Equality Bill [Lords]

Public Bill Committee, 1 December 2005.

Equality Bill [Lords - Standing Committee A

Clause 27 - Conciliation

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 95, in clause 27, page 15, line 38, at end insert—

‘(h)the Human Rights Act 1998 (c. 42).’.

Welcome back to the Chair, Mrs. Anderson. The amendment would include the Human Rights Act 1998 in the list of regulations and Acts under which the commission may make arrangements for the provision of conciliation services for disputes. The Government intend, as the explanatory notes show, to allow the commission to make arrangements for the provision of conciliation services only for the equality enactments and specifically not under the Human Rights Act. The Government might show some give in the interests of human rights and conciliation. Perhaps the Minister can offer some conciliation in response to the amendment. She shakes her head, but I am sure that her response to my arguments will be conciliatory. Who knows, I may even withdraw the amendment if she can offer me some comfort.

The main point is that it has been questioned—particularly with regard to the view of the Joint Committee on Human Rights—whether, under this Bill and the previous one, the commission should allow legal assistance to be given in human rights-only cases. The Government have argued that that would not be right. The Joint Committee accepted that in its report published in the last Session, when I was not a member of it, and the Minister will note that I do not seek to make that point by way of an amendment. The Joint Committee’s view, given in its report on the previous Equality Bill, was that that was a quid pro quo and the general human rights duties of the commission might well be thought to extend to enabling conciliation to ensure that people understand, and can secure protection of, their human rights. For that reason, it seems to be in keeping with the general duties of the commission for it to be able to provide conciliation in such areas.

Given that the alternative to legal action is conciliation and that part of the commission’s role, as clause 9 states, is to

“promote understanding of the importance of human rights ... encourage good practice in relation to human rights ... promote awareness, understanding and protection of human rights, and ... encourage public authorities to comply with section 6 of the Human Rights Act 1998”,

it would seem that conciliation would naturally flow within that role, without breaking the Government’s rule that the commission should not aid individuals in specific legal action.

Will the Minister consider providing such a facility for the commission? It would be a more balanced approach than that in the Bill. I am not entirely clear about the Government’s arguments against giving the commission that power. Perhaps it is best if I wait to hear what they are and then seek to catch the Minister’s attention so that I can intervene and probe further, if necessary.

Meg Munn (Labour, Sheffield, Heeley)

It is good to see you in the Chair again, Mrs. Anderson. I thank the hon. Gentleman for the amendment and will explain the scope of the commission’s power to arrange for the provision of conciliation services.

Conciliation is an important function of the commission. In an ideal world, litigation would be the last resort for equality proceedings. Disputes can often be settled through conciliation in less time, for less cost and with less disruption to the lives of the people involved. However, we believe that human rights proceedings should not fall within the scope of the commission’s conciliation work, for three main reasons.

First, the nature of proceedings under the Human Rights Act is that they are brought against a public authority, often an arm of government. They are usually brought by way of an application for judicial review by an individual or group of individuals, who must, of course, satisfy the victim test. The enactments specified in the clause, in relation to which the commission may arrange conciliation services, are civil proceedings in private law. Human rights proceedings, in contrast, are public law proceedings.

Such proceedings do not have the same absolute standard of legal conduct as found in the equality enactments. Instead, the court is asked to review the conduct, decision or policy of the public authority to assess whether it respects the framework of rights laid down by the Human Rights Act. It may also be asked to assess whether the public authority has acted in a way that is not irrational or unreasonable. Such a review could not appropriately be carried out in conciliation, especially when the parties are likely to be of unequal strength, as in the case of an individual and a public authority.

Secondly, it is good practice for public authorities to have procedures available whereby those who are unhappy with the authority’s conduct or decision may seek a review within the organisation. Hon. Members will be aware of other enactments that require complaints procedures and so on to be in place. That is not only good practice; the public authority can save the legal costs of fighting an action in court if it can, within the organisation, provide a suitable means by which a complainant can achieve redress. If public authorities do not put such procedures in place—the promotion of the procedures would fall within the commission’s duty to promote good practice in relation to human rights—a further external conciliation procedure is likely to add little value.

Finally, that brings me back to our decision that the CEHR should not be asked to support litigation arising solely under the Human Rights Act 1998. We are concerned that a power to support human rights litigation could overload the commission, with the need to sift through many and varied applications for support.

Eleanor Laing (Conservative, Epping Forest)

I thank the Minister for giving way so that I can make my recurrent point again. She made the point herself that conciliation is usually a much less costly and disruptive method of settling a dispute than full court proceedings. Under the 1998 Act, the costs and number of court proceedings have escalated massively, thereby placing a burden not only on the public purse but generally, and putting much more strain on the court system. If clause 27 included the 1998 Act, as the Liberal Democrats, unusually, correctly suggest—it is a great pleasure to support one of their amendments for once—it would have the very good effect of saving not only public money but other money that might be spent on litigation.

Meg Munn (Labour, Sheffield, Heeley)

I thank the hon. Lady for her intervention and refer her back to what I was saying: the commission will be in a position to promote good practice in relation to human rights, and part of that good practice is that public authorities should have complaints procedures and so on. As I said, many organisations are required to do so under legislation. My background is in social services, so I am aware that the Children Act 1989 brought in complaints procedures in that regard. Complaints procedures are associated with other enactments. There are expectations that public bodies will have mechanisms to enable concerns and conciliation issues to be dealt with by the organisations themselves.

