Bill, but colour is included because it is a component of race and not because there is any intention of the UK Border Agency discriminating on that basis.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not want to prolong the matter, but the point that the hon. Lady and I are making is that, if there is a way of taking colour out of the exemption, that would put a positive duty on the immigration services to undertake even more training to prevent the incidents that have happened to my constituents who are from ethnic minorities but that do not happen even to overseas nationals who are white. Obviously, there is no point in pursuing the debate now, and we will reflect on what the Solicitor-General said. I beg to ask leave to withdraw the amendment.

Vera Baird (Labour, Redcar)

I beg to move amendment 282, in schedule 18, page 216, line 13, at end insert—

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss Government amendments 283 to 285.

Vera Baird (Labour, Redcar)

The amendments, essentially, will make minor corrections.

Mark Harper (Conservative, Forest of Dean)

I do not want to take too much of the Committee’s time, but I have a few questions. Amendment 282 will insert an exemption for judicial functions. Will the Solicitor-General explain why those functions will be removed en bloc?

What is the logic behind amendment 284, which will remove the exemption for those who take decisions about prosecution—presumably the Director of Public Prosecutions, the Attorney-General, the Solicitor-General and bodies such as Her Majesty’s Revenue and Customs—so they will have to make decisions bearing in mind the public sector equality duty in clause 143. That seems to go in one direction for decisions about prosecutions; but at the same time, there will be a wider exemption for judicial functions and two issues connected with judicial decision making seem to go in opposite directions.

Amendment 282 refers to judicial functions conferred on a person other than a court or tribunal. I just wanted to check that that applied to Ministers when they are making quasi-judicial decisions in their role—for example, when the Secretary of State for Communities and Local Government makes a decision about planning cases, or when other Ministers make similar decisions in that quasi-judicial capacity.

The explanatory notes refer to the UK Border Agency:

“The UK Border Authority, when taking immigration-related decisions, will not need to give due regard to the need to advance equality of opportunity for people of different races, religions beliefs or age.”

However, the agency does have to give due regard

“to the need to advance equality of opportunity for disabled people...for people of all sexual orientations and transsexual people”.

When the UK Border Agency makes a decision, that decision could be appealed at the Asylum and Immigration Tribunal, which is carrying out a function of a judicial nature. Presumably, the AIT is then exempted from the need to apply the public sector equality duty, which is a different test to the one that is being applied by the UK Border Agency. So the measure does not seem to be wholly consistent and could lead to one agency making decisions based on a certain set of criteria, but when it reaches the judicial part of the process, it is effectively exempted from that duty. That could lead to those organisations making different decisions purely based on whether or not the public sector equality duty is applied. It is not a major issue, but there is a potential for conflict. Perhaps the Minister could take us through the logic behind the reason for amendments 282 and 284, because they seem to be going in opposite directions, and address the other two issues that I have raised.

Vera Baird (Labour, Redcar)

The measure does not apply to Ministers. I certainly did not have Ministers in mind. We were thinking about people, such as planning inspectors, who exercise judicial functions but who are not judges as such. It has never been our policy intent to have judicial functions in the Bill.

Tim Boswell (Conservative, Daventry)

I am sorry that I had to leave the Committee for a moment. Just to be clear, is the Solicitor-General saying that Ministers never exercise quasi-judicial functions, that they might do or that, if they do, they are not covered by this kind of provision?

Vera Baird (Labour, Redcar)

Ministers are covered when they make decisions on various kinds of development. I did not have it in mind that the exemption would cover Ministers, but we will write to all parties and clarify that point.

Mark Harper (Conservative, Forest of Dean)

I just want to be clear. Ministers are explicitly set out in schedule 19 as being subject to the public sector equality duty. The example that I gave was in the planning case. The Solicitor-General just confirmed that the exemption would apply to a planning inspector, but the planning inspector will make their report to the Secretary of State, who will then make a decision in a quasi-judicial capacity. As in my example of the UK Border Agency and the Asylum and Immigration Tribunal, different bodies will make decisions. The AIT will operate in a judicial capacity and the Minister in a quasi-judicial capacity, and they will have a different set of duties to the subordinate body. It just seems to be rather messy, and we could end up with some court cases. The Solicitor-General knows how controversial planning decisions can get, so it strikes me that it would be better to be very clear about this. If the planning inspector does not have to follow the public sector equality duty in quasi-judicial cases, neither should the Minister.

Vera Baird (Labour, Redcar)

That sounds like a sensible conclusion to draw from the argument. We will write to the parties on whether Ministers will be exempted when exercising that role. There will not necessarily be an incompatibility between the UK Border Agency, for example, or the police and the judicial functions that follow them. They are different kinds of agency. The UKBA makes a decision that is not part of the judicial function, and if there is an appeal, it goes to a judicial body. Likewise, the police make a decision about whether to charge somebody in a non-judicial way and the matter then goes to court. The judicial function is exempt from the Bill in a way that the police are not. That is not a real issue, but we will write about whether Ministers are quasi-judicial.

I think that the hon. Gentleman was making another substantive point about whether we will go in opposite directions by excluding judicial functions for all purposes and bringing in a prosecution function. We do not think that we are doing that, although it is an oversight that we have not dealt with the matter before. We now wish fully to exclude judicial functions from the duty for all purposes. That is about the exercise of actual judicial functions. The measure is not, for instance, about HM Courts Service, the Ministry of Justice or administrative support to the courts; it is about purely judicial functions. The courts will have to have regard to the equality duty even when carrying out the instructions of a judge, but the judge will not.

On amendment 284, the policy is that the prosecution functions of the Crown Prosecution Service and the Serious Fraud Office should be subject to the requirements of the equality duty in the same way as other functions. They are included in schedule 19, so their decisions to prosecute will be subject to the requirements of the duty. However, paragraph 3(3)(f) of schedule 18 will disapply the equality duty to organisations other than public authorities exercising public functions in respect of decisions on whether to institute criminal proceedings. For safety’s sake, that will have caught any organisation not listed in schedule 19 that from time to time might exercise public functions in respect of decisions on whether to prosecute. We do not think that that is necessary, and we cannot think of any body like that anyway.

Mark Harper (Conservative, Forest of Dean)

If I am clear about the matter, amendment 282 on the wider exclusion of judicial functions will correct an oversight. Amendment 284 will effectively reapply the duty to those who make prosecuting decisions. Is that an oversight or is that changing something because somebody has thought again? Does the measure effectively mean that, in relation to the test already applied by pretty much all of those who make prosecution decisions about the likelihood of success, the public interest test that is already used will be widened to cover the public sector equality duty? I am thinking specifically about the area with which I am most familiar: the CPS’s decision to make prosecuting decisions in cases of hate crime. When making decisions in those cases, will the CPS effectively set the bar lower because of the need to advance equality? I am thinking particularly of hate crimes against disabled people.

Vera Baird (Labour, Redcar)

The CPS already has that duty, of course, because it is already subject to the public sector duties that currently exist. The measure is not a change in policy towards the main prosecuting bodies. Paragraph 3(3)(f) of schedule 18 will disapply the equality duty for a community of people whom we now do not think need the exception at all, because we cannot think who would be involved. The measure will disapply the equality duty for persons who are not public authorities, but who exercise public functions in respect of decisions on whether to institute criminal proceedings. However, we cannot think of a body that is not a public authority that would, none the less, carry out the public function of prosecuting. The measure was left in the Bill when it probably should not have been, but it is not a change of policy. The CPS remains covered; the judiciary for pretty obvious reasons do not. In a nutshell, I hope that that is sufficient to deal with the hon. Gentleman’s concerns.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 300, in schedule 18, page 216, leave out line 25.

Ann Winterton (Conservative, Congleton)

Order. The hon. Gentleman is going slightly astray. This is not about the House of Lords; it is about the Synod.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I will seek to stay in order, Lady Winterton. My point was that without the duty applying to the General Synod, we end up in a situation where our society is male-only in respect of bishops in the House of Lords and heterosexual-only, which raises the question of whether there is a basis for the General Synod’s being exempted from this duty. However, I accept that I have gone wider than that point and I apologise for doing so.

I do not expect much of a reply—just an explanation as to why the General Synod is treated in the same as the House of Commons.

