Clause 152

Equality Bill – in a Public Bill Committee am 6:45 pm ar 30 Mehefin 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Positive action: general

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

I beg to move amendment 303, in clause 152, page 112, line 19, after ‘needs’, insert

‘to the extent that it is reasonable to meet them’.

To ensure that bodies do not undertake unreasonable measures positive action to accommodate unreasonable needs.

We now move to the positive action provision. This is a probing amendment on the general application of the provision. Clause 152(2) states:

“This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim”.

Our amendment relates to paragraph (b), which refers to “meeting those needs”. As the clause does not refer to a “legitimate” aim in relation to undertaking positive action, the amendment would impose a reasonableness test when the needs of a person with a protected characteristic were being considered. At the moment, the need could be unreasonable, because there is no legitimisation of the aim. I hesitate to tread on religious territory when my hon. Friend the Member for Oxford, West and Abingdon is not present, but it could be any of the protected characteristics. If a religious view could be considered unreasonable—for instance, that all gay people have no place in society or that all women should wear a burqa—surely it would be unreasonable  to undertake positive discrimination to accommodate that view, to accommodate the need of the person requiring it.

This probing amendment is designed merely to test what traction, in legal terms, need has on its own without there being a legitimate aim and whether we need to include a reasonableness test to ensure that there are no untoward or unintended consequences. I am interested in what the Minister has to say.

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

I appreciate that we would not want the provisions allowing positive action to be misused in any way that could be considered unreasonable, but we think that there are sufficient protections within the four corners of the clause itself.

Clause 152(1) requires that a person who intends to take positive action reasonably thinks that people within his remit

“who share a protected characteristic suffer a disadvantage” or

“who share a protected characteristic have needs that are different” or that participation is disproportionately low because of a protected characteristic. There has to be a reasonable point of view in the first place, before any positive action even comes on to the scene. That is an important protection.

There is also clause 152(2), to which the hon. Lady referred, which requires the action to be taken to be a proportionate means of achieving the aims set out in paragraphs (a), (b) and (c). She is mostly concerned with “meeting those needs”. Again, this is about balance and appropriateness. Even if it were possible for a person to use the provision to meet unreasonable needs, the steps to meet their demands would have to be proportionate, so it is difficult to see what good the provision would be to them.

The clause includes a power to make regulations to set out action that would not be permitted, so there is a power if there were ever something capable of being envisaged in advance that we would want to exclude on an unreasonableness basis. Always, when looking at positive action, the EHCR is committed to issuing clear guidance. In this case, since this is a new power, guidance probably ought to include examples of the kind of needs for which protection is intended.

I hope that the hon. Lady is satisfied that those two distinct sets of phraseology within the four corners of the clause will fit the need to ensure that the protection is not abused, and we expect good guidance from the commission.

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

I thank the Minister for that helpful explanation. There are indeed enough safeguards in place. With those words on the record, it is clear that unreasonable needs would not be permitted. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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

I do not want to speak terribly long on clause stand part, but, before we move on to clause 153, I would like to draw some distinctions, and invite the Minister to do so as well, and set out just what is and  what is not included in positive action. Having read the clause, I am happy to support it, because positive action is distinct from positive discrimination—I think Members have said that—which I would not be in favour of.

The Committee must be careful to be clear about what we mean. On one or two previous clauses, there has been some confusion in language when people have said “positive discrimination” when what they meant was positive action. The two are distinct.

I can give an example of positive action. Perhaps a particular group is under-represented in someone’s work force. The employer might decide to advertise in a particular publication that was read by many in that group, or, if they were going out and physically recruiting, they might decide to target particular geographic areas to try to increase the number of people who apply for a job in their organisation. That is a positive step to try to widen diversity, but, crucially, it is not discriminating against anybody else. It is not stopping anybody else from applying for a role and, assuming that the organisation is advertising in other publications as well, it is not prohibiting or disadvantaging anybody. It is simply trying to widen the pool. Positive discrimination would be where an organisation was trying to widen its diversity, but it was doing so by specifically discriminating. I will cite a specific example from my own constituency when we come to clause 153. It is worth clarifying this matter so that people outside are clear what this provision permits them to do and what it does not.