There is a concern about cost, and I am sure that the hon. Lady will be pleased to support that aspect of my argument. If the authorities can deal with the issue, that will not only save a cost to the commission; I genuinely worry that if human rights issues were brought to the commission in the way suggested, there could be a problem with the amount of work involved. If a concern can be resolved within the public authority, that is helpful to the individual who raised it. Furthermore, because the concern is dealt with in-house, it is much more likely to have an effect on the policies and procedures of that organisation and, we hope, avoid other users of the services, whatever they may be, experiencing the situation that caused the original individual to have concern about their human rights in the first place.

Under the amendment, the wide range of human rights proceedings that could be subject to conciliation would make the coherent and cost-efficient provision of such a service difficult. As hon. Members know, there is a huge range of public bodies. Whereas a health trust or local authority, for example, dealing with complaints about its service provision, has expertise and detailed knowledge of its policies and procedures, the commission, if we allowed it to provide the suggested conciliation service, could be dealing with a range of issues on which it was neither particularly expert nor able helpfully to suggest resolutions. The commission’s resources are limited, as the hon. Lady and the hon. Member for Oxford, West and Abingdon (Dr. Harris) know, and I am sure that we will have more discussion on that. We do not believe that the proposal in the amendment would offer good value for money.

I should like to reaffirm my strong support for conciliation as a way of reducing the need for disruptive and expensive litigation. Nevertheless, the nature of human rights proceedings means that they would not be suitable for inclusion in the scope of the commission’s conciliation work. I look forward to a conciliatory gesture from the hon. Gentleman in withdrawing his amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am genuinely grateful to the Minister for her explanation. I see her point about the need for public authorities not to be lulled into not making provision for conciliation services because somebody will do it for them. However, that argument is limited because public authorities ought to do it regardless of whether help with conciliation is being offered. It is worth reading what the Joint Committee on Human Rights said in its 16th report of 2004-05 in response to the sort of arguments that the Minister has just made. It concluded that an ability to provide conciliation is consistent with the commission’s duty under clause 9(1) to

“promote understanding of the importance of human rights.”

It went on:

“If the Government is able to provide reassurance that the Bill overall reflects its own intention”—

from the White Paper, I think—

“that the Commission will provide ‘tools and concepts to help find solutions in areas where rights may conflict’, we would regard the restrictions related to conciliation in clause 29 with more equanimity. We do consider, however, that, should the restriction be lifted by order on legal assistance in mixed cases when the equality element has fallen away, the Commission should be able to provide formal conciliation services in such cases, and the Bill should accordingly be amended to provide for this.”

I did not deal with that matter in my previous remarks, and it is not clear whether it is best dealt with here or in the next clause.

Meg Munn (Labour, Sheffield, Heeley)

Such tools and concepts are exactly the sort of issue that the commission may want to consider in promoting conciliation. I am happy to consider the extent to which the duties in this clause and the Bill generally will allow the commission to do more than that, and I shall write to the hon. Gentleman about that. We shall come to the matter of cases that are jointly funded.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for her response on the commission’s ability to promote conciliation as one of the

“tools and concepts ... where rights may conflict.”

The reference for that is paragraph 6.5 of the Department of Trade and Industry’s document, “Fairness For All: A New Commission for Equality and Human Rights”.

On the other question of actions, cases or claims involving equality and human rights, the Minister will know from debates in the House of Lords that the next clause deals with whether a human rights claim can continue when a joint claim under equality enactments and human rights has been started and the commission is involved. I am happy, with your permission, Mrs. Anderson, to deal with that under this clause; I flag it up now because it may be helpful.

If the Lord Chancellor gives permission for that help to continue, the question is whether it will extend to conciliation if that is the alternative to litigation. That would be logical, and I will make the point more clearly in our debate on the next clause.

In respect of what the Minister said about having another look at how the commission can best play this important role, in the spirit of conciliation I am happy to beg to ask leave to withdraw the amendment.

Clause 28 - Legal assistance

Eleanor Laing (Conservative, Epping Forest)

I beg to move amendment No. 83, in clause 28, page 17, line 6, after ‘assistance’, insert

‘including, but not limited to, meeting the costs of any other party to any legal proceedings in the event that the individual assisted is not successful in his claim’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments:

No. 92, in clause 28, page 17, leave out lines 15 to 26.

No. 93, in clause 28, page 17, line 33, leave out ‘(6) or’.

No. 94, in clause 28, page 17, line 34, leave out from ‘description’ to ‘or’ in line 36.

Eleanor Laing (Conservative, Epping Forest)

Amendment No. 83 is similar in its effect to the amendments to clause 17, under which we also discussed amendments to clauses 28 and 29. This amendment is more specific in amending the part of clause 28(3) which deals with legal assistance.

The reason for the amendment is that someone or some body could have received assistance to bring a case under the legislation; if the case was thrown out the person against whom the case was brought may have incurred very considerable costs, not only in legal advice but possibly in other practical ways. That person or body, having succeeded in defending the claim brought against them, would then be in a very much weaker financial position, which is simply not fair.

The Bill aims to achieve fairness and equality in all that it affects. Therefore, as I said in our discussion on clause 17, as a small business, charity or other body without the resources enabling it easily to employ legal advice may be affected, it is only fair for the commission to have the power that we suggest in the amendment.

This morning, the Minister accepted the principle that I raised in relation to clauses 17, 28 and 29, and I accepted that the word “person” means not just a human individual but a legal persona. However, if we accept that a case may be brought by or against a legal persona other than a person, that persona—I am running out of words because I am trying to distinguish between person, legal person and body, and having already conceded the point that we do not need the words “body” or “organisation”, it would be inconsistent of me to use those words.

James Brokenshire (Conservative, Hornchurch)

Will my hon. Friend give way?

Eleanor Laing (Conservative, Epping Forest)

Yes!

