Clause 153

Equality Bill – in a Public Bill Committee am 7:00 pm ar 30 Mehefin 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Positive action: recruitment and promotion

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I beg to move amendment 29, in clause 153, page 113, line 2, leave out ‘reasonably thinks’ and insert ‘can demonstrate’.

Photo of Ann Winterton Ann Winterton Ceidwadwyr, Congleton

With this it will be convenient to discuss the following: amendment 23, in clause 153, page 113, line 16, leave out ‘as qualified as’ and insert ‘equally qualified to’.

Amendment 31, in clause 191, page 136, line 4, leave out ‘thinks’ and insert ‘can demonstrate’.

Amendment 32, in clause 191, page 136, line 9, leave out ‘thinks’ and insert ‘can demonstrate’.

Amendment 33, in clause 191, page 136, line 16, leave out ‘thinks’ and insert ‘can demonstrate’.

Amendment 34, in clause 191, page 136, line 23, leave out ‘thinks’ and insert ‘can demonstrate’.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The clause specifically looks at recruitment and promotion regarding positive action. My amendments may be broken down into three groups. The first consists of amendment 29. Currently, subsection (1) refers to the way that a person can use the clause. I object to the words “reasonably thinks”, preferring “can demonstrate”, just to get rid of the “thinks” part, and make the definition slightly less subjective. That is the first amendment, which is a relatively small one, and I do not want to make a huge deal about it.

The amendments in the next group are similar, as they have the “thinks” word in them, which is why they have been grouped together. They would amend clause 191, which refers to “the Minister” rather than “Person (P)”. I will deal with those at the end of my remarks, because they are not talking about positive action—they have been grouped with it because they use the same concept.

The crux of my argument on the clause is on amendment 23. It would amend the clause by replacing the words “as qualified as” with “equally qualified to”. It may sound a small change, but it is significant in respect of how the clause would operate. The amendment would change it from a way that my party and I do not find acceptable to a way that we would.

It would also mean that the Bill will be in line with the explanatory notes, which talk about candidates being “equally qualified”. It is my contention that that does not mean the same as “as qualified as”. “Equally qualified” implies that the candidates are equal in every material way pertaining to that particular job, either as a new recruit or as a promotion. This is the argument that has been used by both Ministers and the EHRC: where we would usually have two equally qualified candidates—the larger the number of candidates, the less likely, I suspect, that they would be equally qualified—the clause would be used as a tie-breaker.

An example commonly used by the EHRC, us and Ministers is that of a primary school in which all the staff are female and there are no male role models for the pupils. Let us say that the head teacher has a vacancy for a new teacher and there are two candidates equally qualified in terms of teaching ability and how they would fit into the school; in all ways they are the same, but one is a man and one is a woman. The contention is that the clause would enable the head  teacher to say that there are some good reasons why it would be good to have a more diverse work force and to have a male role model in the school. Therefore, because the two candidates are equally qualified and capable of doing the job, the head teacher would prefer the male candidate in order to have a more diverse work force. In those limited circumstances, in which there are two equally qualified candidates, we would be content with that.

If two equally qualified candidates are genuinely equal—and there is only one job—there has to be some way of making a hiring decision. Widening the diversity of the work force seems to be as good a reason as any. Alternative ways of making the decision would be completely subjective, for example by asking, “Do I like them?”, “Who do I like best?”, “Who would I get on with best?”. I suspect that that is how a lot of hiring decisions are made. In the limited circumstances I have mentioned, widening the diversity of the work force seems as good a way to make the decision as any.

The problem with how the clause is currently drafted is that the use of the words “as qualified as” does not have the same meaning at all for me. Those words seems to set a bar or hurdle and indicate that there are a certain set of qualifications or characteristics that are needed for the job and that, as long as someone gets over that bar or requirement, they are equally qualified to do the job and to be recruited or promoted as any other candidate. That leads to a problem, because if someone is in that situation and they have a significant number of candidates, we will start to get what is effectively positive discrimination, which I do not think we want.

I hope that I am not talking out of turn here, but I have discussed the matter with the chairman of the EHRC, who conceded that it was unlikely there would be equally qualified candidates applying for a role. He agreed with my characterisation that “as qualified as” would put candidates within a band of capability. He suggested that as long as the difference between the candidates was fairly narrow, the diversity measure could be allowed to kick in. The danger in relation to that is where to stop.

