Committee stage in the Lords
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Lord Hunt of WirralConservative- Quote
- My Lords, I will use my best endeavours to make my remarks as brief as possible in view of the need to make progress. This group of amendments refers to two different clauses. Amendment 116 has been tabled to Clause 158, which deals with positive action, recruitment and promotion. The others have been tabled to Clause 196, which is about harmonisation, and enables a Minister of the Crown to amend by order the Act which will result from this Bill, and the Equality Act 2006, in order to ensure consistency—both of provision and with European law. I will not go into the detail of this clause at this point. We have tabled amendments which will allow discussion later. This group of amendments relates especially to the use of “thinks” rather than “can demonstrate”. We have been having detailed discussions on the semantics of this Bill—around the definitions of “reasonable” and “proportionate”—and I am sure noble Lords will also have an opinion on the use of “thinks” in these clauses. Our main contention is that, given that the powers provided by these clauses are quite wide, it is sensible to have a less subjective test for when the provisions can be used. If the test were to be made more objective, the person or Minister responsible could be properly held to account for their actions. A test based on a subjective opinion, however, will be much more difficult to judge. In another place, the Minister dismissed these concerns, stating that this, “is not a “thinking” process which can just come to someone over breakfast”.—[Official Report, Commons, Equality Bill Committee, 30/6/09; col. 613.] I am sure that for most people it would not be. However, there is nothing in this Bill or the Explanatory Notes which makes that clear. Can the Minister please explain what the “thinking” process would include? We obviously expect and hope that the Minister making decisions regarding harmonisation, and the person making decisions about the use of positive action, would do so with the utmost regard for best practice. However, the use of “thinks” seems to belie the serious implications of the use of these powers. Does the Minister agree that, given the strength of these powers, it would be beneficial if the test for their use were made stricter?
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Lord Lester of Herne HillNon-affiliated- Quote
- My Lords, this is not a taxing or a penal statute; this is a remedial statute, and it is to be approached in a liberal way. The principle of proportionality is a two-stage process. The first stage is that one must show that there is a legitimate aim; the second is to show that the means employed are reasonably necessary to achieve the aim. One does not need to raise the bar or to treat this as a coercive provision to be strictly construed because it is very important—the most reverend Primate has already indicated this—that the gateway into using these voluntary measures of affirmative positive action to overcome disadvantage and the effects of past discrimination is showing that it is a reasonable view. The word “reasonable” has an objective meaning. It means that you cannot take leave of your senses. Reason has to be applied. As regards the term “reasonably thinks”, the first stage, which is the easy stage, is to show that there is a legitimate aim. As I said earlier, the legitimate aim is spelt out in the Bill. If one were to raise the bar, it would completely stultify the effect of these voluntary provisions. I have said before that when Margaret Thatcher was Prime Minister and introduced in 1989 far more radical and coercive measures that still apply, have worked for 70 per cent of the workforce and have reduced discrimination against Protestants and Catholics in Northern Ireland, there was no approach of this kind, which, frankly, is inappropriate in a remedial statute. I should have thought that if the Conservatives win the election and govern the country, they would welcome the fact that these positive-action provisions will be taken up voluntarily by the private and public sectors. We can then begin to deal with patterns and practices of unjust discrimination in a more positive way, avoiding the need for unnecessary individual litigation. I cannot put it as well as the most reverend Primate who spoke from a common-sense, non-lawyer point of view, but it is absolutely vital that we keep the threshold as it is.
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Baroness Turner of CamdenLabour- Quote
- My Lords, I cannot really see what advantage one would get by replacing “reasonably thinks” with “can demonstrate”. How does one set about demonstrating that there is a disadvantage in a work situation? I should have thought that it was reasonable to take on board this wording where an individual responsible for appointments or whatever in a work situation would reasonably think. I cannot see anything wrong with that, but to wait until you can demonstrate something is much more difficult. I much prefer the wording proposed by the noble Lord, Lord Lester, of “proportionate means”. That is very good. Therefore, I see no advantage at all in replacing “reasonably thinks” with “can demonstrate”—quite the contrary.
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Baroness ThorntonLabour- Quote
- My Lords, this group of amendments relates to two different clauses—158 and 196, so I shall address the relevant amendments separately. Amendment 116 would make it a requirement for employers to rely on the statistical evidence to support the use of positive action measures to tackle disadvantage or underrepresentation within an organisation’s workforce. This same amendment was tabled in another place. The Government resist this amendment. The Bill uses the formulation “reasonably thinks”, so it already requires a decision-maker to act in a reasonable way when deciding whether to use positive action measures. We believe that “reasonably” introduces an element of objectivity and raises the threshold for decision-makers. It means that, when making the decision, the employer must apply logical and rational principles and a failure to do so would give rise to a challenge. Therefore, any use of these measures must be backed by some form of evidence or justification that supports the belief that people who share a particular characteristic are disadvantaged or underrepresented; otherwise, such a decision would be open to challenge, so clearly the employer cannot simply opt to use positive action measures on a whim. Clause 158 sets out the circumstances in which employers could apply these positive action measures and the action that is permitted. Clause 158(4) also ensures that employers would not be able to abuse the provisions by ensuring that any action taken must always be a proportionate way of accomplishing the intended outcome. As has already been mentioned by noble Lords, using the formulation of “can demonstrate”, as proposed in the amendment, would create a higher threshold based on undisputable statistical evidence, which we consider would have a chilling effect on the willingness of employers to use positive action measures. I am not saying that it is devastating, but that it is chilling. It would discourage employers from using the positive action measures, even when they had identified the need to tackle disadvantage or underrepresentation —the gateway mentioned by the noble Lord, Lord Lester, and the right reverend Prelate. Amendments 130 to 133 will be discussed in a later group, so I will limit my remarks. They would limit ministerial flexibility in deciding whether use of the harmonisation power in Clause 196 is appropriate and, if so, the timing and extent of its use. The provision grants Equality Ministers of the future the flexibility they need in order to keep the Bill, when enacted, a coherent and harmonised piece of legislation in the years ahead. I can offer reassurance to noble Lords, should they require it, that use of this clause would not be at the whim of a Minister dreaming something up over breakfast. While the initial trigger on its use would result from ministerial consideration following advice from officials, there are a number of constraints on the power’s use and in-built requirements to explain and demonstrate why it would need to be deployed in any given case. The word “thinks” in Clause 196(1)(a) concerns the question of whether the Minister considers the relevant criteria are met and the Minister is therefore bound by public law principles to act reasonably. The harmonisation provision, particularly the important procedural safeguards that we propose, will be debated more fully when we reach Clause 196, but I remind the House that this power can be used only where a community obligation is to be implemented through the Equality Acts. There will be little by way of subjectivity on this point. It will be clear that action is needed when regulations are brought forward to implement, for example, a directive under Section 2(2) of the European Communities Act 1972. With regard to consultation, it is inherent in such an exercise that the Government will need to demonstrate why the power needs to be used in those particular circumstances. In addition, in response to concerns of the Delegated Powers and Regulatory Reform Committee, the Government are proposing amendments that would add further checks on its use—for example, by requiring further consultation if the initial consultation led to changes to the proposals and an increase in the frequency of reporting to Parliament on the power’s use is proposed. We will explain that when we reach Clause 196. I conclude by highlighting that all regulations intended to be made under this power must be laid before and debated by both Houses of Parliament. As with the consultation, the Minster will by definition need to demonstrate to Parliament that regulations under Section 2(2) of the 1972 Act trigger a need to retain harmony in the law through use of this power, and that any consequential adjustments are necessary. A new clause proposed by the Government after Clause 196 also requires that an explanatory document be laid before Parliament along with the draft regulations describing the results of the consultation, among other things. Ample accountability is built into this provision and it is important to understand that particular pieces of language taken in isolation do not provide the complete picture. I urge the noble Lord to withdraw the amendment.