Vera Baird (Labour, Redcar)

Most of the functions of the General Synod are private, so they would not be subject to the requirements of the duty at all. However, it can pass measures that, if approved by each House of Parliament and given Royal Assent, have the same force and effect as Acts of Parliament. So there are sound constitutional reasons why legislative bodies should not be subject to the requirements of the duty. That is why we keep them out of it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I thank the Minister and I beg to ask leave to withdraw the amendment.

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 192, in schedule 18, page 216, line 31, at end insert—

‘(j) persons involved in the commissioning, content and broadcast of programmes.’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss amendment 193, in schedule 18, page 216, line 44, at end insert—

‘(g) a function in connection with the commissioning, content and broadcast of programmes.’.

Mark Harper (Conservative, Forest of Dean)

The amendments relate to whether the Bill will affect those involved in broadcasting. Committee members will have had a brief from the BBC, Channel 4 and S4C outlining their concerns about whether they will be caught under the Bill’s provisions. They have made it clear that they are committed to equality of opportunity and diversity and they recognise that, despite the progress they have made, they need to do more. They also mention the diversity pledge they have made, which is a commitment by broadcasters, independent production companies, in-house producers and suppliers to introduce measurable steps to improve diversity.

BBC, Channel 4 and S4C have said that the Bill aims to streamline the law and strengthen equality legislation, that it talks about the public sector equality duty and that it is about the positive duty to promote equality, which will apply to all their functions, unless some are specifically excluded. They are concerned that the Bill will result in inappropriate interference with their editorial independence, thereby having a negative effect on the range and depth of their programming—from news and current affairs to drama—and limiting their ability to make challenging content. They have made it clear to Government that functions relating to the commissioning, content and broadcasting of programmes and other output should be excluded from the positive duty to promote equality and from the non-discrimination provisions.

Broadly speaking, that is what amendments 192 and 193 would do—at least, I think so. Amendment 192 would amend schedule 18, adding to the list of persons exempted from the public sector equality duty those

“involved in the commissioning, content and broadcast of programmes.”

Amendment 193 would amend the same schedule, adding to the list of functions that are exempted from that duty

“a function in connection with the commissioning, content and broadcast of programmes.”

The three broadcasting organisations have explained why this issue matters. They think that if the Bill applied to their content, they would effectively have complaints brought against their programming via the EHRC. That would create for them what they call double jeopardy, because they think those issues are already dealt with by existing broadcasting regulators: Ofcom and the BBC Trust.

The broadcasting organisations suggested two main types of action that might be brought: an action by a member of the audience who objects to a particular aspect of output as discriminatory; or an action by a person who has a closer relationship with the broadcaster—for example, a participant in a show, the subject of a documentary or an interviewee. Examples they have given in the brief include a claim of race discrimination on the basis that, over a period of time, their dramas featured too few non-white people; a claim that they were showing a film that was thought offensive to a particular group; a claim of sex discrimination on the basis that a programme was degrading to women; and a claim of indirect discrimination, in that output generally contained a disproportionate amount of material offensive to a religious group. They said that some of those complaints would not succeed, but even so, just dealing with them would have an impact on time and resources. They also said that it would have an inevitable chilling effect on the creative process.

The broadcasting organisations made the point that if people do not like the content of their programmes, they can already complain via Ofcom or the BBC Trust, and that in the Communications Act 2003 Parliament decided that the process involving Ofcom or the BBC Trust was best placed to supervise and make judgments about programme content and balance. The organisations want the Government to make it clear that they do not intend that functions relating to the commissioning, content and broadcasting of programmes and other output should be covered by the Bill’s proposed duty to promote equality or its non-discrimination provisions.

I asked the Secretary of State for Culture, Media and Sport what

“discussions he has had with the Minister for Women and Equality on the likely effects of the provisions of the Equality Bill on the commissioning, content and broadcast of television and radio programmes.”

In a written answer that I received on 9 June, he replied:

“Officials from my Department and from the Government Equalities Office have had detailed discussions about any effect that the Equality Bill may have on the commissioning, content and broadcast of television and radio programmes. The Government policy is that the new equality duty should not apply to the commissioning, content and broadcast of programmes.”—[Official Report, 9 June 2009; Vol. 493, c. 824-5W.]

From my point of view, that is a helpful answer. That may be what the Government intend, but I reread the Bill and the schedule, having received that assurance, and I am not entirely clear that the Bill does what Government policy wants it to do. Given that the Secretary of State has set out what Government policy is, is the Minister comfortable that the clause and schedule as drafted adequately deliver that intention? Alternatively, can the Bill be improved, either by my two amendments—accepting that they themselves may be improved—or by tabling alternative Government amendments on Report to ensure that the Bill delivers that policy intention? That is what I am looking for from the Minister.

Tim Boswell (Conservative, Daventry)

I rise briefly in support of my hon. Friend. It is appropriate to remind the Committee that I am a vice-chairman of the all-party BBC group, although that is not material to the comments I shall make.

I want to begin by reinforcing what has already been said. Of course, the BBC, to some extent exceptionally among public service broadcasters, is in effect a taxation authority, through its operation of the licence fee, for a very substantial sum—just under £3 billion annually. Indeed, in our earlier exchanges about Ministers exercising quasi-judicial functions and the Solicitor-General’s assurance that the Government thought they had covered the coterie of potential prosecutors, I was almost tempted to say that the BBC prosecutes for failures to pay the licence fee. It is the nearest to a public sector body that might have been covered by the discussion. Without commenting further, she might reflect on that before she responds. There is no doubt that the BBC, unless and until the arrangements for public service broadcasting are changed—they are controversial, as she will know—has a public function.

My second point—occasionally people can wax lyrical and seek to extend protection into areas where it is not appropriate—is that the BBC is an employer. Many of the functions it discharges are, as I understand it, quite properly within the remit of the Bill. I see the Solicitor-General nodding. I do not have a problem with that, and I understand that the BBC also does not have a problem with it. However, the point that my hon. Friend rightly homed in on—the integrity of editorial independence—is serious because clearly, nobody wants to claim that their editorial independence has been subverted, and provisions are already in place for regulation and receiving complaints. I cannot see a strong case for seeking to intervene in such things through the Bill when provision is made elsewhere.

None of that is to say, and nobody is saying, that the BBC and other media or public service broadcasters are walking away from the discrimination pledge. If I recall correctly, I was there when Mark Thompson, who was then leading Channel 4 rather than the BBC, led on the pledge. It is quite right that we should have it. The issue is simply the form in which any disputes are resolved, and I think my hon. Friend has performed a service to the Committee in the researches he has done, and by receiving assurances from the Department for Culture, Media and Sport. I hope that he will receive assurances from the Solicitor-General now.

Vera Baird (Labour, Redcar)

Our intention is exactly as set out by the Secretary of State for Culture, Media and Sport. We have also written to the director general of the BBC, but let me again make it crystal clear that we have no intention of encroaching on the independence of public service broadcasters. The duty will not apply to the broadcasting and output functions of the public sector—public service broadcasters, whose editorial independence we are committed to retaining.

We will therefore list the BBC, Channel 4 and S4C in schedule 19 when we amend it to put the rest of the list in. When we do so, we will explicitly exclude their broadcast and output functions, which will make the situation clear beyond peradventure. As was said, they need to be in schedule 19 because they have other functions that it is entirely appropriate to cover by the equality duty.

Mark Harper (Conservative, Forest of Dean)

I am grateful to the Minister—that is what I was seeking. She rightly says that the broadcasters do not resile from the fact that the duty should apply to other aspects of their role, such as employment. That is why the amendment was focused specifically on “commissioning, content and broadcast”. Given her assurance about what the Government are going to do to make it explicit that the duty applies to broadcasters in general but not to those particular functions, I beg to ask leave to withdraw the amendment.

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 278, in schedule 18, page 216, line 34, at end insert—

‘(aa) a function in connection with membership of the House of Commons;’.

I hope to make some remarks that might have been included in a stand part debate and to address the exclusion of the House of Commons from the public sector equality duty. My probing amendment would provide a safeguard. It allows me to raise the exclusion of a Member of Parliament who has been sectioned from membership of the House of Commons under section 141 of the Mental Health Act 1983. I tabled a new clause on the matter, but I will not dwell on that because it was not selected for debate.