The heart of the matter is if there are two equally qualified candidates and one or the other gets the job, it does not cause too many problems. However, a situation might arise in which candidates are qualified for the job and able to meet the criteria, but there is a big difference between some of them and a number of the candidates are much better. Let us say that those who are better happen to be men and that although there are female candidates who are qualified to do the job, they are not as qualified as the male candidates. If the work force is largely male, the employer might decide to hire or promote the female candidate. It seems likely that that would stir resentment because weaker candidates are being preferred purely because of their gender. That is certainly not helpful to the cause of equality. That would give equality a bad name and damage the idea of fairness. It could lead to what the hon. Member for Oxford, West and Abingdon suggested in relation to a different matter, with people not thinking that this sort of thing applies to them.

I have a specific example for the Minister of such a situation being damaging. In my county, back in 2006, the Gloucestershire constabulary admitted breaking the law because it had a policy of deselecting potential recruits because of their colour. It was trying to advance the diversity of its work force, mainly to meet a Government target for ethnic minority recruits, so that the percentage in the force matched exactly the percentage in the county. The reason why I am aware of it is that it affected one of my constituents, who was certainly qualified to do the job. He and a number of others were disregarded in the selection process purely because they did not meet the criteria for advancing the diversity of the work force as far as race and colour were concerned.

Apart from being illegal—I am not sure that it would be if we allowed the wording “as qualified as”, because that implies that one could have a large pool of candidates and then start making decisions about the diversity of one’s work force—I do not think that the measure sits well with subsection (4)(b), which prohibits a policy, because as soon as one starts talking about lots of people, one is effectively talking about a policy.

Such measures lead to damaging headlines and damage the cause of equality, as well as creating the slightly bizarre situation of a police force going around breaking the law. I do not think that it is particularly effective. We do not want a situation where candidates applying to join an organisation are discriminated against because of their colour. I want to ensure that the clause will not allow that sort of behaviour to become lawful, as it is damaging, and it is difficult to explain to constituents why they should be treated in that way.

Just so that the Minister is aware, a number of organisations concerned about such matters have reached the same conclusion in their briefs for members of this Committee; I presume that other hon. Members have them. The British Retail Consortium agreed absolutely that companies should address under-representation in their work force, but notes the difference between the explanatory note, which discusses candidates who are “equally qualified”, and the term “as qualified as” in the Bill. The BRC agrees that the two are distinct and likely to confuse and believes, as I do, that the wording of the Bill suggests a principle of minimum merit or a bar that must be got over, whereas “equally qualifies” indicates that candidates have got to the same level. The BRC wants clear guidance for employers so that they do not fall foul of the law. It says explicitly that it supports amendment 23 because it believes that the wording is much clearer than the Bill’s.

The CBI, in its briefing for the Committee, is happy with the tie-break concept but not with how it is currently drafted. It does not think that the Bill is clear enough about how the tie-break would work in practice, or that the word “qualified” is defined in any way. The CBI is unclear whether the use of the word “qualification” is purely academic or whether it will apply more widely to consideration of the candidate’s qualities and ability to do the job. Those things are clearly important, particularly when it comes to promotion, which is likely to be based not on paper qualifications but on ability to do the job.

The British Chambers of Commerce suggests in its memorandum to the Committee that the majority of businesses will use the provision, but that those that do will want certainty. The BCC also notes the difference of language between the Bill and the explanatory notes  and does not think that the two are the same. The BCC explicitly supports our amendment, as do a number of organisations. When the Minister responds, she needs to explain why the Bill uses the language that it does and whether it means the same thing.

My final point pertaining to amendment 23 concerns subsection (4)(b), which says that the person concerned—the company, the business or whatever—cannot have a policy of treating people who share a protected characteristic more favourably but must take decisions on a case-by-case basis. I think that that works and I know that it is there because that is what the European directive requires. I cannot remember whether we discussed that in Committee or whether it was in a discussion I had with the EHRC. I can see that that holds up for two equally qualified candidates, where it is not about policy but a decision between two individuals.