The Law Society, which provided us with a brief on clause 152, specifically says that

“the current positive action provisions in current legislation can be confusing for employers.”

Presumably, if they are confusing for the Law Society, which should understand this stuff very well, they will be confusing for pretty much everybody else. It makes the point that it uses existing usual targeting measures. It says:

“Broadening the circumstances in which an employer can draw attention to an imbalance in an advertisement might be helpful.”

Again, an organisation will not say that people from another group should not apply or that it is biased in favour of a particular group. It will simply be saying that in its work force, there are groups that are under-represented and it may encourage people who share that protected characteristic to apply. As long as it does not discriminate against people who do not have that protected characteristic, I see nothing harmful in doing that at all, and this particular clause is welcomed by the Law Society.

For the avoidance of doubt and to stop those who like to misuse and misrepresent such provisions, it would be helpful if the Minister could outline what the Government mean by the clause and what they do not mean. That would benefit both the Committee and those outside who are listening to our proceedings.

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

I am glad to have a welcome from the hon. Gentleman. The measure is not a wholly new concept. Provisions on positive action already exist within the Sex Discrimination Act 1975 and the Race Relations Act 1976, and the clause is an extension of that. Positive action provisions can apply in different ways to different characteristics. They can even apply to some and not to others. We now intend to regularise them and to make a platform for all of the strands. The  first thing that the clause does is establish a permissive framework under which forms of positive action can be taken. Any use of such provisions will be entirely voluntary. There is no requirement for them to be used by specific individuals or organisations. Although they are voluntary, lots of UK businesses have recognised the benefits of using positive action to create a more diverse work force, to better understand customers’ needs and to attract new business. Therefore, the provisions will be used, but it is important to emphasise that they are totally voluntary.

The second characteristic is that it is not, as the hon. Gentleman has said, positive discrimination. Positive discrimination would favour a person from a particular under-represented or disadvantaged group solely because they come from that particular group irrespective of merit. In the main, positive discrimination is unlawful in the UK. Therefore this is not positive discrimination. We are not talking about favouring somebody just because they come from a particular group. The provisions are about ensuring that people’s needs are met, that they have equal opportunities and that they are not held back because of a particular characteristic.

The clause will have effect in cases in which it is reasonable to consider that those with a protected characteristic suffer a disadvantage that is linked to that characteristic, that those who share the characteristic are under-represented in some way, or that those who share the characteristic have particular needs not shared by those without the characteristic in question. In any such situation, the clause will enable organisations, public authorities, employers and service providers to take a wide range of positive action measures to address the disadvantage, and to increase the participation of people with that characteristic. Moreover, any action must be a proportionate way of accomplishing the intended outcome. I am referring to specific training opportunities, targeted health services to address particular needs and providing lessons exclusively for disadvantaged pupils. We want to ensure the appropriate use—we have just canvassed this—of the positive action measures.

The clause contains a power to make regulations to set out what would not be permitted under it. It ensures that any act that would be unlawful under any other legislation will not be permitted by it. It also provides that if positive action measures are taken under clause 99, which is about the selection of candidates and clause 153(3) regarding recruitment or promotion, which we will come on to in a minute, those provisions will apply, rather than clause 152.

In addition, should the provision allowing registered political parties the use of single sex shortlists in selecting election candidates, which clause 99(7) deals with, be repealed, the clause will not allow the use of similar measures to be taken—I emphasise that point, and it is only what is permitted within the law. Where there is a specific provision to cover a specific kind of positive action, that is the provision that will prevail, not clause 152.

Question put and agreed to.

Clause 152 accordingly ordered to stand part of the Bill.