I want to consider what would happen if the public sector equality duty was applied to membership of the House of Commons. It states that bodies should eliminate discrimination and “advance equality of opportunity” between persons who share a relevant protected characteristic and persons who do not. In relation to membership of the House of Commons, that would mean that Members of Parliament who had mental health problems should be treated in the same way as those who had a physical medical condition, but that simply is not the case at the moment.

If a Member of Parliament has a physical problem that prevents them from carrying out their duties, such as suffering severely from cancer, there is no legal way of excluding them from membership of this House. By and large, satisfactory arrangements have been put in place when Members have been physically unable to participate in their duties, such as Members from neighbouring constituencies taking up constituents’ cases and tabling questions, and their membership of this House has continued. However, the seat of a Member of Parliament who has a mental health problem can be vacated under section 141 of the 1983 Act if they are sectioned for a six-month period and a report is laid before the House. If the public sector equality duty applied to the membership of the House, that would not be allowed to stand.

I think that the Minister was in the Chamber when I raised this issue during last week’s Prime Minister’s Question Time. I mentioned that Alastair Campbell had talked about the specific issue when giving evidence to the Speaker’s Conference on parliamentary representation, which is considering how to make Parliament more representative and diverse. He has great experience of dealing with this issue and he stated that this would be a clear way of changing the law. What he said fits well with the public sector equality duty.

When I asked the Prime Minister whether he would change the provision in the 1983 Act, he said:

“Mental health is a serious problem and we should look at it with great care before we make any decisions, but of course I will look at what the hon. Gentleman says. I think he will understand that it needs the greatest of care.”—[Official Report, 24 June 2009; Vol. 494, c. 793.]

It certainly does. Will the Minister commit to consider this issue with a view to returning to it, preferably with amendments, on Report? It would be better if we dealt with this matter in the House of Commons because that is the body that is affected. However, it would be better to do it in the House of Lords than not do it at all.

The reasons behind the proposal are straightforward. I have never been one for reading out great chunks of “Erskine May” and I will not start now, but I will read a small section:

“Mental illness is a disqualification at common law. There is also, under section 141 of the Mental Health Act 1983...a statutory procedure for vacating the seat of a sitting Member of unsound mind.”

That relates only to those of unsound mind. It does not mention those who are physically ill, and that is the discriminatory nature of the current law. Given the way in which the process works, there is not even a requirement for somebody to assess whether the Member of Parliament is capable of doing their job. If an MP has been authorised to be detained, the Speaker would be notified. If, after six months, the specialists report that the MP is suffering from mental illness, and they are authorised to be detained again, their seat automatically becomes vacant. That seems to be discriminatory, and a number of organisations agree. The Royal College of Psychiatrists thinks that it is a discriminatory provision that gives the false impression that an MP cannot recover from a mental disorder. It also makes the point, which was raised by Alastair Campbell, that the provision has never been used. Nevertheless, it stated that it was

“a totemic piece of law, which ensures that discrimination exists at the heart of our democracy”

and it would like it to be removed.

What would happen if the public sector equality duty applied to the House of Commons specifically with regard to membership? If we think back to one of the previous clauses, we specifically tackled legislation that applied to political candidates, and there are provisions in the Bill for widening the diversity of candidates with regard to gender. If the Bill as a whole were applied to disability, and mental health specifically, that provision would have to go.

The Royal College of Psychiatrists welcomed the fact that I raised that issue last week during Prime Minister’s questions. It said that my amendment to the Equality Bill presented a

“significant opportunity for MPs to demonstrate to the outside world that discrimination against mental health has no place in parliament.”

As I have said, this is a probing amendment and I would like the Minister to take it away, look at it and come back, perhaps with a more elegantly drafted solution. Rethink, a mental health charity, pointed out that there is no such provision for physical illnesses. It said that mental illnesses and physical illnesses were both common and that people could recover from them and lead a full and meaningful life, and so should be treated in exactly the same way. Rethink supports a move to change the law and RADAR, the disability organisation, has welcomed the raising of this issue, as well as the change that would be implemented. There is a clear support for the proposal.

The final piece of evidence that I wish to cite comes from a report on mental health in Parliament carried out by the all-party parliamentary group on mental health. It was based on responses to a questionnaire that was sent out in February 2008 to all MPs in the Commons, all eligible Members of the Lords, and staff members. There were responses from 94 Members of Parliament, 100 Peers and 151 staff members—a pretty good response rate—and there were very clear findings. Of those who responded, 94 per cent. had friends or family who had experienced a mental health problem. That number was significantly higher than that found from a similar poll of the general public. One in five MPs who responded—they did not need to identify themselves—had some personal experience of a mental health problem, and two thirds thought that the fact that an MP would automatically lose their seat if sectioned under the Mental Health Act was wrong.

Ann Winterton (Conservative, Congleton)

Order. I remind the hon. Gentleman that he must stick to the subject of his amendment and not go too wide. I have allowed him some rein, but I must reign him in now.

Mark Harper (Conservative, Forest of Dean)

I am grateful for your guidance, Lady Winterton. I will finish off narrowly.

Those statistics are clear, and I think that people have got the message. This is an opportunity for the Minister to go away and look at this issue—as the Prime Minister promised that he would do last week—and come back to it on Report, if she thinks that there is something worth moving on. That would get support from not only Committee members, but from across the House and from the public.

Tim Boswell (Conservative, Daventry)

I assure the Committee that I do not intend to speak at length. I do not guarantee that I will always support my hon. Friend, but I have great pleasure in doing so on this occasion.

My first recollection of this place is being invited to have lunch here in 1959 by the then Clerk, because of school connections. For the record, he had joined this place in 1924, so the link is a fairly long one. I remember listening to the debate on the Mental Health (Scotland) Bill. I will just make the point to the Solicitor-General that we are not many years out of the world of using “lunatics”, “persons of unsound mind” and all the other deeply derogatory phrases that we were prepared to entertain in legislation, as well as in substance, for our treatment of persons with a mental health problem. As my hon. Friend said under your tutelage, Lady Winterton, the matter has been one of great concern to the all-party group on mental health. It is a matter of record that the problem has been identified as substantial among our numbers as well as in the population more generally.

My basic support for this is on the stigma issue, but my secondary support relates to the question of what will happen in public policy. One danger is that if a Member has a sufficiently serious mental health problem—one that could result in a loss of livelihood, or the threat of a loss of livelihood—they might not seek or take help as they should, thus aggravating their problems, meaning that they are unable to resolve them, whereas they might have been able to do so if they had been attended to in good time.

My third concern is the potential for discrimination, which is more than purely formal. If we understand the importance of attending to physical disabilities—people with physical disabilities have, or should have, opportunities here—we should equally be prepared to deal with mental health issues as well.

My final concern—I look at the Annunciator as I say this—is that the provisions interact with the legislation on parliamentary standards and our conduct that is going through this place. Although I know that the Government, on reflection, have made some concessions on the matter, and I think that we should debate that Bill in its context and this Bill in this context, the Minister might well want to reflect on the fact that there is an interaction with whatever a standards authority might want to say about the fitness of persons to serve in this place and expectations.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend makes a good point. The body that will be set up by the Parliamentary Standards Bill does not yet exist, so clearly it has not been put into this Bill, but it would be interesting for the Minister, when she responds to this debate, to touch on whether the Parliamentary Standards Authority would be captured by the Bill, whether the public sector equality duty would apply to it, and whether that would have any bearing on my hon. Friend’s comments.

Tim Boswell (Conservative, Daventry)

I am grateful to my hon. Friend. My concern is with the individual Member of Parliament and whether they would be disciplinable under the Parliamentary Standards Bill or sanctionable through the mental health provision. However equally, as my hon. Friend said, the Parliamentary Standards Authority will clearly be a public body discharging public functions and will, prima facie, be embraced by this Bill’s obligations, notwithstanding the fact that Parliament is probably seeking to exempt itself. There is a lot to think about. The amendment is looking not for trouble, but for a sensitive and more enlightened approach to how those difficult issues can be resolved.