If the language “as qualified as” is used for a pool of candidates, any organisation bigger than an individual employer who makes the decision himself will have to have a policy. That means that we will be encouraging people to take positive actions when they have a pool of candidates and giving them the power to do it, but saying that they cannot have a policy. Recruitment and promotion decisions will then be taken under the table, out of sight and not in accordance with a policy. We should not encourage businesses to go down that route.

Amendments 31 to 34 apply to clause 191. They have nothing to do with positive action but have been put in this group wisely because of the similarity in the words “thinks” and “demonstrate”. Clause 191 is about harmonisation and will enable Ministers to amend the Bill through order-making powers. I will not go into whether order-making powers are right or wrong because we will discuss that under clause 191.

My objection is that clause 191 contains four references to Ministers being able to use order-making powers because they “think” something. I am not happy that we are giving Ministers powers to amend primary legislation by order, but if are, we should jolly well have objective tests that can be reviewed properly through judicial review and that can constrain Ministers’ actions.

I will go through the provisions of the clause briefly one by one. Line 4 states that clause 191 applies if

“there is a Community obligation of the United Kingdom which a Minister of the Crown thinks relates to the subject matter of the Equality Acts”.

It would be better to say that the Minister must “demonstrate” that it does. Ministers should not be able to use this clause simply because they “think” something. That does not give a judge much to go on.

If the Minister thinks that the community obligation relates to the subject matter of the Bill, clause 191 applies only if

“the Minister thinks that it is appropriate to make harmonising provision”.

Again, that relies just on the Minister’s opinion. There is nothing for a judge to test it against. There is no guidance for Ministers on how they should make such decisions. It is just down to whatever they think. The clause gives the Minister the power to make the harmonising provision by order to change primary legislation. I do not think that that is sound.

There are some rules about the timing of making the order. Clause 191 says specifically that there must be consultation and prohibits the Minister from making the order before the end of the period of 12 weeks after the consultation starts. As we are talking about changing primary legislation, the Minister is not allowed to make the order before the end of that period unless he thinks that the

“making of the order is a matter of urgency”.

Sitting suspended for a Division in the House.

On resuming

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I was running through amendments 32 to 34. I had just finished with the fact that there is a provision under clause 191(5) that says that the Minister cannot make an order until there has been a 12-week consultation period, unless the Minister thinks that making the order is “a matter of urgency”. There is no test, there are no criteria, on which the Minister has to base that decision. Potentially, the Minister, having thought that changing the law was necessary, could start a consultation process, which is mandatory, and pretty much as soon as that process was started could think that the order was a matter of urgency and change primary legislation by order. That is simply not appropriate. The Minister ought to have a test at least of demonstrating that it is necessary, rather than just thinking it.

The final example of what I want to change is on line 23 of page 136, which explains what a “harmonising provision” is. Again, it is what

“the Minister thinks is necessary or expedient”.

I always get nervous about the word “expedient”, particularly when it is allied to a Minister thinking something.

The amendments in the group would take out the word “thinks” and put in the more objective test of “can demonstrate”. Such a wording would imply that a Minister would have to produce some evidence and tests to be met. The amendments are wide-ranging and I look forward to the Minister’s response.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Amendment 29 would make statistical evidence a prerequisite for employers to justify the use of positive action measures. The formulation of wording used in the Bill is “reasonably thinks”, which we stick to. That wording requires a decision maker to act reasonably when deciding whether to use the measure. If a decision is taken to use the measure and there is no evidence to suggest that people having the protected characteristic have ever been disadvantaged or under-represented, it would be open to challenge. The provisions take into consideration the voluntary nature of the use of positive action measures and the fact that any use of the measures would need to be plausible, otherwise it would be open to challenge.

The wording “can demonstrate” would obviously provide a higher threshold based on statistical evidence, but we think that that would have a chilling effect on the willingness of employers to use such measures, even when they can make clear identifications from their day-to-day business, from the evidence surrounding  them, from their own understanding of the market and from the need to redress any imbalance in their work force. In the face of something that they might regard as completely clear evidence that they ought to use the power, and that convinces them that they wish to use the power, they would be unable to do so, unless they could get some presumably rather expensive consultant to obtain statistical evidence to ascertain that what they could see before their very eyes was in fact statistically justifiable. We do not think that that is a good thing to impose on businesses, and it would undermine the impact of the provisions. Clause 153 sets out the criteria by which the provisions may be applied, while subsection (4) specifically ensures that employers cannot abuse the positive action measures. We would resist the amendment and, in the light of our argument, we ask the hon. Gentleman to withdraw it.