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- Lord Hunt of WirralConservative
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- My Lords, I thank the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Lester of Herne Hill, for their important contributions. I also thank the Minister for her reassurance. The concept of Ministers dreaming something up over breakfast is chilling, but perhaps we will leave it at that. She has given me the reassurance that I sought so I beg leave to withdraw the amendment.
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- Lord Hunt of WirralConservative
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- My Lords, we tabled Amendment 120 because we wanted to raise the issue of accessibility of private hire vehicles for people with disability. The intention is to probe this area and discover what changes could be made, what changes should be made and what changes the Government hope to make to ensure that private hire vehicles are accessible to people with disability. We therefore tabled an amendment to come after Clause 159. This contains the order-making power which would allow the Secretary of State to make regulations to ensure that disabled people could get into and out of private hire vehicles in safety, get into and out of private hire vehicles in wheelchairs and travel in private hire vehicles in safety and comfort. These reasonably far-reaching regulations could also specify the size of door openings for passengers, the floor area and the amount of headroom in the passenger compartment and the fitting of restraining devices to prevent a wheelchair from moving while the vehicle was in motion. Will the Minister let us know whether any research has been carried out to show how many private hire vehicles are currently accessible for people with disability? Is she able to provide any figures which would demonstrate the disadvantage currently experienced by people with disability, thereby pointing to the need for regulation-making powers? We on these Benches are concerned to ensure that, where necessary, changes are made. Throughout the passage of this Bill, we have tried to underline the point that, where it is necessary to ensure equality, people with disability can be treated in a more favourable way than people who are not disabled. We are pleased to see the Government’s letter of 26 January, which stated that they were “minded” to accept Amendment 120A tabled by the noble Baroness, Lady Wilkins. This amendment would seek to ensure in a new clause that suitable numbers of wheelchair-accessible taxis operate throughout England and Wales. We welcome the intention of this clause, but I ask for clarification on a couple of points. The amendments appear to give further powers to the Secretary of State, thus removing them from the local authorities. Can the noble Baroness explain why this is necessary if the local authorities will already be subject to the public sector equality duty? Is this a symptom of the vague, and so far undefined, nature of the duty, making it necessary to give powers to the Secretary of State, or is it an indication that the Government already doubt the way this duty will work? I hope that in her response the noble Baroness will also indicate what consultation and discussion have taken place with the Local Government Association and taxi organisations about this matter, and what views were expressed. I also wonder whether she might be able to address some more specific questions to do with the capability of a vehicle to accommodate a wheelchair. We have been informed that no wheelchair is crash-tested for a situation where it is rear-facing. Despite this, most private hire vehicles can accommodate only rear-facing wheelchairs. Is the noble Baroness aware that this is the case, and does she agree that it seems unsuitable and that perhaps changes need to be made? We are also informed that no council arranging school transport carries out checks to see whether wheelchairs are crash-tested and certified. Can the noble Baroness inform the Committee whether such checks or similar are required to be carried out, and does she not think that there is a case for calling for such safety measures? I look forward to the Minister’s response. I beg to move.
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Baroness WilkinsLabour- Quote
- My Lords, I shall speak to Amendment 120A in my name, which concerns the lack of accessible taxis available to disabled passengers. I welcome the support of the noble Lord, Lord Hunt. The proposed new clause would mean that taxi-licensing authorities which have a policy of controlling taxi numbers could not refuse to grant a taxi licence for a wheelchair-accessible vehicle if fewer than a prescribed proportion of taxis in the district were wheelchair-accessible. At present, a taxi-licensing authority outside London can refuse to grant a licence if it is satisfied that there is no significant unmet need for taxi services in the district. As a result, a licensing authority with a quantity-control policy and relatively few or no accessible taxis in its fleet can refuse applications for wheelchair-accessible vehicles. Noble Lords can imagine what that means for a wheelchair user who needs a taxi when, for instance, they arrive in the area by train. They are stranded. One must also think what it means for those living in the area when they need to get to an urgent appointment or visit friends and have a social life. The new clause would mean that a licensing authority could not refuse to grant a licence for any wheelchair-accessible vehicle if it had fewer than a prescribed proportion of accessible taxis in the district. The proportion of accessible taxis would be prescribed by the Secretary of State following economic assessment and consultation. The provision of accessible transport is essential for equality of opportunity. I hope that the Minister will accept the amendment.
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Lord Wallace of TankernessLiberal Democrat- Quote
- My Lords, I welcome the debate initiated by the noble Lord, Lord Hunt, and in particular the proposed new clause spoken to by the noble Baroness, Lady Wilkins. Her last point, that accessibility to transport is crucial for equality of opportunity, sums it up. We on these Benches are happy to support her amendment.
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Baroness Howe of IdlicoteCrossbench- Quote
- My Lords, I speak briefly to support the amendment, not least because, on Sunday evening, a disabled friend came to visit. A licensed taxi came to pick him up and could not take him, so there was a delay of more than an hour while we waited for a suitable taxi. Clearly this is an important area and we need to know more about it.
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The Archbishop of YorkCrossbench- Quote
- My Lords, when the noble Baroness, Lady Campbell of Surbiton, moved her amendment last time on the question of need, the right reverend Prelate the Bishop of Liverpool spoke out clearly in the debate. In the General Synod of the Church of England, we received a report from a number of disabled people, and access was one of the greatest areas of concern. The amendment tabled by the noble Baroness, Lady Wilkins, would address that concern, and I support it, because it strikes the right balance. Access is absolutely critical.