James Brokenshire (Conservative, Hornchurch)

If an individual enters into litigation, suing a small business or sole trader, and the case is not found, in normal circumstances the court would award costs against the unsuccessful party. If an individual who was unsuccessful in their claim could not pay those costs, the small business or individual trader would have to meet them. Does my hon. Friend therefore agree that it would seem fair that if the commission supports an individual’s case financially, it should also incur the risk if the case is unsuccessful?

Eleanor Laing (Conservative, Epping Forest)

My hon. Friend is absolutely right and puts the matter succinctly. I thank him for assisting me in my vocabulary. That is precisely the point. The situation as it currently stands is unfair, because someone can have a case brought against them, succeed in defending it, and then find that they cannot recover the costs, particularly if the person who brought the case has no money, which is often the case if it is an individual rather than a corporate body. It is therefore necessary that the words that we suggest in the amendment be added to the clause.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Amendments Nos. 92 to 94, which I tabled, open up the question that was touched on during the debate on the previous clause and seek to remove subsections (5)(b) and (6) and references to subsection (6) in subsection (8).

The Committee will be aware of concern that in legal proceedings that have an equality enactment component and a Human Rights Act 1998 component, the commission can, under this clause, give assistance to the action by virtue of the equality component. The question therefore arises as to what happens when, as is stated in subsection (5)(b)

“the proceedings cease to relate to a provision of the equality enactments”.

The same subsection states specifically that

“assistance may not be continued under subsection (1) in respect of the proceedings (except in so far as it is permitted by virtue of subsection (6) or (7)).”

Subsection (6) relates to the discretion of the Lord Chancellor, who may by order disapply the subsection that I have just read out and enable the commission to continue to give assistance under subsection (1) in legal proceedings which:

“(a) when instituted, related (wholly or partly) to a provision of the equality enactments,

(b) have ceased to relate to the provision of the equality enactments, and

(c) relate (wholly or partly) to any of the Convention rights within the meaning given by section 1 of the Human Rights Act 1998 (c. 42).”

That looks like a compromise between not allowing the assistance to be given and providing for discretion. The intention of the amendments that I have tabled, even if they are not perfect, is to seek to persuade the Government to move from that position and say that, generally speaking, it will be possible for the commission to continue to provide assistance, as long as it sees that there is good cause to do so. That matter has been subject to the views of the Joint Committee on Human Rights, which, in its 16th report of the 2004-05 session, the only published report on the Equality Bill—and that refers to the previous Bill—had something to say about it.

The Joint Committee said, in paragraph 20, that it recognised that

“The Government has accepted to some degree our argument that the CEHR should be able to continue to support ‘mixed’ cases ... when equality elements have fallen away.”

It goes on to mention the power that the Lord Chancellor had in that respect, saying:

“We accept the principle as a reasonable compromise in relation to mixed cases but invite the Government”—

as I am doing now—

“to reconsider the limitations in the ... clause 30.”

I wonder whether the Government would be willing to do so, since they have come some way with regard to the provision on the Lord Chancellor’s discretion. If proceedings have been initiated and the commission still feels that there is value in pursuing the case, even though the equality components have fallen away, it should not be at the discretion of the Lord Chancellor, or anyone else, as to whether it can continue to provide support. In those circumstances, it is not clear from the phrasing of the Bill that conciliation services might still be offered in those cases. We dealt with that before.

It might be sensible, once the equality provision has fallen away, for there to be some way in which the commission can, given that it is already involved in a legal case, help move away from legal action towards a conciliation procedure. The Minister may wish to consider whether similar powers should be available to the commission to provide conciliation in respect of Human Rights Act cases, even where the equality enactment issues have fallen away. It would unnecessarily tie the commission’s hands to say that the Lord Chancellor might let it continue on the litigation path, but the drafting of clause 27 is so strict that it would not allow it to move into a conciliation process in which it was directly assisting.

Janet Anderson (Labour, Rossendale and Darwen)

Order. I remind the hon. Gentleman that we are discussing clause 28 and we have already dealt with conciliation. He seems to be addressing his remarks to clause 27. If he could restrict them to clause 28, I would be grateful.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I shall seek to do so. I said in discussion that, to avoid a stand part debate on clause 27, I would seek carefully, within order, to link the matter at hand with the amendments to which I am speaking now. Perhaps I should deal with that on the stand part debate on clause 28. I think that I have made the case and I do not need to repeat it.

I am sorry if I was not wholly in order. However, I hope that it is in order for the Minister to say whether, in cases where, under clause 28, the equality enactments have fallen away and the commission is, by virtue of subsections (5)(b) and (6), still involved, it will be possible for it to use conciliation services as an alternative, given that it is already involved in giving legal assistance. I hope that the Minister will respond to that.

Meg Munn (Labour, Sheffield, Heeley)

There is a lot of note passing, in order that I might respond to the hon. Gentleman’s points.

I will deal first with amendment No. 83, which, as the hon. Member for Epping Forest (Mrs. Laing) set out, seeks to illustrate by example the provision in clause 28, which provides for the commission to provide legal assistance to individual victims of discrimination. Specifically, subsection (3)(d) says that the commission may provide or arrange any other form of assistance. The amendment seeks to add to that provision

“including but not limited to meeting the costs of any other party to any legal proceedings in the event that the individual assisted is not successful in his claim”,

specifying that the commission may be required to meet the other party’s costs in proceedings where the litigant it was supporting was unsuccessful.

If costs were ordered against a litigant supported by the commission, it would be reasonable for the commission to be liable. That is certainly the case with legal aid support. However, I consider the amendment unnecessary. The point of subsection (3)(d) is to provide for any form of assistance. By specifically listing what those forms of assistance may be, there is an expectation that the list may be exhaustive. That is not a road down which we want to go. Therefore, we prefer the drafting to remain open.