We also resist amendment 23, which would change the present wording of subsection (4)(a) from “as qualified as” to “equally qualified to”. Although that does not sound like much of a change, it probably is in the way that the hon. Gentleman suggested, and it is something that we ought to give at least a full airing. The point of the provisions is to allow employers to take targeted action. We think that business welcomes the proposals as beneficial to the success of organisations, to filling skills gaps, to understanding customers’ needs and to creating a more diverse work force. However, to ensure that the provisions are not abused, we need to spell out the extent to which they apply.

Clause 153(4), which is the policy provision to which the hon. Gentleman referred, is there to ensure that there is not a blanket policy of favouring candidates because they have a protected characteristic, even if they are disadvantaged and under-represented as a consequence. An employer has to ensure that the candidate that she wishes to prefer is as qualified for the job or promotion as another person. For example, what if an employer has specified the requirements necessary for a job and two candidates meet her? Let us suppose that one has a protected characteristic connected to disadvantage or under-representation and the other does not. If the candidate with the protected characteristic is as qualified as the one without a protected characteristic, the permission to treat the candidate with the protected characteristic more favourably will step in.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I want to ask about two things. The Solicitor-General said that business welcomed the provision. Both the BRC and the BCC support amendment 23 explicitly because it would make the situation clearer for business and they believe that that is important. The CBI, while not commenting specifically on the amendment, thinks that the Government should re-examine the clause to make sure that it is clear and that its members will not get in trouble when using it, for the reasons that I have outlined.

The hon. and learned Lady will correct me if I am wrong, but she has agreed that “as qualified as” means that a person has reached a point just above a hurdle. It does not mean that the candidates are equally qualified, but that criteria have been set for the job—whether educational qualifications, skills or particular talents—and as long as the person is over the minimum hurdle, he will be able, if he has a protected characteristic, to be  given an advantage. That system has lots of disadvantages. It is not the tie-break scenario that the Minister for Woman and Equality cited on Second Reading. It is quite different—it is the type of thing that gives equality a bad name—and easily turns the situation into one involving a pool of candidates with discrimination taking place in favour of one group and against another, which is dangerous.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

That is exactly what cannot be done because subsection (4)(b) prohibits such action. There is no danger of such a thing taking place lawfully under the Bill. Let me be as clear as possible. The hon. Gentleman says that businesses have requested clarity. Businesses tell me that they are already undertaking such a process. We must bear in mind that, when launching an assault on the provision, they are probably doing it unlawfully at the moment because no power is available for someone to be preferred because they have a protected characteristic, even granted the equality of merit. We need to be a little cautious about claiming where business overwhelmingly lies on the matter.

If a business is trying to target a particular community with its product, it is commonplace to identify a sales person from that community. It is a good thing for the business to appoint them to the job if they are as good as someone who is not from that community. By changing the wording from “as qualified as” to “equally qualified to”, the hon. Gentleman would reduce the provision to something that would really never work, nor have any application of great import, because it would be relatively rare that exactly identical qualifications occur.

The hon. Gentleman makes a point about a pool of candidates, but let us say that the test ought to be that both candidates have demonstrated that they have met the employer’s particular requirements for the post. That seems to be entirely the right approach. In that sense, both candidates who fulfil the employer’s particular requirements for the post will be as qualified as each other to fill the vacancy.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I want to clarify one thing. I tend to agree with the Solicitor-General, but if specifications and criteria were set out for the job, is she saying that as long as that criteria and specific requirements of the job specification were met, the employer would then be able to choose? That seems very broad compared with what I thought that the provision was about.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

But that is the hon. Lady’s device, not mine. I have set out pretty plainly what the position would have to be. The employer would have ways of attracting people from the right pool and they would be as broad as he wished. He would have ways of short-listing people and getting them in for interview. There would be criteria all the way along, such as person specifications and job descriptions, all of which people would have to fulfil to reach the stage that I have described. That would be appropriate. Nothing much more could help further than the fact that both candidates demonstrated to the employer that they had met his particular requirements for the post.