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- Baroness ThorntonLabour
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- My Lords, I will speak to government Amendments 121, 122 and 123, before turning to Amendment 120A and finally to Amendment 120, moved by the noble Lord, Lord Hunt. Amendments 121, 122 and 123 relate to the ability of taxi-licensing authorities to maintain lists of wheelchair-accessible taxis and private hire vehicles that operate in their area. Drivers of such designated vehicles are required to perform the duties in Clause 163 to carry and assist disabled passengers who use wheelchairs. Clause 165 enables Scottish licensing authorities to maintain lists only of wheelchair-accessible taxis and private hire vehicles that hold a special licence to operate a local bus service. They will be unable to list wheelchair-accessible taxis and private hire vehicles that operate under conventional licences. This would mean that the drivers of vehicles with a conventional licence would not be obliged to carry out the duties in Clause 163, even though their vehicle was capable of carrying disabled passengers who use wheelchairs. The amendments will align the position in Scotland to that in England and Wales. This will give greater assurance to disabled people that, when they require a wheelchair-accessible taxi or private hire vehicle, the driver will assist them to enter and exit the vehicle and, if they decide to remain in the wheelchair while travelling in the vehicle, will ensure that the wheelchair is secure and safe and that they travel in reasonable comfort. Amendment 120A is in the name of my noble friend Lady Wilkins. Taxi licensing and provision is a complicated area, and steps to improve access to taxis for disabled people are always welcome. It is unacceptable that a licensing authority which controls taxi numbers can routinely refuse applications for wheelchair-accessible taxis when it has very few wheelchair-accessible taxis in the district or, indeed, none at all. This new clause provides an ideal means of enhancing accessible taxi provision in these areas. I thank my noble friend Lady Wilkins for her amendment, which is compatible with the aims of the Bill and has the effect of improving accessibility for disabled people. In making any regulations under this clause, the Government would, of course, consult interested parties before reaching a decision on the proportion of taxis which must be wheelchair accessible and on the specifications of the wheelchair which taxis must be capable of accommodating. Therefore, the Government will accept Amendment 120A. I now turn to Amendment 120 and the legitimate points raised by the noble Lord, Lord Hunt. I have already mentioned the issues of safety and the appropriate provision to be provided in taxis and licensed vehicles. The noble Lord raised a very reasonable point about safety and taxis. This is not in my notes but it should be. I have already mentioned that checks on safety are included and would be included in the regulations that arise out of my noble friend’s point. I will undertake to ensure that the issue is properly addressed in the regulations and guidance which arise out of these provisions. I shall also write to the noble Lord and the Committee on this matter. From the wisdom that is offered to me from time to time, I can say that vehicles used for taxis are tested in accordance with European safety regulations and those requirements include crash testing. They must also be designed to accommodate wheelchairs safely in rear-facing orientation. We have taken that on board. The noble Lord’s amendment is a probing amendment on this subject, and its principal objective would be to require all private hire vehicles to be wheelchair accessible. That would be incredibly burdensome to the private hire industry. Looking at the range of private hire vehicles which are available, we need information to be available to disabled people about what is in their area so that we can move forward in an orderly fashion. To say that all private hire vehicles have to provide for wheelchair access may be a step too far. However, the private hire vehicle trade is fundamentally different from the taxi trade: taxis can ply for hire, stand in ranks and be hailed in the street, whereas private hire vehicles must be booked in advance through a licensed operator. I should point out that, as the amendment is drafted, it could be seen to be technically defective as it refers to private hire vehicles plying for hire and of course the noble Lord will be aware that that is illegal. We think that converting or replacing all private hire vehicles would be so costly to the trade that it would no doubt force many operators out of business. Given the important role that private hire vehicles play in providing public transport, I am sure the noble Lord would not want to go in that direction. However, there is scope for using legislation to enhance the service which disabled people receive from private hire vehicles. In addition to the general duty not to discriminate, drivers of private hire vehicles designated as wheelchair-accessible vehicles will, under Clause 163, be required to assist their wheelchair passengers. I hope that explains why we do not agree with Amendment 120 and why we would like to accept Amendment 120A.
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- Lord Hunt of WirralConservative
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- First, I am very grateful to the noble Baroness. I hasten to reassure her that it was, as I pointed out, only a probing amendment. We are well aware of the importance of the private hire vehicle industry, which plays a critical part in making the necessary provision available. I am very grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Wilkins. I too am very pleased indeed that the Government are minded to accept Amendment 120A. So far as the other comments of the noble Baroness are concerned, I think that was a very helpful outline. I warmly welcome her undertaking and in all the circumstances beg leave to withdraw the amendment.
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- Lord Hunt of WirralConservative
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- My Lords, this amendment refers to the effect of the decision of the House of Lords in the Lewisham v Malcolm case, in which—your Lordships may recall it—landlords seeking possession from tenants with disability, particularly those suffering from a mental disability, did not need to justify their decision to take possession proceedings. In the light of that case, I lay out very clearly that our position is firmly in support of the new provisions that address the hole left by this judgment. We want to ensure that people with disability receive the right level of protection from disability-related discrimination. We are fully supportive of the alterations that need to be made to the letter of the law to return to what it was mistakenly thought that the spirit of the law already encapsulated. We ask, however, what has happened so far as consultation is concerned, in particular between the Equality and Human Rights Commission and the landlord associations. We on these Benches believe that reversing the Malcolm decision is necessary and right. Nevertheless, we would want to ensure that this was done in such a way as to make certain that there were no loopholes whereby a landlord could not get rid of a problem tenant simply because they claimed to have a disability that was not in fact the case. The effect of the reversal of the Malcolm decision will be that the mandatory grounds of possession—Section 8 of the Housing Act 1988 for a rent arrears of two months and Section 21 for shorthold tenants who have reached the end of their tenancy—will mean that landlords still have to justify possession. However, landlords are rightly concerned that in cases of indirect discrimination, the grounds of possession will become discretionary. This could become important if, for example, a tenant blamed their anti-social behaviour on some form of mental illness which, for the purposes of the Act, could be construed as a disability. This would indeed have important ramifications for people with disability because it might mean that landlords are more reluctant to allow genuinely disabled people to move into rented accommodation. Will the noble Baroness inform the House what discussions have been had with landlord associations here and what reassurances she can offer them? Furthermore, will she inform the House how much evidence of proof would be needed to justify obtaining an order for possession against a person with disability in a situation of indirect discrimination? What form can that proof take? Moreover, does the Minister accept that in practice it will be very difficult for landlords to recoup the costs of defending claims of possession, even where the claims are won? I have posed a lot of questions. If the Minister cannot answer them tonight, perhaps she might do so before Report. We are fully supportive of the changes which would see the Malcolm decision reversed, but there are other important considerations to take into account and other key players to protect. I beg to move.