The matter of costs awarded against an individual assisted by the Commission for Equality and Human Rights will be covered in the agreement on assistance reached between the commission and the individual concerned. In view of that, I hope that the hon. Lady will be content to withdraw amendment No. 83.

Eleanor Laing (Conservative, Epping Forest)

I accept the Minister’s explanation. Again, I wanted to have it put on the record that the Government’s intention, and our intention in passing the legislation, is to ensure that small businesses, charities and other such small bodies that lack access to considerable funds will not be disadvantaged by anything in the legislation, especially if they have done nothing wrong and succeeded in being proved right in the case brought.

My second recurring theme is that we must not—

Janet Anderson (Labour, Rossendale and Darwen)

Order. May I ask whether this is an intervention or a speech? Can the hon. Lady restrict her remarks?

Eleanor Laing (Conservative, Epping Forest)

Thank you, Mrs. Anderson. I thought it was a speech.

Meg Munn (Labour, Sheffield, Heeley)

I thought it was an intervention.

Eleanor Laing (Conservative, Epping Forest)

If it is an intervention, I beg your pardon, Mrs. Anderson, as it is far too long. I can finish the point at the end of the Minister’s remarks.

Meg Munn (Labour, Sheffield, Heeley)

I think the confusion has probably arisen because I am dealing with two slightly different areas concerning the amendments. If I may deal with the amendments from the hon. Member for Oxford, West and Abingdon (Dr. Harris), I will then be happy to hear the hon. Lady’s further comments.

The issues raised by amendments Nos. 92 to 94 are that the commission may support cases that rely on both the equality enactments and other matters, such as discrimination and unfair dismissal, or discrimination and human rights. These are termed combined cases.

The commission can, however, only support combined cases while they relate to the equality enactments. If those enactments and the arguments for them fall away, the commission must stop supporting the case. If continued support were allowed, it could increase the number of cases seeking support from the commission—especially cases with limited or spurious connections to the equality enactments. More resources would thus be needed to weed those cases out, which could dilute the focus of the commission’s work in supporting equality enactment cases, where it can add real value.

The commission should not support cases solely under the Human Rights Act 1998. Public funding is already available for such cases. To duplicate that would cause unnecessary confusion. Human rights cases can cover a wide range of areas, and would create a problem of sifting and selection for the commission.

As the hon. Member for Oxford, West and Abingdon acknowledged, we have provided an order-making power to permit the commission to continue supporting a combined equality and human rights case should the equality arguments fall away. We have no way of knowing how many cases that would catch, and do not want to legislate in a vacuum. Once the commission is up and running, we will be able to talk to it and to take a view on whether an order should be made under subsection (6). Such orders would not be made on a case-by-case basis, but would apply either to all equality and human rights combined cases or to a particular class of case. That is a positive and pragmatic approach to the known unknowns, allowing us to make a decision when we have the evidence to do so.

The hon. Gentleman read out a recommendation from the report of the Joint Committee on Human Rights. The Committee’s recommendations were considered carefully and the clause was amended accordingly on Report in the House of Lords. The order-making power has been vested in the Lord Chancellor because he is responsible for the operation of the legal system, including providing proper support for cases and for human rights. If it is activated, the power will significantly change the CEHR’s support for human rights cases, so we consider that that is appropriate.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister is right that a change was made following the JCHR report in respect of disapplying the strict criterion that article 7(1) in schedule 1 of the Human Rights Act 1998 must apply. Therefore, I recognise that, even though there was no direct Government response to that report, the response was in the change that was made. That is progress in the direction that I favour.

Vera Baird (Labour, Redcar)

There are two things on which it would be helpful to have advice. First, at what point does an equalities point fall away? Let us suppose that somebody brings a joint case and the judge hears the equalities element first and rules against it, but the person has every intention of appealing against that ruling. Is it still a live issue? Can the commission carry on funding the rest of the case, including the appeal, or should the case be stopped there and then and the Lord Chancellor’s help be sought?

That links to my second point which is, what would happen if, as is not impossible, a judge chose to take the two strands separately—equality first, then human rights—and ruled against the equality part? Is it expected that the case would stop while the applicant applied for legal aid? That would be very inconvenient for the High Court. I do not expect the Minister to have the answers at her fingertips, but the questions occurred to me as we worried our way through the point.

Meg Munn (Labour, Sheffield, Heeley)

I am grateful to my hon. and learned Friend for raising those issues. I expected her to do so because of her extensive experience in the legal system, and she is right to say that I do not have all the answers at my fingertips. However, I am assured that, if an equality matter were to fall away, that would happen at an appropriate point in proceedings. It would not happen, say, when a court appearance was due to take place the following day but, as she suggests, when a hearing had happened and there was the possibility of an appeal. However, she raises some interesting and important points about whether such an appeal should continue. In order to make matters absolutely clear, I shall write to her, with copies to every member of the Committee, on that point and on the issue of judges who consider different aspects of a case separately.

The hon. Member for Oxford, West and Abingdon mentioned conciliation. Clause 28(3) allows for the provision not only of legal advice and representation, but of

“facilities for the settlement of a dispute”.

If the Lord Chancellor made an order under subsection (6), it could allow the continued provision of such dispute resolution facilities in respect of a case in which only human rights points remained. Given my comments on the suitability of human rights points for conciliation, however, the commission would need to be sure of the suitability of any facilities that it wished to provide. I trust that that answers the hon. Gentleman’s points and that he and the hon. Member for Epping Forest will not press their amendments.