There is a sort of false aura—I am not saying that it is deliberate—around the whole notion of, “Oh, does ‘qualified’ mean academic qualifications? Oh, do they  have to be absolutely the same, and how wide can the band be?” We are talking about business, which is used to appointing people to jobs and evaluating one against another to see who crosses the line, who is absolutely right for the job and how many applicants reach that standard. We are not bringing the provision to a bunch of neophytes, and the people who will use it will know what they want from applicants. If they are satisfied that they have two or more candidates before them, they may, if they choose, use the voluntary process. It is not about having a blanket policy and it is not positive discrimination. What the clause provides for is not in the slightest bit dangerous. I hope that my explanation has removed any lack of clarity there might have been.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 7:45, 30 Mehefin 2009

The Minister has made things clearer, but not necessarily more helpful, and I will tell her why. I think that there is a qualitative difference. If there are two candidates who are equally qualified, or within a very narrow band, and one of the protected characteristics is used as the decider or tie-breaker, that will not lead to a situation in which it is felt that the better candidate did not get the job because of the protected characteristic. However, that changes as soon as the hurdle of a minimum requirement is introduced. If there is a wide spread of candidates, but they are all capable of doing the job, one who was much better than the others might not get it because a less good candidate who was still over the minimum requirement had a protected characteristic. We are talking about this being done by not only business, but any organisation. I am thinking about pubic sector bodies that might have a pubic sector duty on promoting people with particular protected characteristics.

That worry is flagged up in the specific example set out in explanatory note 508. The example is of a police service that employs disproportionately low numbers of people from an ethnic minority background giving preferential selection to a candidate from such a background after identifying several equally qualified candidates for recruitment. That preferential selection would not be unlawful, provided that the comparative merits of the other candidates were taken into consideration. The note states that the candidates were “equally qualified”. As soon as we use the term “as qualified as”, we are faced with a situation in which a less good ethnic minority candidate, albeit one who is still qualified for the job, could be given it.

I use that example because, as the Minister will know, it is a real example of what has happened to some of my constituents. Candidates might not be given a job or promoted in favour of a less good candidate from an ethnic minority background. Apart from being wrong in principle—in my view—nothing is more guaranteed to give the provisions of the Bill a bad name than that sort of behaviour. The way in which she has explained the clause shows that that sort of behaviour would be lawful.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

To refer to that as “that sort of behaviour” does not give due credit to the fact that it is a positive step forward. To suggest, as the hon. Gentleman has done, that there will never be resentment if it is only used as a tie-breaker is wholly unrealistic. Often, people think that they did not get a job because the successful candidate is younger, prettier, taller, blacker or gayer  than they are, so there is really no guarantee that changing the wording to “equally qualified” will remove such resentment.

If a candidate is, as the hon. Gentleman suggested, clearly superior or better qualified, and if the employer does not consider that person over-qualified for a job, in which case they are entitled to choose at the right level, common sense suggests that they will not be as qualified as the other person, because they are clearly superior. It is not difficult to separate people who are as qualified as each other from those who are not. We are not talking about simply crossing some sort of low threshold that will let hordes of people in, and making it a clear blanket policy involving hordes of people within a massive band of ability being preferred over hordes of people from another group who are in the same massive band of ability. We are talking, very sensibly, about somebody who meets the employer’s particular requirements for the post, and somebody else who meets those requirements; it could be one on one, two on two—it makes no difference.

If an employer wishes to choose between people who, in his view, are as qualified as each other, he can choose somebody from an under-represented group. This is an excellent provision that will protect a lot of businesses that do this now out of common sense, and I hope it will encourage not only other businesses but people from the public sector to do it, as well.

Suppose there were a practice of looking at groups of people and deciding that they were all within a range of ability, and that it would be just as easy to pick somebody from the bottom as from the top of that range. Someone could help themselves to a white person over a black person, a man over a woman, or a gay person over a straight person, but they would be implementing a policy that is not allowed under clause 153(4)(b). There is a distinction between two equally qualified people, and operating a policy that has “as qualified as” in the middle of it. In my view, it is quite clear what is available and what is not, and I hope that there can be no serious doubt about that.