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- Baroness ThorntonLabour
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- My Lords, Amendment 125C would set out in the Bill a provision that ensured that the duty of the courts in England and Wales to grant possession to a landlord in certain cases under the Housing Act 1988 was not hampered by the disability provisions of the Bill. I appreciate that the amendment has been tabled to explore the avenues explained by the noble Lord. The noble Lord appears to have concerns that the disability provisions which we debated earlier in Committee might prevent landlords taking action under the auspices of the Housing Act. Noble Lords will recall that similar issues have arisen in the past, such as when a disabled tenant was evicted by Lewisham Council because of a breach of his tenancy agreement. This Committee is not considering landlord and tenant legislation, I am relieved to say, which can be complex. I am sure noble Lords will forgive me if I do not delve too deeply into details of the Act referenced in the amendment. However, as the noble Lord was asking me about the consultation process, I recalled that when in 2008 I was involved in the discussions on building this Bill and the Malcolm case was concurrent, the DWP conducted a public consultation late in that year. I cannot give the noble Lord chapter and verse on who took part in that consultation in terms of landlord organisations, but I undertake to find out and let him know. However, I know that the consultation took place and informed how we proceeded with the Bill. I appreciate that this amendment is meant to clarify the relationship between the disability provisions of this Bill and housing legislation, and that that relationship has caused some confusion in the courts. However, the difficulty in those cases was that the scope of the landlord to justify his treatment of the tenant under the DDA was very limited. One of the changes the Bill has made to the disability provisions is to provide a defence of objective justification to discrimination arising from disability and to include disability within the scope of the indirect discrimination provisions, which are also subject to an objective justification defence. The courts now have much greater discretion to consider the facts of each case and to decide whether the landlord’s treatment of the tenant is justified, which might cover some of the points raised by the noble Lord and his concerns about what is reasonable for a landlord to consider. We believe that this allows for greater fairness than a blanket prohibition on disability considerations being taken into account in some possession proceedings. I hope with that, and my undertaking to write to the noble Lord if I have not covered all the points he raised, he will withdraw his amendment.
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- Lord Hunt of WirralConservative
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- I shall press the Minister a little further. The Minister may well think that this would be an appropriate case for guidance from the Equality and Human Rights Commission. I understand that there is no clarity about whether we will get guidance. Will that guidance be available and, if so, on what timescale? I do not expect that she will have the answer immediately, but it is an area where the fears of a number of bodies have not yet been met by clear guidance from the commission.
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- Lord Lester of Herne HillNon-affiliated
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- I hope what I shall say will be helpful. It seems to me that where a tenant behaves badly—does not pay the rent or destroys the premises or whatever—and when he is served with notice to quit says, “It’s because I have a disability”, the question would be of fact, of causation, in the individual case. What was the real reason for the behaviour so far as direct discrimination is concerned? If the tenant behaved badly, there would be no objective justification, and he could be removed. It does not seem to me that there is a need for much guidance because I hope what I have just said is plain and obvious. It all boils down to the facts of the individual case and whether it is really attributable to disability or to misconduct.
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- Lord Hunt of WirralConservative
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- That was a helpful intervention from the noble Lord, Lord Lester of Herne Hill, because I am seeking to tease out whether it is an objective justification to expect rent and the ability to evict for non-payment. That is the area. If what the noble Lord said is correct, this has been a worthwhile period in the consideration of the Bill. I understand that the commission has been asked to provide guidance, and a little information on the timescale in which it will be available would be helpful.
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- Baroness ThorntonLabour
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- Draft guidance has been published and is on the website. There is a commitment to consult on the issue to do with premises. I cannot guarantee that that is covered in the guidance currently on the website.
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Lord EltonConservative- Quote
- We are assuming that disability is a permanent condition, but I do not know that that is the case. If a person is a tenant and, after a while, is unable to pay the rent as a result of a newly incurred disability, is that not a case where some guidance would be needed?
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- Baroness ThorntonLabour
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- The noble Lord makes a very good point. That is probably right.
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- Lord Hunt of WirralConservative
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- This has been a helpful short debate because those who are still seeking guidance are going to receive it. The objective justification that I have teased out of the noble Lord, Lord Lester, will do much to reassure people in the mean time. I beg leave to withdraw the amendment.
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- Lord Hunt of WirralConservative
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- My Lords, we have tabled these amendments, 126A and 126B, to raise another issue which has been brought to our attention by the Delegated Powers and Regulatory Reform Committee. We have spoken a great deal about the order-making powers contained in Clause 195, which allow exceptions to be made to the provisions regarding age discrimination. We have debated the need for these regulations, their timing and which areas they will cover, and we have received assurances from the Minister that regulations would be introduced to allow exceptions relating to age-specific holidays such as those provided by Saga, insurance provision and other financial services. These would be in one order and due to come into being at the same time as these sections in the Act. I hope that the Chancellor of the Duchy of Lancaster can quickly reiterate that reassurance. We have not spoken about the nature of the power contained in subsections (3) and (6). Those who have read the third report of the committee on this Bill will know that it has raised significant concerns about the strength of these powers. Its worry centres around the fact that, with these subsections, orders can be made which also impose requirements by reference to guidance or documents specified in guidance. This guidance is obviously not necessarily subject to parliamentary procedure. Therefore, while the power in Clause 195(1) is subject to affirmative procedure, the sub-delegation powers which allow requirements to be made by reference to guidance or other documents contained within that, mean that these requirements are capable of avoiding the affirmative procedure. This means that it is possible to bypass parliamentary control over the nature and extent of the exceptions. We have therefore tabled Amendments 126A and 126B, which would remove these powers of sub-delegation. The committee objected not only to the use of these powers, but also that the Government had offered no justification for them. We have subsequently seen, in a letter from the Minister, justification which states that the guidance would be too detailed for legislation, but it was necessary to have an order which required guidance to be complied with because this would give certainty to business about how a business was allowed to operate. We have constantly fought for certainty for businesses and very much want to ensure that. The Government’s amendment would allow a certain amount of scrutiny because it would make the date for the guidance to come into force subject to the negative procedure. Can the noble Baroness support this decision to compromise with the recommendations of the committee with evidence of any precedent to enshrine guidance in legislation in this way? Does she consider this to be an appropriate procedure and is the negative resolution strong enough? I should also like her to comment on any discussion she may or may not have had with the committee on this matter. Furthermore, can she clarify what would happen if parliamentary scrutiny showed that there were problems with the guidance? Would the only option then be to vote against the commencement date? If that were the case, would it not be more difficult for businesses, and in fact provide less certainty, because they would have to wait for the changed guidance to be implemented and go through the procedure again, even though there might be only a relatively minor change? We understand the need for clarity and certainty, but it would be very helpful to hear what discussions have been had with the Delegated Powers and Regulatory Reform Committee and whether it is satisfied now with the changes. After all, the noble Baroness will have noted that in the report the committee’s reaction was strongly opposed to these measures. It is vital for your Lordships now to know what its response is in order that we can then say that we are content with the amendments. I beg to move.
