Equality Bill

House of Lords, 9 February 2010.

Committee (6th Day)

Baroness Morris of Bolton (Conservative)

We tabled this probing amendment to ask the Government for reassurance about the operation of the public sector equality duty in relation to small organisations. Our amendment would provide an exception to the public sector equality duty, which would mean that any public authority, or a non-public authority that had been subcontracted to carry out functions of behalf of a public authority, should not be subject to the public sector equality duty if it employed fewer than 250 people.

Research carried out by the Government to analyse the functions of the public sector equality duty and its impact was carried out predominantly on large organisations. Research to support extending the duty to other protected characteristics was based on research by Schneider-Ross Ltd. Most of the respondents in that case were large organisations. Some 30 per cent of the 174 organisations that replied to the survey employed between 1,000 and 4,999 people. Only 2 per cent employed fewer than 150 people. Has any further or alternative research been undertaken that concentrates more fully on small businesses?

Concerns have been expressed to us that the public sector equality duty may be too onerous on businesses with fewer than 250 employees and that no information has been provided to suggest otherwise. Without any such reassuring information, it is perhaps premature to saddle smaller businesses with this burden until further research has been undertaken. This is a particularly pertinent question because, if the organisations subject to gender pay gap reporting are only those with more than 250 employees, might that not make sense in this case as well?

A second concern is the potential lack of clarity in this area. We have been informed that Section 6(3) of the Human Rights Act 1998 states that a person may be defined as a public authority for exercising public functions. Would that mean, therefore, that a single person could be classed as having to abide by the public sector equality duty? Certain groups are worried because, as the Bill stands, it is unclear exactly to whom the public sector equality duty would apply.

I have another question about smaller organisations that have had public functions outsourced to them. We covered most of this in a debate on a previous day and I will not go over those arguments. However, will the Minister confirm that if public functions are outsourced to a small charity-for example, one based on religious principles-the employment exceptions in paragraph 3 of Schedule 9 would still apply? In other words, will the charity continue to function under the terms of its foundation charter even though it would be performing a service on behalf of a secular public authority? Will the Minister clarify where the terms of a charity's foundation charter would apply and where they would not? If a public sector authority has outsourced some of its functions, in terms of those functions, will the public sector authority duty or the charity's foundation charter have pre-eminence?

Finally, there is a question to be asked about organisations where jobs cannot be neatly segregated into those that would be tied into the public sector equality duty and those that would come under the private functions of a small organisation. For example, if a small care home operates under a Christian ethos, would that care home have a right to demand that staff were of the same religion? Moreover, if the care home also had some of the public care provision outsourced to it, under the terms of the public sector equality duty would it be able to ask for all staff to be of the same religion? I ask this because in such organisations it would not be possible to separate the roles into those which clearly came under the new equality duty, and those which remained under the small, private organisation. I see the Minister looking confused, and we are confused, but these are genuine concerns which have been raised with us, so I look forward to her response and hope she can shed some light in this area. I beg to move.

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, this amendment, I am sorry to have to say, is regressive. It would exempt from Clause 148 any public authority with fewer than 250 employees.

The Race Relations (Amendment) Act 2000, made in the wake of the recommendations of the Stephen Lawrence inquiry, introduced general statutory duties on scheduled public authorities which apply irrespective of the number of employees within its workforce. That is in respect of race. So did the Disability Discrimination Act 2005, supported by the Conservative Party.

The Equality Act 2006 introduced similar public sector duties as regards sex discrimination which apply irrespective of the size of the public authority. The fair employment amendment Act of 1989, introduced by the Thatcher Administration to combat religious discrimination in the workplace, contained no such exception for public authorities with fewer than 250 employees. That is why the amendment is regressive. It is going back on the whole of that-race, religion, with regard to Northern Ireland here, with regard to gender, with regard to disability.

We know of no evidence to support the amendment, nor do we understand why Her Majesty's Official Opposition should seek to weaken the scope of the public sector duty and the protection it gives to vulnerable minorities, including women, ethnic minorities, disabled people, religious minorities, gays and lesbians and the elderly, and we are opposed to it.

Baroness Greengross (Crossbench)

Could I add my voice in opposing this amendment, and to agree with the noble Lord, Lord Lester? For example, whether a care home is under a religious foundation's auspices or not, it would be totally unrealistic to restrict those staff who actually do the caring to people of a particular faith, race or anything else, because they just would not work any more. It would be totally contrary to the aims of the Equality Bill.

Archbishop of York (Bishop)

I fail to understand why the figure 250 has been picked. What matters is that people are not discriminated against either overtly or covertly and it does not matter whether the employees are five, 20, 100 or 1,000. Discrimination is discrimination, so I am surprised by the number. It may sound interesting, but mathematical calculations in a Bill such as this are never helpful. I do not understand why the figure has been asserted, and if, as the provision says, a public authority has a public duty, I do not understand why mathematics is beginning to come into it. Maybe I need to go back to primary school and then I will know that 250 is the level at which it is impossible to discriminate.

Earl of Erroll (Crossbench)

My Lords, I would like to interject briefly, as this issue has been worrying me a lot because I knew it was buried somewhere in the Bill. If I have understood the amendment correctly, it is about procurement and where it is in the supply chain. Already small and medium-sized businesses have a huge problem in getting business and contracts from government bodies. There are a lot of barriers in their way, and a lot of contractual obstacles are put in their path. SMEs employ about half the non-public sector workforce in this country. They are very large employers. Most are tiny companies employing five people or fewer, but some are larger companies. Innovation and growth in the economy come from the SME sector: they do not come from large companies, which tend to rationalise and downsize. Therefore, future pensions will be paid by these companies. In some areas, the local authority is almost the only employer. Therefore, there is a huge problem if people cannot do business with the local authority.

I have seen one of these forms. It was sent to my wife, who employs only three or four people, in order that a small sum could be procured from her. It is impossible. There are questions like, "Can we see your special diversity policy?" and "Can you prove that X number of your workforce are this, that and the other?". Small companies cannot handle it. Therefore it is very sensible that there should be an exemption at some level-although I do not know what the figure should be-to allow government authorities to procure from small businesses. Because this applies down the supply chain, it may not apply to the first contractor, which may be a large organisation. However, when that organisation wants to contract further down the supply chain, the same thing will apply. The Government should show mercy to small companies, because the burden of bureaucracy is already enormous on them. This could be the straw that breaks the camel's back.

Baroness Howe of Idlicote (Crossbench)

My Lords, I will say briefly that I, too, strongly agree with the noble Lord, Lord Lester, and with my noble friend. If I am picking up the vibes correctly, the Minister may be able to answer the query. It may be thought that small charitable bodies that might be asked to undertake work via a public authority would run into a problem because of this. From reading the Bill, I cannot see that. However, I will leave it to those who have more detailed knowledge. I am not in favour of this amendment.

Baroness Turner of Camden (Labour)

My Lords, I will say briefly from these Benches that I strongly support what the noble Lord, Lord Lester, said in opposition to the amendment. Many people in this country are employed in small companies, as has already been indicated. The Bill is about individual rights as much as anything. If an amendment of this kind, with this sort of arrangement, were to be on the statute book, a large number of people would not have the benefit of employment rights of any kind. That would be totally unacceptable. I understand that in some instances it may be felt that very small companies may have problems, but one cannot have a situation in which 250 people-quite a high number-do not have access to the employment rights that other people have.

Lord Lester of Herne Hill (Liberal Democrat)

Perhaps I may respectfully correct one matter. This does not limit the scope of the non-discrimination provision, from which there are no small-employer exemptions, thank goodness. It limits the scope of the public sector duty, which is very serious for reasons that are clear. It would not be fair to the Opposition to say that they are seeking to emasculate individual discrimination provisions. They are seeking to weaken the public sector duty.

Baroness Royall of Blaisdon (Labour)

My Lords, Amendment 114ZA, tabled by the noble Baronesses, Lady Warsi and Lady Morris of Bolton, would exclude from the equality duty public authorities with fewer than 250 employees, or organisations discharging public functions but not listed in Schedule 19 that have fewer than 250 employees.

Despite the progress that we have made, inequality persists in our society. The equality duty is an innovative approach to tackling discrimination. It requires public authorities to show leadership in proactively rooting out entrenched systems of discrimination and in promoting equality of opportunity. The roles of the public sector and of the bodies that provide public services are central to our equality goals, as public services are used by all, with many of the most vulnerable citizens dependent on them.

The noble Earl, Lord Erroll, probably wished to speak to Amendment 115B, which concerns procurement. The noble Baroness, Lady Morris, asked about the impact on SMEs and what further research had been done. I do not know, but I will come back to her in writing.

The equality duty requires public bodies and other organisations which provide public services to have due regard to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations. It is difficult to understand why the size of an organisation should matter in considering the need to eliminate discrimination and promote equality. I think I am at one with the most reverend Primate on this. A number of small organisations provide services that could impact the lives of many in the community. For instance, at times, some of the health service bodies will have fewer than 50 employees but the service that they provide could have an impact on hundreds of people in the area. The same could be said for many schools.

I understand that in the current fiscal climate some people think that compliance with the new integrated equality duty could lead to extra administrative burdens and bureaucracy. I do not think that is the case because, as the noble Lord, Lord Lester, informed us, at the moment we have three different duties, each with different requirements and reporting timescales. Bringing them together into one duty should decrease bureaucracy, and our emphasis on specific duties on proportionality-outcomes rather than processes-should lead to less form-filling and increased results.

The exclusion of public authorities, listed in Schedule 19, which have fewer than 250 staff, or of private organisations that are discharging public functions but have fewer than 250 staff, would seriously limit the coverage of the equality duty. For instance, the amendment would exclude around 70 per cent of all central and local government bodies from the equality duty and that is plainly wrong.

I accept that the amendment is probing but, should it be passed, it would seriously damage the good progress made by the current duties, as it would exempt from the new duty hundreds of public bodies which are subject to the current duties, and would result in serious regression.

The noble Baroness, Lady Morris, asked whether the charity foundation document or the equality duty would take precedence where a public body contracts out some of its functions to a charity. The charity would have to comply with its foundation document but, in performing public functions, it would also need to have due regard to the need to eliminate discrimination and promote equality in accordance with the duty, so it would have to look at both things.

The noble Baroness asked whether the equality duty would apply to a single person performing a public function. Yes, it is important to remember that public functions are vital services which impact on the well-being of the public and, therefore, it is irrelevant whether it is delivered by a large organisation or a single person-a GP or a Secretary of State. She asked whether, if a public function were outsourced to a religious organisation, the exemption in paragraph 3 of Schedule 9 would still apply. Yes, it would. The equality duty operates alongside provisions prohibiting discrimination in the rest of the Bill.

I can answer the question which the noble Baroness asked about whether small authorities were consulted on the extension of the new duty to new strands. Yes, in June 2007, we launched a three-month public consultation on the proposal to extend the equality duty. Around 4,000 organisations and individuals responded, including small organisations and representatives of small organisations, such as schools and health service providers. I ask the noble Baroness to withdraw her amendment.

Baroness Morris of Bolton (Conservative)

I am most grateful to all noble Lords who have joined in this short debate. I am also grateful that the Minister pointed out, as I did at the beginning, that this is simply a probing amendment. We do not seek to be regressive in any way, although I very much enjoyed the brief history of equality law given by the noble Lord, Lord Lester, and I look forward to reading that again. The point raised by the noble Earl, Lord Erroll, shows that there is confusion in this area about what applies where. I am most grateful to the Minister for answering some of those concerns on the record. I beg leave to withdraw the amendment.

Amendment 114ZA withdrawn.

Amendment 114ZB

Moved by Baroness Morris of Bolton

114ZB: Schedule 18, page 196, line 41, at end insert ", but no such order may vary or omit the exceptions in paragraph 3 or 4(1), (2)(a) to (e) and (3)"

Baroness Morris of Bolton (Conservative)

My Lords, in moving Amendment 114ZB, I will also speak to the other amendments in our name. These amendments are in line with recommendations from the Delegated Powers and Regulatory Reform Committee. I welcome the fact that the Minister tabled amendments on Friday which would meet with some of these recommendations and address most of the concerns raised by our amendments.

Amendment 114ZB is tied into Schedule 18, which is about the public sector equality duty exceptions. Our amendment, following a recommendation by the DPRRC, would ensure that only primary legislation could amend the list of exemptions in this schedule with reference to judicial and parliamentary functions. We are very pleased that the Government have now accepted that there is no need to retain flexibility in this instance.

Furthermore, perhaps there is a case for suggesting that it might be inappropriate for a Minister to be able to alter the exceptions relating to other organisations. Can the Minister clarify, for example, when there might be a case for removing the exemptions relating to the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and part of the Armed Forces? Is there a specific need to retain the flexibility that regulations would allow, or does she agree that this sort of decision should be subject to primary legislation?

Our second set of amendments in this group, Amendments 115A and 135AA, add a similar power which is awarded to Clause 150(1). This subsection would allow the Minister to update Schedule 19 to include or exclude different bodies. In accordance with the recommendations from the DPRRC we tabled Amendment 115A. It would exclude judicial and parliamentary bodies from the regulation by which amendments can be made to the schedule and so make them subject to the public sector equality duty. Amendment 135AA would mean that the reduced power would also be subject to affirmative resolution for greater scrutiny. We welcome the Government's amendments which, like ours, are designed to meet this recommendation. I apologise; I have been editing my notes as a result of today's events and I think that I have probably edited them too much.

However, the government amendments retain the negative power for the changes that occur when an entry is removed just because it has ceased to exist, or because it has changed its name. That seems sensible. Have the Government had any response from the DPRRC about whether this would meet its concerns? It seems a critical factor in knowing what their response is. Furthermore, what consultation has occurred with the devolved Ministries about the changes to their powers here? I beg to move.

Baroness Thornton (Labour)

My Lords, we too have edited our notes down. I am just reading through them and cannot see any reference to one of the noble Baroness's amendments. I am hoping that somebody will send me a note about it.

I am going to speak to government Amendments 114ZC, 115ZA, 135AB, 136ZZD, 136ZZE, 136ZAA, 136ZAB, 136ZAD, 136ZAE, 136ZAF, 136ZCA, 136ZCB and 136ZCD, which reflect the recommendations made in paragraphs 11 and 13 of the Delegated Powers and Regulatory Reform Committee's third report of Session 2009-10.

I shall speak first to government Amendment 114ZC. This seeks to achieve the same aim as the noble Baroness's Amendment 114ZB, in response to the committee's question whether it would be appropriate for the exceptions to the equality duty relating to judicial functions or those relating to parliamentary bodies to be removed or limited by statutory instrument. This amendment limits the power in paragraph 5 of Schedule 18 so that it cannot be used to remove these exceptions from Schedule 18. Primary legislation would therefore be required to remove or limit these exceptions. While there is no difference between the intentions of the noble Baroness's amendment and this one, we think that the wording of our amendment provides more precise clarification.

Government Amendment 115ZA reflects the committee's recommendation that the power in Clause 150 to amend the list of public bodies subject to the duty, as referred to by the noble Baroness, should not be capable of listing the judicial and parliamentary bodies that are currently excluded from the scope of the duty by Schedule 18. The intention behind this amendment is the same as that behind Amendment 115A, which the noble Baroness spoke to. Again, however, we think that our wording provides greater clarity on this important matter.

I turn now to Amendment 135AB,which reflects the recommendation made in paragraph 11 that the power in Clause 150 should be subject to the affirmative procedure. The amendment is seeking the affirmative procedure to apply to the power to make changes to the list of bodies subject to the equality duty, except where we simply want to amend the entry for a body whose name may have changed or where a body is removed because it ceases to exist. We think that it will be more appropriate for the negative procedure to apply in these particular cases. To have to use the affirmative procedure for such minor issues is likely to be a waste of valuable parliamentary time. Of course, if Parliament wishes to debate any use of this power, it can still choose to do so by praying against a negative resolution order. The noble Baroness asked about removing exemptions on organisations such as security services, Armed Forces and so on. We are retaining a measure of flexibility because those organisations are susceptible to change and because they could change their names or merge.

Amendment 135AA-this was missing from my notes-would delete what the Government have proposed and our Amendment 135AB would amend it. Amendments 136ZZD, 136ZZE, 136ZAA, 136ZAB, 136ZAD, 136ZAE, 136ZAF, 136ZCA, 136ZCB and 136ZCD ensure consistency with the Welsh and Scottish Ministers. I therefore invite the noble Baroness not to move Amendment 135AA.

Baroness Morris of Bolton (Conservative)

I thank the Minister for that comprehensive reply and it gives me great pleasure to withdraw my amendment.

Amendment 114ZB withdrawn.

