Saturday, April 02, 2011

New sections of the Equality Act 2010 will come into force very shortly. Regular Newsround Blog readers will know that I've taken a particular interest in equality legislation. It's now almost 2 years since I first contacted the DCMS to ask details of intentions with regard to the legislation. Last year my enquiries led to the Government Equalities Office, and yesterday I received an unexpected email from the GEO Correspondence and Enquiries Manager:-

I am writing in relation to a complaint that you raised with the ICO in the 4th March.

Please find below a reply to your Freedom of Information request and correspondence about the Public Sector Equality Duty.

We are informing the Information Commissioners Office about this response.

There were 2 attachments to the email. The first was a document from Tim Morgan, who was the lead official for the Government's consultation on the Public Sector Equality Duty:-

Ref: GEO/10/FOI/65

I understand that an FOI request you made last year to the Government Equalities Office (GEO) – to which we gave the reference above – was not dealt with properly. Please accept my apologies for this. The GEO aims to respond promptly and fully to all FOI requests.

As you will recall, we exchanged a series of e-mails in the autumn of last year, and I endeavoured to answer the various questions you asked.

In response to the specific question that formed your FOI request, I responded within the necessary timescale, and provided relevant information and context. However, I was not actually aware then that I should have been treating that particular question as an FOI request, and – among other things – failed to use the reference number that we had allocated to it, as you would rightly have expected. For this, I apologise.

Given that response, and the fact that you very helpfully explained in a subsequent e-mail the key information you were after, I recognise now that I should have given a fuller answer. This letter therefore provides further information.

Your original question was:

"Please could you let me know if the Government Equalities Office was involved or contacted in any way whatsoever, either directly or indirectly, in respect of the broadcasters' exemption? I am particularly interested in the details up to, and including, 19th January 2010."

Plainly this was a very broad question, and my response made clear that – as the lead department for the Equality Bill – GEO was of course involved in many discussions about the broadcasters’ exemption.

However, you helpfully narrowed it down to ask, in a follow up question, to focus on your key interest, which was communications with Lord Lester. Your e-mail of 20 September asked:

“Please could you let me know if the GEO had any communications with Lord Lester in connection with the public sector Equality Duty? Thanks again.”

I explained that GEO Lords Ministers were in contact periodically with Lord Lester during the passage of the Bill through the House of Lords, as he was the Liberal Democrat lead on it. But I was not aware if they had discussions about the Equality Duty outside of the House.

In retrospect, both of these answers could have been rather fuller.

In answer to your broader question, much of the involvement and contact that the GEO had regarding the broadcasters’ exemption is already in the public domain. That includes:

• Ministerial responses given to Mark Harper MP and Lord Ouseley, who asked Parliamentary Questions on the subject in June 2009;

• debates between GEO Ministers and the Conservative members of the House of Commons Equality Bill committee, who tabled an amendment to exclude the BBC from the scope of the Equality Duty, in June 2009; and

• formal responses to our first consultation on the shape of specific duties, in the autumn of 2009, from the BBC and the BBC Trust.

However, there were also exchanges between GEO officials and those from other relevant Government Departments, such as DWP and DCMS; and a meeting between GEO officials and the BBC and other broadcasters, in October 2009. These discussions focussed on the wording of the exemption to which the Government, both in those Ministerial responses and in the debates in the House of Commons, had given an explicit commitment.

In regard to your more specific question quoted above, my e-mail noted that there may well have been informal involvement and contact between the GEO’s Lords Ministers and Lord Lester. I noted that we do not hold any information on that, and instead flagged for you their formal exchanges in Parliament, which were recorded in Hansard. However, I have found one e-mail exchange between a senior GEO official – Melanie Field – and Lord Lester, which is relevant to your request. It is therefore attached, in a slightly redacted form blocking out material not relevant to the question you asked.

Moving on, you will recall that, in subsequent exchanges, you asked for the GEO's views on the BBC’s exemption – essentially whether we agreed with the Prime Minister and/or with Parliament on this issue.

I noted the difficulty of dealing with that question. GEO has no corporate view, as such, on anything. We take our lead from our Ministers, who are appointed by the PM; and the Government is then collectively accountable to Parliament for its decisions, and ultimately to the electorate.

I have kept you informed about relevant consultations and debates on this issue, and I note that you have responded. I have endeavoured to do this because ultimately – as you’re aware – the partial exemption for the BBC and other broadcasters from parts of the Equality Act were discussed in both Houses of Parliament, and agreed by all the main parties. It is politicians, not GEO officials, who need to be persuaded of the arguments on this issue.

Aside from what was necessary to deal with your FOI request, I see from my notes that I also mailed you to flag the BBC’s consultation on its diversity objectives; the Government’s work to promote LGB&T equality, including their first ever LGB&T Action Plan; and in regard to the roles of Ofcom and the BBC Charter in influencing this debate.

The Department for Culture, Media and Sport has responsibility within Government for the BBC and the other broadcasters, and I suggest that you should contact them for any further information you require.

If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. You should submit an internal review request within two months of the date of receipt of the response to your original letter and you should address it to: Information Management Services, 2 Marsham Street, London, SW1P 4DF or email

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. You can contact The Information Commissioner at: Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF

I still take issue with some of the above. As an example, there was no debate in the House of Commons regarding the BBC's partial exemption from the Act. This had been acknowledged in earlier correspondence with Mr Morgan.