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The Deputy Chairman of Committees (Viscount Ullswater)Conservative- Quote
- My Lords, I must advise your Lordships that if this amendment is agreed, I will not be able to call Amendment 126C because of pre-emption.
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Baroness Royall of BlaisdonLabour- Quote
- My Lords, I will first speak to government Amendments 126C and 135ZA and then address Amendments 126A and 126B, which have been tabled by the noble Baronesses, Lady Warsi and Lady Morris. The role of guidance in the exceptions from age discrimination outside the workplace has been raised in debates on the Bill, and, as the noble Lord, said, by the Delegated Powers Committee in its third report of 2010. The committee’s concerns arise in essence because these provisions, which allow for sub-delegation, require strong justification. Government Amendment 126C addresses the committee’s concern about sub-delegation by ensuring that guidance made under a power conferred by subsections (3) and (6) can come into force only on a date that is specified in an order. This order cannot be the same one as that specifying the exceptions to which the guidance relates, and it will be subject to the negative procedure in Parliament. Government amendment 135ZA is consequential. It applies the provisions in Clause 200 for making orders and regulations under the Bill to those made by the Treasury, as well as those made by a Minister of the Crown. Parliament will be able to debate the provisions, which will be supported by any guidance in the context of the exceptions order, which is subject to the affirmative procedure. Amendment 126C then gives Parliament the opportunity to consider any guidance that is issued. I hope noble Lords will agree that, by including in the Bill scrutiny of the power to bring any guidance into force, this amendment satisfies the concerns expressed by the committee. We have, of course, been in dialogue with the committee. Guidance will not alter the scope of any of the exceptions. That would be outside the extent of the power, which therefore cannot be used to amend substantive provisions in the legislation. It will allow us to set out what steps service providers need to take to take advantage of the exceptions so that they are clear about what they need to do to comply with the legislation. The justification of the ability to make guidance is straightforward; it is there to ensure that exceptions under Clause 195 can operate as effectively as possible. Section 45 of the Sex Discrimination Act 1975, the effect of which is replicated in paragraph 22(3)(b) of Schedule 3 to the Bill, is a precedent. Under that provision, the use of sex as a factor in determining premiums is permitted on the basis of relevant and accurate actuarial and statistical data that are published and updated in accordance with Treasury guidance. Insurers who comply with the disclosure requirements, and who rely on the data that they disclose, can take advantage of the exception when setting premiums. We envisage similar arrangements for using age as a factor in the insurance industry. Without the ability to issue guidance, all the detail on how to comply with an exception would need to be set out in the Act. This would be cumbersome, and inconsistent with the drafting of the rest of the Bill. It would also be harder to make minor necessary changes to the detail to cater for developing practices and procedures in the financial services sector, for example, because a fresh affirmative resolution instrument would be required for every such change. The guidance-making provision is particularly important for financial services as age-based exceptions are likely to be complex, and considerable detail will be needed to provide sufficient certainty to service providers. The guidance will be needed for matters such as giving full effect to the proposals on transparency —data publication—and signposting and referrals by one insurance company to another. We aim to consult on the draft exceptions order in autumn 2010. We will consult on any amendments to that guidance unless circumstances require the amendments to be made urgently. However, guidance may not be limited to financial services. While the exceptions that are also planned for other services, such as age-based holidays and commercial discounts, are likely to be more straightforward, they may require such guidance—for instance, to make clear the steps that service providers must take to come within the exception. Health services are far more complex, and it would not be sensible to rule out the use of guidance in that sector too if it is eventually decided—and to the extent that it is decided—to use the power in Clause 195 to make exceptions in relation to health and social care. In most areas, having the exceptions in legislation will suffice, but at least some will need more detail so that service providers can understand their responsibilities. The noble Lord asked what would happen should the commencement date be voted against. It would mean that the guidance would not come into force. Amendments 126A and 126B, which would remove subsections (3) and (6) from Clause 195, would remove our ability to provide that clarity. If we could not make guidance, we would have two choices; either granting wide exceptions, which I think nobody would want, or including extremely detailed and often sector-specific provisions in the legislation. Neither of these are satisfactory options. We have listened to the Delegated Powers and Regulatory Reform Committee. Amendment 126C specifically addresses its concern about parliamentary scrutiny. It ensures that the guidance cannot be used if Parliament is not happy with it, while retaining the necessary advantages offered by guidance. The noble Lord asked me to reiterate assurances about how Clause 195 will be used. It will be just as the noble Lord described. The power will be used to make an order, subject to affirmative resolution, setting out exceptions to the ban from age discrimination to come into force on the day of the ban. The noble Lord referred to holidays for older people and exceptions. I reassure the noble Lord that we are doing further work and consultation to ensure that we get the exceptions right. On 27 January, we published a policy statement, which provides further clarity as to the exceptions which we are developing. I will ensure that the noble Lord receives a copy. There will be a further opportunity for consultation on the detail of the exceptions when we consult on the draft order that will contain them in the autumn. I trust that the noble Lord will feel able to withdraw his amendment.
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- Lord Hunt of WirralConservative
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- My Lords, the noble Baroness said that there had been dialogue with the Delegated Powers and Regulatory Reform Committee. It would be helpful if she could indicate whether the committee had expressed satisfaction that its concerns had been met.
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- Baroness Royall of BlaisdonLabour
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- My Lords, as I understand it—it is my excellent officials who have been speaking to the officials from the Delegated Powers Committee—it is in agreement with and accepts what we are doing. However, it wishes to see how the debate pans out and to hear what I am saying at the Dispatch Box before all its concerns are assuaged.
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- Lord Hunt of WirralConservative
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- Therefore, I should say that I will now await the views of the committee before deciding whether to return to this matter at a later stage. In the mean time, I beg leave to withdraw the amendment.