Amendment 114ZC

Moved by Baroness Royall of Blaisdon

114ZC: Schedule 18, page 196, line 41, at end insert-

"(2) But provision by virtue of sub-paragraph (1) may not amend this Schedule-

(a) so as to omit an exception in paragraph 3;

(b) so as to omit an exception in paragraph 4(1) so far as applying for the purposes of paragraph 4(2)(a) to (e) or (3);

(c) so as to reduce the extent to which an exception referred to in paragraph (a) or (b) applies."

Amendment 114ZC agreed.

Schedule 18, as amended, agreed.

Clause 149 : Public authorities and public functions

Amendment 114A not moved.

Clause 149 agreed.

Schedule 19 : Public authorities

Amendment 115

Moved by Lord Hunt of Wirral

115: Schedule 19, page 198, line 37, at end insert-

"The relevant qualifications regulator (The Office of the Qualifications and Examinations Regulator-Ofqual)."

Lord Hunt of Wirral (Conservative)

My Lords, this is a simple, probing amendment and I will make some brief remarks. The debate about whether Ofqual should be included under the public sector equality duty was covered concisely and effectively in another place. I recall that in relation to this the Solicitor-General said:

"I completely agree that Ofqual should be subject to the equality duty".-[Official Report, Commons, 30/6/09; col. 594.]

She said that that would be done after the Apprenticeship, Skills, Children and Learning Bill had passed through your Lordships' House and become an Act, thus giving Ofqual statutory status.

Of course, we now have the Apprenticeship, Skills, Children and Learning Act, but I cannot see an amendment here to bring Ofqual into Schedule 19 and make it subject to the public sector equality duty. It may well be that there is a simple answer to this. Perhaps I have missed something that would explain this entirely. However, I have not seen an explanation, and it would be marvellous if the Chancellor of the Duchy of Lancaster could enlighten me. I beg to move.

Lord Low of Dalston (Crossbench)

My Lords, I very much welcome this amendment, moved by the noble Lord, Lord Hunt, to clarify the application of the public sector equality duty, for Ofqual is just the start. On further examination, the schedule proves to be full of holes. I am very concerned to observe that it contains numerous omissions-if an omission can be said to be "contained". I hope that that is just the result of the sort of unfortunate oversight that the noble Lord, Lord Hunt, was so exercised about the other day. On the assumption that it is, I hope that the Government will commit to remedying the deficiencies in the schedule before it leaves this House.

The Government have given numerous commitments that all organisations covered by the current duties will be covered by the integrated duty. Exclusions that I have noticed include the Electoral Commission, which is surprising when one considers that only recently we were debating political diversity. The NHS is included, but none of its regulators are. The omission of regulators in general is concerning, as is the omission of a number of educational bodies. The General Teaching Council is just one example. As an avid supporter of the arts, I was particularly concerned not to see the Arts Council in the schedule. I could go on, but I shall not. It just remains for the Government to fulfil their commitments and put the schedule to rights. Of course they have the power to change the list by regulation, but they should not expect the Committee to buy a pig in a poke like that. They should populate the schedule comprehensively and reserve their order-making power for amending the list when bodies are created or wound-up. I therefore very much support the amendment.

Baroness Royall of Blaisdon (Labour)

Amendment 115 would insert the Office of the Qualifications and Examinations Regulator-Ofqual-into Schedule 19, which is the list of public authorities subject to the equality duty. Ofqual, which will be formally established in April and will be the new independent regulator of qualifications and tests in England, must of course be subject to the equality duty. The Government would not contest that. I recognise what the noble Lord, Lord Hunt, said about the comments in the other place by my right honourable friend the Solicitor-General. However, we have since established that we do not need to add Ofqual to Schedule 19 to deliver the desired outcome. The Bill will achieve that without the noble Lord's amendment. The Apprenticeships, Skills, Children and Learning Act, which received Royal Assent this autumn, establishes Ofqual as a non-ministerial government department, and government departments, including non-ministerial ones, are already covered in Part 1 of Schedule 19. This means that there is no need to include it as a separate entity within Schedule 19.

The noble Lord, Lord Low, suggested that Schedule 19 is practically empty and that the duty covers very few bodies. Schedule 19 as it stands is not the end of the story. At the moment it contains only core generic bodies, such as government departments, local authorities, NHS bodies, educational bodies and the police. We have been clear that we intend to update the schedule with more bodies. Now that we have publicly set out the requirements of the general duty, we want to talk further with other bodies that we think should be included in the schedule. Let me stress that, in broad terms, the duty will cover the same bodies as the current duties and there will be no reduction in coverage. I assure the noble Lord that we are not offering noble Lords a pig in a poke. The two-stage approach is the process that was used to build up the list of bodies subject to the race duty, and we are simply following that precedent. It has allowed us to have informed discussions with those who we propose to list, and we will include them via regulations. There are no inconsistencies, and I hope that this brief explanation will persuade the noble Lord to withdraw his amendment.

Lord Hunt of Wirral (Conservative)

Perhaps the Chancellor of the Duchy of Lancaster can clarify the position. I was following her in reading Part 1 of Schedule 19, which is entitled "Public Authorities: General". I saw under the heading "Ministers of the Crown and government departments": "A Minister of the Crown", and

"A government department other than the Security Service, the Secret Intelligence Service or the Government Communications Headquarters".

She was, however, referring to another type of body. Then, when I looked in the remaining part of Part 1, under the same heading, I did not see the words that she is now explaining appearing anywhere. I am simply seeking further clarification. Could she, please, give noble Lords a little more chapter and verse of exactly where this can be found?

Lord Low of Dalston (Crossbench)

My Lords, before the Minister responds to the noble Lord, Lord Hunt, perhaps she can say whether she means that the regulation-making power will be used to update the schedule-I think that she used the words "update the schedule"-so that the additional bodies with whom she wishes to have discussions with a view to bringing them within the public sector equality duty will not just reside in regulations, but will be introduced into the schedule by the regulation-making power. Is that what she had in mind?

Lord Hunt of Wirral (Conservative)

While the noble Baroness is considering the important point made by the noble Lord, Lord Low of Dalston, can she give us an idea of the timescale within which she proposes to give noble Lords and others the clarification that we seek?

Baroness Royall of Blaisdon (Labour)

Yes, my Lords. Non-ministerial departments are included in Part 1 of Schedule 19, because non-ministerial departments are considered to be government departments. That is what I am informed and that is how they are covered. In response to the questions from the noble Lord, Lord Low, our plan is to publish the list of organisations that we intend to be covered under Schedule 19 in the summer, at the same time as we consult on the draft regulations for specific duties. That is the timescale to which we are working. When we impose the specific duties, the regulations will be subject to the affirmative procedure, which means that government will have the opportunity to debate proposals fully. I think that that is correct. I am looking to the Box for assistance.

Lord Hunt of Wirral (Conservative)

Perhaps the noble Baroness can further clarify the point. I always tend, when looking at the interpretation side of any proposal before this Committee, to look at Clause 204, entitled "General interpretation". I could not see that a government department was defined there in the way that the noble Baroness is describing. It may well be that it is defined elsewhere in a generic way, but I could not see it in Clause 204. We have not yet reached Clause 204, but we may well a little later. It may be helpful if the noble Baroness could explain.

Lord Lester of Herne Hill (Liberal Democrat)

May I have a go, although I will probably get this quite wrong? In Clause 149:

"A public authority is a person who is specified in Schedule 19".

The definition is extended in subsection (4) to "certain specified functions"-so it is broken down there. Subsection (5) then defines a public function as:

"a function of a public nature for the purposes of the Human Rights Act",

which has a flexible definition. The power to add to a list of who the public authorities are is the subordinate power, which will be subject to the affirmative procedure, which then gives the flexibility to apply the definition in Clause 149 to particular bodies. I hope that that is right.

Baroness Royall of Blaisdon (Labour)

My Lords, I understand that that is correct. Does that answer the noble Lord's questions about a non-ministerial government body?

Lord Lester of Herne Hill (Liberal Democrat)

I think the Minister said that a non-ministerial body is a government department. Is it not better to say that it is a public authority?

Baroness Royall of Blaisdon (Labour)

Yes, my Lords, just as the department of the Treasury Solicitor, for example, is a non-ministerial department. It is a similar sort of body.

Again, I will clarify for the noble Lord, Lord Low, that we will bring forward a consultative list in the summer at the same time as we consult on the draft regulations for the specific duties. The regulations that add the list to Schedule 19 will be subject to the affirmative procedure, so there will be proper scrutiny of the list.

Lord Mackay of Clashfern (Conservative)

My Lords, are the non-departmental public bodies in or out? "A government department" is not a good phrase to cover the non-departmental public bodies.

Lord Lester of Herne Hill (Liberal Democrat)

As I understand it, the Equality and Human Rights Commission is one such body and would be covered. My understanding is that such a body is a public authority, not a government department.

Baroness Royall of Blaisdon (Labour)

My Lords, non-departmental public bodies will be listed in Schedule 19.

Lord Low of Dalston (Crossbench)

My Lords, I reassure the Minister that she has one satisfied customer. I am grateful for her reassurance about the timescale and that the expanded list will be subject to parliamentary scrutiny.

Lord Hunt of Wirral (Conservative)

My Lords, I am very grateful to the noble Lord, Lord Low of Dalston, for making some very important points, and I join him in thanking the Chancellor of the Duchy of Lancaster for clarifying the position and in particular for heeding and accepting the advice of the noble Lord, Lord Lester of Herne Hill. As he is a solicitor of the senior court-I think that I am no longer allowed to say the Supreme Court-I normally have to pay substantial sums to obtain that sort of advice. I do not want to debase the advice by saying that the noble Lord gives it completely free of charge, but he does that on so many occasions in this place and I am very grateful to him for clarifying "public authority", "government department" and "government authority". I share the slight confusion of my noble and learned friend Lord Mackay of Clashfern as to exactly where we are. I thank the noble Lord, Lord Lester of Herne Hill, for pointing us in the right direction, but I am not sure that I have yet reached the destination that he would advise me to reach.

Lord Lester of Herne Hill (Liberal Democrat)

I do not know whether the noble Lord can afford to go on like this, but he should remember the well known maxim, "No good deed goes unpunished".

Lord Mackay of Clashfern (Conservative)

My Lords, clarity has come from the fact that non-departmental public bodies will be listed. The definitions in Schedule 19 are only for those that are there already. A great number will be added in the course of our beautiful summer that is coming.

Lord Hunt of Wirral (Conservative)

I do think that we have got somewhere. That is the important thing. I was a little misled at first by the description of a non-departmental public body as a government department, but I have now reached an adequate pausing point for further consideration. I am very grateful to the noble Baroness for the clarity that she has introduced, and I beg leave to withdraw the amendment.

Amendment 115 withdrawn.

Schedule 19 agreed.

Clause 150 : Power to specify public authorities

Amendment 115ZA

Moved by Baroness Royall of Blaisdon

115ZA: Clause 150, page 96, line 6, at end insert-

"( ) An order may not be made under this section so as to extend the application of section 148 to-

(a) the exercise of a function referred to in paragraph 3 of Schedule 18 (judicial functions etc);

(b) a person listed in paragraph 4(2)(a) to (e) of that Schedule (Parliament, devolved legislatures and General Synod);

(c) the exercise of a function listed in paragraph 4(3) of that Schedule (proceedings in Parliament or devolved legislatures)."

Amendment 115ZA agreed.

Amendment 115A not moved.

Clause 150, as amended, agreed.

Clauses 151 to 153 agreed.

Clause 154 : Power to impose specific duties: supplementary

Amendment 115B

Moved by Lord Hunt of Wirral

115B: Clause 154, page 99, line 4, at end insert-

"( ) Regulations made under sections 152 or 153 must comply with the Public Sector Equality Directive 2004/18/EC and Directive 2007/66/EC."

Lord Hunt of Wirral (Conservative)

My Lords, the purpose of the amendment is to invite the noble Baroness to explain what appears on the surface to be incompatibility between the Government's proposals on public procurement and one, or perhaps even two, directives in the European Union.

Clause 154 gives the power to a Minister of the Crown, or to a Scottish or a Welsh Minister, to impose specific duties on public authorities listed in Schedule 19 that are also contracting authorities for public procurement purposes. The Minister may correct me if I am wrong, but I assumed that the Government's intentions are for public procurement to be another area in which the goal of equality can be pursued.

We therefore tabled this probing amendment, which would make any order made under Clauses 152 or 153 subject to public sector directive 2004/18/EC and directive 2007/66/EC, merely to inquire as to the status of the European directives on public procurement that seem to undermine the Government's intentions in this area. I immediately apologise to the Committee for any confusion that may have been caused by the reference in the amendment to the "Public Sector Equality Directive". What was meant, of course, was "public sector directive".

The intention is that public sector authorities should be able to use procurement as an extra tool to secure equality. The amendment seeks to clarify the extent to which the Government have taken the EU directives into account on this issue. I am sure that they have; I merely seek reassurance, which I believe the Minister will give. However, the Committee may find it useful if I explain why this is a complicated area.

Public sector directive 2004/18/EC requires that public contracts are awarded on the basis of only two award criteria: "the most economically advantageous tender" or "the lowest price". In what way do the Government expect the public procurement provisions to work given these constraints?

Public sector directive 2007/66/EC has provisions within it that state that there must be review procedures, which would include the award of damages to any person who is harmed by an infringement of the specifications of the directive. We therefore have one European directive which states that public procurement can be based only on two very narrow criteria, and one which states that any infringement of this would result in the award of damages to the party that has lost out. Have these directives been taken into account? What is the solution for ensuring that the Government's objective of equality-based public sector procurement can also occur? I look forward to hearing the response of the Chancellor of the Duchy of Lancaster. I beg to move.

Baroness Royall of Blaisdon (Labour)

My Lords, Amendment 115B, tabled by the noble Baronesses, Lady Warsi and Lady Morris of Bolton, seeks reassurance that any regulations that impose specific duties on public authorities listed in Schedule 19, which are also contracting authorities in relation to their public procurement activities, will comply with the European legislation that regulates public procurement. I can offer that reassurance.

Any regulations made under Clause 152 would have to be made with the EC directives in mind and any failure to comply with the directives, whether in the specific duties or any other legislation, could result in infraction proceedings. For this reason, it is superfluous to have an express provision in the Bill. Directive 2004/18/EC specifies the procedures that public bodies, known as contracting authorities, have to follow when awarding certain contracts for goods, services and works. Directive 2007/66/EC sets out the remedies that are available to economic operators who think that a contracting authority has breached the provisions of directive 2004/18/EC.

Both directives have been transposed into UK law by the Public Contracts Regulations 2006 and the Public Contracts (Scotland) Regulations 2006. I should like to make it clear that the Government do not propose to use the specific duties to alter either the procedures set out in directive 2004/18/EC or the remedies prescribed in directive 2007/66/EC and that any attempt to put this in the Bill is unnecessary.

The public sector spent approximately £220 billion last year on goods and services. That is a huge amount of money and much of it went to private providers following the public procurement procedures. The public sector has an important opportunity to use its purchasing power to promote equality wherever possible and it has legal obligations under the equality duty to do so. Achieving value for money and delivering wider and improved social outcomes, such as equality objectives, often go hand in hand. The procurement proposal in the Bill makes this relationship clear.

In June 2009, the Government consulted on policy proposals for the specific duties, including proposals relating to public procurement. Last month, the Government published a policy statement in response to the consultation. The policy statement includes proposals for specific duties requiring contracting authorities to consider the use of equality-related award criteria where they relate to the subject matter of the contract and are proportionate, and to consider incorporating equality-related contract conditions where they relate to the performance of the contract and are proportionate.

Both those proposals require any proposed action taken by a contracting authority to be proportionate and to relate to the subject matter of the contract in accordance with public procurement procedures. For example, as part of a major estate renovation scheme and in an attempt to redress the local and national under-representation of women in building trades, a local council could include a contract condition that requires 10 per cent of the person weeks required to complete the works to be delivered by women who have either an apprenticeship, traineeship or employment contract with the contractor or sub-contractor and are engaged in a training programme which is accepted by the employer. The current procurement regulations allow for this contract condition because 10 per cent would be considered proportionate and the proposals in the Bill will not change this.

The Government policy statement also included the proposal that public authorities should, when setting their equality objectives and how they intend to achieve them, set out how they will use their public procurements to help meet their equality objectives. For instance, the evidence collected by an NHS trust might show that a particular section of the community within a diverse area is inadvertently excluded from accessing a service. An equality objective might be to redress this exclusion to ensure the service is offered, as it should be, to all sections of the community. The trust would need to consider how its procurements might help it to achieve this objective. These procurement proposals were subject to extensive consultation and views expressed were mixed. However, there was a general acceptance for the inclusion of equality-related measures that were relevant to the contract and proportionate.