Vera Baird (Labour, Redcar)

We were trying to work out what amendment 278 was for. Not unsurprisingly, we did not. Although the hon. Member for Forest of Dean clearly pinpoints an issue that looks, on the face of it, like discrimination between one kind of disability and another, that is the law, because Parliament has decided that it is so. The equality duty will operate only within the law, so even if it were applied to Parliament, it would not trump the law and get around section 141 of the 1983 Act. The way to deal with the problem is not to apply the equality duty to something that it cannot reach, but to look at repealing section 141, which others are reflecting on, partly in response to the hon. Gentleman’s question.

Mark Harper (Conservative, Forest of Dean)

To help the Minister, I am aware that that is how to do it. I attempted to draft such a clause, but it was not selected. The amendment was a convoluted way of getting the discussion to happen, which we have managed. That was the objective. I am aware of the appropriate solution, which is working out how to get that into law—changing the law so that that is the objective achieved. We shall not be relying on the public sector equality duty.

Vera Baird (Labour, Redcar)

As I say, other people are thinking about a way forward, now that the issue has been drawn into public focus. I invite the hon. Gentleman to withdraw the amendment on the basis that this is not the right place.

Mark Harper (Conservative, Forest of Dean)

Your admonitions earlier in the debate and my new clause not being selected, Lady Winterton, suggest that the Bill is not the correct vehicle for bringing about that change, despite it promoting equality of opportunity for those with mental health problems and other disabilities. Given the Minister’s assurances, following the issue being raised by me at Prime Minister’s questions and by others a number of times, that other Ministers are looking at it, I am happy for the time being and, therefore, I beg to ask leave to withdraw the amendment.

Schedule 19

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 266, in schedule 19, page 218, line 43, at end insert—

‘The relevant qualifications regulator (The Office of the Qualifications and Examinations Regulator—Ofqual).’.

The reason for the amendment was touched on when we debated clause 91 on qualifications bodies. I went through a number of the arguments then, so I shall not repeat them all here. I gave examples in which disabled people, specifically deaf children, when seeking to take examinations appear to have been discriminated against by examination bodies. I gave some examples in which the examination bodies did not seem to have thought creatively enough, while holding up the standards and rigours of their exams, which is clearly important, about how disabled people could be given the opportunity to demonstrate their talent and ability and to show that they were at the appropriate level of skill. The Solicitor-General rightly responded briefly and made the point that, when we came to schedule 19, we could hit the nail more firmly on the head when talking about the equality duty.

The amendment is about making sure that the qualifications regulator is explicitly mentioned as one of the bodies. I wanted to make sure that the issue was discussed, partly because of the specific cases, but I also remember a discussion that we had much earlier in the Bill concerning which bodies were included. We had a discussion at that point in response to amendments tabled by the hon. Member for Hornsey and Wood Green about regulators—specifically energy regulators. The Minister made the point then that it would not be appropriate to extend that particular duty to the regulators because they did not have the appropriate powers to take those steps.

If the amendment were accepted and the Office of the Qualifications and Examinations Regulator were included, I should like to explore whether it would have the appropriate powers. I think that it would because it is specifically given the power to make decisions about which adjustments should not be considered reasonable, and also about what parts of the qualification of a qualification body are not subject to adjustment.

I have specifically focused on Ofqual in England in the amendment, but there are equivalents in Wales and Scotland that I have not specifically mentioned Those regulators have powers over qualification bodies about what adjustments are reasonable or are not reasonable and, by implication, what is reasonable. They also have powers about what parts of their qualifications are not subject to adjustments and, by implication, which are.

The measure takes some decisions about competence standards and reasonable adjustments away from courts and gives it to the regulator. In this particular case, the regulator has some powers and abilities to take steps to insist that qualification awarding bodies behave in a particular way. The powers piece is made clear.

I laid out some specific examples when we debated clause 91. That can be found in the report of our proceedings in Hansard, so I shall not repeat those and I think that the Minister can remember one or two of them. My amendment seeks to find out whether she thinks that explicitly putting the qualifications regulator in the schedule would be useful and help to deal with some of the cases that I mentioned. If she does not want to accept my amendment, what alternative solution does she propose in order to deal with those examples of discrimination that I have highlighted under clause 91?

Vera Baird (Labour, Redcar)

I completely agree that Ofqual should be subject to the equality duty—it has all the roles that the hon. Gentleman has outlined. The Qualification and Curriculum Authority is subject to an existing equality duty. He has spoken about his concerns that qualification bodies need to do more to meet the needs of disabled people. We think that by showing that Ofqual is subject to that duty it will need to think more creatively about how it works with the disabled.

The specific duties consultation document proposes a duty to involve people from the protected groups, including the disabled, when drawing up policies and taking decisions. That duty will be highly relevant to engaging Ofqual in using more imaginative ways to ensure that the disabled do not suffer in their attempts to learn. There is a “but”, which concerns the peculiar state of Ofqual.

It would be useful to mention the way that we have approached schedule 19. I have already alluded to that, but I shall now do it at the right place. Ofqual exists, but only on an interim basis. The Apprenticeships, Skills, Children and Learning Bill, which is in the Lords, will put Ofqual on a statutory basis and we will put Ofqual into schedule 19 when it has that status.

As I have already said, we have a core of about 90 per cent. of public authorities already in schedule 19. However, we are talking to a number of other bodies that we think should be included in the schedule. We will update the schedule through secondary legislation before the new duty comes in, in 2011, so that there is no gap in coverage.

That is the same process that was used to build up the list of bodies subject to the race duty. I have already referred my hon. Friend the Member for Stroud, who is not in his place, to that sizeable list and we are following that precedent. It allows us to have informed discussions with those we want to list. Public authorities need to let us know their views on whether they should be subject to the duty, but they need to know what the general duty is. Therefore, we have put it out publicly and we will engage with them now that they know what being a public authority will involve. We would like to deal with Ofqual at the same time, but we will definitely put it in schedule 19.

Mark Harper (Conservative, Forest of Dean)

I am grateful for the Minister’s assurance. I recognised the point about the status of Ofqual, which is why I tabled the amendment to test it, but she has confirmed that once it has become a statutory body—once the other Bill has passed through Parliament—it will be included. That is what I was seeking to do. I beg to ask leave to withdraw the amendment.

Clause 145

John Mason (Scottish National Party, Glasgow East)

With your indulgence, Lady Winterton, I should like briefly to comment on clauses 145 to 149. The Government appear to be aiming to create wide-ranging order-making powers for themselves to fill in the gaps in the public sector duty. Clauses 145 and 146 create powers to specify—

Ann Winterton (Conservative, Congleton)

Order. I wonder whether the hon. Gentleman would concentrate on clause 145, which is what we are debating at the moment.

John Mason (Scottish National Party, Glasgow East)

I shall make a few comments on that clause that will apply more widely to the other clauses, but I shall not repeat it each time. Creating the powers to specify which public authorities the duty will apply to is too important to be left to secondary legislation. I should be interested to hear the Minister say why, after 10 years or so of preparation, the Government have not been able to include more detail in the Bill.

Vera Baird (Labour, Redcar)

The clause is needed to allow us to amend schedule 19 in the way that I have just described, and we intend to amend it. We have published what the general duty will involve, with the intention of extending the reach of schedule 19 to other bodies that we think should be in it, but we did not feel that it was right to do that until we had finalised the general duty. Now that duty is in the public domain we can enter into those conversations, but we need a power to add provisions, as necessary, to the schedule.

Clause 147

John Penrose (Conservative, Weston-Super-Mare)

I beg to move amendment 22, in clause 147, page 108, line 27, at end insert—

‘(5) Before regulations are made under this section, there must be laid before both Houses of Parliament—

(a) draft regulations, and

(b) evidence that the regulations will enable the better performance by public authorities of the duty imposed by subsection (1).’.

Amendment 22 is rather similar to amendment 21 on clause 143, which we discussed earlier, as Committee members can tell from the sequential numbering. The amendment would ensure that the Government are producing plenty of proof and evidence about the effectiveness of the public sector equality duty, both for current consumption and to ensure that we have an evidence base to see how well the duty is working and whether it can be made to work more effectively and efficiently in future.