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- Lord Lester of Herne HillNon-affiliated
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- My Lords, in speaking to Amendment 129ZA, I shall speak also to Amendments 129ZB to 129ZD and to the amendments to Clauses 208 and 209, which are related. The new clauses proposed under the amendments would remove three minor rules of law which treat husbands and wives unequally, and they equalise the legal position in respect of civil partners. The amendments would not only bring our law up to date by eliminating provisions that are clearly discriminatory and redundant, but would also remove the existing incompatibilities in UK law with Article 5 of Protocol 7 to the European Convention on Human Rights. That article protects the right to equality between spouses, except for any special provision the state needs to make to protect children. These amendments would leave it open to the Government to proceed with signature and ratification of Protocol 7 to the convention should they choose to do so, as I hope they will, to fulfil the long-standing commitment. The proposed new clause to be inserted under Amendment 129ZA abolishes the common-law duty for a husband to maintain his wife. This rule has long been superseded by statutory remedies for obtaining maintenance during a marriage. Consequently, I believe that there is no longer a need for a common law duty to maintain in favour of one spouse only. The new clause set out in Amendment 129ZB abolishes a second common law rule, that of the presumption of advancement. This presumption discriminates against husbands and is outdated. The presumption of advancement is a rule of evidence in court proceedings which provides that where there is no evidence to the contrary, a husband or father is presumably making a gift when he transfers property to his wife or child. But when a wife transfers property to her husband or a mother to her child, the presumption of advancement does not apply. Unless there is evidence to the contrary, she is presumed not to be making a gift and her husband or child holds the property on trust for her. The effect of the presumption of advancement is clearly discriminatory and its abolition will not have any unfair or undesirable effects, and therefore this amendment seeks to abolish the presumption. In order that the UK can ratify Protocol 7, abolition of the presumption of advancement is extended to Northern Ireland. I understand that the Northern Ireland Executive have agreed to this step in principle and will make the necessary arrangements for a legislative consent motion. I am grateful for their assistance. The final rule to be addressed is the statutory provision in respect of money and property derived from a housekeeping allowance currently in Section 1 of the Married Women’s Property Act 1964. It provides that if a husband pays a housekeeping allowance to his wife, any savings or property derived from this allowance in the absence of an agreement to the contrary belongs to the husband and the wife in equal shares. However, if the wife pays the allowance to the husband, the Act makes no similar provision. Amendment 129ZC amends Section 1 of the 1964 Act so that it applies equally to husbands and wives, and money and property derived from a housekeeping allowance are owned by the husband and wife in equal shares regardless of who paid or received the allowance. The final clause set out in Amendment 129ZD inserts a new Section 70A into the Civil Partnership Act 2004 to provide for the equal division of housekeeping allowances paid by one civil partner to the other. This simply mirrors the effect of the previous amendment to the Married Women’s Property Act for civil partners, ensuring that their rights are developed in parallel. I conclude by stressing that these amendments are long overdue and represent an important step in remedying outdated inequalities in our domestic law. In addition, I hope that the Government, if they accept them, will make good their commitment, which is on the record, to sign and ratify Protocol 7 to the convention, dating from the 1997 White Paper, Rights Brought Home. I beg to move.
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- Lord Hunt of WirralConservative
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- My Lords, I would like to make it clear that we support these amendments and the changes to the law that they would effect, but I will keep my remarks brief because we have little time in which to finish a large number of groups. This is, however, not the most appropriate time to get into discussions about Protocol 7, because there are wider issues to be addressed which deserve significant scrutiny. This is a debate for another time, and perhaps the Minister might be able to inform your Lordships when an appropriate time might be. In her Second Reading speech, she made reference to the fact that the Government would continue to seek a suitable legislative vehicle for these changes. Has she found such a vehicle yet? If so, can she give us a brief steer as to what vehicle is going to be used? Furthermore, can she confirm whether Amendment 129ZA is in fact necessary? The Question for Written Answer of the noble Lord, Lord Lester of Herne Hill, about what legislative changes would need to be made to enable the UK to ratify Protocol 7 was answered by the late Lord Williams of Mostyn, who said that the common law presumption of “advancement” would have to be altered. I am informed that the judgment of the House of Lords in the Stack and Dowden case has already changed the law in this respect. Am I correct in that assumption? If so, we recognise the good intentions of these amendments but regret that it may be that the noble Lord, Lord Lester of Herne Hill—I am nervous about ever saying this—is mistaken about the legal changes. However, where the noble Lord is concerned, I always stand to be corrected.
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- Lord Lester of Herne HillNon-affiliated
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- My Lords, it is not my intention to have a debate tonight about Protocol 7. That is a completely separate matter and no doubt can be debated hereafter if necessary. All I am concerned to do tonight is to sweep away archaic and outmoded provisions and secure equality between the spouses in that respect. One advantage of that would be to leave it open to the Government to take that further step. As far as the other point is concerned, I am not a family lawyer. I have not the faintest idea whether the comments of Lord Williams of Mostyn and the events in the House of Lords did or did not have the effect he said. However, it seems to me that the Government can now tell us whether or not they think that this is necessary.
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- Baroness Howe of IdlicoteCrossbench
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- My Lords, I wonder if I could probe a little bit. I would be equally loath to question anything that the noble Lord, Lord Lester, has said, but, with all the other things going on, there has not been time to pose these questions to him. I have in mind the considerable inequalities that still remain between husbands and wives, men and women, with regard to pay, the percentages who get the very top jobs, and pension arrangements. I have to say again that, as far as the European regulations were concerned, I found it extremely disturbing that on issues such as annuities, women and men were not treated the same even though they were equally entitled, by what they had earned over the years, to the same annuity. I still find these things worrying. I would like to be reassured that they are being taken into account; that the Minister has the answers to them; and, above all, that the noble Lord, Lord Lester took all that into account when he was deciding that all these things could just be finished with completely.