The directives do not undermine the provisions in the Bill and we do not believe that there is a contradiction between award criteria that take into account the most economically advantageous tender and equality; for example, quality is a permitted criteria when deciding the most economically advantageous tender. Quality will be linked to many equality issues, such as whether a service meets the needs of users from all sections of the community.

I believe that the package of proposals that we intend to take forward in regulation is proportionate and appropriate. Again, I confirm that the new proposals comply with the European legislation that regulates public procurement.

Lord Lester of Herne Hill (Liberal Democrat)

Perhaps the Minister will be able to assure the noble Lord, Lord Hunt, that it was because of the brilliance of the noble and learned Lord, Lord Howe of Aberavon, in the European Communities Act 1972 that we made quite sure in this country that even if all of that were not the case, European law in this area would have to be given either direct effect or indirect effect because the Conservative Government at the time produced that admirable mechanism. I mention that only because I know that the noble Lord, Lord Hunt, would like that additional reassurance that his own party has helped, in its most European phase, to achieve the right result.

Baroness Royall of Blaisdon (Labour)

My Lords, I would certainly endorse that and I pay very warm tribute to everything that the noble and learned Lord, Lord Howe of Aberavon, did in ensuring that we are such a strong partner in the European Community and that we can comply with these directives.

Lord Hunt of Wirral (Conservative)

My Lords, I am a little nervous about saying anything, except to point out that the Whip on the legislation was provided by Mr Kenneth Clarke. As I represent the party of Europe, I am particularly pleased that the noble Lord, Lord Lester of Herne Hill, should have singled out praise for my noble and learned friend in the way that he did. But I am not quite sure what relevance that has because I had already been persuaded by the Chancellor of the Duchy of Lancaster that these amendments were surplus to requirements, although I will now carefully study every word that she has spoken. My understanding of these provisions has been increased considerably and her reassurance is very welcome. In those circumstances, I beg leave to withdraw the amendment.

Amendment 115B withdrawn.

Clause 154 agreed.

Clauses 155 and 156 agreed.

Clause 157 : Positive action: general

Amendment 115C

Moved by Lord Lester of Herne Hill

115C: Clause 157, page 100, line 11, leave out "which" and insert "provided it"

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I shall speak also to Amendment 118A and to the group as a whole in a single speech. I should emphasise that we on these Benches strongly support both clauses and oppose any dilution of them, and that both clauses are permissive, not mandatory. My amendment to Clause 157 is probing in nature and not intended to hobble or curtail its scope or effect. The amendment to Clause 158 is intended to state in the Bill, in the interests of legal certainty, what is required by EU equality law; namely, compliance with the principle of proportionality. That would be in accordance with the recommendations made by the Joint Committee on Human Rights at paragraph 289 of its report on the Bill.

Positive action is a necessary element in the concept of equality, as the European Court of Human Rights reaffirmed in the DH and others v Czech Republic case. Article 14 of the convention does not prohibit a member state from treating groups differently in order to correct what it calls "factual inequalities between them". In some circumstances, a failure to attempt to correct inequality through differential treatment may in itself give rise to a breach of Article 14. That is also true of EU equality law. Article 7 of the framework directive provides that with a view to ensuring,

"full equality in practice, the principle of equal treatment shall not prevent any member state from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds listed in Article 1".

It recognises that a concept of literal equality is too narrow. In William Blake's words:

"One Law for the Lion and the Ox is Oppression".

The relevant Explanatory Notes are important. Both here and throughout, they are expressed with great clarity, for which we should be grateful to their authors. I want to mention that particularly because I have not read Explanatory Notes of this quality before, and although I must not name their authors, I think that if I could do so, I would say that Melanie Field and James Maskell between them have done the most extraordinary job I have ever seen. I hope that future Bill teams will work to that high quality. Paragraph 525 explains that Clause 157 provides that,

"the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim".

Paragraph 526 explains that:

"The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed".

To comply with the principle of proportionality, the positive action measure in question must both pursue a legitimate aim and be necessary to achieve that aim. Clause 157(1) relates to the European legal principle that measures must be shown to be necessary and focused on a specific disadvantage, requiring that the person concerned reasonably thinks that paragraphs (a), (b) or (c) apply. Clause 157(2)(a), (b) and (c) define the legitimate aims that may be pursued. I note that the Official Opposition have not tabled any amendments to limit the scope of Clause 157 by substituting "can demonstrate" for "reasonably thinks", as they have done in the next group in relation to Clause 158, to which I now turn.

It is important to record that paragraph 532 of the Explanatory Notes explains that Clause 158,

"permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the same protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance. The clause does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; each case must be considered on its merits".

The clause defines recruitment broadly so that, for example, it includes a pupilage or tenancy in a set of barristers' chambers such as my own. It is intended to allow the maximum extent of flexibility to address disadvantage and underrepresentation where candidates are as good as each other, within the confines of European law. The Explanatory Notes explain in paragraph 535 that the clause is new:

"While current legislation allows employers to undertake a variety of positive action measures, for instance, offering training and encouragement for certain forms of work, it does not allow employers to take any form of positive action at the point of recruitment or promotion. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics".

This is an important advance on current law. When I helped prepare the sex discrimination and race relations Acts in the mid-1970s, we included narrowly restrictive provisions allowing positive action to be taken to encourage women and members of ethnic minorities to apply for jobs where they were underrepresented, and to provide them with special training. But we were unable to obtain agreement to allow any form of positive action at the point of recruitment or promotion. That was regrettable and is one reason why employers have made insufficient use of the positive action provisions. They may encourage women or ethnic-minority individuals to apply for work where they are underrepresented, such as in the police service, and they may give them special training to equip them for the work, but they may not use underrepresentation as a reason for appointing, say, a woman or a person from an ethnic minority who is as qualified as other candidates in preference to a candidate who does not share the relevant protected characteristic.

As regards my own profession as a barrister, the Equality and Diversity Committee of the Bar Council, in a 2007 response to a government consultation on the Bill, explained why greater and clearer positive action measures are needed under the law. The committee pointed out that the current law limits positive action measures to a greater extent than is permitted by the relevant European directives. Currently, for example, apprenticeships and other on-the-job training schemes cannot be used as positive action measures. It argued for the need for a wider range of "voluntary balancing measures" to be available to organisations and employers. Thinking of the profession of the noble Lord, Lord Hunt, the Law Society in response to the same consultation also indicated that further "balancing measures" are needed. We therefore welcome the changes made in Clause 158 to encourage much greater use of positive action.

The Official Opposition seek, in Amendments 117 and 118, to restrict the scope and effect of Clause 158 and apparently intend to oppose the Question that Clause 158 should stand part of the Bill, even though in the other place they did not seek to remove the clause. It is questionable whether the amendments would make any practical difference other than to cause confusion and limit the effectiveness of Clause 158. It is ironical that they should do so, for it was the Thatcher Government who, in the Fair Employment (Northern Ireland) Act 1989, introduced a far more robust system of positive action to combat discrimination against Catholics and Protestants in the workplace, drawing on the Canadian employment equity approach which incorporated monitoring and affirmative action, but not quotas. The 1989 legislation of the noble Baroness, Lady Thatcher, provided for compulsory religious monitoring by both public sector and private sector employers. It required employers, at least every three years, to review their employment practices and to compare the religious composition of their workforce with available labour in the catchment area. The legislation also provides for affirmative action measures which exclude quotas but include the setting of goals, timetables and outreach measures.

Monitoring covers about 70 per cent of all employees in Northern Ireland and all employments with 11 or more employees. The Equality Commission for Northern Ireland has kindly informed me that the data reveal that substantial progress has been made and that a sizeable body of independent research evidence shows that the legislative provisions and their implementation have been successful in improving employment equality. The Conservative Party may and should claim credit for introducing the 1989 scheme. It is therefore ironical that it now opposes the much narrower provisions of Clause 158, which are entirely permissive and voluntary and subject to the proportionality principle. My amendment seeks to put the proportionality principle explicitly on the face of Clause 158, and I hope that the Government will be able to accept it.

I should add that this group also includes Amendment 119, tabled by the noble Baroness, Lady Knight, which would give blanket permission to discriminate in favour of the over-50s and disabled people without reference to proportionality. That would clearly violate European law. There is of course nothing to prevent more favourable treatment of disabled people; Clause 13 so provides. The positive action provisions in the Bill apply to disability, unlike the Disability Discrimination Act, to permit positive action between different types of disability-for example, permitting an employer to target training at people with learning disabilities, or to target advertising at people with sight impairments. In relation to age, as well as the positive discrimination measures permitted by Clauses 157 and 158, Clause 13 provides that age discrimination is not prohibited where it is a more proportionate means of achieving a legitimate aim.

I am sorry to have taken so long, but I will not make a second speech on those issues.

Lord Hunt of Wirral (Conservative)

My Lords, as the noble Lord, Lord Lester, moved into the 10th minute of his speech, I thought to myself that perhaps it would have been a much shorter speech had he been able to hear my explanation of why these amendments have been tabled, and particularly of why we wanted a debate on Clause 158 stand part. It is not to get rid of Clause 158, because we are happy with "positive action"; it is to allow us to raise our concerns about the operation of the clause. I will come to that and I am mindful of all the points that he raised.

Amendments 117 and 118 are designed to change the language of the clause from "as qualified as" to "equally qualified to". As I have already explained, we raised Clause 158 stand part to allow further discussion about what is a very important clause. We do not like the clause if it is to be used as positive discrimination, but we would be happy with it if it were to be used as "positive action", as the title suggests. We are concerned that without our amendments the clause will verge towards the former, which we could not agree to.

The first point that I want to raise is that I was under the impression that the Government intended this clause to be about "positive action". This is made clear not only by the title of the clause itself, but also by the statement made by the Minister for Women and Equality, Harriet Harman, at Second Reading in another place. She presented this clause on that occasion saying that,

"the Bill includes the power to take positive action",

to change the situation whereby, if an employer,

"is faced with two equally qualified candidates, one a man and one a woman",

in this example,

"the employer cannot actually say, 'Right, we've got two equally qualified people for this job, but I'm going to take you, because you're a woman and I want to diversify my management team'".-[Official Report, Commons, 11/5/09; cols. 557-58.]

It seems clear that the Government agree with us that this clause should be used for a tie-breaker situation between two candidates who are equally qualified. We would very much support the use of positive action in this way. It is clear that there may sometimes be a desire to discriminate in favour of a candidate with one particular characteristic. The example which has been done to death is one where a job vacancy has opened up in a primary school, when all the interviews, checks and tests have been carried out and the two candidates left are equally qualified to do the job. In this presumably rare situation, the employer would then be allowed to choose the male candidate, with the protected characteristic of gender being the factor which gave him the lead over the other candidate, who was equally qualified.

I hope very much that the noble Baroness the Chancellor of the Duchy of Lancaster can confirm the Government's views on this clause. We have heard what Harriet Harman said about it in May in another place. By the time the Bill reached your Lordships' House, however, a different tune was being played. The Minister introduced the clause saying that it,

"allows ... but does not compel",-[Official Report, 15/12/09; col. 1408.]

employers to recruit a person from an underrepresented group in their workforce when choosing between otherwise equal candidates for recruitment or promotion. This seems to give a different emphasis on the clause. My understanding from this statement is that employers would be allowed to make a choice from a pool of candidates rather than select one person in a tie-break situation.

The Explanatory Notes lend a little more credence to this. One of the examples states that, where the police service employs disproportionately low numbers of people from an ethnic-minority background, and where a number of candidates were,

"as qualified as each other",

preferential selection can be made,

"to a candidate from an ethnic minority background".

Our fear is that this clause is there to allow, in effect, positive discrimination. It appears that, instead of a clause which allows employers to make decisions based on protected characteristics in a tie-break, this clause is going to be much broader. We need to clarify this. In fact, would it allow employers to make a decision based on a protected characteristic when there is a pool of candidates who are considered all to be above a certain level of qualification and so can be considered as "qualified as each other"? We could not support that. It would be helpful, for the sake of clarity, if the Minister could confirm whether the Government's policy is indeed that this should only be used in a tie-break situation.

Clarity is necessary because the Minister in another place said that we should not worry because Clause 158(4)(b) prevented any kind of "policy" decision. In other words, this would mean that a company could not have a policy of favouring groups who shared a protected characteristic. I wonder whether this fits with the Government's seeming change of heart about whether this provision should relate to a tie-break or pool situation. The example given in the Explanatory Notes about the police recruiting ethnic minorities seems to show instead what I would have assumed subsection (4)(b) was designed to prevent. Therefore I look to the noble Baroness the Chancellor of the Duchy of Lancaster to clarify that for us. Does subsection (4)(b) prevent a blanket policy-a policy in relation to all recruitment drives-but allow a general policy in relation to one appointment?

To put it another way, is it the Government's intention that a company should be able to say, "We have not employed many of this particular section of people recently", then advertise a job, interview people from all backgrounds but, when it has found a pool of 20 candidates with the relevant qualifications and skills, to pick the candidate representing what it believes to be an unrepresented class or people over the others? We welcome the commitment to positive action, but this is not the clause we felt we were welcoming when it was first introduced in another place. We are now looking for some reassurance.

We believe that a clause which allows a decision to be made on a protected characteristic for a legitimate reason is very sensible and gives employers a reasonable freedom. If, however, the policy is broadened so that it is likened to positive discrimination, then it will do more damage than good to the cause of equality in a society which believes also very firmly in a meritocracy.

We have seen that many of the business organisations agree with the principle of this clause, but they need essential clarity to allow it to operate effectively. The CBI, for example, has told us that it welcomes the intention, but feels the clause is poorly drafted. It is uncertain how it will work in practice. It calls it a tie break. It would be helpful if the Minister could address that point directly in her remarks. The British Retail Consortium also supports the clause, saying that,

"businesses should be supported to address under-representation in their workforces".

However, it believes that,

"it is imperative that legislation and accompanying guidance is clear on how this should be done to ensure employers do not end up falling foul of the law".

The British Chambers of Commerce agree with this point, saying that the language is too confusing. The Bill uses "as qualified", but the Solicitor-General uses "equally acceptable". To be consistent with European law, we believe that we should use "equally qualified", as the amendment does. They also think that the situation the Government are trying to describe is one where there are two equally qualified candidates. We are looking to the Minister to make this entirely clear in her response. I hope also that she will agree that, for the sake of clarity and the correct use of the provision in the Bill, it is possible to accept our amendments. I also await with interest her response to the amendments tabled by the noble Lord, Lord Lester. He has explained that they are to clarify the use of this procedure and ensure that it is used only in the correct specific circumstances, namely when it is a,

"proportionate means of achieving a legitimate aim",

concerning positive action regarding those with a protected characteristic which might otherwise disadvantage them. However, the most important area to clarify is that which we have raised-namely, the need to make absolutely clear that positive action can apply only in a tie break.

I shall mention the amendment tabled by my noble friend Lady Knight, who sadly is unable to be with us. It raises an interesting issue. We would hope that nothing in this Bill would prevent those over 50 or who are disabled from being integrated into the workforce to address discrimination against these groups, if they were the suitable candidates for the job. However, we cannot support positive discrimination, so this must happen only when a tie break has occurred and two people who are equally qualified have been identified. It is only at this point that a selection on the basis of a protected characteristic should be made.

Archbishop of York (Bishop)

My Lords, Clause 157 begins with the same phrase as Clause 158, "reasonably thinks that". The noble Lord, Lord Hunt, does not quarrel with those words in Clause 157, so why does he quarrel with them in Clause 158? The wording must be "reasonably thinks" because it is very difficult to demonstrate that the employer has all the facts and reasons, and I am not always convinced that things are as transparent and clear to the person being interviewed. If you have reason to believe that you have been discriminated against, that is all that you require. Then it is for the employer to demonstrate that they have not done that. I should rather put it that way round than require the person who "reasonably thinks" that they have been discriminated against to demonstrate it. For those reasons, I do not think that the words in Clause 158 should be changed, as they are not being asked to be changed in Clause 157.

The noble Lord, Lord Lester, wants to change the words from,

"which is a proportionate means of achieving the aim",

to,

"provided it is a proportionate means of achieving the aim".

Lord Lester of Herne Hill (Liberal Democrat)

I only probed on that and did not intend to pursue it.

Archbishop of York (Bishop)

I want to continue probing on the noble Lord's behalf. The proviso he provides would save us a lot of bother in future. The words "which is" are slightly weaker. Many people who I have dealt with genuinely believe that they have been discriminated against and have gone through the tribunal and all kinds of different things and still think that they are being discriminated against. You then realise that what they want to do is not proportionate. If there had been a proviso right at the beginning, there is a chance that it would have concentrated the mind. I support the noble Lord's change to "provided it", because it subtly asks whether a person really has grounds and whether it is so proportionate that it will achieve their aims and objectives. The noble Lord and I know of many cases which we have pursued and have been taken all around but which have achieved nothing. I want the noble Lord's probing amendment to be more than probing and to be inserted, because it says it better that simply "which is".