Clause 147 allows a Minister of the Crown to impose additional duties on a public authority specified in part 1 of schedule 19 for the purposes of enabling a better performance by the authority of that duty. The amendment is duplicating the questions that we were asking with amendment 21 to clause 143. Since the Minister has already given a fairly full answer to that previous amendment I will not ask her to repeat it, but I should like her to clarify what she believes is the scope of the powers that could be required under the clause, where the edges of those powers would be and what she feels would be the maximum scope that could be applied and, therefore, the extent of the evidence that might be required, which I hope that the Government will produce in any case, bearing in mind the response that the Minister has already given to the Committee on amendment 21. I hope that she can clarify the matter and help us.

Vera Baird (Labour, Redcar)

The amendment would have an interesting effect. Regulations can be made under the clause by the Welsh and Scottish Ministers, too. I am sure that the hon. Member for Weston-super-Mare did not mean it, but the amendment would require Scottish Ministers as well as Welsh Ministers to lay before the Westminster Parliament any regulations that they intend to make before imposing specific duties on public bodies. My note drafter has described that as not showing sufficient respect for the devolution settlement.

To get to the point, the power under the clause to impose specific duties is subject to affirmative procedure in Parliament under clause 195(4) and (5). Draft regulations will have to be laid before the imposition of specific duties, and they will be debated. The amendment would add nothing to that. Evidence will be tested in debate and we are consulting, as the hon. Gentleman knows, on our proposals for specific duties, some of which I recited this morning. We have published the independent research that we commissioned to inform those proposals and, when we have finished consulting on the plans, backed up by that research, we will consult again on the draft regulations and also consult the EHRC since it will have to implement and police everything that is introduced. The combination of all that consultation, which the hon. Gentleman is welcome to join, with the affirmative procedure in Parliament is probably sufficient, and I invite him to withdraw the amendment, especially as it would have a funny effect on Wales and Scotland.

John Penrose (Conservative, Weston-Super-Mare)

Perish the thought that the amendment would unintentionally have a funny effect on Wales and Scotland. I thank the Solicitor-General for her helpful drafting hints and, given what she said and the remarks she made about the earlier amendment to clause 143, I beg to ask leave to withdraw the amendment.

Clause 148

Mark Harper (Conservative, Forest of Dean)

I have some brief questions, one of which caught my eye mainly because the geographical location of my constituency, the Forest of Dean, is on the border between England and Wales. I do not know whether it is relevant, hence my wanting to test it, but I want to know exactly what is meant by the provision. The clause refers to part 4 of schedule 19, so I looked at the schedule, but there is not yet a part 4. I presume that it will contain reference to the cross-border authorities. I was not entirely certain what sort of bodies they will be.

My constituency has many issues with public bodies and matters that have been devolved to the Welsh Assembly Government, but are also exercised in England. Such functions do not work well across borders: NHS functions, public transport functions, and in particular concessionary fares. Furthermore, clashes can occur with different rules in respect of education, particularly on transport to education facilities, which is important in a rural area.

I am not entirely certain whether current cross-border authorities would be captured by the clause.

John Penrose (Conservative, Weston-Super-Mare)

Like my hon. Friend, my constituency shares a border with Wales, albeit through the middle of the Bristol channel. Will the Solicitor-General explain, for example, whether an authority in charge of both constructing and managing a future Severn barrage, reaching from one side of the Severn to the other, would be included in that classification of authorities and qualify under the rules?

Mark Harper (Conservative, Forest of Dean)

My hon. Friend makes a good point. That would be a classic case of an undertaking that could cost a significant amount of money, and it would need statutory authority. One part would be in England and one would be in Wales, so there would have to be a fair bit of co-operation between the UK Government and the Welsh Assembly Government. Any legal jurisdiction or body that was created to bring that about would have a cross-border function. It might well be the kind of thing envisaged under the clause.

Will the Minister tell us whether we have any cross-border authorities already? If we do, could we have some examples? If we do not, what kinds of things are Ministers talking and thinking about? Constituencies like mine on the English-Welsh border and those on the English-Scottish border have specific concerns about any possible impact. I am thinking particularly about how those authorities would treat people who live on the other side of the border. I will give just one example so as not to test the patience of the Committee. My example relates to the national health service.

I have a number of constituents who live in England and whose GP is physically based in Wales, although some are physically based in England but registered in Wales, so they are regulated under the jurisdiction of the Welsh Assembly Government. That has consequences for their access to secondary health care and the screening regimes undertaken by the health service. Constituents who live and vote in England, and who ultimately decide on the policies of the UK Government on the NHS in England, are treated differently from constituents who live elsewhere in my constituency but whose GPs are not registered in Wales. Clearly, that has an impact on the public sector equality duty and the bodies making decisions about how they treat people and whether decisions should be based on geography—where they live or where their GP is registered. There are clearly policy implications and that is why I am trying to get a handle on which kinds of bodies are affected. If we are talking about bodies that are not necessarily called “cross-border” but that have some kind of cross-border impact on the policy functions that they exercise, whether in health, education or transport, that might bring them into part 4.

Finally, does being in part 4 and being a cross-border authority make any difference to how the duties are applied? Again, what I am driving at is: how will people from different sides of the border be treated?

Vera Baird (Labour, Redcar)

First, on the absence of part 4 of schedule 19, it will be created under clause 145(6) the first time a cross-border authority is added to schedule 19. Subordinate legislation to the Scotland Act 1998 contains a list of Scottish cross-border bodies, so that they are easily identifiable. They include British Waterways, the British Wool Marketing Board, the Criminal Injuries Compensation Authority and its appeals panel, and more. However, there is not an equivalent list for Welsh cross-border bodies, so we need to develop a different approach. Not only do we have no schedule; we have nothing about Wales to put in it right now, but we are working on that.

The cross-border authorities are public bodies that have a mixture of devolved and reserved functions, which operate in more than one nation. They have to be treated as a separate category of public authority, distinct from Scottish, Welsh or English bodies. Because they have devolved as well as reserved functions, we need to say who has the power to impose specific duties on them. It is intended that that will be done case by case.

Mark Harper (Conservative, Forest of Dean)

For the avoidance of doubt, is the Solicitor-General saying that there are two tests, both with reserved and devolved elements, operating in the two jurisdictions, and that my example of an NHS body in Wales may affect constituents who live in England and Wales, but because it is a wholly devolved power, it would not be captured by the provision for cross-border authorities? I think that that is what she said.

Vera Baird (Labour, Redcar)

Inspiration tells me that we should look at clause 151, which refers to a relevant Welsh authority, whose functions

“are exercisable only in or as regards Wales, and...wholly or mainly devolved Welsh functions”

and a cross-border Welsh authority, which is not one of the above and has functions that are exercisable

“in or as regards Wales, and...is a devolved Welsh function.”

That seems to suggest that being a devolved Welsh function makes something into a cross-border Welsh authority, if indeed it is cross-border, because that is presumably a key requirement.

Mark Harper (Conservative, Forest of Dean)

That is helpful, but not necessarily to the Minister. Subsection (2) says:

“A relevant Welsh authority”—

so that is not a cross-border authority—

“is a person whose functions—

(a) are exercisable only in or as regards Wales, and

(b) are wholly or mainly devolved Welsh functions.”

That sounds like the NHS bodies in Wales that deal with wholly or mainly devolved Welsh functions, but it depends on the interpretation of being

“exercisable only in or as regards Wales”.

Around 6,500 of my constituents are in England and registered with a GP who is not necessarily in Wales, but may be in England, and if they are part of a bigger practice they may be registered in Wales. It sounds as though those functions and their impact are exercisable not only in Wales, but stretch across the border into England and affect a significant number of people. Such a body would not then count as a Welsh authority but would fall into the definition of a cross-border Welsh authority because it had a function that was exercisable

“in or as regards Wales”

and was devolved. It would not fall into the definition of a Welsh authority, which would put it in the cross-border category. If my interpretation is correct, how does the duty apply to a cross-border authority?

Vera Baird (Labour, Redcar)

There is a provision covering Scottish cross-border authorities, but I shall concentrate on Wales. In Scotland, the power to impose specific duties is split between the UK and Scottish Ministers, but Wales, for the reasons that the hon. Gentleman gave, requires a more nuanced approach to fit the different devolution settlement. The provision is about who imposes specific duties, and for some cross-border authorities we will split the power between UK and Welsh Ministers. That is procedure A. For other bodies that have only minimal devolved functions or whose administrative set-up means that it is hard to distinguish between devolved and reserved functions, UK Ministers will impose specific duties on all their functions, but they will consult with the Welsh. It is a question of degree.