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- Baroness Royall of BlaisdonLabour
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- My Lords, the Government support the amendments put forward by the noble Lord, Lord Lester of Herne Hill, which, as he notes, remove existing provisions that are discriminatory and out of date. These amendments also address those aspects of UK law that are incompatible with Article 5 of the 7th protocol to the European Convention on Human Rights. Article 5 of the 7th protocol provides that spouses shall have equality of rights and responsibilities between them and in their relations with their children both during the course of a marriage and in the event of its dissolution. It does not prevent states taking such measures as are necessary to protect the interests of the children. Of course our legislation makes the welfare of children the courts’ paramount consideration when making decisions. These amendments therefore remove three minor legal provisions which discriminate between spouses. Although technically removing provisions which appear to benefit one spouse over the other, in reality the amendments confer no practical advantage or disadvantage on either spouse. The noble Lord, Lord Lester, set out very clearly the three provisions in question, so I will not reiterate those points. The noble Lord, Lord Hunt, asked me about new Clause 129ZC and whether it is absolutely necessary. He cited my erstwhile friend Lord Williams of Mostyn in relation to the amendment. We believe that new Clause 129ZC amends the final rule so that it applies equally to husbands and wives and so that property derived from a housekeeping allowance is owned by the husband and wife in equal shares regardless of who paid or received the allowance. So we do believe that it is necessary. In addition, new Clause 129ZD, tabled by the noble Lord, Lord Lester, inserts a new Section 70A into the Civil Partnership Act 2004 to provide, as he said, for the equal division of housekeeping allowances paid by one civil partner to another. This is in line with the Government’s objective that civil partners should have parallel rights to those of married people, and the Government are very pleased to accept this amendment. As the noble Lord says, these amendments represent an important opportunity not only to remedy outmoded inequalities in our domestic law but also to remove this barrier to ratification of the 7th protocol to the European Convention on Human Rights. The Government have long indicated their commitment to ratification of the protocol, and I am grateful to the noble Lord for tabling these amendments to the Bill, which will allow us to move this process forward. The noble Lord, Lord Hunt, asked about scrutiny of the 7th protocol and what vehicle would be used for legislative changes. The amendments moved today suffice to make our law compatible with the 7th protocol, so we have the perfect vehicle right before us today. We are considering that very vehicle now. There would need to be the usual consideration under the Ponsonby rule of the ratification of the 7th protocol, but that cannot now be completed in this Parliament. In particular, it would require an affirmative vote in each House. The noble Lord asked whether presumption of advancement remained after the case of Stack v Dowden. The presumption of advancement still applies after that case, which relates only to ownership of the domestic home and not to other property. I well understand the concern expressed by the noble Baroness, Lady Howe of Idlicote, when she suggests that women still have a very tough time with regard to equality in insurance, pay and so on. I reiterate that the Government are totally committed to equality. We wish to remove the provisions that treat either husbands or wives in a discriminatory way. In practical terms, women will not lose out as a result of this Bill, as I have explained, and it will remove provisions that are unfair to men. We believe that accepting the amendments proposed by the noble Lord, Lord Lester, is a very good way forward, and I urge your Lordships to accept them.
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- Lord Lester of Herne HillNon-affiliated
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- My Lords, I am extremely grateful. I share the concerns expressed by the noble Baroness, Lady Howe, about wider inequalities that cannot be removed, but this is a very modest mouse of a series of proposals that are needed to scrap some archaic laws. It does not seek like a lion to sweep away all inequality against women, although I wish it could. The very fact that the Bill team could produce answers immediately to highly technical questions reminds me that I should apologise through the Committee to them for having singled out two members of the team for special praise. I am reminded that they are a team as a whole; by singling out two of them, I did not mean in any way to discriminate against the others. As for scrutiny of ratification of human rights treaties, or any treaties, the House knows that for years I have been saying that we need a mechanism in this House for a treaty scrutiny committee. I am delighted that the Ponsonby rule has been firmed up as it has, but it needs to be made stronger. Finally, above all, I thank the Minister and noble Lords very much for accepting the amendments.
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- Baroness Royall of BlaisdonLabour
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- Government Amendments 131A, 131B, 134B, 134C, 134ZA, 134ZB and the new Clause in Amendment 134ZC concern the power in Clause 196 that would allow us to ensure that the Bill does not quickly fall into disrepair as a result of changes in European Law—what we call the “harmonisation power”. As time is extremely tight, I hope that noble Lords will forgive me if I also address Amendment 134, tabled in the name of the noble Baronesses, Lady Warsi and Lady Morris, and also their intention to oppose the Question that the clause shall stand part of the Bill. Overall, the role that Europe has played in shaping our current body of equality legislation has been positive. Indeed, much of the relevant European law is based on legislation that was previously in place domestically. However, although it is based on similar concepts and structures, European law has from time to time required us to amend or extend our domestic regime. Our ability to do this without the aid of primary legislation is limited by the extent of the power in Section 2(2) of the European Communities Act 1972. As the scope of EU equality law is not generally as wide as domestic equality law, this has resulted in a patchwork of protection and a lot of confusion that led to the discrimination law review—culminating in this Bill, one of the main aims of which is to simplify and harmonise the thicket of legislation that has grown up over more than 40 years.
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- Lord Hunt of WirralConservative
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- I am not sure that I need to speak to our amendments, as they have already been opposed before I have said anything. I shall only ask the noble Baroness: is the Delegated Powers and Regulatory Reform Committee now satisfied with what the Government are proposing?
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- Baroness Royall of BlaisdonLabour
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- My Lords, I think it is fair to say that that committee is broadly satisfied. As this Committee will know, the Delegated Powers Committee does not like broad harmonisation powers, but it accepts that this is a consolidation Bill and that this is a sensible way forward.
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- Lord Hunt of WirralConservative
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- My Lords, it is of course not just a consolidation Bill. We will have to return to all this on Report; we do not have time now. Suffice it to say that our concern is that there are constant views that the Government are gold-plating directives that emanate from Brussels. Now they are seeking to fast-track that gold-plating. They should proceed with considerable caution down that dangerous road.
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- Baroness Royall of BlaisdonLabour
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- My Lords, first, I understand that I misled the House; apparently, the Delegated Powers Committee does not particularly like what we are doing here. I did not seek to mislead the House. As I explained, the committee does not like broad harmonisation powers. I accept that the Government have, in the past, sought to gold-plate certain things in certain European directives. However, in dealing with the Bill in this way we are trying to ensure coherent policy-making in the future. We are trying to future-proof the Bill, but I entirely accept the concerns expressed by the noble Lord and that he will wish to return to them at a later stage.
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The Deputy Chairman of Committees (Baroness Harris of Richmond)Liberal Democrat- Quote
- If Amendment 131B is agreed, I cannot call Amendment 132 because of pre-emption.