We have already meandered from Clause 157 to Clause 158. I prefer the phrase "as qualified as", because "equally qualified to" is mathematical. How would you measure it? How will someone know that I am equally as qualified? I sit in your Lordships' House, and I do not think that I am equally qualified as some of your Lordships. It is better simply to say "as qualified as". It is more humbling and more genuine, so I shall stick with that phrase.

Finally, on "to be recruited or promoted", I do not understand why that should be narrowed. I would rather have both. Of course, some people always worry that positive action means positive discrimination, but the word discrimination can be used in two different ways. In the Latin as well as the Greek, discrimination is the same word as discernment. I understand in this sense that positive action and promotion or recruitment means that it is discerning, not simply leaving someone out. I should rather use the same phrase-which for me is not positive discrimination but positive discernment. Unfortunately, some people do not discern that. I would not quarrel with the drafting as it is, except to say that "provided it is proportionate" is a much stronger way in which to put it.

Baroness Royall of Blaisdon (Labour)

My Lords, before I address Amendments 115C and 118A, tabled by the noble Lord, Lord Lester, Amendments 117 and 118 in the names of the noble Baronesses, Lady Warsi and Lady Morris, and Amendment 119 from the noble Baroness, Lady Knight of Collingtree, it might help the House if I explain the Bill's positive action provisions.

Clause 157 builds on and simplifies the current legislative framework for positive action. For the first time, these provisions will be extended to cover all protected characteristics and will apply to them all in exactly the same way. As long as the relevant criteria are met, these provisions can be used to address disadvantage, encourage participation where people with a particular protected characteristic are underrepresented, or meet particular needs. For example, a construction firm wishing to diversify its male-dominated workforce could add a statement to its job advertisement inviting women to apply.

Clause 158 enables employers to take targeted action with regard to recruitment and promotion. This will assist employers to address underrepresentation and disadvantage, fill skills gaps, and create a more diverse workforce. The decision to extend the existing, more limited, provisions has been welcomed by businesses as a beneficial move. Any use of these provisions remains entirely voluntary; it is not a mandatory requirement. However, to ensure that employers do not misuse these voluntary measures, Clause 158(4) ensures that employers cannot adopt a blanket policy of favouring candidates simply because they have a protected characteristic and are disadvantaged or underrepresented. Each case must be considered on its merits.

Clause 158 does not permit positive discrimination, nor is it contrary to the "merit principle". It simply allows an employer, when faced with two candidates who are as qualified as each other to carry out a specific job, to use the desirability of widening the diversity of the workforce as the criterion for choosing between them. I reassure the noble Lord, Lord Hunt, that my emphasis is no different to that expressed by my right honourable friend Harriet Harman in another place: there has been no change of heart. I am grateful to the most reverend Primate for his very reasonable support for these clauses.

Before I turn in detail to the various amendments, I thank the noble Lord, Lord Lester, both for raising the important issue of proportionality in relation to positive action and for his insightful comments on the importance of positive action more generally.

Amendment 115C would substitute "which" with "provided it", so that the clause would permit positive action provided it is a proportionate means of addressing disadvantage, meeting different needs or reducing underrepresentation. I completely agree with the noble Lord: we would not want the provision to permit action which is disproportionate, or to allow employers or service providers to misuse positive action measures in any way. However, to the great disappointment of the most reverend Primate, I can assure the noble Lord that Clause 157 as drafted will not allow positive action in any circumstances where it is not proportionate. Accordingly, replacing "which" with the alternative suggestion would have no impact on the intent or effect of this provision. Therefore, I urge the noble Lord to withdraw his amendment.

Amendment 118A would make it explicit that any positive action measure taken in recruitment and promotion under Clause 158 has to be a proportionate means of achieving the aims set out in subsection (2) -helping people overcome a disadvantage or participate in an activity. While we consider that Clause 158 as drafted already implicitly embodies a requirement for proportionality, I accept that there are benefits to making proportionality an explicit requirement: it would it make clearer what this clause is about, allowing employers to take positive action where proportionate, and also better reflect the terminology used in Clause 157, where proportionality is already explicit. I am therefore content to accept Amendment 118A.

Amendment 117 would change the present wording of the provisions in Clause 158(4)(a) from "as qualified as" to "equally qualified to". Amendment 118 seeks to delete "to be recruited or promoted" from the qualification criteria. We believe these amendments are misconceived and we will therefore resist them.

It has been claimed that Clause 158 would allow employers to set an artificially low qualification threshold for a job to enable them to gerrymander the selection of the successful candidate-the idea that the pass mark is set so low that almost everyone will make the grade, in the hope that at least one candidate has a targeted protected characteristic. Clause 158 does not permit an employer to recruit or promote a candidate who is less qualified than another just because the employer wants to address disadvantage or underrepresentation-in any event, this would make no business sense. Where the assessment process, in whatever form it takes, evaluates one candidate as having scored, say, 95 per cent and another 61 per cent, those candidates cannot be considered as being as qualified as each other to undertake the job. It is immaterial whether the pass mark was set at 60 per cent, 50 per cent or 40 per cent; the clearly superior candidate must always be offered the job. We are confident that the clause as drafted achieves that effect.

We consider that the amendments could have the effect of leading employers to interpret the clause too narrowly by considering the provisions as being solely about the equality of qualifications per se. An employer might misinterpret such wording as a requirement that candidates should have identical qualifications, whereas the provision is designed to be available where both candidates have demonstrated that they have met the employer's particular requirements for the post to a comparable standard. Any assessment of candidates' suitability will depend on a number of factors relevant to the job in question, such as experience, aptitude, physical ability, or performance during an interview or assessment. Formal qualifications are only one way in which a candidate's overall suitability may be assessed.

The impact of such a misinterpretation could be that employers will be reluctant to use the provision unless they have a situation in which candidates have absolutely identical qualifications, or identical scores if a scoring system is part of the assessment process, rather than looking at the respective ability and suitability of each candidate in the round. This would limit the scope for delivering real equality outcomes for women particularly, people from ethnic minority communities and disabled people, for example, who still experience disadvantage and underrepresentation in the labour market. For those reasons, I urge the noble Lord to withdraw the amendment.

I will briefly mention Amendment 119, tabled by the noble Baroness, Lady Knight of Collingtree, which would appear to permit any action intended to increase the participation of people aged over 50 and disabled people in the labour market. This amendment is unnecessary. The noble Lord, Lord Lester, helpfully explained how the disability and age discrimination provisions in the Bill permit a wider range of differential treatment than is available for the other protected characteristics. In addition, this Government have done much to increase the labour market participation of people aged over 50 and disabled people through targeted programmes such as the Flexible New Deal, which provides tailored help for jobless people of all ages, including those aged 50 and over. I therefore suggest that the noble Baroness's amendment is superfluous, but I also ask the noble Lord to withdraw his amendment.

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I am extremely grateful to everyone who has taken part in this debate, particularly to the most reverend Primate the Archbishop of York for his contribution. When I listen to him on the subject of discrimination, I always feel that he speaks not only as a very distinguished archbishop, but as a human being who understands exactly what the problems of discrimination are, and looks at these issues not as a lawyer but in a common-sense way to make the law work in practice.

I am only a lawyer, but I have experience within my chambers as a small employer; I doubt we employ more than about 30 people, with probably not more than 75 barristers. We have a different kind of experience, because we are constantly seeking to choose pupils and tenants on the basis of individual merit. I have discussed these provisions of the Bill with the diversity team in my chambers, and they are happy to work within that framework. I have been persuaded by what the Minister has said that proportionality is already fully within Clause 157, and that my words add nothing-although I am very grateful that the most reverend Primate prefers them to those already there. It is not for me to second guess parliamentary counsel, once I am satisfied that the substance is there.

I am very grateful indeed that proportionality has been written into Clause 158 by the Minister indicating that she will accept Amendment 118A. The most reverend Primate was also talking about "reasonably thinks". I think that is in the next group of amendments, so although I agree with him, we will come back to that later. I share the view of the Minister and the Government about the other amendments. This is, therefore, an opportune moment for me to withdraw the amendment.

Amendment 115C withdrawn.

House resumed. Committee to begin again not before the completion of Committee stage of the Terrorist Asset-Freezing (Temporary Provisions) Bill.

Committee (6th Day) (Continued)

Lord Hunt of Wirral (Conservative)

My Lords, I will use my best endeavours to make my remarks as brief as possible in view of the need to make progress.

This group of amendments refers to two different clauses. Amendment 116 has been tabled to Clause 158, which deals with positive action, recruitment and promotion. The others have been tabled to Clause 196, which is about harmonisation, and enables a Minister of the Crown to amend by order the Act which will result from this Bill, and the Equality Act 2006, in order to ensure consistency-both of provision and with European law. I will not go into the detail of this clause at this point. We have tabled amendments which will allow discussion later.

This group of amendments relates especially to the use of "thinks" rather than "can demonstrate". We have been having detailed discussions on the semantics of this Bill-around the definitions of "reasonable" and "proportionate"-and I am sure noble Lords will also have an opinion on the use of "thinks" in these clauses. Our main contention is that, given that the powers provided by these clauses are quite wide, it is sensible to have a less subjective test for when the provisions can be used. If the test were to be made more objective, the person or Minister responsible could be properly held to account for their actions. A test based on a subjective opinion, however, will be much more difficult to judge.

In another place, the Minister dismissed these concerns, stating that this,

"is not a "thinking" process which can just come to someone over breakfast".-[Official Report, Commons, Equality Bill Committee, 30/6/09; col. 613.]

I am sure that for most people it would not be. However, there is nothing in this Bill or the Explanatory Notes which makes that clear. Can the Minister please explain what the "thinking" process would include? We obviously expect and hope that the Minister making decisions regarding harmonisation, and the person making decisions about the use of positive action, would do so with the utmost regard for best practice. However, the use of "thinks" seems to belie the serious implications of the use of these powers. Does the Minister agree that, given the strength of these powers, it would be beneficial if the test for their use were made stricter?

In another place, the Minister commented that it would be unproductive if an employer were to be put off using the clause relating to positive action if the test were raised and he had, for example, to find an expensive consultant to provide some statistical analysis to demonstrate that the use of the powers was justified. As I pointed out a little earlier, we on these Benches support the provisions for positive action as long as that does not give way to positive discrimination. However, I wonder whether our amendment would really have as damaging an impact on the use of the clause as the Minister in another place feared would happen. Does the Minister agree that most employers would be able to demonstrate, first, that persons who shared a protected characteristic suffer a disadvantage connected to that characteristic or that, secondly, participation in an activity by persons who share a protected characteristic is disproportionately low? One would not need to spend a lot of money to have a consultant find statistical evidence; instead, it would just raise the bar for the thinking process.

This would mean that it was clear in the Bill that this is an important decision that requires reasoned, objective thinking and an evidential basis. I am sure that most employers would be doing that anyway. The aim of the change would be to catch only those who were not, to provide them with clear instruction about when is the appropriate time to use these broad powers, and to make sure that there is sufficient justification. That would not be off-putting to employers, as surely that sort of thinking is what the Government mean to encourage when they use "thinks". If not, can the Minister inform the Committee what the word is supposed to denote?

The use of the word "thinks" in these two clauses raises further concerns when it is noted that in Clause 158 the person must "reasonably" think, but that in Clause 196 the Minister does not even have the limitation of "reasonably" in order to use the powers contained there only on a thought. Given that the Minister in another place specified that those thoughts could not just occur over the breakfast table, can the noble Baroness account for the fact that "reasonably" has not been included here? I feel sure that the Minister will reassure us that all decisions are expected to be reasonable. If that is the case, why is that word included in Clause 158? Surely, the noble Baroness cannot be claiming that Ministers are intrinsically more reasonable than other employers?

Again, we advocate the use of "can demonstrate", with the intention that the Minister should have to be able to demonstrate the objective thought process and to be held accountable for the decisions made. I do not feel that the change that these amendments would effect would have too great an impact on a process that the Government are assuming would occur anyway. The noble Baroness will correct me if I am wrong-indeed, I suspect that she may wish to do so-but we on these Benches think that it would be sensible if the need for an objective and justifiable decision was laid out in the Bill rather than using a word which, to many, denotes a more subjective decision without the need for demonstrable evidence. I beg to move.

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, this is not a taxing or a penal statute; this is a remedial statute, and it is to be approached in a liberal way. The principle of proportionality is a two-stage process. The first stage is that one must show that there is a legitimate aim; the second is to show that the means employed are reasonably necessary to achieve the aim. One does not need to raise the bar or to treat this as a coercive provision to be strictly construed because it is very important-the most reverend Primate has already indicated this-that the gateway into using these voluntary measures of affirmative positive action to overcome disadvantage and the effects of past discrimination is showing that it is a reasonable view. The word "reasonable" has an objective meaning. It means that you cannot take leave of your senses. Reason has to be applied.

As regards the term "reasonably thinks", the first stage, which is the easy stage, is to show that there is a legitimate aim. As I said earlier, the legitimate aim is spelt out in the Bill. If one were to raise the bar, it would completely stultify the effect of these voluntary provisions. I have said before that when Margaret Thatcher was Prime Minister and introduced in 1989 far more radical and coercive measures that still apply, have worked for 70 per cent of the workforce and have reduced discrimination against Protestants and Catholics in Northern Ireland, there was no approach of this kind, which, frankly, is inappropriate in a remedial statute. I should have thought that if the Conservatives win the election and govern the country, they would welcome the fact that these positive-action provisions will be taken up voluntarily by the private and public sectors. We can then begin to deal with patterns and practices of unjust discrimination in a more positive way, avoiding the need for unnecessary individual litigation. I cannot put it as well as the most reverend Primate who spoke from a common-sense, non-lawyer point of view, but it is absolutely vital that we keep the threshold as it is.

Baroness Turner of Camden (Labour)

My Lords, I cannot really see what advantage one would get by replacing "reasonably thinks" with "can demonstrate". How does one set about demonstrating that there is a disadvantage in a work situation? I should have thought that it was reasonable to take on board this wording where an individual responsible for appointments or whatever in a work situation would reasonably think. I cannot see anything wrong with that, but to wait until you can demonstrate something is much more difficult. I much prefer the wording proposed by the noble Lord, Lord Lester, of "proportionate means". That is very good. Therefore, I see no advantage at all in replacing "reasonably thinks" with "can demonstrate"-quite the contrary.

Baroness Thornton (Labour)

My Lords, this group of amendments relates to two different clauses-158 and 196, so I shall address the relevant amendments separately. Amendment 116 would make it a requirement for employers to rely on the statistical evidence to support the use of positive action measures to tackle disadvantage or underrepresentation within an organisation's workforce. This same amendment was tabled in another place. The Government resist this amendment. The Bill uses the formulation "reasonably thinks", so it already requires a decision-maker to act in a reasonable way when deciding whether to use positive action measures. We believe that "reasonably" introduces an element of objectivity and raises the threshold for decision-makers. It means that, when making the decision, the employer must apply logical and rational principles and a failure to do so would give rise to a challenge. Therefore, any use of these measures must be backed by some form of evidence or justification that supports the belief that people who share a particular characteristic are disadvantaged or underrepresented; otherwise, such a decision would be open to challenge, so clearly the employer cannot simply opt to use positive action measures on a whim.

Clause 158 sets out the circumstances in which employers could apply these positive action measures and the action that is permitted. Clause 158(4) also ensures that employers would not be able to abuse the provisions by ensuring that any action taken must always be a proportionate way of accomplishing the intended outcome. As has already been mentioned by noble Lords, using the formulation of "can demonstrate", as proposed in the amendment, would create a higher threshold based on undisputable statistical evidence, which we consider would have a chilling effect on the willingness of employers to use positive action measures. I am not saying that it is devastating, but that it is chilling. It would discourage employers from using the positive action measures, even when they had identified the need to tackle disadvantage or underrepresentation -the gateway mentioned by the noble Lord, Lord Lester, and the right reverend Prelate.

Amendments 130 to 133 will be discussed in a later group, so I will limit my remarks. They would limit ministerial flexibility in deciding whether use of the harmonisation power in Clause 196 is appropriate and, if so, the timing and extent of its use.

The provision grants Equality Ministers of the future the flexibility they need in order to keep the Bill, when enacted, a coherent and harmonised piece of legislation in the years ahead. I can offer reassurance to noble Lords, should they require it, that use of this clause would not be at the whim of a Minister dreaming something up over breakfast. While the initial trigger on its use would result from ministerial consideration following advice from officials, there are a number of constraints on the power's use and in-built requirements to explain and demonstrate why it would need to be deployed in any given case. The word "thinks" in Clause 196(1)(a) concerns the question of whether the Minister considers the relevant criteria are met and the Minister is therefore bound by public law principles to act reasonably.

