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Equality Bill

My Lords, this amendment is necessary to improve the obvious limitations of the public sector equality duty as it is set out in Clause 148. The limitations are evident by the partial success to date of the existing equality duty, with public bodies and authorities now thinking about their statutory equality responsibilities and having due regard to these, but not necessarily going beyond that point, in most cases, to deliver the outcomes required. I commend the Government on introducing the due-regard approach in existing race, gender and disability duties. It has got us to where we are now, but the proposed duty as set out in Clause 148 takes us no further. What we have now are volumes of equality strategies, schemes and policies, but not a great many desired and required outcomes that add up to recorded equality results. Yes, there are statements of intent, declarations, aspirations, commitments, warm words, policy reviews and mountains of reports, all in order to satisfy the requirement to have "due regard". Many of our public service authorities will do as much as they have to in order to meet the standard of compliance required to keep the EHRC from enforcement action, but that standard of due regard is, in my view, woefully inadequate. The amendment is not nearly as radical as I would like, or would have hoped for, or as many of the intended beneficiaries would want and need, yet, as drafted, it is absolutely required to give total clarity to all concerned, such as public authorities, private and voluntary bodies carrying out public functions, the EHRC as the lead enforcement agency, the audit and inspection bodies and members of the public, about the proportionate steps they must take across all relevant functions in order to comply with this duty. If the duty is to achieve its full potential, it is crucial that the Bill should make clear that the obligation to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations includes a requirement to take proportionate steps towards the achievement of those aims. Nothing in the amendment would increase the burden on public authorities; in fact, it would do the opposite, as it provides a specific focus to ensure that a duty is applied appropriately and eliminates any doubt as to what the duty requires in order to meet the essential compliance standards. Nor does it limit what a public authority should do to comply with the duty. It would preclude any possibility of adding to the existing tick-box approach by public bodies, as they would be compliant only by meeting their obligation through taking appropriate and proportionate steps towards equality. Proportionality is central to the meaning of the equality duty. To have due regard involves giving weight to equality in proportion to its relevance to each of an authority’s functions. Equality will be more relevant to some public functions than others: for example, for an NHS trust, equality will be highly relevant to all aspects of patient care, communications with family members and provision of information, but may be less relevant to the purchase of sterile equipment or maintenance of trust buildings. Proportionate steps in relation to a particular function of an authority will be steps that are proportionate to the relevance of equality to that function, taking account of the other obligations on the authority, its size and resources. This amendment has been developed in conjunction with the Discrimination Law Association and the Disability Charities Consortium in collaboration with the Equality and Human Rights Commission. It is fully supported by a wide range of expert equality groups, including Citizens Advice, Unison, Race on the Agenda, the 1990 Trust, the Equality Bill alliance, the National AIDS Trust, the Children’s Rights Alliance for England and the Equality and Diversity Forum. This wide support amongst key stakeholders representing all the equality groups is not accidental. It reflects the concerns of people in communities with experience of the existing race, disability and gender equality duties who want to ensure that the new public sector equality duty will amount to more than a paper exercise. They want to see public authorities instituting effective changes to policies and practices to achieve real progress towards equality. Many of these organisations have been disillusioned and frustrated by the failure of public bodies to meet their existing duties across all their relevant functions. They support this amendment because they want the legal obligations on public bodies to be clear from the outset, including a minimum standard of compliance. The EHRC, which is the enforcement body, will be the sole agency with statutory powers to enforce the Clause 148 public sector duty and it is important that it is clear about what it is enforcing. It can carry out a formal assessment of compliance with this duty and can serve a compliance notice. By putting into the Bill what a public authority, or other body exercising public functions, must do for minimum compliance, this amendment will give the EHRC a clearer basis to challenge any public authority, or other body, with poor evidence of compliance. It should enable the EHRC’s enforcement procedures to be faster and more robust. It is very likely that the courts will continue to play a role in enforcing equality duties. This amendment, which builds into the statute a test for compliance, should also assist the courts when they are asked judicially to review certain acts, or omissions, of a public authority in relation to the authority’s compliance with its equality duty. It is also important that we provide a standard for the audit and inspection bodies to measure the equality performance of public authorities. The third aspect of clarity provides for members of the public. The amendment will provide a standard against which equality groups, community organisations, trade unions and members of the public can assess compliance with the equality duty. That is important because, by specifying the basic test of "taking all proportionate steps" towards achieving these matters, this amendment offers a useful baseline for organisations and individuals to hold public authorities to account. In my view, it would be incomprehensible for the Government not to accept this simple amendment to improve Clause 148. The arguments for it are powerful, the likely benefits are substantial and support from the experts, practitioners and communities undeniable. I beg to move.