The definition of a “relevant Welsh authority” in clause 151 means that some bodies will have mostly devolved functions, but a few reserved functions. In such cases, we contend that Welsh Ministers can impose the specific duties. It is a question of balance and nuance.

Mark Harper (Conservative, Forest of Dean)

Taking my specific example, if it were decided that because the NHS body had a significant reach across the border, and it was therefore a cross-border authority, both Welsh Assembly Ministers and UK Health Ministers would have an impact. If that is the interpretation, I am pleased, because I do not seek to undo the devolution settlement and have UK Ministers telling the Welsh what to do. But if the Welsh Assembly Government are responsible for a significant amount of policy with regard to the NHS that affects my constituents, there needs to be some democratic input into that process. If UK Ministers have none at all, my constituents will be being affected by policies of a Government over whom they have no democratic control at all. What the Minister is saying is therefore very helpful.

Vera Baird (Labour, Redcar)

That is what I am saying and I am glad that the hon. Gentleman is satisfied with it. We think that we have been both pragmatic and even-handed.

Clause 151

Vera Baird (Labour, Redcar)

I beg to move amendment 84, in clause 151, page 111, line 8, after ‘person’, insert

‘other than the Assembly Commission’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss Government amendments 85 and 86.

Vera Baird (Labour, Redcar)

The Government amendments ensure that a Minister of the Crown is the only person able to impose specific duties on the National Assembly for Wales Commission. That is at the request of the commission and is consistent with the position for the equivalent Scottish body—the Scottish Parliamentary Corporate Body. From a constitutional point of view, it would not be appropriate for the Scottish or Welsh Ministers to impose specific duties, as members of the Executive, on parts of the legislature, so those specific duties can come only from a Minister of the Crown.

Clause 152

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 303, in clause 152, page 112, line 19, after ‘needs’, insert

‘to the extent that it is reasonable to meet them’.

Vera Baird (Labour, Redcar)

I appreciate that we would not want the provisions allowing positive action to be misused in any way that could be considered unreasonable, but we think that there are sufficient protections within the four corners of the clause itself.

Clause 152(1) requires that a person who intends to take positive action reasonably thinks that people within his remit

“who share a protected characteristic suffer a disadvantage”

or

“who share a protected characteristic have needs that are different”

or that participation is disproportionately low because of a protected characteristic. There has to be a reasonable point of view in the first place, before any positive action even comes on to the scene. That is an important protection.

There is also clause 152(2), to which the hon. Lady referred, which requires the action to be taken to be a proportionate means of achieving the aims set out in paragraphs (a), (b) and (c). She is mostly concerned with “meeting those needs”. Again, this is about balance and appropriateness. Even if it were possible for a person to use the provision to meet unreasonable needs, the steps to meet their demands would have to be proportionate, so it is difficult to see what good the provision would be to them.

The clause includes a power to make regulations to set out action that would not be permitted, so there is a power if there were ever something capable of being envisaged in advance that we would want to exclude on an unreasonableness basis. Always, when looking at positive action, the EHCR is committed to issuing clear guidance. In this case, since this is a new power, guidance probably ought to include examples of the kind of needs for which protection is intended.

I hope that the hon. Lady is satisfied that those two distinct sets of phraseology within the four corners of the clause will fit the need to ensure that the protection is not abused, and we expect good guidance from the commission.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister for that helpful explanation. There are indeed enough safeguards in place. With those words on the record, it is clear that unreasonable needs would not be permitted. I beg to ask leave to withdraw the amendment.

Mark Harper (Conservative, Forest of Dean)

I do not want to speak terribly long on clause stand part, but, before we move on to clause 153, I would like to draw some distinctions, and invite the Minister to do so as well, and set out just what is and what is not included in positive action. Having read the clause, I am happy to support it, because positive action is distinct from positive discrimination—I think Members have said that—which I would not be in favour of.

The Committee must be careful to be clear about what we mean. On one or two previous clauses, there has been some confusion in language when people have said “positive discrimination” when what they meant was positive action. The two are distinct.

I can give an example of positive action. Perhaps a particular group is under-represented in someone’s work force. The employer might decide to advertise in a particular publication that was read by many in that group, or, if they were going out and physically recruiting, they might decide to target particular geographic areas to try to increase the number of people who apply for a job in their organisation. That is a positive step to try to widen diversity, but, crucially, it is not discriminating against anybody else. It is not stopping anybody else from applying for a role and, assuming that the organisation is advertising in other publications as well, it is not prohibiting or disadvantaging anybody. It is simply trying to widen the pool. Positive discrimination would be where an organisation was trying to widen its diversity, but it was doing so by specifically discriminating. I will cite a specific example from my own constituency when we come to clause 153. It is worth clarifying this matter so that people outside are clear what this provision permits them to do and what it does not.

The Law Society, which provided us with a brief on clause 152, specifically says that

“the current positive action provisions in current legislation can be confusing for employers.”

Presumably, if they are confusing for the Law Society, which should understand this stuff very well, they will be confusing for pretty much everybody else. It makes the point that it uses existing usual targeting measures. It says:

“Broadening the circumstances in which an employer can draw attention to an imbalance in an advertisement might be helpful.”

Again, an organisation will not say that people from another group should not apply or that it is biased in favour of a particular group. It will simply be saying that in its work force, there are groups that are under-represented and it may encourage people who share that protected characteristic to apply. As long as it does not discriminate against people who do not have that protected characteristic, I see nothing harmful in doing that at all, and this particular clause is welcomed by the Law Society.

For the avoidance of doubt and to stop those who like to misuse and misrepresent such provisions, it would be helpful if the Minister could outline what the Government mean by the clause and what they do not mean. That would benefit both the Committee and those outside who are listening to our proceedings.

Vera Baird (Labour, Redcar)

I am glad to have a welcome from the hon. Gentleman. The measure is not a wholly new concept. Provisions on positive action already exist within the Sex Discrimination Act 1975 and the Race Relations Act 1976, and the clause is an extension of that. Positive action provisions can apply in different ways to different characteristics. They can even apply to some and not to others. We now intend to regularise them and to make a platform for all of the strands. The first thing that the clause does is establish a permissive framework under which forms of positive action can be taken. Any use of such provisions will be entirely voluntary. There is no requirement for them to be used by specific individuals or organisations. Although they are voluntary, lots of UK businesses have recognised the benefits of using positive action to create a more diverse work force, to better understand customers’ needs and to attract new business. Therefore, the provisions will be used, but it is important to emphasise that they are totally voluntary.

The second characteristic is that it is not, as the hon. Gentleman has said, positive discrimination. Positive discrimination would favour a person from a particular under-represented or disadvantaged group solely because they come from that particular group irrespective of merit. In the main, positive discrimination is unlawful in the UK. Therefore this is not positive discrimination. We are not talking about favouring somebody just because they come from a particular group. The provisions are about ensuring that people’s needs are met, that they have equal opportunities and that they are not held back because of a particular characteristic.

The clause will have effect in cases in which it is reasonable to consider that those with a protected characteristic suffer a disadvantage that is linked to that characteristic, that those who share the characteristic are under-represented in some way, or that those who share the characteristic have particular needs not shared by those without the characteristic in question. In any such situation, the clause will enable organisations, public authorities, employers and service providers to take a wide range of positive action measures to address the disadvantage, and to increase the participation of people with that characteristic. Moreover, any action must be a proportionate way of accomplishing the intended outcome. I am referring to specific training opportunities, targeted health services to address particular needs and providing lessons exclusively for disadvantaged pupils. We want to ensure the appropriate use—we have just canvassed this—of the positive action measures.

The clause contains a power to make regulations to set out what would not be permitted under it. It ensures that any act that would be unlawful under any other legislation will not be permitted by it. It also provides that if positive action measures are taken under clause 99, which is about the selection of candidates and clause 153(3) regarding recruitment or promotion, which we will come on to in a minute, those provisions will apply, rather than clause 152.

