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Equality Bill

My Lords, Amendment 46 tabled by the noble Lord, Lord Ouseley, and the noble Baronesses, Lady Young and Lady Coussins, is similar to the amendments tabled by the noble Lord, Lord Ouseley, and moved by the noble Baroness, Lady Young, on his behalf in Committee. We have not changed our mind about this amendment. We do not believe that it would improve the Equality Bill; instead, it would disturb the balance achieved by the current wording of the equality duty. I appreciate that the amendment is intended to clarify Clause 148(1) but it would not have this effect. It would instead create further confusion by introducing additional requirements for public bodies to take all proportionate steps towards the achievement of a number of matters. I shall try to explain what "due regard" means and how the courts interpret it. The courts have made it clear that having due regard is more than having a cursory glance at a document before arriving at a preconceived conclusion. Due regard requires public authorities, in formulating a policy, to give equality considerations the weight which is proportionate in the circumstances, given the potential impact of the policy on equality. It is not a question of box-ticking; it requires the equality impact to be considered rigorously and with an open mind. The noble Lord, Lord Ouseley, implied that the only enforcement of the equality duty would be through the EHRC. Clearly, that is not true. The general duty can be enforced through judicial review by individuals and third sector organisations, as well as by the Equality and Human Rights Commission, but only the commission can enforce specific duties. The Bill makes it clear that in certain circumstances the duty will involve taking action to meet the needs of particular groups. The purpose of the equality duty is to oblige public bodies to consider equality issues in respect of all their functions. However, the amendment appears to be an attempt to take away an authority’s discretion as to how it exercises its functions and to require public bodies, and private authorities that exercise public functions, to take all proportionate steps to eliminate discrimination, advance equality and foster good relations in respect of all their functions and in respect of all the protected characteristics, regardless of the circumstances. If bodies subject to the duty are required to "take all proportionate steps" to advance equality of opportunity in respect of all eight protected characteristics, it is inevitable that public bodies will be required to spread their finite resources more thinly and that some persons with more pressing needs will end up with less. The general duty will be underpinned by a number of specific duties to assist better performance of the equality duty. The secondary legislation sets out the detailed steps that a public authority should take to meet the duty, and in our opinion that is the right place to set them out. On 25 January 2010, we published a policy statement in response to the consultation exercise on our proposals for specific duties. We would want public bodies to take steps such as developing and publishing equality objectives and reporting progress against them, and publishing their gender pay gaps and BME and disabled employment rates. We want them to do this in a standardised manner which allows citizens to track progress and compare public bodies. We believe that this package will lead to better policy, better public services and less bureaucracy and that it will be an asset for all. It will increase focus on the equality outcomes which we all wish to see. Perhaps the noble Lord, Lord Ouseley, could consider that we have been here before. I am surprised that the noble Lord and those supporting this amendment, and indeed all the organisations that they have prayed in aid, have not beaten a path to our door asking for a meeting with us. It is not too late; they can certainly come and talk to us now. However, it seems that we have been in permanent session, meeting people about aspects of the Bill, for months and months. I reflect that the noble Lord and I had one very small exchange in the Cloakroom last week. It occurred to me then that perhaps we could have had a longer discussion had he and his colleagues come to see us to discuss the matter in more detail. Therefore, I invite him to do that. The structure of a general duty underpinned by specific duties has worked successfully for the current duties. Why change an existing successful structure? We want to build on that, so I ask the noble Lord and the noble Baronesses, Lady Young and Lady Coussins, not to press their amendment.