The harmonisation provision, particularly the important procedural safeguards that we propose, will be debated more fully when we reach Clause 196, but I remind the House that this power can be used only where a community obligation is to be implemented through the Equality Acts. There will be little by way of subjectivity on this point. It will be clear that action is needed when regulations are brought forward to implement, for example, a directive under Section 2(2) of the European Communities Act 1972. With regard to consultation, it is inherent in such an exercise that the Government will need to demonstrate why the power needs to be used in those particular circumstances.

In addition, in response to concerns of the Delegated Powers and Regulatory Reform Committee, the Government are proposing amendments that would add further checks on its use-for example, by requiring further consultation if the initial consultation led to changes to the proposals and an increase in the frequency of reporting to Parliament on the power's use is proposed. We will explain that when we reach Clause 196.

I conclude by highlighting that all regulations intended to be made under this power must be laid before and debated by both Houses of Parliament. As with the consultation, the Minster will by definition need to demonstrate to Parliament that regulations under Section 2(2) of the 1972 Act trigger a need to retain harmony in the law through use of this power, and that any consequential adjustments are necessary. A new clause proposed by the Government after Clause 196 also requires that an explanatory document be laid before Parliament along with the draft regulations describing the results of the consultation, among other things. Ample accountability is built into this provision and it is important to understand that particular pieces of language taken in isolation do not provide the complete picture. I urge the noble Lord to withdraw the amendment.

Lord Hunt of Wirral (Conservative)

My Lords, I thank the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Lester of Herne Hill, for their important contributions. I also thank the Minister for her reassurance. The concept of Ministers dreaming something up over breakfast is chilling, but perhaps we will leave it at that. She has given me the reassurance that I sought so I beg leave to withdraw the amendment.

Amendment 116 withdrawn.

Amendments 117 and 118 not moved.

Amendment 118A

Moved by Baroness Thornton

118A: Clause 158, page 101, line 3, at end insert ", and

( ) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2)"

Amendment 118A agreed.

Clause 158, as amended, agreed.

Amendments 119 and 119A not moved.

Clause 159 agreed.

Amendment 120

Moved by Lord Hunt of Wirral

120: After Clause 159, insert the following new Clause-

"Private hire vehicle accessibility regulations

(1) The Secretary of State may make regulations (in this section referred to as "private hire vehicle accessibility regulations") for securing that it is possible for disabled persons-

(a) to get into and out of private hire vehicles in safety;

(b) to do so while in wheelchairs;

(c) to travel in private hire vehicles in safety and reasonable comfort;

(d) to do so while in wheelchairs.

(2) The regulations may, in particular, require a regulated private hire vehicle to conform with provision as to-

(a) the size of a door opening for the use of passengers;

(b) the floor area of the passenger compartment;

(c) the amount of headroom in the passenger compartment;

(d) the fitting of restraining devices designed to ensure the stability of a wheelchair while the private hire vehicle is moving.

(3) The regulations may also-

(a) require the driver of a regulated private hire vehicle which is plying for hire, or which has been hired, to comply with provisions as to the carrying of ramps of other devices designed to facilitate the loading and unloading of wheelchairs;

(b) require the driver of a regulated private hire vehicle in which a disabled person is being carried while in a wheelchair to comply with provisions as to the position in which the wheelchair is to be secured.

(4) The driver of a regulated private hire vehicle which is plying for hire or has been hired commits an offence-

(a) by failing to comply with a requirement of the regulations, or

(b) if the private hire vehicle fails to conform with any provision of the regulations with which it is required to conform.

(5) A person guilty of an offence under subsection (4) is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(6) In this section-

"passenger compartment" has such meaning as is specified in private hire vehicle accessibility regulations;

"regulated private hire vehicle" means a private hire vehicle to which private hire accessibility regulations are expressed to apply."

Lord Hunt of Wirral (Conservative)

My Lords, we tabled Amendment 120 because we wanted to raise the issue of accessibility of private hire vehicles for people with disability. The intention is to probe this area and discover what changes could be made, what changes should be made and what changes the Government hope to make to ensure that private hire vehicles are accessible to people with disability.

We therefore tabled an amendment to come after Clause 159. This contains the order-making power which would allow the Secretary of State to make regulations to ensure that disabled people could get into and out of private hire vehicles in safety, get into and out of private hire vehicles in wheelchairs and travel in private hire vehicles in safety and comfort. These reasonably far-reaching regulations could also specify the size of door openings for passengers, the floor area and the amount of headroom in the passenger compartment and the fitting of restraining devices to prevent a wheelchair from moving while the vehicle was in motion.

Will the Minister let us know whether any research has been carried out to show how many private hire vehicles are currently accessible for people with disability? Is she able to provide any figures which would demonstrate the disadvantage currently experienced by people with disability, thereby pointing to the need for regulation-making powers? We on these Benches are concerned to ensure that, where necessary, changes are made.

Throughout the passage of this Bill, we have tried to underline the point that, where it is necessary to ensure equality, people with disability can be treated in a more favourable way than people who are not disabled. We are pleased to see the Government's letter of 26 January, which stated that they were "minded" to accept Amendment 120A tabled by the noble Baroness, Lady Wilkins. This amendment would seek to ensure in a new clause that suitable numbers of wheelchair-accessible taxis operate throughout England and Wales.

We welcome the intention of this clause, but I ask for clarification on a couple of points. The amendments appear to give further powers to the Secretary of State, thus removing them from the local authorities. Can the noble Baroness explain why this is necessary if the local authorities will already be subject to the public sector equality duty? Is this a symptom of the vague, and so far undefined, nature of the duty, making it necessary to give powers to the Secretary of State, or is it an indication that the Government already doubt the way this duty will work?

I hope that in her response the noble Baroness will also indicate what consultation and discussion have taken place with the Local Government Association and taxi organisations about this matter, and what views were expressed. I also wonder whether she might be able to address some more specific questions to do with the capability of a vehicle to accommodate a wheelchair. We have been informed that no wheelchair is crash-tested for a situation where it is rear-facing. Despite this, most private hire vehicles can accommodate only rear-facing wheelchairs.

Is the noble Baroness aware that this is the case, and does she agree that it seems unsuitable and that perhaps changes need to be made? We are also informed that no council arranging school transport carries out checks to see whether wheelchairs are crash-tested and certified. Can the noble Baroness inform the Committee whether such checks or similar are required to be carried out, and does she not think that there is a case for calling for such safety measures? I look forward to the Minister's response. I beg to move.

Baroness Wilkins (Labour)

My Lords, I shall speak to Amendment 120A in my name, which concerns the lack of accessible taxis available to disabled passengers. I welcome the support of the noble Lord, Lord Hunt. The proposed new clause would mean that taxi-licensing authorities which have a policy of controlling taxi numbers could not refuse to grant a taxi licence for a wheelchair-accessible vehicle if fewer than a prescribed proportion of taxis in the district were wheelchair-accessible. At present, a taxi-licensing authority outside London can refuse to grant a licence if it is satisfied that there is no significant unmet need for taxi services in the district. As a result, a licensing authority with a quantity-control policy and relatively few or no accessible taxis in its fleet can refuse applications for wheelchair-accessible vehicles. Noble Lords can imagine what that means for a wheelchair user who needs a taxi when, for instance, they arrive in the area by train. They are stranded. One must also think what it means for those living in the area when they need to get to an urgent appointment or visit friends and have a social life.

The new clause would mean that a licensing authority could not refuse to grant a licence for any wheelchair-accessible vehicle if it had fewer than a prescribed proportion of accessible taxis in the district. The proportion of accessible taxis would be prescribed by the Secretary of State following economic assessment and consultation. The provision of accessible transport is essential for equality of opportunity. I hope that the Minister will accept the amendment.

Lord Wallace of Tankerness (Liberal Democrat)

My Lords, I welcome the debate initiated by the noble Lord, Lord Hunt, and in particular the proposed new clause spoken to by the noble Baroness, Lady Wilkins. Her last point, that accessibility to transport is crucial for equality of opportunity, sums it up. We on these Benches are happy to support her amendment.

Baroness Howe of Idlicote (Crossbench)

My Lords, I speak briefly to support the amendment, not least because, on Sunday evening, a disabled friend came to visit. A licensed taxi came to pick him up and could not take him, so there was a delay of more than an hour while we waited for a suitable taxi. Clearly this is an important area and we need to know more about it.

Archbishop of York (Bishop)

My Lords, when the noble Baroness, Lady Campbell of Surbiton, moved her amendment last time on the question of need, the right reverend Prelate the Bishop of Liverpool spoke out clearly in the debate. In the General Synod of the Church of England, we received a report from a number of disabled people, and access was one of the greatest areas of concern. The amendment tabled by the noble Baroness, Lady Wilkins, would address that concern, and I support it, because it strikes the right balance. Access is absolutely critical.

Baroness Thornton (Labour)

My Lords, I will speak to government Amendments 121, 122 and 123, before turning to Amendment 120A and finally to Amendment 120, moved by the noble Lord, Lord Hunt.

Amendments 121, 122 and 123 relate to the ability of taxi-licensing authorities to maintain lists of wheelchair-accessible taxis and private hire vehicles that operate in their area. Drivers of such designated vehicles are required to perform the duties in Clause 163 to carry and assist disabled passengers who use wheelchairs. Clause 165 enables Scottish licensing authorities to maintain lists only of wheelchair-accessible taxis and private hire vehicles that hold a special licence to operate a local bus service. They will be unable to list wheelchair-accessible taxis and private hire vehicles that operate under conventional licences. This would mean that the drivers of vehicles with a conventional licence would not be obliged to carry out the duties in Clause 163, even though their vehicle was capable of carrying disabled passengers who use wheelchairs.

The amendments will align the position in Scotland to that in England and Wales. This will give greater assurance to disabled people that, when they require a wheelchair-accessible taxi or private hire vehicle, the driver will assist them to enter and exit the vehicle and, if they decide to remain in the wheelchair while travelling in the vehicle, will ensure that the wheelchair is secure and safe and that they travel in reasonable comfort.

Amendment 120A is in the name of my noble friend Lady Wilkins. Taxi licensing and provision is a complicated area, and steps to improve access to taxis for disabled people are always welcome. It is unacceptable that a licensing authority which controls taxi numbers can routinely refuse applications for wheelchair-accessible taxis when it has very few wheelchair-accessible taxis in the district or, indeed, none at all. This new clause provides an ideal means of enhancing accessible taxi provision in these areas.

I thank my noble friend Lady Wilkins for her amendment, which is compatible with the aims of the Bill and has the effect of improving accessibility for disabled people. In making any regulations under this clause, the Government would, of course, consult interested parties before reaching a decision on the proportion of taxis which must be wheelchair accessible and on the specifications of the wheelchair which taxis must be capable of accommodating. Therefore, the Government will accept Amendment 120A.

I now turn to Amendment 120 and the legitimate points raised by the noble Lord, Lord Hunt. I have already mentioned the issues of safety and the appropriate provision to be provided in taxis and licensed vehicles. The noble Lord raised a very reasonable point about safety and taxis. This is not in my notes but it should be. I have already mentioned that checks on safety are included and would be included in the regulations that arise out of my noble friend's point. I will undertake to ensure that the issue is properly addressed in the regulations and guidance which arise out of these provisions. I shall also write to the noble Lord and the Committee on this matter. From the wisdom that is offered to me from time to time, I can say that vehicles used for taxis are tested in accordance with European safety regulations and those requirements include crash testing. They must also be designed to accommodate wheelchairs safely in rear-facing orientation. We have taken that on board.

The noble Lord's amendment is a probing amendment on this subject, and its principal objective would be to require all private hire vehicles to be wheelchair accessible. That would be incredibly burdensome to the private hire industry. Looking at the range of private hire vehicles which are available, we need information to be available to disabled people about what is in their area so that we can move forward in an orderly fashion. To say that all private hire vehicles have to provide for wheelchair access may be a step too far. However, the private hire vehicle trade is fundamentally different from the taxi trade: taxis can ply for hire, stand in ranks and be hailed in the street, whereas private hire vehicles must be booked in advance through a licensed operator.

I should point out that, as the amendment is drafted, it could be seen to be technically defective as it refers to private hire vehicles plying for hire and of course the noble Lord will be aware that that is illegal. We think that converting or replacing all private hire vehicles would be so costly to the trade that it would no doubt force many operators out of business. Given the important role that private hire vehicles play in providing public transport, I am sure the noble Lord would not want to go in that direction.

However, there is scope for using legislation to enhance the service which disabled people receive from private hire vehicles. In addition to the general duty not to discriminate, drivers of private hire vehicles designated as wheelchair-accessible vehicles will, under Clause 163, be required to assist their wheelchair passengers. I hope that explains why we do not agree with Amendment 120 and why we would like to accept Amendment 120A.

Lord Hunt of Wirral (Conservative)

First, I am very grateful to the noble Baroness. I hasten to reassure her that it was, as I pointed out, only a probing amendment. We are well aware of the importance of the private hire vehicle industry, which plays a critical part in making the necessary provision available. I am very grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Wilkins.

I too am very pleased indeed that the Government are minded to accept Amendment 120A. So far as the other comments of the noble Baroness are concerned, I think that was a very helpful outline. I warmly welcome her undertaking and in all the circumstances beg leave to withdraw the amendment.

Amendment 120 withdrawn.

Amendment 120A

Moved by Baroness Wilkins

120A: After Clause 159, insert the following new Clause-

"Control of numbers of licensed taxis: exception

(1) This section applies if-

(a) an application for a licence in respect of a vehicle is made under section 37 of the Town Police Clauses Act 1847,

(b) it is possible for a disabled person-

(i) to get into and out of the vehicle in safety,

(ii) to travel in the vehicle in safety and reasonable comfort, and

(iii) to do the things mentioned in sub-paragraphs (i) and (ii) while in a wheelchair of a size specified in regulations made by the Secretary of State, and

(c) the proportion of taxis licensed in respect of the area to which the licence would (if granted) apply that conform to the requirement in paragraph (b) is less than the proportion that is specified in regulations made by the Secretary of State.

(2) Section 16 of the Transport Act 1985 (which modifies the provisions of the Town Police Clauses Act 1847 about hackney carriages to allow a licence to ply for hire to be refused in order to limit the number of licensed carriages) does not apply in relation to the vehicle; and those provisions of the Town Police Clauses Act 1847 are to have effect subject to this section.

(3) In section 16 of the Transport Act 1985, after "shall" insert "(subject to section (Control of numbers of licensed taxis: exception) of the Equality Act 2010)"."

Amendment 120A agreed.

Clauses 160 to 164 agreed.

Clause 165: Lists of wheelchair-accessible vehicles

Amendments 121 to 123

Moved by Baroness Royall of Blaisdon

121: Clause 165, page 106, line 3, leave out "in England and Wales"

122: Clause 165, page 106, line 6, leave out subsection (4)

123: Clause 165, page 106, line 9, leave out "subsections (3) and (4)" and insert "subsection (3)"

Amendments 121 to 123 agreed.

Clause 165, as amended, agreed.

Clauses 166 to 184 agreed.

Schedule 20 agreed.

Clauses 185 to 187 agreed.

Schedule 21 agreed.

Clauses 188 and 189 agreed.

Schedule 22: Statutory provisions

Amendments 124 and 125 not moved.

Schedule 22 agreed.

Clauses 190 to 194 agreed.

Schedule 23: General exceptions

Amendments 125A and 125B not moved.

Amendment 125C

Moved by Lord Hunt of Wirral

125C: Schedule 23, page 217, line 39, at end insert-

"Landlord: possession of premises

(1) A landlord does not contravene this Act so far as relating to disability by doing anything to obtain possession of the premises from the tenant pursuant to the provisions of section 21 (obtaining possession from an assured shorthold tenant) of Part 1 of Schedule 2 to the Housing Act 1988 (mandatory grounds for possession).

(2) In this paragraph "landlord" and "tenant" have the same meanings as they have in the Housing Act 1988."

Lord Hunt of Wirral (Conservative)

My Lords, this amendment refers to the effect of the decision of the House of Lords in the Lewisham v Malcolm case, in which-your Lordships may recall it-landlords seeking possession from tenants with disability, particularly those suffering from a mental disability, did not need to justify their decision to take possession proceedings. In the light of that case, I lay out very clearly that our position is firmly in support of the new provisions that address the hole left by this judgment. We want to ensure that people with disability receive the right level of protection from disability-related discrimination. We are fully supportive of the alterations that need to be made to the letter of the law to return to what it was mistakenly thought that the spirit of the law already encapsulated.

We ask, however, what has happened so far as consultation is concerned, in particular between the Equality and Human Rights Commission and the landlord associations. We on these Benches believe that reversing the Malcolm decision is necessary and right. Nevertheless, we would want to ensure that this was done in such a way as to make certain that there were no loopholes whereby a landlord could not get rid of a problem tenant simply because they claimed to have a disability that was not in fact the case.