I suggest that this is the right phraseology to use. It allows the appropriate flexibility and will make the provision useful. To narrow it down in some way to require identical qualifications—we need only to say the word to be clear that one would rarely get people who are absolutely identically qualified. On the question of whether that means academic qualifications, of course it does not. It means identically qualified for a particular job, and that just will not happen often. The impact of the clause must be far broader than that. I invite the hon. Gentleman to see that this is a useful and good measure.

Amendments 31 to 34 are about limiting ministerial flexibility in deciding where the use of the harmonisation power is appropriate, and its timing and extent. They would require the Minister to demonstrate at each stage how the requirements of the clause are being met in each case. The Minister’s reasons would therefore be subject to challenge in the courts on an objective basis.

The point of the provisions is to give future Equality Ministers the flexibility they need to ensure that the Bill remains coherent and harmonised legislation in the years ahead. I know that the hon. Gentleman does not like the turn of phrase, “The Minister is required to think”—I tell the Committee that it is not easy at this  time of night—because he thinks it a whimsical or subjective measure. However, although it is an odd way of putting it, the point is expressed correctly because the thinking has to be rational. It must be capable of resisting judicial review on the basis that it was irrational, or that it did not take everything necessary into account. It must not have left out something that should not have been left out of account, and must be otherwise not unreasonable. If that thinking process is not a public law compliant way of thinking, which, as one my officials said to me outside the Committee, is how I always think anyway, it will not work. It is not a casual process at all.

We can offer more reassurances. The initial trigger would be a thought process of that kind for the Minister following advice. None the less, the power can be used only where a Community obligation is to be implemented through the regulation-making power under section 2(2) of the European Communities Act 1972. That obligation must be one that the Minister thinks relates to the subject matter of the equality Acts—the Bill and the Equality Act 2006—but the existence of implementing regulations to be so made will be a matter of fact.

The power can be used only where the Minister thinks it appropriate to make harmonising provision in the equality Acts—the same thinking again—for instance, where there is extra provision in the equality Acts that goes beyond the subject matter of a Community obligation, but which is part of the provisions that must be amended to comply with the new Community obligation. This situation could arise in the area of racial discrimination; currently, the Community provisions do not address nationality or colour, but the UK always has. To preserve our harmonised approach, we might need to use this power. It is inherent in the exercise of such a power that the Government will need to demonstrate why the use of the power is both appropriate and necessary, or expedient in those circumstances.

I understand why the hon. Gentleman might wish to strengthen accountability where a Minister “thinks” that the urgency of the situation requires circumvention of the normal 12-week consultation period. However, it is not a “thinking” process that can just come to someone over breakfast—“Although I have just set about the consultation process, I will abrogate it now, because I think we should move forward”—it has got to be a completely rational decision-making process, and it is there for urgent situations when, by definition, there will not be the opportunity to demonstrate formally and objectively all the evidence that the consultation might have put up. Ministers will have to report to Parliament every five years on the exercise of the power over the previous five years.

All regulations giving effect to this power will have to be laid before and debated by both Houses of Parliament. As with the consultation process to which I have just referred, the Minster will have to demonstrate that the regulations under section 2(2) of the 1972 Act trigger a need to retain harmony through the use of this power, and that the adjustments proposed are necessary. The debates would provide Members with opportunities to probe where, for instance, the 12-week consultation has been shortened.

There is a lot more accountability built into the provision than might at first appear the case, when all one has to do is to have some rational ministerial  thinking, and that particular piece of language does not provide the complete picture; I hope I have now satisfactorily done so. I know that the hon. Gentleman feels strongly that the requirement should be about more than just being over a threshold. I hope I have satisfied him. It is about more than being over a threshold; it is about the employer’s depiction of what he needs in that job—people who are as qualified as each other in every way to fit that job, but who might fall short of being identical. If they had to be identical, the power would never be used.

Photo of Diane Abbott Diane Abbott Llafur, Hackney North and Stoke Newington

I listened with interest to the hon. Member for Forest of Dean. I say to him very gently that, in expressing a panic about under-qualified black people getting jobs over highly qualified white people, he is not just out of step with people such as me, who, I admit, have spent a lifetime campaigning for racial equality; he is out of step with the most advanced thinking among managers in both the private and the public sector. I speak with some knowledge, because I try to work on these issues particularly in relation to employment opportunities for young people and ethnic minority professionals.