Mrs. Laingrose—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

May I delay the hon. Lady for a moment? I am grateful to the Minister for drawing my attention to clause 28(3) and I shall certainly go away and think about what she said.

Eleanor Laing (Conservative, Epping Forest)

I shall make only a very short speech, having wrongly made a very long intervention during the Minister’s remarks. I accept her explanation of why amendment No. 83 is unnecessary and I am pleased to have on record the fact that the Government do not intend to disadvantage small businesses and small charities, which do not have much money. The issue is important because, if the Government did that, the good legislation that we are passing would get a bad reputation. That would not help matters and the Bill would backfire. I thank the Minister for her explanation and for putting that point on record. I beg to ask leave to withdraw the amendment.

Meg Munn (Labour, Sheffield, Heeley)

I beg to move amendment No. 12, in clause 28, page 18, line 1, after ‘sex’ insert ‘(including reassignment of gender)’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss Government amendment No. 13.

Meg Munn (Labour, Sheffield, Heeley)

The Government have tabled the amendments to clarify the provisions of subsection (11)(a) so let me set out the context and the effect of the amendments.

Subsections (11) and (12) enable the commission to support proceedings alleging that domestic legislation is incompatible with EC legislation combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Without them, the commission would be able to provide assistance only where the proceedings related wholly or in part to one or more of the equality enactments. Those enactments are defined in clause 33 and include all the domestic legislation prohibiting discrimination, such as the Sex Discrimination Act 1975 and the Race Relations Act 1976.

On Third Reading in the other place, we tabled amendments to introduce subsections (11) and (12) and to ensure that the new commission did not have fewer powers available to it than the existing commissions. We did that because case law had determined that the Equal Opportunities Commission had the powers set out in those subsections in respect of gender. Hon. Members will note that that theme runs throughout the Bill and that we are introducing provisions to enable the new body to continue the work of the existing commissions.

When we introduced subsections (11) and (12), we considered that, as a result of case law, gender reassignment was included in the term “sex”. It was always our policy intention to capture gender reassignment in the list of community law in subsection (11)(a). However, we have decided to place our policy intention beyond doubt by making express provision for gender reassignment. Amendment No. 12 achieves that.

Similarly, I have tabled amendment No. 13 for the purposes of clarification. Concerns were raised in the other place that making express reference in subsection (11)(a) to

“equality of opportunity between men and women”

when there is no mention of race implied that we attached less importance to community law provisions relating to equality of opportunity for race. That was never our intention. We made an explicit reference to equality of opportunity between men and women in order to ensure that we properly reflected the specific elements of European law that deal with such matters, as provided for in articles 2, 3 and 141 of the EC treaty and in the various directives that concern equal pay and equal treatment in employment and for occupational social security.

Although equal treatment is mentioned in the race directive, it is not a legally distinct concept from discrimination based on racial or ethnic origin, which is the legal basis for the race directive, as set out in article 13. We therefore do not think it appropriate to include it.

On further reflection, we are persuaded that it is not legally necessary to make express reference to equality of opportunity based on sex in order for the clause to cover the sex equality provisions under articles 2,3 and 141 of the EC treaty and in the associated directives already mentioned. Parliamentary counsel has advised us that there is no demarcation in Community law between discrimination-based provisions and equality-based provisions. Therefore, the reference in subsection (11) to discrimination grounds is sufficient to embrace Community provisions on equality.

The reference to sex in subsection (11)(a) therefore covers equality of opportunity and equal treatment, which includes equal pay and so on. Consequently, we see no need for an express provision on equality of opportunity between men and women in the clause. Government amendment No. 13 therefore proposes removing it.

I trust that I have made the purpose of the amendments clear.

Schedule 2 - Inquiries, investigations and assessments

Meg Munn (Labour, Sheffield, Heeley)

I beg to move amendment No. 21, in schedule 2, page 73, line 5, at end insert—

Clause 33 - Equality and human rights enactments

Vera Baird (Labour, Redcar)

I beg to move amendment No. 51, in clause 33, page 21, line 13, at end insert—

‘(i)the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000,

(j)the Employment Rights Act 1996, and

(k)the Maternity and Parental Leave Regulations 1999.’.

I can put this succinctly. Clause 33 defines equalities and human rights enactments for the purpose of part 1. Subsection (1) defines equality enactments. My amendment would add three extra sets of regulations to that definition. The Equal Opportunities Commission, on whose behalf I raise the issue, wants to probe why those enactments, which seem to be in the same family as those set out in the clause, are not included.

Meg Munn (Labour, Sheffield, Heeley)

I thank my hon. and learned Friend for raising those important issues. I welcome the work of the Equal Opportunities Commission, which, through campaigns on part-time workers and pregnancy in employment, has brought much needed attention to and raised awareness of the number of employers who still fail to maximise the benefits of the work force, particularly women. I am sure that Committee members of all parties will recognise the valuable contribution of the Equal Opportunities Commission to the debates.

The amendment would extend the scope of the new commission’s remit, so that it would be able to exercise its duties and use its powers in areas far beyond the confines of discrimination law and human rights. It would add employment rights concerned with maternity leave, parental leave, flexible working, termination of employment, redundancy, protection from victimisation and part-time working to the list of equality enactments in clause 33. Those employment rights have played an important role in helping women to advance in the workplace and enabling parents and carers to balance work and family life, but there is a difficulty in adding the relevant employment enactments to clause 33.

The commission exercises its regulatory role through its powers to support cases, to issue codes of practice and to bring enforcement actions. The regulatory role is confined to discrimination law, as has been the case for the existing commissions. It would be inappropriate to extend the regulatory role to areas of legislation that go beyond discrimination, because it would create a risk that the new commission would lose focus on its core role, which is centred on equality and human rights.