The effect of the reversal of the Malcolm decision will be that the mandatory grounds of possession-Section 8 of the Housing Act 1988 for a rent arrears of two months and Section 21 for shorthold tenants who have reached the end of their tenancy-will mean that landlords still have to justify possession. However, landlords are rightly concerned that in cases of indirect discrimination, the grounds of possession will become discretionary. This could become important if, for example, a tenant blamed their anti-social behaviour on some form of mental illness which, for the purposes of the Act, could be construed as a disability. This would indeed have important ramifications for people with disability because it might mean that landlords are more reluctant to allow genuinely disabled people to move into rented accommodation.

Will the noble Baroness inform the House what discussions have been had with landlord associations here and what reassurances she can offer them? Furthermore, will she inform the House how much evidence of proof would be needed to justify obtaining an order for possession against a person with disability in a situation of indirect discrimination? What form can that proof take? Moreover, does the Minister accept that in practice it will be very difficult for landlords to recoup the costs of defending claims of possession, even where the claims are won?

I have posed a lot of questions. If the Minister cannot answer them tonight, perhaps she might do so before Report. We are fully supportive of the changes which would see the Malcolm decision reversed, but there are other important considerations to take into account and other key players to protect. I beg to move.

Baroness Thornton (Labour)

My Lords, Amendment 125C would set out in the Bill a provision that ensured that the duty of the courts in England and Wales to grant possession to a landlord in certain cases under the Housing Act 1988 was not hampered by the disability provisions of the Bill. I appreciate that the amendment has been tabled to explore the avenues explained by the noble Lord.

The noble Lord appears to have concerns that the disability provisions which we debated earlier in Committee might prevent landlords taking action under the auspices of the Housing Act. Noble Lords will recall that similar issues have arisen in the past, such as when a disabled tenant was evicted by Lewisham Council because of a breach of his tenancy agreement.

This Committee is not considering landlord and tenant legislation, I am relieved to say, which can be complex. I am sure noble Lords will forgive me if I do not delve too deeply into details of the Act referenced in the amendment. However, as the noble Lord was asking me about the consultation process, I recalled that when in 2008 I was involved in the discussions on building this Bill and the Malcolm case was concurrent, the DWP conducted a public consultation late in that year. I cannot give the noble Lord chapter and verse on who took part in that consultation in terms of landlord organisations, but I undertake to find out and let him know. However, I know that the consultation took place and informed how we proceeded with the Bill.

I appreciate that this amendment is meant to clarify the relationship between the disability provisions of this Bill and housing legislation, and that that relationship has caused some confusion in the courts. However, the difficulty in those cases was that the scope of the landlord to justify his treatment of the tenant under the DDA was very limited. One of the changes the Bill has made to the disability provisions is to provide a defence of objective justification to discrimination arising from disability and to include disability within the scope of the indirect discrimination provisions, which are also subject to an objective justification defence.

The courts now have much greater discretion to consider the facts of each case and to decide whether the landlord's treatment of the tenant is justified, which might cover some of the points raised by the noble Lord and his concerns about what is reasonable for a landlord to consider. We believe that this allows for greater fairness than a blanket prohibition on disability considerations being taken into account in some possession proceedings. I hope with that, and my undertaking to write to the noble Lord if I have not covered all the points he raised, he will withdraw his amendment.

Lord Hunt of Wirral (Conservative)

I shall press the Minister a little further. The Minister may well think that this would be an appropriate case for guidance from the Equality and Human Rights Commission. I understand that there is no clarity about whether we will get guidance. Will that guidance be available and, if so, on what timescale? I do not expect that she will have the answer immediately, but it is an area where the fears of a number of bodies have not yet been met by clear guidance from the commission.

Lord Lester of Herne Hill (Liberal Democrat)

I hope what I shall say will be helpful. It seems to me that where a tenant behaves badly-does not pay the rent or destroys the premises or whatever-and when he is served with notice to quit says, "It's because I have a disability", the question would be of fact, of causation, in the individual case. What was the real reason for the behaviour so far as direct discrimination is concerned? If the tenant behaved badly, there would be no objective justification, and he could be removed. It does not seem to me that there is a need for much guidance because I hope what I have just said is plain and obvious. It all boils down to the facts of the individual case and whether it is really attributable to disability or to misconduct.

Lord Hunt of Wirral (Conservative)

That was a helpful intervention from the noble Lord, Lord Lester of Herne Hill, because I am seeking to tease out whether it is an objective justification to expect rent and the ability to evict for non-payment. That is the area. If what the noble Lord said is correct, this has been a worthwhile period in the consideration of the Bill. I understand that the commission has been asked to provide guidance, and a little information on the timescale in which it will be available would be helpful.

Baroness Thornton (Labour)

Draft guidance has been published and is on the website. There is a commitment to consult on the issue to do with premises. I cannot guarantee that that is covered in the guidance currently on the website.

Lord Elton (Conservative)

We are assuming that disability is a permanent condition, but I do not know that that is the case. If a person is a tenant and, after a while, is unable to pay the rent as a result of a newly incurred disability, is that not a case where some guidance would be needed?

Baroness Thornton (Labour)

The noble Lord makes a very good point. That is probably right.

Lord Hunt of Wirral (Conservative)

This has been a helpful short debate because those who are still seeking guidance are going to receive it. The objective justification that I have teased out of the noble Lord, Lord Lester, will do much to reassure people in the mean time. I beg leave to withdraw the amendment.

Amendment 125C withdrawn.

Schedule 23 agreed.

Clause 195: Age

Amendment 126 not moved.

Amendment 126A

Moved by Lord Hunt of Wirral

126A: Clause 195, page 121, line 6, leave out subsection (3)

Lord Hunt of Wirral (Conservative)

My Lords, we have tabled these amendments, 126A and 126B, to raise another issue which has been brought to our attention by the Delegated Powers and Regulatory Reform Committee. We have spoken a great deal about the order-making powers contained in Clause 195, which allow exceptions to be made to the provisions regarding age discrimination. We have debated the need for these regulations, their timing and which areas they will cover, and we have received assurances from the Minister that regulations would be introduced to allow exceptions relating to age-specific holidays such as those provided by Saga, insurance provision and other financial services. These would be in one order and due to come into being at the same time as these sections in the Act. I hope that the Chancellor of the Duchy of Lancaster can quickly reiterate that reassurance.

We have not spoken about the nature of the power contained in subsections (3) and (6). Those who have read the third report of the committee on this Bill will know that it has raised significant concerns about the strength of these powers. Its worry centres around the fact that, with these subsections, orders can be made which also impose requirements by reference to guidance or documents specified in guidance. This guidance is obviously not necessarily subject to parliamentary procedure. Therefore, while the power in Clause 195(1) is subject to affirmative procedure, the sub-delegation powers which allow requirements to be made by reference to guidance or other documents contained within that, mean that these requirements are capable of avoiding the affirmative procedure. This means that it is possible to bypass parliamentary control over the nature and extent of the exceptions. We have therefore tabled Amendments 126A and 126B, which would remove these powers of sub-delegation. The committee objected not only to the use of these powers, but also that the Government had offered no justification for them. We have subsequently seen, in a letter from the Minister, justification which states that the guidance would be too detailed for legislation, but it was necessary to have an order which required guidance to be complied with because this would give certainty to business about how a business was allowed to operate.

We have constantly fought for certainty for businesses and very much want to ensure that. The Government's amendment would allow a certain amount of scrutiny because it would make the date for the guidance to come into force subject to the negative procedure. Can the noble Baroness support this decision to compromise with the recommendations of the committee with evidence of any precedent to enshrine guidance in legislation in this way? Does she consider this to be an appropriate procedure and is the negative resolution strong enough? I should also like her to comment on any discussion she may or may not have had with the committee on this matter. Furthermore, can she clarify what would happen if parliamentary scrutiny showed that there were problems with the guidance? Would the only option then be to vote against the commencement date? If that were the case, would it not be more difficult for businesses, and in fact provide less certainty, because they would have to wait for the changed guidance to be implemented and go through the procedure again, even though there might be only a relatively minor change?

We understand the need for clarity and certainty, but it would be very helpful to hear what discussions have been had with the Delegated Powers and Regulatory Reform Committee and whether it is satisfied now with the changes. After all, the noble Baroness will have noted that in the report the committee's reaction was strongly opposed to these measures. It is vital for your Lordships now to know what its response is in order that we can then say that we are content with the amendments. I beg to move.

Viscount Ullswater (Conservative)

My Lords, I must advise your Lordships that if this amendment is agreed, I will not be able to call Amendment 126C because of pre-emption.

Baroness Royall of Blaisdon (Labour)

My Lords, I will first speak to government Amendments 126C and 135ZA and then address Amendments 126A and 126B, which have been tabled by the noble Baronesses, Lady Warsi and Lady Morris.

The role of guidance in the exceptions from age discrimination outside the workplace has been raised in debates on the Bill, and, as the noble Lord, said, by the Delegated Powers Committee in its third report of 2010. The committee's concerns arise in essence because these provisions, which allow for sub-delegation, require strong justification. Government Amendment 126C addresses the committee's concern about sub-delegation by ensuring that guidance made under a power conferred by subsections (3) and (6) can come into force only on a date that is specified in an order. This order cannot be the same one as that specifying the exceptions to which the guidance relates, and it will subject to the negative procedure in Parliament.

Government amendment 135ZA is consequential. It applies the provisions in Clause 200 for making orders and regulations under the Bill to those made by the Treasury, as well as those made by a Minister of the Crown. Parliament will be able to debate the provisions, which will be supported by any guidance in the context of the exceptions order, which is subject to the affirmative procedure. Amendment 126C then gives Parliament the opportunity to consider any guidance that is issued. I hope noble Lords will agree that, by including in the Bill scrutiny of the power to bring any guidance into force, this amendment satisfies the concerns expressed by the committee. We have, of course, been in dialogue with the committee.

Guidance will not alter the scope of any of the exceptions. That would be outside the extent of the power, which therefore cannot be used to amend substantive provisions in the legislation. It will allow us to set out what steps service providers need to take to take advantage of the exceptions so that they are clear about what they need to do to comply with the legislation.

The justification of the ability to make guidance is straightforward; it is there to ensure that exceptions under Clause 195 can operate as effectively as possible. Section 45 of the Sex Discrimination Act 1975, the effect of which is replicated in paragraph 22(3)(b) of Schedule 3 to the Bill, is a precedent. Under that provision, the use of sex as a factor in determining premiums is permitted on the basis of relevant and accurate actuarial and statistical data that are published and updated in accordance with Treasury guidance. Insurers who comply with the disclosure requirements, and who rely on the data that they disclose, can take advantage of the exception when setting premiums.

We envisage similar arrangements for using age as a factor in the insurance industry. Without the ability to issue guidance, all the detail on how to comply with an exception would need to be set out in the Act. This would be cumbersome, and inconsistent with the drafting of the rest of the Bill. It would also be harder to make minor necessary changes to the detail to cater for developing practices and procedures in the financial services sector, for example, because a fresh affirmative resolution instrument would be required for every such change.

The guidance-making provision is particularly important for financial services as age-based exceptions are likely to be complex, and considerable detail will be needed to provide sufficient certainty to service providers. The guidance will be needed for matters such as giving full effect to the proposals on transparency -data publication-and signposting and referrals by one insurance company to another. We aim to consult on the draft exceptions order in autumn 2010. We will consult on any amendments to that guidance unless circumstances require the amendments to be made urgently.

However, guidance may not be limited to financial services. While the exceptions that are also planned for other services, such as age-based holidays and commercial discounts, are likely to be more straightforward, they may require such guidance-for instance, to make clear the steps that service providers must take to come within the exception. Health services are far more complex, and it would not be sensible to rule out the use of guidance in that sector too if it is eventually decided-and to the extent that it is decided-to use the power in Clause 195 to make exceptions in relation to health and social care. In most areas, having the exceptions in legislation will suffice, but at least some will need more detail so that service providers can understand their responsibilities. The noble Lord asked what would happen should the commencement date be voted against. It would mean that the guidance would not come into force.

Amendments 126A and 126B, which would remove subsections (3) and (6) from Clause 195, would remove our ability to provide that clarity. If we could not make guidance, we would have two choices; either granting wide exceptions, which I think nobody would want, or including extremely detailed and often sector-specific provisions in the legislation. Neither of these are satisfactory options.

We have listened to the Delegated Powers and Regulatory Reform Committee. Amendment 126C specifically addresses its concern about parliamentary scrutiny. It ensures that the guidance cannot be used if Parliament is not happy with it, while retaining the necessary advantages offered by guidance. The noble Lord asked me to reiterate assurances about how Clause 195 will be used. It will be just as the noble Lord described. The power will be used to make an order, subject to affirmative resolution, setting out exceptions to the ban from age discrimination to come into force on the day of the ban.

The noble Lord referred to holidays for older people and exceptions. I reassure the noble Lord that we are doing further work and consultation to ensure that we get the exceptions right. On 27 January, we published a policy statement, which provides further clarity as to the exceptions which we are developing. I will ensure that the noble Lord receives a copy. There will be a further opportunity for consultation on the detail of the exceptions when we consult on the draft order that will contain them in the autumn. I trust that the noble Lord will feel able to withdraw his amendment.

Lord Hunt of Wirral (Conservative)

My Lords, the noble Baroness said that there had been dialogue with the Delegated Powers and Regulatory Reform Committee. It would be helpful if she could indicate whether the committee had expressed satisfaction that its concerns had been met.

Baroness Royall of Blaisdon (Labour)

My Lords, as I understand it-it is my excellent officials who have been speaking to the officials from the Delegated Powers Committee-it is in agreement with and accepts what we are doing. However, it wishes to see how the debate pans out and to hear what I am saying at the Dispatch Box before all its concerns are assuaged.

Lord Hunt of Wirral (Conservative)

Therefore, I should say that I will now await the views of the committee before deciding whether to return to this matter at a later stage. In the mean time, I beg leave to withdraw the amendment.

Amendment 126A withdrawn.

Amendment 126B not moved.

Amendment 126C

Moved by Baroness Royall of Blaisdon

126C: Clause 195, page 121, line 24, at end insert-

"( ) Guidance issued (or treated as issued) under a power conferred by virtue of subsection (3)(a) comes into force on such day as the person who issues the guidance may by order appoint; and an order under this subsection may include the text of the guidance or of extracts from it."

Amendment 126C agreed.

Amendments 127 and 128 had been withdrawn from the Marshalled List.

Clause 195 agreed.

Amendment 129 not moved.

Amendment 129ZA

Moved by Lord Lester of Herne Hill

129ZA: After Clause 195, insert the following new Clause-

"Equality between spouses

Abolition of a husband's duty to maintain his wife

The rule of common law that a husband must maintain his wife is abolished."

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, in speaking to Amendment 129ZA, I shall speak also to Amendments 129ZB to 129ZD and to the amendments to Clauses 208 and 209, which are related. The new clauses proposed under the amendments would remove three minor rules of law which treat husbands and wives unequally, and they equalise the legal position in respect of civil partners. The amendments would not only bring our law up to date by eliminating provisions that are clearly discriminatory and redundant, but would also remove the existing incompatibilities in UK law with Article 5 of Protocol 7 to the European Convention on Human Rights. That article protects the right to equality between spouses, except for any special provision the state needs to make to protect children. These amendments would leave it open to the Government to proceed with signature and ratification of Protocol 7 to the convention should it choose to do so, as I hope it will, to fulfil the long-standing commitment.

The proposed new clause to be inserted under Amendment 129ZA abolishes the common-law duty for a husband to maintain his wife. This rule has long been superseded by statutory remedies for obtaining maintenance during a marriage. Consequently, I believe that there is no longer a need for a common law duty to maintain in favour of one spouse only.

The new clause set out in Amendment 129ZB abolishes a second common law rule, that of the presumption of advancement. This presumption discriminates against husbands and is outdated. The presumption of advancement is a rule of evidence in court proceedings which provides that where there is no evidence to the contrary, a husband or father is presumably making a gift when he transfers property to his wife or child. But when a wife transfers property to her husband or a mother to her child, the presumption of advancement does not apply. Unless there is evidence to the contrary, she is presumed not to be making a gift and her husband or child hold the property on trust for her. The effect of the presumption of advancement is clearly discriminatory and its abolition will not have any unfair or undesirable effects, and therefore this amendment seeks to abolish the presumption.

In order that the UK can ratify Protocol 7, abolition of the presumption of advancement is extended to Northern Ireland. I understand that the Northern Ireland Executive have agreed to this step in principle and will make the necessary arrangements for a legislative consent motion. I am grateful for their assistance.