Our top international accountancy firms understand perfectly well that they cannot compete for business in the emerging markets of Brazil, China and Africa with partners and senior people who, with the greatest respect, all look like the hon. Gentleman. If we are competing, as global British companies must, in an international market, we must be able to demonstrate a diversity at the very top and in middle management. Otherwise, people will say that these international companies are, in some sense, stuck in the past.

Whether it is international financial services companies or international retail companies, they understand that if the majority of their customers are women it makes sense to tap into the knowledge and experience of qualified female professionals, whether at senior management level or at board level. Whether it is people providing services in the public sector, knowing that in our great cities they are trying to provide services to a multicultural clientele who all pay their taxes and are all entitled to a good service, or whether we are looking at the private or the public, increasingly, progressive management understands that being able to recruit a more diverse work force—not just at the bottom, but in middle management and at the very top—enables them to compete better, do their business better and provide a better service to people.

On the question of qualifications, progressive management also understands that it is not just a question of necessarily having formal experience or formal qualifications. Other attributes and other added values are involved when people consciously try to recruit a diverse work force.

I put it to the hon. Gentleman that in expressing the fear that underskilled and underqualified tinted people will take jobs from his constituents, he shows that he is not keeping up with where management is and where the bosses of some of our biggest international companies are at this time.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 8:00, 30 Mehefin 2009

I cannot be quite as brief as I had intended, because I need to deal with the points that the hon. Lady has made.

I chose the example that I did not because I was just picking randomly the idea of a less qualified black candidate, for example, getting a job from a better qualified white candidate. I used it because I had a specific case in my constituency and because my constituency does not have a terribly diverse population—it is 99.6 per cent. white. It was hardly surprising that the case involved a white person being discriminated against. That is why I chose that example; I had no ulterior motive in choosing it.

Anticipating the particular argument that the hon. Lady made is exactly why I took the trouble when we debated clause 152, which is on general positive action measures that can be taken, to say that I am in favour of those measures. I am in favour of companies taking steps to have a more diverse work force and I made that clear in the debate on clause 152.

We are now specifically discussing my concern that in making specific hiring and promotion decisions when there are a number of candidates, some of whom are demonstrably better than others, people will be able to prefer the less good candidate, of whatever colour and of whatever protected characteristic, rather than choose the better qualified candidate who does not have that protected characteristic. I do not think that that situation is very helpful.

If candidates are equally qualified, a decision must be made based on something. At least the protected characteristic is objective, rather than the employer just liking a person better. Other than that, this situation stores up a lot of dangers. However, that does not mean that I am not in favour of employers taking lots of positive steps, as the hon. Lady correctly said. I just think that the situation I have described is a step too far.

Photo of Diane Abbott Diane Abbott Llafur, Hackney North and Stoke Newington

Briefly, the notion of less qualified and better qualified candidates can be highly subjective. Years ago, before I came to the House, I worked for the big London television company, which was called Thames Television. When I first went to work for that company, the head of news and current affairs was a tall, thin, cerebral man with a Cambridge degree. He systematically promoted to the editorship of programmes and to head of department tall, thin, cerebral men with Oxbridge degrees. When that man left and his post was taken over by a rotund, northern, beery ex-tabloid journalist, lo and behold—the people he thought were better qualified were people in his image. Had he spent as much time as I have examining these issues, he would have known that the propensity of people to promote in their own image and justify it by some subjective notion of qualifications is one of the big issues when it comes to diversity.

I welcome the provisions in the Bill. As I have said, some managers and some employers might have problems with them, but if the hon. Gentleman talks to our biggest companies and our most advanced management, he will find that they understand that these provisions can help them—not to be nice to black people and ethnic minorities, but to make businesses better, more successful and more competitive, thereby providing a better service and ultimately making more money for their shareholders.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I do not disagree with a lot of what the hon. Lady says, but I still think there is a distinction between what we talked about on clause 152 and this  clause. I will not pursue the debate because we will not agree and I detect that other members of the Committee would like us to move on.