There is plenty, however, that the new commission will be able to do. Several provisions in the Bill give it wider powers than those that are available to the existing commissions, enabling the new body to take forward the excellent work of the Equal Opportunities Commission. It may be helpful if I set the powers out in a little more detail.

Clause 8 sets out equality and diversity duties. The new commission will be able to promote equality for women and men in their roles as carers, parents and part-time workers, thus building on the good practice of the Equal Opportunities Commission and Disability Rights Commission. The new commission will be able to use its powers to provide general advice, to undertake promotional work and to encourage good practice to drive forward work with employers in the relevant sector. It will also be able to use its inquiry powers, and its ability to comment on the impact of any law or proposed change in the law, to recommend action to Government on such issues. It will have wide-ranging powers to promote equality for women in all areas of their lives, just as the Equal Opportunities Commission has. That is separate from its powers to enforce specific items of legislation, as covered by the clause. The commission will be able to promote equality for women and men as carers and in aspects of working life such as family-friendly arrangements and pensions. It will work on a very broad front and be able to cover such issues as domestic violence.

The new body will be able to provide legal assistance to individuals in cases that combine a discrimination law provision with a matter dealt with under other legislation, including those listed in the amendment. Committee members will want to be aware that, in the longer term, the Government are reviewing the entire framework of discrimination law, through the discrimination law review, which has already been mentioned several times. The review will consider the legal framework of discrimination law and the issues relating to those with family and caring responsibilities. I hope that the Committee will agree that that review is the correct way to consider such matters further. As I have explained, those employment rights are beyond the scope of what we wish the new commission’s regulatory powers to focus on. There is plenty of opportunity to consider the issues involved within other powers available under the Bill. I ask my hon. and learned Friend to withdraw her amendment.

Vera Baird (Labour, Redcar)

I am grateful for that reply. I beg to ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 73, in clause 33, page 21, line 13, at end insert—

‘(i)the Sex Discrimination (Gender Reassignment) Regulations 1999, and

(ii)the Gender Recognition Act 2004.’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments:

No. 74, in clause 35, page 22, line 6, at end insert—

‘“gender reassigment” means an individual’s gender representation when a person has proposed, commenced or completed reassignment of gender (within the meaning given in section 82 (1) of the Sex Discrimination Act 1975 (c.65)).’.

No. 84, in clause 80, page 45, line 40, at end insert ‘or transgender status’.

No. 71, in clause 82, page 50, line 2, at end insert

‘and those intending to undergo, undergoing or who have undergone gender reassignment.’.

No. 72, in clause 82, page 50, line 2, at end insert

‘and

‘(c)to eliminate the harassment of persons who are intending to undergo, are undergoing or have undergone gender reassignment, or who have a commitment to maintaining a transgender identity.’.

New clause 10—Discrimination on grounds of gender reassignment—

‘(1)The Secretary of State may by regulations make provision about discrimination or harassment on grounds of gender reassignment.

(2)In subsection (1) “gender reassignment” has the meaning given by section 35.

(3)The regulations may, in particular—

(a)make provision of a kind similar to Part 2 of this Act;

(b)define discrimination;

(c)define harassment;

(d)make provision for enforcement (which may, in particular, include provision—

(i)creating a criminal offence of a kind similar to, and with the same maximum penalties as, an offence created by an enactment relating to discrimination or equality,

(ii)about validity and revision of contracts,

(iii)about discriminatory advertisements, and

(iv)about instructing or causing discrimination or harassment;

(e)provide for exceptions (whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality);

(f)make provisions which applies generally or only in specified cases or circumstances;

(g)make different provision for different cases or circumstances;

(h)include incidental or consequential provision (which may include provision for amending an enactment);

(i)include transitional provision.

(4)The regulations—

(a)shall be made by statutory instrument, and

(b)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(5)In subsection (3)(h) “enactment” includes an enactment in or under an Act of the Scottish Parliament.’.

Sandra Gidley (Liberal Democrat, Romsey)

We tabled this group of amendments to query why there appears to be no goods and services protection for transgender people in the Bill. That is particularly disappointing, because in its 19th report, which was on the Gender Recognition Bill, the Joint Committee on Human Rights stated in recommendation 103:

“We therefore recommend that the legislation should include provisions amending the sex discrimination legislation to make it unlawful to discriminate against people in the fields of education, housing and the provision of goods, facilities and services on the ground that they have undergone, are undergoing or plan to undergo sex reassignment.”

During the passage of that Bill, the issue was discussed at some length and I shall not repeat much of the dialogue. However, in his summing-up, the Minister said:

“We want to ensure that the issues raised by the Joint Committee and others are properly considered and that there is consultation not only with the transsexual community but with businesses and other parts of the community, such as religious groups and the voluntary sector.”—[Official Report, Standing Committee A, 16 March 2004; c. 186.]

That was more than a year ago. One would have thought that there has been sufficient time for provisions to be brought forward in this Bill. Although I concede that this Bill was originally conceived to establish a commission for equality and human rights rather than to tidy up anti-discrimination legislation, when it was published it included substantive anti-discrimination provisions—most notably, a public sector duty to promote gender equality and protection against discrimination in the supply of goods and services on grounds of religion or belief.

One change has already been made. Why not make another? To some extent, transgender people are protected against discrimination in employment and vocational training through the Sex Discrimination (Gender Reassignment) Regulations 1999. However, because those were introduced under the European directive, it was decided not to extend the scope of the 1972 equal treatment directive by extending protection to goods and services. Now that appropriate primary legislation is being considered, that omission could easily be remedied.