The final rule to be addressed is the statutory provision in respect of money and property derived from a housekeeping allowance currently in Section 1 of the Married Women's Property Act 1964. It provides that if a husband pays a housekeeping allowance to his wife, any savings or property derived from this allowance in the absence of an agreement to the contrary belongs to the husband and the wife in equal shares. However, if the wife pays the allowance to the husband, the Act makes no similar provision. Amendment 129ZC amends Section 1 of the 1964 Act so that it applies equally to husbands and wives, and money and property derived from a housekeeping allowance are owned by the husband and wife in equal shares regardless of who paid or received the allowance.

The final clause set out in Amendment 129ZD inserts a new Section 70A into the Civil Partnership Act 2004 to provide for the equal division of housekeeping allowances paid by one civil partner to the other. This simply mirrors the effect of the previous amendment to the Married Women's Property Act for civil partners, ensuring that their rights are developed in parallel.

I conclude by stressing that these amendments are long overdue and represent an important step in remedying outdated inequalities in our domestic law. In addition, I hope that the Government, if they accept them, will make good their commitment, which is on the record, to sign and ratify Protocol 7 to the convention, dating from the 1997 White Paper, Rights Brought Home. I beg to move.

Lord Hunt of Wirral (Conservative)

My Lords, I would like to make it clear that we support these amendments and the changes to the law that they would effect, but I will keep my remarks brief because we have little time in which to finish a large number of groups. This is, however, not the most appropriate time to get into discussions about Protocol 7, because there are wider issues to be addressed which deserve significant scrutiny. This is a debate for another time, and perhaps the Minister might be able to inform your Lordships when an appropriate time might be. In her Second Reading speech, she made reference to the fact that the Government would continue to seek a suitable legislative vehicle for these changes. Has she found such a vehicle yet? If so, can she give us a brief steer as to what vehicle is going to be used?

Furthermore, can she confirm whether Amendment 129ZA is in fact necessary? The Question for Written Answer of the noble Lord, Lord Lester of Herne Hill, about what legislative changes would need to be made to enable the UK to ratify Protocol 7 was answered by the late Lord Williams of Mostyn, who said that the common law presumption of "advancement" would have to be altered. I am informed that the judgment of the House of Lords in the Stack and Dowden case has already changed the law in this respect. Am I correct in that assumption? If so, we recognise the good intentions of these amendments but regret that it may be that the noble Lord, Lord Lester of Herne Hill-I am nervous about ever saying this-is mistaken about the legal changes. However, where the noble Lord is concerned, I always stand to be corrected.

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, it is not my intention to have a debate tonight about Protocol 7. That is a completely separate matter and no doubt can be debated hereafter if necessary. All I am concerned to do tonight is to sweep away archaic and outmoded provisions and secure equality between the spouses in that respect. One advantage of that would be to leave it open to the Government to take that further step. As far as the other point is concerned, I am not a family lawyer. I have not the faintest idea whether the comments of Lord Williams of Mostyn and the events in the House of Lords did or did not have the effect he said. However, it seems to me that the Government can now tell us whether or not they think that this is necessary.

Baroness Howe of Idlicote (Crossbench)

My Lords, I wonder if I could probe a little bit. I would be equally loath to question anything that the noble Lord, Lord Lester, has said, but, with all the other things going on, there has not been time to pose these questions to him. I have in mind the considerable inequalities that still remain between husbands and wives, men and women, with regard to pay, the percentages who get the very top jobs, and pension arrangements. I have to say again that, as far as the European regulations were concerned, I found it extremely disturbing that on issues such as annuities, women and men were not treated the same even though they were equally entitled, by what they had earned over the years, to the same annuity. I still find these things worrying. I would like to be reassured that they are being taken into account; that the Minister has the answers to them; and, above all, that my noble friend Lord Lester took all that into account when he was deciding that all these things could just be finished with completely.

Baroness Royall of Blaisdon (Labour)

My Lords, the Government support the amendments put forward by the noble Lord, Lord Lester of Herne Hill, which, as he notes, remove existing provisions that are discriminatory and out of date. These amendments also address those aspects of UK law that are incompatible with Article 5 of the 7th Protocol to the European Convention on Human Rights.

Article 5 of the 7th Protocol provides that spouses shall have equality of rights and responsibilities between them and in their relations with their children both during the course of a marriage and in the event of its dissolution. It does not prevent states taking such measures as are necessary to protect the interests of the children. Of course our legislation makes the welfare of children the courts' paramount consideration when making decisions.

These amendments therefore remove three minor legal provisions which discriminate between spouses. Although technically removing provisions which appear to benefit one spouse over the other, in reality the amendments confer no practical advantage or disadvantage on either spouse. The noble Lord, Lord Lester, set out very clearly the three provisions in question, so I will not reiterate those points.

The noble Lord, Lord Hunt, asked me about new Clause 129ZC and whether it is absolutely necessary. He cited my erstwhile friend Lord Williams of Mostyn in relation to the amendment. We believe that new Clause 129ZC amends the final rule so that it applies equally to husbands and wives and so that property derived from a housekeeping allowance is owned by the husband and wife in equal shares regardless of who paid or received the allowance. So we do believe that it is necessary.

In addition, new Clause 129ZD, tabled by the noble Lord, Lord Lester, inserts a new Section 70A into the Civil Partnership Act 2004 to provide, as he said, for the equal division of housekeeping allowances paid by one civil partner to another. This is in line with the Government's objective that civil partners should have parallel rights to those of married people, and the Government are very pleased to accept this amendment. As the noble Lord says, these amendments represent an important opportunity not only to remedy outmoded inequalities in our domestic law but also to remove this barrier to ratification of the 7th Protocol to the European Convention on Human Rights. The Government have long indicated their commitment to ratification of the protocol, and I am grateful to the noble Lord for tabling these amendments to the Bill, which will allow us to move this process forward.

The noble Lord, Lord Hunt, asked about scrutiny of the 7th Protocol and what vehicle would be used for legislative changes. The amendments moved today suffice to make our law compatible with the 7th Protocol, so we have the perfect vehicle right before us today. We are considering that very vehicle now. There would need to be the usual consideration under the Ponsonby rule of the ratification of the 7th Protocol, but that cannot now be completed in this Parliament. In particular, it would require an affirmative vote in each House.

The noble Lord asked whether presumption of advancement remained after the case of Stack v Dowden. The presumption of advancement still applies after that case, which relates only to ownership of the domestic home and not to other property.

I well understand the concern expressed by the noble Baroness, Lady Howe of Idlicote, when she suggests that women still have a very tough time with regard to equality in insurance, pay and so on. I reiterate that the Government are totally committed to equality. We wish to remove the provisions that treat either husbands or wives in a discriminatory way. In practical terms, women will not lose out as a result of this Bill, as I have explained, and it will remove provisions that are unfair to men. We believe that accepting the amendments proposed by the noble Lord, Lord Lester, is a very good way forward, and I urge your Lordships to accept them.

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I am extremely grateful. I share the concerns expressed by the noble Baroness, Lady Howe, about wider inequalities that cannot be removed, but this is a very modest mouse of a series of proposals that are needed to scrap some archaic laws. It does not seek like a lion to sweep away all inequality against women, although I wish it could. The very fact that the Bill team could produce answers immediately to highly technical questions reminds me that I should apologise through the Committee to them for having singled out two members of the team for special praise. I am reminded that they are a team as a whole; by singling out two of them, I did not mean in any way to discriminate against the others. As for scrutiny of ratification of human rights treaties, or any treaties, the House knows that for years I have been saying that we need a mechanism in this House for a treaty scrutiny committee. I am delighted that the Ponsonby rule has been firmed up as it has, but it needs to be made stronger. Finally, above all, I thank the Minister and noble Lords very much for accepting the amendments.

Amendment 129ZA agreed.

Amendments 129ZB to 129ZD

Moved by Lord Lester of Herne Hill

129ZB: After Clause 195, insert the following new Clause-

"Abolition of presumption of advancement

(1) The presumption of advancement (by which, for example, a husband is presumed to be making a gift to his wife if he transfers property to her, or purchases property in her name) is abolished.

(2) The abolition by subsection (1) of the presumption of advancement does not have effect in relation to-

(a) anything done before the commencement of this section, or

(b) anything done pursuant to any obligation incurred before the commencement of this section."

129ZC: After Clause 195, insert the following new Clause-

"Amendment of Married Women's Property Act 1964

(1) In section 1 of the Married Women's Property Act 1964 (money and property derived from housekeeping allowance made by husband to be treated as belonging to husband and wife in equal shares)-

(a) for "the husband for" substitute "either of them for", and

(b) for "the husband and the wife" substitute "them".

(2) Accordingly, that Act may be cited as the Matrimonial Property Act 1964.

(3) The amendments made by this section do not have effect in relation to any allowance made before the commencement of this section."

129ZD: After Clause 195, insert the following new Clause-

"Civil partners: housekeeping allowance

(1) After section 70 of the Civil Partnership Act 2004 insert-

"70A Money and property derived from housekeeping allowance

Section 1 of the Matrimonial Property Act 1964 (money and property derived from housekeeping allowance to be treated as belonging to husband and wife in equal shares) applies in relation to-

(a) money derived from any allowance made by a civil partner for the expenses of the civil partnership home or for similar purposes, and

(b) any property acquired out of such money,

as it applies in relation to money derived from any allowance made by a husband or wife for the expenses of the matrimonial home or for similar purposes, and any property acquired out of such money."

(2) The amendment made by this section does not have effect in relation to any allowance made before the commencement of this section."

Amendments 129ZB to 129ZD agreed.

Amendment 129A not moved.

Clause 196 : Harmonisation

Amendments 130 and 131 not moved.

Amendment 131A

Moved by Baroness Royall of Blaisdon

131A: Clause 196, page 122, line 2, leave out "Before making the order" and insert "If the Minister proposes to make an order under this section"

Baroness Royall of Blaisdon (Labour)

Government Amendments 131A, 131B, 134B, 134C, 134ZA, 134ZB and the new Clause in Amendment 134ZC concern the power in Clause 196 that would allow us to ensure that the Bill does not quickly fall into disrepair as a result of changes in European Law-what we call the "harmonisation power". As time is extremely tight, I hope that noble Lords will forgive me if I also address Amendment 134, tabled in the name of the noble Baronesses, Lady Warsi and Lady Morris, and also their intention to oppose the Question that the clause shall stand part of the Bill.

Overall, the role that Europe has played in shaping our current body of equality legislation has been positive. Indeed, much of the relevant European law is based on legislation that was previously in place domestically. However, although it is based on similar concepts and structures, European law has from time to time required us to amend or extend our domestic regime. Our ability to do this without the aid of primary legislation is limited by the extent of the power in Section 2(2) of the European Communities Act 1972. As the scope of EU equality law is not generally as wide as domestic equality law, this has resulted in a patchwork of protection and a lot of confusion that led to the Discrimination Law Review-culminating in this Bill, one of the main aims of which is to simplify and harmonise the thicket of legislation that has grown up over more than 40 years.

The harmonisation power will future-proof the Bill, so that changes required from Europe can be incorporated into domestic law without disrupting the harmonised approach we have achieved in the Bill. The Government have paid close attention to comments made by the Delegated Powers Committee about the power in its third report of the current Session. These have prompted us to bring forward amendments to which I shall turn after considering the committee's concerns.

The committee noted that:

"Clause 196 contains an exceptionally significant Henry VIII power",

enabling the Government, when implementing an EU obligation, to extend the effect of the implementing provision beyond what is required by the obligation. Of course, I agree that this is a significant power; in fact it is vital to ensure that the Bill when enacted retains clarity and coherence. An ability to remove anomalies that may arise seems just common sense.

The committee also noted that the Government did not provide a precedent, and that the power's extent is much wider than suggested by the example given in the Explanatory Notes. For a precedent, I point to Section 260 of the Civil Partnership Act 2004, which allows Orders in Council to make similar provision outside the scope of European law to those made using Section 2(2) of the European Communities Act, where European law applies. Most of the Bill's provisions are within the scope of Section 2(2) for almost all relevant purposes, and Schedule 24 makes it clear that there are large areas of the Bill to which the power does not apply at all.

The committee was concerned that the power could be used to replicate in other strands the implementing provisions of an EU obligation which was restricted to a single strand. The power could indeed be used to copy over to the colour and nationality elements of the definition of race any provisions that may be required by European law for the rest; that can only be a positive thing. There will be times when, if we rely solely on Section 2(2), cracks will begin to appear and anomalies to creep in. Without this power, those anomalies will eventually accumulate to the disadvantage of all. However, in the light of the committee's concerns, we are seeking to place some further procedural constraints on this exercise.

Government Amendment 131A will prevent Ministers circumventing the minimum 12 weeks' consultation that must take place prior to the power's use. We now accept that any weakening of this requirement would be hard to justify in view of the committee's concerns. Amendment 131B ensures that, where the consultation results in any changes of policy, those changes must in turn be consulted on.

Amendment 134, tabled by the noble Baronesses, Lady Warsi and Lady Morris, seeks to increase the frequency with which a Minister must report to Parliament on the harmonisation power's use from five-yearly to annually. We originally opted for five-yearly reports, both because we expect this power to be used infrequently, and because when it is used full accountability will be built into the process. A requirement to report annually would be overkill. However, in response to the committee's concerns, Amendments 134ZA and 134ZB increase the frequency of ministerial reporting from every five years to every two years. We think this strikes an appropriate balance; I therefore ask the noble Baroness to withdraw her amendment-before she has even moved it, if she will forgive me.

Amendment 134ZC inserts a new clause that makes detailed provision about the making of orders under this power. It requires, in particular, the Minister to lay an explanatory document before the House alongside a draft order. This document must say why the harmonising provision is being made, and explain why the Minister considers that the conditions for using the power are met. It must give details of the consultation, the responses received and any changes to the proposals made as a result of those responses. This procedure will enable Parliament to challenge the Government in a detailed and informed way each time they seek to use this power.

Finally, I will speak to Amendments 134B and 134C, which are consequential to the substantive amendments relating to exceptions for marriage and broadcasting respectively, which the Government accepted earlier in this Committee. We do not consider that it would be appropriate for the harmonisation power to be used to affect these exceptions-hence Amendments 134B and 134C insert references to the relevant provisions into Schedule 24, putting them outside the scope of the harmonisation power. I beg to move.

Lord Hunt of Wirral (Conservative)

I am not sure that I need to speak to our amendments, as they have already been opposed before I have said anything. I shall only ask the noble Baroness: is the Delegated Powers and Regulatory Reform Committee now satisfied with what the Government are proposing?

Baroness Royall of Blaisdon (Labour)

My Lords, I think it is fair to say that that committee is broadly satisfied. As this Committee will know, the Delegated Powers Committee does not like broad harmonisation powers, but it accepts that this is a consolidation Bill and that this is a sensible way forward.

Lord Hunt of Wirral (Conservative)

My Lords, it is of course not just a consolidation Bill. We will have to return to all this on Report; we do not have time now. Suffice it to say that our concern is that there are constant views that the Government are gold-plating directives that emanate from Brussels. Now they are seeking to fast-track that gold-plating. They should proceed with considerable caution down that dangerous road.

Baroness Royall of Blaisdon (Labour)

My Lords, first, I understand that I misled the House; apparently, the Delegated Powers Committee does not particularly like what we are doing here. I did not seek to mislead the House. As I explained, the committee does not like broad harmonisation powers. I accept that the Government have, in the past, sought to gold-plate certain things in certain European directives. However, in dealing with the Bill in this way we are trying to ensure coherent policy-making in the future. We are trying to future-proof the Bill, but I entirely accept the concerns expressed by the noble Lord and that he will wish to return to them at a later stage.

Amendment 131A agreed.

Amendment 131B

Moved by Baroness Royall of Blaisdon

131B: Clause 196, page 122, line 4, leave out subsections (4) and (5) and insert-

"(4) If, as a result of the consultation under subsection (3), the Minister thinks it appropriate to change the whole or part of the proposal, the Minister must carry out such further consultation with respect to the changes as the Minister thinks appropriate."

Baroness Harris of Richmond (Liberal Democrat)

If Amendment 131B is agreed, I cannot call Amendment 132 because of pre-emption.

Amendment 131B agreed.

Amendments 132 to 134 not moved.

Amendments 134ZA and 134ZB

Moved by Baroness Thornton

134ZA: Clause 196, page 122, line 26, leave out "5" and insert "2"

134ZB: Clause 196, page 122, line 28, leave out "5" and insert "2"

Amendments 134ZA and 134ZB agreed.

Clause 196, as amended, agreed.

Amendment 134ZC

Moved by Baroness Thornton

134ZC: After Clause 196, insert the following new Clause-

"Harmonisation: procedure

(1) If, after the conclusion of the consultation required under section 196, the Minister thinks it appropriate to proceed with the making of an order under that section, the Minister must lay before Parliament-

(a) a draft of a statutory instrument containing the order, together with

(b) an explanatory document.