In addition, should the provision allowing registered political parties the use of single sex shortlists in selecting election candidates, which clause 99(7) deals with, be repealed, the clause will not allow the use of similar measures to be taken—I emphasise that point, and it is only what is permitted within the law. Where there is a specific provision to cover a specific kind of positive action, that is the provision that will prevail, not clause 152.

Clause 153

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 29, in clause 153, page 113, line 2, leave out ‘reasonably thinks’ and insert ‘can demonstrate’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following: amendment 23, in clause 153, page 113, line 16, leave out ‘as qualified as’ and insert ‘equally qualified to’.

Amendment 31, in clause 191, page 136, line 4, leave out ‘thinks’ and insert ‘can demonstrate’.

Amendment 32, in clause 191, page 136, line 9, leave out ‘thinks’ and insert ‘can demonstrate’.

Amendment 33, in clause 191, page 136, line 16, leave out ‘thinks’ and insert ‘can demonstrate’.

Amendment 34, in clause 191, page 136, line 23, leave out ‘thinks’ and insert ‘can demonstrate’.

Mark Harper (Conservative, Forest of Dean)

The clause specifically looks at recruitment and promotion regarding positive action. My amendments may be broken down into three groups. The first consists of amendment 29. Currently, subsection (1) refers to the way that a person can use the clause. I object to the words “reasonably thinks”, preferring “can demonstrate”, just to get rid of the “thinks” part, and make the definition slightly less subjective. That is the first amendment, which is a relatively small one, and I do not want to make a huge deal about it.

The amendments in the next group are similar, as they have the “thinks” word in them, which is why they have been grouped together. They would amend clause 191, which refers to “the Minister” rather than “Person (P)”. I will deal with those at the end of my remarks, because they are not talking about positive action—they have been grouped with it because they use the same concept.

The crux of my argument on the clause is on amendment 23. It would amend the clause by replacing the words “as qualified as” with “equally qualified to”. It may sound a small change, but it is significant in respect of how the clause would operate. The amendment would change it from a way that my party and I do not find acceptable to a way that we would.

It would also mean that the Bill will be in line with the explanatory notes, which talk about candidates being “equally qualified”. It is my contention that that does not mean the same as “as qualified as”. “Equally qualified” implies that the candidates are equal in every material way pertaining to that particular job, either as a new recruit or as a promotion. This is the argument that has been used by both Ministers and the EHRC: where we would usually have two equally qualified candidates—the larger the number of candidates, the less likely, I suspect, that they would be equally qualified—the clause would be used as a tie-breaker.

An example commonly used by the EHRC, us and Ministers is that of a primary school in which all the staff are female and there are no male role models for the pupils. Let us say that the head teacher has a vacancy for a new teacher and there are two candidates equally qualified in terms of teaching ability and how they would fit into the school; in all ways they are the same, but one is a man and one is a woman. The contention is that the clause would enable the head teacher to say that there are some good reasons why it would be good to have a more diverse work force and to have a male role model in the school. Therefore, because the two candidates are equally qualified and capable of doing the job, the head teacher would prefer the male candidate in order to have a more diverse work force. In those limited circumstances, in which there are two equally qualified candidates, we would be content with that.

If two equally qualified candidates are genuinely equal—and there is only one job—there has to be some way of making a hiring decision. Widening the diversity of the work force seems to be as good a reason as any. Alternative ways of making the decision would be completely subjective, for example by asking, “Do I like them?”, “Who do I like best?”, “Who would I get on with best?”. I suspect that that is how a lot of hiring decisions are made. In the limited circumstances I have mentioned, widening the diversity of the work force seems as good a way to make the decision as any.

The problem with how the clause is currently drafted is that the use of the words “as qualified as” does not have the same meaning at all for me. Those words seems to set a bar or hurdle and indicate that there are a certain set of qualifications or characteristics that are needed for the job and that, as long as someone gets over that bar or requirement, they are equally qualified to do the job and to be recruited or promoted as any other candidate. That leads to a problem, because if someone is in that situation and they have a significant number of candidates, we will start to get what is effectively positive discrimination, which I do not think we want.

I hope that I am not talking out of turn here, but I have discussed the matter with the chairman of the EHRC, who conceded that it was unlikely there would be equally qualified candidates applying for a role. He agreed with my characterisation that “as qualified as” would put candidates within a band of capability. He suggested that as long as the difference between the candidates was fairly narrow, the diversity measure could be allowed to kick in. The danger in relation to that is where to stop.

The heart of the matter is if there are two equally qualified candidates and one or the other gets the job, it does not cause too many problems. However, a situation might arise in which candidates are qualified for the job and able to meet the criteria, but there is a big difference between some of them and a number of the candidates are much better. Let us say that those who are better happen to be men and that although there are female candidates who are qualified to do the job, they are not as qualified as the male candidates. If the work force is largely male, the employer might decide to hire or promote the female candidate. It seems likely that that would stir resentment because weaker candidates are being preferred purely because of their gender. That is certainly not helpful to the cause of equality. That would give equality a bad name and damage the idea of fairness. It could lead to what the hon. Member for Oxford, West and Abingdon suggested in relation to a different matter, with people not thinking that this sort of thing applies to them.

I have a specific example for the Minister of such a situation being damaging. In my county, back in 2006, the Gloucestershire constabulary admitted breaking the law because it had a policy of deselecting potential recruits because of their colour. It was trying to advance the diversity of its work force, mainly to meet a Government target for ethnic minority recruits, so that the percentage in the force matched exactly the percentage in the county. The reason why I am aware of it is that it affected one of my constituents, who was certainly qualified to do the job. He and a number of others were disregarded in the selection process purely because they did not meet the criteria for advancing the diversity of the work force as far as race and colour were concerned.

Apart from being illegal—I am not sure that it would be if we allowed the wording “as qualified as”, because that implies that one could have a large pool of candidates and then start making decisions about the diversity of one’s work force—I do not think that the measure sits well with subsection (4)(b), which prohibits a policy, because as soon as one starts talking about lots of people, one is effectively talking about a policy.

Such measures lead to damaging headlines and damage the cause of equality, as well as creating the slightly bizarre situation of a police force going around breaking the law. I do not think that it is particularly effective. We do not want a situation where candidates applying to join an organisation are discriminated against because of their colour. I want to ensure that the clause will not allow that sort of behaviour to become lawful, as it is damaging, and it is difficult to explain to constituents why they should be treated in that way.

Just so that the Minister is aware, a number of organisations concerned about such matters have reached the same conclusion in their briefs for members of this Committee; I presume that other hon. Members have them. The British Retail Consortium agreed absolutely that companies should address under-representation in their work force, but notes the difference between the explanatory note, which discusses candidates who are “equally qualified”, and the term “as qualified as” in the Bill. The BRC agrees that the two are distinct and likely to confuse and believes, as I do, that the wording of the Bill suggests a principle of minimum merit or a bar that must be got over, whereas “equally qualifies” indicates that candidates have got to the same level. The BRC wants clear guidance for employers so that they do not fall foul of the law. It says explicitly that it supports amendment 23 because it believes that the wording is much clearer than the Bill’s.

The CBI, in its briefing for the Committee, is happy with the tie-break concept but not with how it is currently drafted. It does not think that the Bill is clear enough about how the tie-break would work in practice, or that the word “qualified” is defined in any way. The CBI is unclear whether the use of the word “qualification” is purely academic or whether it will apply more widely to consideration of the candidate’s qualities and ability to do the job. Those things are clearly important, particularly when it comes to promotion, which is likely to be based not on paper qualifications but on ability to do the job.

The British Chambers of Commerce suggests in its memorandum to the Committee that the majority of businesses will use the provision, but that those that do will want certainty. The BCC also notes the difference of language between the Bill and the explanatory notes and does not think that the two are the same. The BCC explicitly supports our amendment, as do a number of organisations. When the Minister responds, she needs to explain why the Bill uses the language that it does and whether it means the same thing.

My final point pertaining to amendment 23 concerns subsection (4)(b), which says that the person concerned—the company, the business or whatever—cannot have a policy of treating people who share a protected characteristic more favourably but must take decisions on a case-by-case basis. I think that that works and I know that it is there because that is what the European directive requires. I cannot remember whether we discussed that in Committee or whether it was in a discussion I had with the EHRC. I can see that that holds up for two equally qualified candidates, where it is not about policy but a decision between two individuals.