Ministers have indicated a willingness to consider a change under the proposed single equality Bill, but there is some doubt about whether that would be enacted in time to comply with the EU directive on gender discrimination outside the workplace, which requires protection to be in place by December 2007. If the Minister elaborated on the time scales, that would be helpful.

The omission from the Equality Bill of goods and services protection for transgender people has excluded them from full coverage under the public sector duty on gender. The gender duty will therefore have to be implemented with guidance that transgender people are not currently fully within its scope. Unless the Government intend permanently to exclude transgender people from the public sector duty on gender, the statutory code of practice and the EOC guidance will have to be rewritten within months of the Bill’s entry into force. That will create confusion and impose an entirely unnecessary administrative burden on the 44,000 public authorities that have already implemented the gender duty and will subsequently have to revise their plans.

I shall run through what the amendments would achieve. Amendment No. 73 would add to the list of equality and human rights enactments the two major pieces of legislation covering the rights of transgendered people. It could be argued that the Sex Discrimination (Gender Reassignment) Regulations 1999 amend the Sex Discrimination Act and that the matter is covered by the reference to the SDA. However, explicit inclusion would provide clarity and send a strong message. The Gender Recognition Act 2004 is primarily a human rights enactment and implements in UK law the 2002 ruling of the European Court of Human Rights in Goodwin v. UK and I v. UK. It is to a small degree an equality enactment, but the purpose of the amendment is to clarify the Government’s intentions when dealing with transgendered people.

Amendment No. 74 would add to the interpretation clause a definition of “gender reassignment”. The phrase is used in the Bill but is otherwise undefined. Instead of seeking a new definition, we propose to use the definition in the Sex Discrimination Act as amended by the 1999 regulations. If there is not a clear definition in the Bill, there may be a risk that the courts will be asked to consider alternative interpretations. Similar cases were taken to the European Court of Human Rights and, consequently, legislation had to be amended.

New clause 10 simply mirrors the clause on discrimination on grounds of sexual orientation to cover gender reassignment and transgendered people. Not all of our proposals may be necessary but there is great concern in the community that the Bill does not go far enough to cover some of the many loopholes that people experience.

Amendment No. 71 is an attempt to address the omission of transgendered people from the public sector duty to promote gender equality and to raise the importance of such issues in the mind of public authorities. It is particularly important for transgendered people who have experienced significant institutional discrimination in both employment and the provision of goods and services. Amendment No. 72 would add a provision covering harassment.

It would be helpful if the Minister explained why the Government seem to be lagging behind in the Bill, confirmed whether there will be a firm promise in the single equality Bill when it is introduced and whether that will be in time to avoid some of the timing problems that I outlined.

Eleanor Laing (Conservative, Epping Forest)

Amendment No. 84 is mine. I support what the hon. Member for Romsey (Sandra Gidley) said on the other amendments in this group. She made a strong argument and it is important that the issue of transgendered people is dealt with properly in this part of the Bill.

Amendment No. 84 relates to clause 80 in part 3, which is entirely concerned with discrimination on grounds of sexual orientation. Is the proper definition of sexual orientation inclusive of whether a person is transgendered? If transgendered people are included under the wider definition of sexual orientation, the matter will be properly dealt with, but if not, it is essential that the amendment be made. It is simply not fair that, although people are protected and given rights in respect of their sexual orientation, they are not if they are transgendered.

I would argue that being transgendered is a question of sexual orientation, but perhaps it is not, under the legal definition. Perhaps, in law, a transgendered person has changed their gender, not their sexual orientation. I fear that I may not have put that very clearly, although I meant it to be succinct and clear, but this is sometimes a confusing area of law. It is important that we get the matter right in the Bill. Otherwise, transgendered people will not have their rights protected in the same way as everyone else.

Meg Munn (Labour, Sheffield, Heeley)

Before I address the amendments and new clause 10, I shall make a few general comments. As I said earlier, we are committed to providing full rights for transsexual people, and we have demonstrated that by outlawing discrimination on the grounds of gender reassignment in employment and vocational training, and by passing the Gender Recognition Act 2004.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Which UK statute outlawed such discrimination in respect of employment, or was it a European statute, with case law to back it up?

Meg Munn (Labour, Sheffield, Heeley)

I shall give the hon. Gentleman that answer shortly.

For transsexual people, the general duty in clause 82 will oblige all public authorities, when carrying out their functions, to have regard to the need to eliminate discrimination on the grounds of gender reassignment in employment and vocational training. We believe that transsexual people, here and across Europe, should be treated fairly and with dignity. That is why the Government have ensured that the new law at European level will cover equal treatment for transsexual people in terms of the provision of goods and services. I fully understand why the amendments were tabled. I will go on to explain how the Government intend to provide further rights for transsexual people, and why the Government cannot accept the amendments, but I do not want hon. Members to doubt that I support the principle behind them.

Amendment No. 73 would add legislation on gender reassignment to the list of equality enactments set out in clause 33. First, the amendment seeks to add a reference to the Sex Discrimination (Gender Reassignment) Regulations 1999. The problem is that the 1999 regulations simply amended the Sex Discrimination Act 1975; the regulations are not free-standing and so cannot be included in the list of equality enactments in clause 33. Not that there is any need to include the regulations in the list—the Sex Discrimination Act is, of course, already listed as an equality enactment under clause 33. The new commission, like the existing Equal Opportunities Commission, can exercise the full range of its duties and powers in respect of all provisions of the Sex Discrimination Act. That includes the provisions that were added by the 1999 regulations, which outlaw discrimination against transsexual people on the grounds of gender reassignment. I am told that the 1999 regulations were a response to European case law.