(2) The explanatory document must-

(a) introduce and give reasons for the harmonising provision;

(b) explain why the Minister thinks that the conditions in subsection (1) of section 196 are satisfied;

(c) give details of the consultation carried out under that section;

(d) give details of the representations received as a result of the consultation;

(e) give details of such changes as were made as a result of the representations.

(3) Where a person making representations in response to the consultation has requested the Minister not to disclose them, the Minister must not disclose them under subsection (2)(d) if, or to the extent that, to do so would (disregarding any connection with proceedings in Parliament) constitute an actionable breach of confidence.

(4) If information in representations made by a person in response to consultation under section 196 relates to another person, the Minister need not disclose the information under subsection (2)(d) if or to the extent that-

(a) the Minister thinks that the disclosure of information could adversely affect the interests of that other person, and

(b) the Minister has been unable to obtain the consent of that other person to the disclosure.

(5) The Minister may not act under subsection (1) before the end of the period of 12 weeks beginning with the day on which the consultation under section 196(3) begins.

(6) Laying a draft of a statutory instrument in accordance with subsection (1) satisfies the condition as to laying imposed by subsection (8) of section 200, in so far as that subsection applies in relation to orders under section 196."

Amendment 134ZC agreed.

Schedule 24 : Harmonisation: exceptions

Amendment 134A not moved.

Amendment 134AA

Moved by Lord Lester of Herne Hill

134AA: Schedule 24, page 218, line 15, at end insert-

"Sections (Abolition of husband's duty to maintain his wife) to (Civil partners: housekeeping allowance) (family property)"

Amendment 134AA agreed.

Amendments 134B and 134C

Moved by Baroness Thornton

134B: Schedule 24, page 218, line 20, at end insert-

"( ) Part 5A (marriage);"

134C: Schedule 24, page 218, line 22, at end insert-

"( ) Part 6A (television, radio and on-line broadcasting and distribution);"

Amendments 134B and 134C agreed.

Schedule 24, as amended, agreed.

Clauses 197 and 198 agreed.

Schedule 25 agreed.

Clause 199 : Exercise of power

Amendment 135

Moved by Baroness Thornton

135: Clause 199, page 124, line 3, at end insert-

"( ) A statutory instrument containing an Order in Council under section 82 (offshore work) is subject to annulment in pursuance of a resolution of either House of Parliament."

Baroness Thornton (Labour)

My Lords, in moving Amendment 135, I will speak to Amendments 136, 135A, 136ZA, 136ZAC, 136ZB, 136ZZZA, 136ZZZB and 136ZCC, which relate to the procedure for parliamentary control of secondary legislation. I am indebted to the Delegated Powers and Regulatory Reform Committee for bringing these points to our attention.

Although it has not been spoken to, I should like to comment on Amendment 136ZZA in the names of the noble Baronesses, Lady Warsi and Lady Morris, which seeks to probe why the provisions for the control of secondary legislation do not currently apply to an order which makes provision in consequence of the commencement of some or all of the Bill, but which is in a separate instrument, as provided for in Clause 200(7). The absence of such control was noted by the Delegated Powers Committee in its third report of the current Session. This was not an oversight. We had already provided that any such orders that made consequential amendments to primary legislation should be subject to the affirmative procedure. However, we did not believe that such control was strictly necessary for other orders because they can contain only minor, consequential and transitional provisions. But equally this is not an issue where we would seek disagreement with the committee, so we are happy to accept the principle behind the noble Baronesses's amendment on the basis that it responds to the committee's findings. We have accordingly introduced our own Amendments 136ZZZA and 136ZZZB, not because that of the opposition is defective, but because the advice of counsel is that it would be clearer to take the slightly less convoluted language we propose. We therefore urge the noble Baronesses not to press their amendment.

The Delegated Powers and Regulatory Reform Committee in its report on Parts 1 to 5 of the Bill recommended that an "affirmative" parliamentary control procedure apply to any regulations made by Ministers to amend Section 1, that add or remove public authorities subject to Clause 1-the public sector duty regarding socio-economic inequalities. We, the Scottish Government and Welsh Assembly are grateful for the recommendation of the committee and happy to accept that an affirmative procedure should apply to such regulations. The socio-economic duty is obviously novel and innovative, and it is appropriate that Parliament should give careful consideration to any changes we propose to the list of public bodies subject to it. Amendment 135A therefore makes the necessary changes to Clause 200 to ensure that any regulations under Section 2 made by Ministers of the Crown are subject to the affirmative procedure. Amendments 136ZA and 136ZB make the necessary changes to Clauses 201 and 202 respectively to ensure that regulations made by the Welsh and Scottish Ministers under Section 2 are also subject to the affirmative procedure.

The Delegated Powers Committee identified in its second report of this Session an omission in relation to the parliamentary control of Orders in Council, which Amendment 135 rectifies. While the vast majority of secondary legislation in the Bill will be delivered by ministerial order or regulations, Clause 82, headed "Offshore work", uniquely uses an Order in Council to specify where and how the Bill, in so far as it relates to work, applies to offshore workers. An Order in Council is appropriate because Clause 82 concerns the application of the Bill beyond UK territorial waters. Due to an oversight, the Bill does not provide a parliamentary procedure for Clause 82 because it currently contains no reference to "Orders in Council". Such orders should, as with other secondary legislation, be capable of annulment by either House of Parliament. Amendment 135 achieves this.

I am again indebted to the Delegated Powers and Regulatory Reform Committee for bringing to our attention a slight uncertainty in the drafting of Clause 200. As it highlighted, this formulation could be regarded as ambiguous as to whether it includes those special cases mentioned in subsection (3) of the clause which should be subject to the negative procedure. Amendment 136 therefore clarifies that these orders should be subject to that procedure. Amendments 136ZAC and 136ZCC do exactly the same in respect of the powers of the Welsh and the Scottish Ministers. I beg to move.

Baroness Morris of Bolton (Conservative)

My Lords, we are grateful to the Government for tabling Amendments 135, 136, 136ZAC and 136ZCC, which are designed to ensure that the provisions contained in the Bill do not escape parliamentary scrutiny because of drafting omissions. The number of drafting omissions that we are addressing today further reinforces our belief in the absolute fundamental necessity of the effective parliamentary scrutiny the Bill has received in your Lordships' House, notwithstanding our time today being squeezed-although we had a little extra time while the Government found the noble Lord, Lord Myners. Therefore, I am glad to see the inclusion of these amendments in the Bill.

We are also delighted to see that the Government have tabled Amendments 136ZZZA and 136ZZZB, which address the Delegated Powers and Regulatory Reform Committee's concerns raised by our Amendment 136ZZA regarding the exercise of subordinate legislation powers. We are pleased that, after consideration, the Government have decided to accept the recommendation.

Amendment 135 agreed.

Clause 199, as amended, agreed.

Clause 200 : Ministers of the Crown

Amendments 135ZA and 135A

Moved by Baroness Thornton

135ZA: Clause 200, page 124, line 6, at end insert "or the Treasury"

135A: Clause 200, page 124, line 13, leave out paragraph (a)

Amendments 135ZA and 135A agreed.

Amendment 135AA not moved.

Amendment 135AB

Moved by Baroness Thornton

135AB: Clause 200, page 124, line 16, at end insert "that provides for the omission of an entry where the authority concerned has ceased to exist or the variation of an entry where the authority concerned has changed its name"

Amendment 135AB agreed.

Amendment 135B not moved.

Amendments 136 to 136ZZZB

Moved by Baroness Thornton

136: Clause 200, page 124, line 33, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"

136ZZZA: Clause 200, page 124, line 38, after "that" insert "-

(i) "

136ZZZB: Clause 200, page 124, line 40, at end insert ", and

(ii) is not made in reliance on section 199(7)"

Amendments 136 to 136ZZZB agreed.

Amendment 136ZZA not moved.

Amendment 136ZZB

Moved by Lord Hunt of Wirral

136ZZB: Clause 200, page 125, line 1, leave out subsection (10)

Lord Hunt of Wirral (Conservative)

My Lords, this amendment has again been brought to our attention by the Delegated Powers and Regulatory Reform Committee. It highlighted that subsection (1) of Clause 200 disapplies the hybrid instrument procedure for all the powers subject to the affirmative instrument in this Bill. I am grateful that the Minister and her team have looked into the eight affirmative instruments already in light of the report of the committee. We now see that we were right to table these amendments and raise the concern that perhaps it was not necessary to disapply the hybridity procedure from all these instruments when it applies only to a few. The Government have recognised that and have now limited the disapplication.

We are grateful that that has now been changed but rather concerned that there appear to have been so many drafting errors or broad brush powers contained in a Bill that the Government have had more than enough time to scrutinise themselves again and again. It is concerning that there are so many changes to be made and worrying that there may be many more that have yet to be found. This is a complex Bill and it is vital that the Government's equality legacy is not riddled with errors and omissions. I beg to move.

Baroness Harris of Richmond (Liberal Democrat)

If Amendment 136ZZB is agreed, I cannot call Amendment 136ZZC because of pre-emption.

Baroness Thornton (Labour)

My Lords, I shall speak to Government Amendment 136ZZC and respond to Amendment 136ZZB spoken to by the noble Lord.

Amendment 136ZZB would remove the blanket exemption from the hybrid procedure that Clause 200(10) currently affords the Bill. This has been tabled following the Delegated Powers and Regulatory Reform Committee's decision to draw the House's attention to the provision in its third report of this Session.

As the noble Lord remarked, the Government have been re-examining subsection (10) in light of the committee's comments, and we accept that it would be helpful to clarify on the face of the Bill precisely when we consider the hybrid procedure should be disapplied if it arises. However, we do not think it necessary to remove the exception completely as the noble Lord proposed.

The reality is we think it highly unlikely that powers in the Bill would be exercised in such a way that the House would consider the hybrid procedure to be applicable, but it is a theoretical possibility. In a handful of cases where those circumstances might arise, we consider the hybrid procedure would be unwarranted so we think it appropriate to provide that the procedure should not apply in specified cases.

There are safeguards in these cases. Before adding any new bodies to either of the lists, for example, under the socio-economic duty and the public sector equality duty, and making specific public sector equality duty regulations, there will have to be consultation with those affected, as well as with the Commission and relevant devolved Administrations where appropriate. Similar consultation will be carried out before the specific duty regulations are made. We have also provided that orders and regulations made using these powers will be subject to the affirmative resolution procedure.

Government Amendment 136ZZC narrows the exception down to the clauses which could theoretically be subject to the hybrid procedure; for the reasons I have explained, we do not think that would be warranted.

I hope that the House will agree that our proposal is measured and that the noble Lord will feel able to withdraw his amendment.

Lord Hunt of Wirral (Conservative)

My Lords, that reinforces the debt of this House to the Delegated Powers and Regulatory Reform Committee, its chairman, the noble Lord, Lord Goodhart, and the members of the committee-they have done an invaluable job. I hope that the Government will continue to listen to their advice. In the mean time, I beg leave to withdraw the amendment.

Amendment 136ZZB withdrawn.

Amendment 136ZZC

Moved by Baroness Thornton

136ZZC: Clause 200, page 125, line 1, leave out "mentioned in subsection (2) or (4)" and insert "containing an order or regulations under section 2, 150, 152, 153(2) or 154(5)"

Amendment 136ZZC agreed.

Clause 200, as amended, agreed.

Clause 201 : The Welsh Ministers

Amendments 136ZZD to 136ZAD

Moved by Baroness Thornton

136ZZD: Clause 201, page 125, line 8, at end insert "an order or"

136ZZE: Clause 201, page 125, line 10, after "The" insert "orders and"

136ZA: Clause 201, page 125, line 10, at end insert-

"( ) regulations under section 2 (socio-economic inequalities);"

136ZAA: Clause 201, page 125, line 10, at end insert-

"( ) an order under section 150 (power to amend list of public authorities for the purposes of the public sector duty);"

136ZAB: Clause 201, page 125, line 15, at end insert -

"( ) But a statutory instrument is not subject to the affirmative procedure by virtue of subsection (2) merely because it contains an order under section 150 that provides for-

(a) the omission of an entry where the authority concerned has ceased to exist, or

(b) the variation of an entry where the authority concerned has changed its name."

136ZAC: Clause 201, page 125, line 16, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"

136ZAD: Clause 201, page 125, line 18, after second "the" insert "order or"

Amendments 136ZZD to 136ZAD agreed.

Clause 201, as amended, agreed.

Clause 202 : The Scottish Ministers

Amendments 136ZAE to 136ZB

Moved by Baroness Royall of Blaisdon

136ZAE: Clause 202, page 125, line 26, at end insert "an order or"

136ZAF: Clause 202, page 125, line 28, after "The" insert "orders and"

136ZB: Clause 202, page 125, line 28, at end insert-

"( ) regulations under section 2 (socio-economic inequalities);"

Amendments 136ZAE to 136ZB agreed.

Amendment 136ZC not moved.

Amendments 136ZCA to 136ZCD

Moved by Baroness Royall of Blaisdon

136ZCA: Clause 202, page 125, line 30, at end insert-

"( ) an order under section 150 (power to amend list of public authorities for the purposes of the public sector duty);"

136ZCB: Clause 202, page 125, line 35, at end insert-

"( ) But a statutory instrument is not subject to the affirmative procedure by virtue of subsection (2) merely because it contains an order under section 150 that provides for-

(a) the omission of an entry where the authority concerned has ceased to exist, or

(b) the variation of an entry where the authority concerned has changed its name."

136ZCC: Clause 202, page 125, line 36, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"

136ZCD: Clause 202, page 125, line 38, after second "the" insert "order or"

Amendments 136ZCA to 136ZCD agreed.

Clause 202, as amended, agreed.

Clause 203 agreed.

Schedule 26 : Amendments

Amendment 136ZD

Moved by Baroness Royall of Blaisdon

136ZD: Schedule 26, page 223, line 36, at end insert-

"( ) an act which is unlawful because it amounts to a contravention of section 60(1) of that Act (or to a contravention of section 110 or 111 that relates to a contravention of section 60(1)) (enquiries about disability and health),"

Amendment 136ZD agreed.

Amendment 136ZE not moved.

Amendment 136A not moved.

Schedule 26, as amended, agreed.

Schedule 27 : Repeals and revocations

Amendment 137 not moved.

Schedule 27 agreed.

Clause 204 : General interpretation

Amendment 138

Moved by Baroness Royall of Blaisdon

138: Clause 204, page 126, line 11, after "not" insert ", subject to subsection (4A),"

Amendment 138 agreed.

Amendment 138A

Tabled by Lord Low of Dalston

138A: Clause 204, page 126, line 40, at end insert-

""substantial" means more than minor or trivial;"

Lord Low of Dalston (Crossbench)

My Lords, I have an unanswerable case to present in support of Amendment 138A, but, recognising that we are extremely pressed for time and all sprinting for the tape, and in the belief that the Government will by now have located the noble Lord, Lord Myners, I will not move the amendment on the understanding that I have reached with the Government that they will facilitate discussions between their lawyers and the lawyers whom I have consulted, in order that we may arrive at an agreed way forward with the amendment.

Amendment 138A not moved.

Amendment 139

Moved by Baroness Royall of Blaisdon

139: Clause 204, page 127, line 8, at end insert-

"(4A) Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic."

Amendment 139 agreed.

Clause 204, as amended, agreed.

Clauses 205 and 206 agreed.

Schedule 28 : Index of defined expressions

Amendment 140 not moved.

Schedule 28 agreed.

Clause 208 : Commencement

Amendment 141

Moved by Lord Lester of Herne Hill

141: Clause 208, page 128, line 24, at end insert-

"( ) Sections (Abolition of husband's duty to maintain his wife) to (Civil partners: housekeeping allowance) come into force on such a day as the Lord Chancellor may by order appoint."

Amendment 141 agreed.

Clause 208, as amended, agreed.

Clause 209 : Extent

Amendments 142 and 143

Moved by Lord Lester of Herne Hill

142: Clause 209, page 128, line 29, after "houses)" insert "and sections (Abolition of husband's duty to maintain his wife) to (Civil partners: housekeeping allowance) (family relationships)"

143: Clause 209, page 128, line 34, at end insert-

"( ) section (Abolition of presumption of advancement)"

Amendments 142 and 143 agreed.

Clause 209 agreed.

Clause 210 agreed.

In the Title:

Amendment 144

Moved by Lord Lester of Herne Hill

144: In the Title, line 11, after "opportunity;" insert "to amend the law relating to rights and responsibilities in family relationships;"

Amendment 144 agreed.

Title, as amended, agreed.

House resumed.

Bill reported with amendments.