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Sex Discrimination (Amendment of Legislation) Regulations 2008

I start by thanking the Minister for that very extensive speech. There are a lot of subjects wrapped up in the regulations, and I do not want to concentrate on most of the subjects on which she has enumerated this afternoon. When I hear a speech lasting 22 minutes from a Minister introducing an order, I have a nasty suspicion that there is something to hide. I am going to absolve her of that today, but perhaps not in the future; we shall see. We are discussing today an important review of the Sex Discrimination Act 1975 and the Sex Discrimination Act 1975 (Amendment) Regulations 2007, which were made on the back of the Act. It is a shame that this discussion did not take place when it was initially intended to in December, but the Government have shown only too frequently of late that they find sticking to timetables more than a little testing. So to begin discussion of this long awaited topic we will need to refresh our memories on what it is about. As the noble Baroness said, these amending regulations bring statute law into line with case law. They are also a response to the Equal Opportunities Commission’s ruling that the previous regulations amending the Act fell short of the 2004 European Community’s gender directive’s intention to ensure that women in the workplace are not subjected to, "““any unwanted conduct related to their sex which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment””." That is a very clear definition of harassment. This is to be illegal in future in the areas about which the noble Baroness spoke, and it is absolutely right that that should be the case. The result is that instead of depending on individuals making complaints about sex discrimination, the duty places the legal responsibility on public authorities to demonstrate that they treat men and women fairly. The duty will affect policy making, public services such as transport, and employment practices such as recruitment and flexible working. These Benches stand in firm support of any directive or action that any Government can take to remove sexual prejudice or exploitation. We therefore support the implementation of the regulations and the intention that lies behind them. Before I explain why I am not entirely satisfied with these new regulations I feel it necessary to make it clear for the record that I believe that much in them is good. Indeed, this was set out clearly and extensively in the noble Baroness’s long speech. They will realise some very sensible decisions. They do not blindly extend protection to an apparently vulnerable sex regardless of the circumstances. For example, it is correct, in paragraph 7.24, that women on flights and those partaking in certain ““extreme”” sports are excluded from sexual discrimination when heavily pregnant. But, a word of caution, there are bound to be arguments about the legal definition of ““heavily””. The regulations being discussed today have been much anticipated. The judicial review held in late February 2007 exposed the Government’s previous regulations made in 2005 to have been a failure. Lack of clarity in the drafting meant that women risked losing the full protection against pregnancy discrimination that they now have under UK case law. It also did not stipulate that pregnancy and maternity leave must be counted by employers as continuous service for the purposes of promotion. That sentence sounds a little odd—quite how pregnancy can be continuous service rather defies my imagination. The High Court ruled that the 2005 regulations not only failed to implement the 2004 gender directive but made life worse for pregnant women than the then law. So, it is as clear as daylight that there is an immediate and obvious need for new regulations. But I have been disappointed to see how slowly the Government have responded to this need. Perhaps they do not find regulations particularly pressing or as thrilling as getting new legislation on to the statute book. If one looks around the Grand Committee, one sees that these regulations are receiving not nearly the attention they would have had if they been discussed in the Chamber. Whatever the case, as the Explanatory Notes explain in paragraph 7.9, the Government decided to consult on the gender directive as part of a wider consultation on proposals for an Equality Bill, as the noble Baroness mentioned. However, the original start of the consultation got pushed back from the planned start date of March. This was due to the need, "““to focus on getting the policy for an equality Bill right””." That is all well and good in theory but these regulations are not one and the same as the Equality Bill. The noble Baroness explained that a little but it would be extremely helpful if she would expand on that in her response. I was glad, too, that the noble Baroness agreed with me that the regulations were delayed because the Government acceded to the request of the First Minister in Northern Ireland that the regulations should cover the whole of the United Kingdom so that they need not be debated separately in the Province. There is a history behind that but I do not think it would be profitable for us to go into it today. Whatever the reason for this delay, the start of the consultation period had disappointing implications for the 2007 regulations. As the consultation was finally published on 12 June and the responses had to be received by 4 September, there was less than three months’ consultation and it was over the summer period. That is not exactly an example of good government. Can the Minister explain why there was such a delay in starting the consultation process? I should also be interested to hear from her whether it is normal practice these days to hold consultation over the summer period when many people are on holiday and the consultation cannot be given the consideration that in normal circumstances it deserves. It is perhaps not unsurprising then that the consultation process has not come up with entirely sufficient answers to all that is proposed in the regulations. I refer the Committee to the definition of harassment at paragraph 7.8 of the Explanatory Notes. It seems as though this definition of harassment is still being consulted on as a result of the Equal Opportunities Commission judicial review. To avoid further delay and further uncertainty, could this issue not be tidied up in the very near future? How far is the judicial review from reaching a verdict? Given the Equal Opportunities Commission revelation that where sexual discrimination is most ““rife”” is in the employment domains of bars, restaurants and hotel trades, which are estimated to employ more than 670,000 women, I find the explanation in the Explanatory Notes that the new regulations will cost business around £12 million only too likely. Although it is of course a necessary cost, it is a considerable one. I fear that some less honourable businesses may shirk it to cut financial corners. Can the Minister assure me that the Government have made special provisions to ensure that all businesses will comply fully with the legislation when it comes into force? What steps have the Government taken to try to minimise the cost of these regulations to business to make them seem more attractive? Even from a brief glance at the regulations one can see that one of their clear occupations is with the reconsideration of transsexualism or gender reassignment. I shall take a random example: Regulation 4. This regulation amends subsection (2A) of the Sex Discrimination Act to extend protection from direct discrimination on grounds of gender reassignment to some 5,000 people, as I understood the Minister to say. This, in addition to the other protective extensions provided within the regulations, will certainly result in a significant increase in the number of employment tribunal cases made in the United Kingdom. Can the Minister assure me that arrangements have been made so that the tribunals will be able to cope sufficiently with this increase in hearings? Everyone should have an equal chance. I am relieved that the Government have the sense to go some way towards realising this very simple but very important objective in their new regulations. They did, after all, need to right the wrongs of their former legislation and make our culture a more just place for women to live and work in. I hope that this time the Government have it right and that we will not have to go through this whole operation again.