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- My Lords, in moving Amendment 135, I will speak to Amendments 136, 135A, 136ZA, 136ZAC, 136ZB, 136ZZZA, 136ZZZB and 136ZCC, which relate to the procedure for parliamentary control of secondary legislation. I am indebted to the Delegated Powers and Regulatory Reform Committee for bringing these points to our attention. Although it has not been spoken to, I should like to comment on Amendment 136ZZA in the names of the noble Baronesses, Lady Warsi and Lady Morris, which seeks to probe why the provisions for the control of secondary legislation do not currently apply to an order which makes provision in consequence of the commencement of some or all of the Bill, but which is in a separate instrument, as provided for in Clause 200(7). The absence of such control was noted by the Delegated Powers Committee in its third report of the current Session. This was not an oversight. We had already provided that any such orders that made consequential amendments to primary legislation should be subject to the affirmative procedure. However, we did not believe that such control was strictly necessary for other orders because they can contain only minor, consequential and transitional provisions. But equally this is not an issue where we would seek disagreement with the committee, so we are happy to accept the principle behind the noble Baronesses’s amendment on the basis that it responds to the committee’s findings. We have accordingly introduced our own Amendments 136ZZZA and 136ZZZB, not because that of the Opposition is defective, but because the advice of counsel is that it would be clearer to take the slightly less convoluted language we propose. We therefore urge the noble Baronesses not to press their amendment. The Delegated Powers and Regulatory Reform Committee in its report on Parts 1 to 5 of the Bill recommended that an “affirmative” parliamentary control procedure apply to any regulations made by Ministers to amend Section 1 that add or remove public authorities subject to Clause 1—the public sector duty regarding socio-economic inequalities. We, the Scottish Government and Welsh Assembly are grateful for the recommendation of the committee and happy to accept that an affirmative procedure should apply to such regulations. The socio-economic duty is obviously novel and innovative, and it is appropriate that Parliament should give careful consideration to any changes we propose to the list of public bodies subject to it. Amendment 135A therefore makes the necessary changes to Clause 200 to ensure that any regulations under Section 2 made by Ministers of the Crown are subject to the affirmative procedure. Amendments 136ZA and 136ZB make the necessary changes to Clauses 201 and 202 respectively to ensure that regulations made by the Welsh and Scottish Ministers under Section 2 are also subject to the affirmative procedure. The Delegated Powers Committee identified in its second report of this Session an omission in relation to the parliamentary control of Orders in Council, which Amendment 135 rectifies. While the vast majority of secondary legislation in the Bill will be delivered by ministerial order or regulations, Clause 82, headed “Offshore work”, uniquely uses an Order in Council to specify where and how the Bill, in so far as it relates to work, applies to offshore workers. An Order in Council is appropriate because Clause 82 concerns the application of the Bill beyond UK territorial waters. Due to an oversight, the Bill does not provide a parliamentary procedure for Clause 82 because it currently contains no reference to “Orders in Council”. Such orders should, as with other secondary legislation, be capable of annulment by either House of Parliament. Amendment 135 achieves this. I am again indebted to the Delegated Powers and Regulatory Reform Committee for bringing to our attention a slight uncertainty in the drafting of Clause 200. As it highlighted, this formulation could be regarded as ambiguous as to whether it includes those special cases mentioned in subsection (3) of the clause which should be subject to the negative procedure. Amendment 136 therefore clarifies that these orders should be subject to that procedure. Amendments 136ZAC and 136ZCC do exactly the same in respect of the powers of the Welsh and the Scottish Ministers. I beg to move.
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Baroness Morris of BoltonConservative- Quote
- My Lords, we are grateful to the Government for tabling Amendments 135, 136, 136ZAC and 136ZCC, which are designed to ensure that the provisions contained in the Bill do not escape parliamentary scrutiny because of drafting omissions. The number of drafting omissions that we are addressing today further reinforces our belief in the absolute fundamental necessity of the effective parliamentary scrutiny the Bill has received in your Lordships' House, notwithstanding our time today being squeezed—although we had a little extra time while the Government found the noble Lord, Lord Myners. Therefore, I am glad to see the inclusion of these amendments in the Bill. We are also delighted to see that the Government have tabled Amendments 136ZZZA and 136ZZZB, which address the Delegated Powers and Regulatory Reform Committee’s concerns raised by our Amendment 136ZZA regarding the exercise of subordinate legislation powers. We are pleased that, after consideration, the Government have decided to accept the recommendation.
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- Lord Hunt of WirralConservative
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- My Lords, this amendment has again been brought to our attention by the Delegated Powers and Regulatory Reform Committee. It highlighted that subsection (1) of Clause 200 disapplies the hybrid instrument procedure for all the powers subject to the affirmative instrument in this Bill. I am grateful that the Minister and her team have looked into the eight affirmative instruments already in light of the report of the committee. We now see that we were right to table these amendments and raise the concern that perhaps it was not necessary to disapply the hybridity procedure from all these instruments when it applies only to a few. The Government have recognised that and have now limited the disapplication. We are grateful that that has now been changed but rather concerned that there appear to have been so many drafting errors or broad brush powers contained in a Bill that the Government have had more than enough time to scrutinise themselves again and again. It is concerning that there are so many changes to be made and worrying that there may be many more that have yet to be found. This is a complex Bill and it is vital that the Government’s equality legacy is not riddled with errors and omissions. I beg to move.
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- The Deputy Chairman of CommitteesLiberal Democrat
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- If Amendment 136ZZB is agreed, I cannot call Amendment 136ZZC because of pre-emption.
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- My Lords, I shall speak to government Amendment 136ZZC and respond to Amendment 136ZZB spoken to by the noble Lord. Amendment 136ZZB would remove the blanket exemption from the hybrid procedure that Clause 200(10) currently affords the Bill. This has been tabled following the Delegated Powers and Regulatory Reform Committee’s decision to draw the House’s attention to the provision in its third report of this Session. As the noble Lord remarked, the Government have been re-examining subsection (10) in light of the committee’s comments, and we accept that it would be helpful to clarify on the face of the Bill precisely when we consider the hybrid procedure should be disapplied if it arises. However, we do not think it necessary to remove the exception completely as the noble Lord proposed. The reality is we think it highly unlikely that powers in the Bill would be exercised in such a way that the House would consider the hybrid procedure to be applicable, but it is a theoretical possibility. In a handful of cases where those circumstances might arise, we consider the hybrid procedure would be unwarranted so we think it appropriate to provide that the procedure should not apply in specified cases. There are safeguards in these cases. Before adding any new bodies to either of the lists, for example, under the socio-economic duty and the public sector equality duty, and making specific public sector equality duty regulations, there will have to be consultation with those affected, as well as with the commission and relevant devolved Administrations where appropriate. Similar consultation will be carried out before the specific duty regulations are made. We have also provided that orders and regulations made using these powers will be subject to the affirmative resolution procedure. Government Amendment 136ZZC narrows the exception down to the clauses which could theoretically be subject to the hybrid procedure; for the reasons I have explained, we do not think that would be warranted. I hope that the House will agree that our proposal is measured and that the noble Lord will feel able to withdraw his amendment.
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- My Lords, that reinforces the debt of this House to the Delegated Powers and Regulatory Reform Committee, its chairman, the noble Lord, Lord Goodhart, and the members of the committee—they have done an invaluable job. I hope that the Government will continue to listen to their advice. In the mean time, I beg leave to withdraw the amendment.
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Lord Low of DalstonCrossbench- Quote
- My Lords, I have an unanswerable case to present in support of Amendment 138A, but, recognising that we are extremely pressed for time and all sprinting for the tape, and in the belief that the Government will by now have located the noble Lord, Lord Myners, I will not move the amendment on the understanding that I have reached agreement with the Government that they will facilitate discussions between their lawyers and the lawyers whom I have consulted in order that we may arrive at an agreed way forward with the amendment.
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