The only thing I would like to say on amendment 29 is that P must think “reasonably”. The Minister made great play of the word “reasonably”, yet under clause 191, when it is the Minister thinking, the word “reasonably” does not appear. Perhaps we can explore that more when we reach that clause.

On amendment 23, I will think again about whether subsection (4)(b) checks the use of subsection (4)(a) and so deals with the problem that I described. My concern was that if there is pool of people the fact that a policy is not possible effectively means that systematic discrimination is not possible. The Minister has planted some seeds there on which I will cogitate. I will withdraw amendment 29, but I may wish to press to a vote one or more of amendments 31 to 34 when we reach clause 191. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Ann Winterton Ann Winterton Ceidwadwyr, Congleton

With this it will be convenient to discuss amendment 302, in clause 153, page 113, line 23, at end insert—

‘(ca) offer work to a voluntary worker’.

An amendment to allow positive action in the recruitment of volunteers.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

The points are relatively brief, everyone will be relieved to hear. The first amendment would remove the now famous subsection (4)(b). This is really a probing amendment because we have not been able to understand the effect of the proposal. Subsection (2) applies only if P does not have a policy of treating persons who share a protected characteristic more favourably in connection with recruitment or promotion. If P did have such a policy it would presumably be illegal. Why would someone who did not have that policy want to apply subsection (2) anyway? I hope the Minister gets my drift on that—possibly, possibly not.

The amendment is probing because there is a lack of clarity around this. I note that the hon. Member for Forest of Dean is going to think about it some more. We have not been able to identify why subsection (2) can be applied only if someone does not have such a policy. If one does not have a policy of wanting to promote people, why would one apply subsection (2), as it is enabling legislation rather than mandatory?

On amendment 302, we discussed the recruitment of volunteers and whether the protection from discrimination extended to them. I was grateful to the Minister for saying that it did extend to volunteers, but this application of positive action does not seem to extend to the recruitment of volunteers.

If I am taking on interns I will not be able to apply positive action to interns who are as qualified as each other to bring them into my office. Volunteering plays an important role in opening doors and giving access to different worlds, experience and accreditation, which is why it is so productive, particularly for young people. It presents opportunities to advance careers and get skills and training. It would be a good thing if organisations were allowed to take positive action when particular groups were under-represented in their place of work.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Amendment 301 would wreck the positive action stance that we have taken by allowing a policy of habitually treating somebody with a protected characteristic more favourably in connection with recruitment or promotion than people who do not share it, irrespective of merit. What the hon. Lady is struggling with—I understand the point—is why, if the individual who wanted to make an appointment was not willing to use the provision, would they ever use it? She is equating that willingness with having a policy of using the provision. However, using such a provision requires an organisation to do it by assessing merit and then comparing only those who are as qualified as each other. If a company has a policy of appointing someone because they are black or a woman, they are acting unlawfully. Paragraph (b), which the hon. Lady seeks to remove, is about ensuring that merit is in place.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

It is the “does not have a policy” that I am confused about. I am talking about subsection (4)(b), which says:

“P does not have a policy”.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The person can use positive action as long as they use positive action only and do not have a policy of positive discrimination.

Amendment 302 is about the difference between volunteers and employees. The other week, we discussed whether we should involve volunteers. I think that the hon. Lady appreciated that, given the range of volunteers, it is difficult to fit them into the legislation. If we were  to do so, it could have a chilling effect on them coming forward. We are talking here about the difference between a volunteer, who comes and offers their services freely to causes that are special to them and does not look for remuneration, and people who are looking for a real opportunity and a contract with remuneration. One can see how positive action is a more relevant tool to the second category and much less to the first. I ask the hon. Lady to consider that it is not necessary to have amendment 302 either.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Got it. I thank the Minister for removing the clouds from my brain with regard to paragraph (b). All I was seeking was to ensure that there would be no illegality were I to use positive action to choose a volunteer who had a protected characteristic but who was as qualified as any other applicant for, say, an internship. I want to ensure that I would not be in jeopardy were I to use that method of selecting a volunteer. As far as I can understand the Minister, I would not be in any jeopardy. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 153 ordered to stand part of the Bill.

Clauses 154 to 156 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.—(Lyn Brown.)

Adjourned till Thursday 2 July at Nine o’clock.