The other attachment contained various redacted correspondence between Lord Lester and the GEO. The dates of emails were removed by the GEO:-

From: Anthony Lester
Sent: [ ]
To: Melanie Field
Cc: [ ]

Subject: RE: Broadcasters

Dear Melanie

Thank you very much for taking such trouble to explain. Before you make any more criticism of my own drafting I should like to emphasise that the drafting came from the broadcasters. I know that is no excuse since they are in my name.

Would you like me to forward this to the broadcasters or will you do so?

[ one additional paragraph on unrelated issue ]

Have a relaxed weekend

Best wishes


From: Melanie Field []
To: Anthony Lester
Cc: [ ]
Subject: RE: Broadcasters

Dear Anthony

On the public sector Equality Duty, the plan is to list the public service broadcasters in Schedule 19 except in respect of their broadcasting and output functions.

In case it is helpful, I have set out below further explanation of why we consider Parliamentary Counsel's drafting does the trick, and addressing concerns raised by the BBC.

1. The references to "failing", "refusing" and "omitting" in your version can be dealt with by the word "not" by virtue of clause 204(3) (general interpretation) which provides that a reference to an omission includes a reference to a deliberate omission to do something, a refusal to do it or a failure to do it. However, we have gone for an even simpler formulation which provides that section 20 does not apply to the activities in question.

2. The references to broadcasting or distributing "particular output at a particular time or in a particular manner" in your version are not necessary: the reference in clause 29(2) to providing the service would, we think, cover all aspects of provision as well as the fact of provision. There is further support for this in clause 31(7) which provides that a reference to a service provider not providing a person with a service (contrary to clause 29(1)) includes the service provider not providing the person with a service of the quality that it usually provides to the public and the manner in which, or the terms on which, the service provider usually provides the service to the public.

3. We do not think that the reference to deciding or failing or omitting to decide to take any of the steps mentioned is necessary. The services provisions in clause 29 hinge on providing or not providing the service in question. In this case, that would be the broadcasting or not broadcasting of a programme. We doubt whether deciding to do something is itself the provision of a service.

4. The reference to "programme" is intended to cover output broadcast on the television, radio or internet. It is not intended to cover, for example, advertisements. We would be happy to hear from the BBC as to why they consider the concept not broad enough, what it does not capture that they would wish to capture and what alternative can be used. We think that "output", undefined, is too vague a concept for the lay reader to understand. The reference to distribution by means of the internet can be added to to include mobile devices. It would be helpful if the BBC could include all of the activities which they think need to be covered.

4. We do not think that the commissioning of a programme is the provision of a service to the public. What matters for the purposes of clause 29 is the broadcasting of a programme rather than how it came to be made or prepared for broadcast (i.e. whether it was commissioned or bought or made in-house). It follows that we also do not think that creating a programme is the provision of a service to the public. We think that scheduling a programme is an aspect of broadcasting and that the manner in which the service is provided would include the time/day on which it is broadcast. In relation to the BBC's example of a complaint by a disabled person in relation to an absence of gardening programmes aimed at disabled people, we do not think that the issue of commissioning would be relevant to such a complaint. Such a complainant would probably have to argue that broadcasting a gardening programme that did not take into account the needs of disabled gardeners amounted to a detriment. As we do not consider that commissioning a programme is the provision of a service to the public, it does not make sense to seek to include it in the exception.

5. We have not included references to "content" or "output", but have preferred to refer to broadcasting a programme or an intem within a programme as more accessible language to the lay person.

6. Sub-paragraph (2) is intended to ensure that broadcasters are not exempt from liability in respect of decisions regarding the transmission of a signal that people receive in their homes, should the term "broadcasting" be interpreted as including that activity. We have done this by trying to exclude the relevant concepts as defined by the Communications Act 2003, but realise that some fine-tuning may be required here. We do not agree with the BBC's view that the effect of sub-paragraph (2) negates the effect of sub-paragraph (1) and would be grateful for an explanation of how they think it does this. As we have already said, the effect of sub-paragraph (2) is to ensure that any discrimination involved in the activity of broadcasting a signal is not exempted from the duties in clause 29. The exception is only intended to apply to the content of programmes broadcast on the television, radio or via the internet (or, as indicated by the BBC, mobile devices).

Best wishes


Melanie Field
Head of Discrimination Law
Government Equalities Office

From: Anthony Lester [ ]

To: Melanie Field
Subject: RE: Broadcasters

Thank you. what about the public sector duty?


From: Melanie Field [ ]
To: Anthony Lester
Subject: Broadcasters

Dear Anthony

I thought you might want to see an amendment Parliamentary Counsel has drafted which would ensure that the broadcasting and output functions of public service broadcasters were not covered by the prohibition on discrimination in Part 3 of the Bill:

Schedule 3

2 Page 145, line 11, at end insert—



(1) Section 29 does not apply to broadcasting, or distributing by means of the internet, a programme or an item forming part of a programme.

(2) Sub-paragraph (1) does not apply to providing an electronic communications network, electronic communications service or associated facility (each of which has the same meaning as in the Communications Act 2003).”

You will note that this exception does not cover the commissioning of programmes. This is because Counsel thinks that commissioning a programme is not the provision of a service to the public. What matters is the broadcasting of a programme, not how it came to be made or ready for broadcast (such as whether it was commissioned or bought). It follows that we also do not think that creating a programme is the provision of a service to the public. However, scheduling a programme is an aspect of broadcasting - the manner in which the service is provided would include the time at which it is broadcast.

Best wishes


Melanie Field
Head of Discrimination Law
Government Equalities Office

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