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Equality Bill

My Lords, this is an area in which we have strong views. As noble Lords are aware, we are very much in favour of the clauses on the use of positive action by employers so long as it remains just that and does not descend into positive discrimination. We have therefore tabled an amendment that would change "as qualified as" into "equally qualified to". We are concerned that the Government’s intention might have changed in this regard and that the clause’s language allows flexibility that looks more like positive discrimination. We cannot support this. In Committee, the Minister attempted to reassure us by saying: ""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".—[Official Report, 9/2/10; col. 658.]" We have heard different arguments from the Government as the Bill has passed through its stages in both Houses. It would be useful, therefore, if the Minister could tell us whether she sees the clause being used for such tie-breaker situations between two people. The Minister tried to reassure us further by saying that you cannot set the bar very low simply to pick someone who is less qualified but who has the relevant protected characteristic. She referred to people being 95 per cent qualified or 51 per cent qualified, for example, and we are grateful for this reassurance, especially as this is the situation that we wish to avoid. However, does she concede that it might be difficult to define precisely how qualified people are? This is why the clause remains open to abuse. The bar would not have to be set extraordinarily low before positive discrimination could be used to pick from a pool of candidates, all of whom were fairly equally qualified—something which the Minister stated she did not want to happen. We want to ensure that the clause is used only as a tie-breaker. Even if this seems to be the Government’s intention, we argue that the language does not tie down the clause specifically enough. The Minister expressed concern that to make it very specific might discourage employers from using it. We argue the opposite; surely a more specific clause and more precise guidance are the way to encourage employers to use them, as there will be no doubt about what exactly they are allowed to do. The CBI has made it very clear that one of its major concerns is the vagueness of the clause and that it is unsure how it will work in practice. The British Chambers of Commerce has also expressed the concern that the language is "too confusing". Thus, we argue that the vague nature, rather than the too precise nature, of the clause will be to blame for employers being unwilling to use it. I look forward to the response of the Leader of the House. I beg to move.