If the language “as qualified as” is used for a pool of candidates, any organisation bigger than an individual employer who makes the decision himself will have to have a policy. That means that we will be encouraging people to take positive actions when they have a pool of candidates and giving them the power to do it, but saying that they cannot have a policy. Recruitment and promotion decisions will then be taken under the table, out of sight and not in accordance with a policy. We should not encourage businesses to go down that route.

Amendments 31 to 34 apply to clause 191. They have nothing to do with positive action but have been put in this group wisely because of the similarity in the words “thinks” and “demonstrate”. Clause 191 is about harmonisation and will enable Ministers to amend the Bill through order-making powers. I will not go into whether order-making powers are right or wrong because we will discuss that under clause 191.

My objection is that clause 191 contains four references to Ministers being able to use order-making powers because they “think” something. I am not happy that we are giving Ministers powers to amend primary legislation by order, but if are, we should jolly well have objective tests that can be reviewed properly through judicial review and that can constrain Ministers’ actions.

I will go through the provisions of the clause briefly one by one. Line 4 states that clause 191 applies if

“there is a Community obligation of the United Kingdom which a Minister of the Crown thinks relates to the subject matter of the Equality Acts”.

It would be better to say that the Minister must “demonstrate” that it does. Ministers should not be able to use this clause simply because they “think” something. That does not give a judge much to go on.

If the Minister thinks that the community obligation relates to the subject matter of the Bill, clause 191 applies only if

“the Minister thinks that it is appropriate to make harmonising provision”.

Again, that relies just on the Minister’s opinion. There is nothing for a judge to test it against. There is no guidance for Ministers on how they should make such decisions. It is just down to whatever they think. The clause gives the Minister the power to make the harmonising provision by order to change primary legislation. I do not think that that is sound.

There are some rules about the timing of making the order. Clause 191 says specifically that there must be consultation and prohibits the Minister from making the order before the end of the period of 12 weeks after the consultation starts. As we are talking about changing primary legislation, the Minister is not allowed to make the order before the end of that period unless he thinks that the

“making of the order is a matter of urgency”.

Mark Harper (Conservative, Forest of Dean)

I was running through amendments 32 to 34. I had just finished with the fact that there is a provision under clause 191(5) that says that the Minister cannot make an order until there has been a 12-week consultation period, unless the Minister thinks that making the order is “a matter of urgency”. There is no test, there are no criteria, on which the Minister has to base that decision. Potentially, the Minister, having thought that changing the law was necessary, could start a consultation process, which is mandatory, and pretty much as soon as that process was started could think that the order was a matter of urgency and change primary legislation by order. That is simply not appropriate. The Minister ought to have a test at least of demonstrating that it is necessary, rather than just thinking it.

The final example of what I want to change is on line 23 of page 136, which explains what a “harmonising provision” is. Again, it is what

“the Minister thinks is necessary or expedient”.

I always get nervous about the word “expedient”, particularly when it is allied to a Minister thinking something.

The amendments in the group would take out the word “thinks” and put in the more objective test of “can demonstrate”. Such a wording would imply that a Minister would have to produce some evidence and tests to be met. The amendments are wide-ranging and I look forward to the Minister’s response.

Vera Baird (Labour, Redcar)

Amendment 29 would make statistical evidence a prerequisite for employers to justify the use of positive action measures. The formulation of wording used in the Bill is “reasonably thinks”, which we stick to. That wording requires a decision maker to act reasonably when deciding whether to use the measure. If a decision is taken to use the measure and there is no evidence to suggest that people having the protected characteristic have ever been disadvantaged or under-represented, it would be open to challenge. The provisions take into consideration the voluntary nature of the use of positive action measures and the fact that any use of the measures would need to be plausible, otherwise it would be open to challenge.

The wording “can demonstrate” would obviously provide a higher threshold based on statistical evidence, but we think that that would have a chilling effect on the willingness of employers to use such measures, even when they can make clear identifications from their day-to-day business, from the evidence surrounding them, from their own understanding of the market and from the need to redress any imbalance in their work force. In the face of something that they might regard as completely clear evidence that they ought to use the power, and that convinces them that they wish to use the power, they would be unable to do so, unless they could get some presumably rather expensive consultant to obtain statistical evidence to ascertain that what they could see before their very eyes was in fact statistically justifiable. We do not think that that is a good thing to impose on businesses, and it would undermine the impact of the provisions. Clause 153 sets out the criteria by which the provisions may be applied, while subsection (4) specifically ensures that employers cannot abuse the positive action measures. We would resist the amendment and, in the light of our argument, we ask the hon. Gentleman to withdraw it.

We also resist amendment 23, which would change the present wording of subsection (4)(a) from “as qualified as” to “equally qualified to”. Although that does not sound like much of a change, it probably is in the way that the hon. Gentleman suggested, and it is something that we ought to give at least a full airing. The point of the provisions is to allow employers to take targeted action. We think that business welcomes the proposals as beneficial to the success of organisations, to filling skills gaps, to understanding customers’ needs and to creating a more diverse work force. However, to ensure that the provisions are not abused, we need to spell out the extent to which they apply.

Clause 153(4), which is the policy provision to which the hon. Gentleman referred, is there to ensure that there is not a blanket policy of favouring candidates because they have a protected characteristic, even if they are disadvantaged and under-represented as a consequence. An employer has to ensure that the candidate that she wishes to prefer is as qualified for the job or promotion as another person. For example, what if an employer has specified the requirements necessary for a job and two candidates meet her? Let us suppose that one has a protected characteristic connected to disadvantage or under-representation and the other does not. If the candidate with the protected characteristic is as qualified as the one without a protected characteristic, the permission to treat the candidate with the protected characteristic more favourably will step in.

Mark Harper (Conservative, Forest of Dean)

I want to ask about two things. The Solicitor-General said that business welcomed the provision. Both the BRC and the BCC support amendment 23 explicitly because it would make the situation clearer for business and they believe that that is important. The CBI, while not commenting specifically on the amendment, thinks that the Government should re-examine the clause to make sure that it is clear and that its members will not get in trouble when using it, for the reasons that I have outlined.

The hon. and learned Lady will correct me if I am wrong, but she has agreed that “as qualified as” means that a person has reached a point just above a hurdle. It does not mean that the candidates are equally qualified, but that criteria have been set for the job—whether educational qualifications, skills or particular talents—and as long as the person is over the minimum hurdle, he will be able, if he has a protected characteristic, to be given an advantage. That system has lots of disadvantages. It is not the tie-break scenario that the Minister for Woman and Equality cited on Second Reading. It is quite different—it is the type of thing that gives equality a bad name—and easily turns the situation into one involving a pool of candidates with discrimination taking place in favour of one group and against another, which is dangerous.

Vera Baird (Labour, Redcar)

That is exactly what cannot be done because subsection (4)(b) prohibits such action. There is no danger of such a thing taking place lawfully under the Bill. Let me be as clear as possible. The hon. Gentleman says that businesses have requested clarity. Businesses tell me that they are already undertaking such a process. We must bear in mind that, when launching an assault on the provision, they are probably doing it unlawfully at the moment because no power is available for someone to be preferred because they have a protected characteristic, even granted the equality of merit. We need to be a little cautious about claiming where business overwhelmingly lies on the matter.

If a business is trying to target a particular community with its product, it is commonplace to identify a sales person from that community. It is a good thing for the business to appoint them to the job if they are as good as someone who is not from that community. By changing the wording from “as qualified as” to “equally qualified to”, the hon. Gentleman would reduce the provision to something that would really never work, nor have any application of great import, because it would be relatively rare that exactly identical qualifications occur.

The hon. Gentleman makes a point about a pool of candidates, but let us say that the test ought to be that both candidates have demonstrated that they have met the employer’s particular requirements for the post. That seems to be entirely the right approach. In that sense, both candidates who fulfil the employer’s particular requirements for the post will be as qualified as each other to fill the vacancy.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I want to clarify one thing. I tend to agree with the Solicitor-General, but if specifications and criteria were set out for the job, is she saying that as long as that criteria and specific requirements of the job specification were met, the employer would then be able to choose? That seems very broad compared with what I thought that the provision was about.

The rest of the debate is in Hansard.