The amendment would add a reference to the Gender Recognition Act 2004. Let me explain why that is unnecessary. The equality enactments listed in clause 33 are concerned with discrimination law. They impose legal duties on people not to discriminate, and confer rights on individuals to seek redress if they are victims of harassment or discrimination. The provisions that outlaw discrimination against transsexual people on the grounds of their gender reassignment are those I mentioned in the Sex Discrimination Act. The Gender Recognition Act is a completely different matter. It significantly advances the rights of transsexual people, but it is not a discrimination law; it is concerned with the legal recognition of a transsexual person’s acquired gender.

Sandra Gidley (Liberal Democrat, Romsey)

I gather that a small part of the Gender Recognition Act amends the 1999 regulations, so the Act appears to contain an element of discrimination. It is not completely about human rights.

Meg Munn (Labour, Sheffield, Heeley)

My understanding is that there is no need for the legislation to include those regulations because they are referred to elsewhere. If there is still a lack of clarity in respect of how that works, it might be helpful if I write to the hon. Lady to make it clear which regulations are covered by which Acts. I want all Members to know exactly what is currently covered.

The Gender Recognition Act is not discrimination law. It is concerned with the legal recognition of a transsexual person’s acquired gender. A person who meets the criteria set out in the Act can obtain a full gender recognition certificate, and the Act then ensures that they are legally recognised as a person of the new gender. That is a matter of law that applies automatically and for all purposes, except where specific provision is made in the Act. In particular, it confers the right to a pension at the age that is appropriate for the new gender, and the right to get married to a person of the opposite gender. Therefore, the 2004 Act is not concerned with discrimination in the same way as are the equality enactments set out in clause 33.

To deal now with a point that was made by the hon. Member for Epping Forest would be out of sequence, but it might be helpful to do so. Sexual orientation is defined in clause 35, so transgender is not included as part of the definition.

I trust that I have clearly explained why the amendment is neither necessary nor appropriate. However, it has been useful to put on the record the way in which the discrimination law rights of transsexual people will already be fully within the commission’s remit. On that basis, I hope that the hon. Member for Romsey will withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I seek clarification on the question of discrimination in goods and services. I am unclear whether the Minister was referring to new clause 10, tabled by my hon. Friend the Member for Romsey and me, which addresses the matter in the same way as for sexual orientation. Was the Minister responding to new clause 10?

Meg Munn (Labour, Sheffield, Heeley)

No.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I apologise. I will wait.

Meg Munn (Labour, Sheffield, Heeley)

The hon. Gentleman has indeed jumped the gun. I was about to come to new clause 10. The Government are committed to extending protection from discrimination for transsexual people but believe it best to do so in the context of the discrimination law review, taking into account the requirements of the EU gender directive on goods and services. We will take forward the work of identifying the issues within the context of the review.

As the hon. Member for Romsey recognised, the Bill was never intended to deal with all issues, and we know that many gender and equality issues are not addressed. We want to do so within the discrimination law review. That is not simply a delaying tactic or reluctance to do things, and I have clearly stated the Government’s commitment to act. However, we want enough time to consult people and ensure that there is proper legislation that does exactly what we want it to do, and we want to achieve greater consistency of protection for individuals against discrimination, which will be clearer and simpler for those who have responsibilities under the law, whether as employers or public authorities. We also want individuals themselves to be much clearer about how they are protected. We are mindful that the EU gender directive is expected to be implemented in all EU member states by December 2007.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister will understand that there is a great deal of frustration about this in the transcommunity and its friends, including friends on both sides of the House and in all parties. The Joint Committee on Human Rights states in paragraph 100 of its report on the draft Gender Recognition Bill in 2002-03:

“The Government replied that ... It did not consider that there was any evidence of a pressing need to protect transsexual people against discrimination in other fields.”

In a response to me on 16 March 2004, the Under-Secretary of State for Culture, Media and Sport, the hon. Member for Tottenham (Mr. Lammy) said that the Government wanted to ensure that the issues were dealt with in due course. That was over a year ago. There is frustration that it is taking so long to give the sort of equality to this group that the Government are about to give to religious communities and to people on the basis of sexual orientation.

Meg Munn (Labour, Sheffield, Heeley)

One of the joys of my post is in discovering that issues of equality and human rights have a great deal of support across the House and in all parties in a way that I understand has not always been the case. One of the frustrations for Members on both sides, and indeed for Ministers, is that it takes time to resolve many of these issues and to bring forward legislation. I understand the hon. Gentleman’s frustration that things are not moving as fast as he would like, but a process is in place, and the discrimination law review is under way. A Green Paper next year will enable everyone who has concerns in these areas to respond.

While I understand why hon. Members want to press the Government to do more and to do it more quickly, I believe we can get something better that responds more appropriately to all the concerns of the different groups. Transsexual or transgendered people are just one group who are pressing me to go faster and further. We will get much better legislation if we do that in a planned and effective way through the discrimination law review.

I have the advantage of being able to sit down with officials to see how much progress is being made, and I appreciate that I am asking hon. Members to be patient until early next year or late spring. It may seem that no progress is being made, but I assure them that progress is being made and that we will move as fast as we can to get a single equality Bill into a session in Parliament so that we can fulfil our firm manifesto commitment to have one within the life time of this Parliament.

In that spirit, we recently started the work necessary to ensure that there will be legal protection for transsexual people in the field of goods and services. The discrimination law review will also look at further extending public duties to promote equality of opportunity for transsexual people. The output of that review will be the single, simplified framework for equality legislation. As we extend the law into new areas, we have to consider carefully how to frame it.

A number of issues that transsexual people face need to be carefully considered, including complex questions about insurance and pension services. Privacy issues may need to be addressed both in relation to access to facilities and disclosure of previous gender identity. Many interested parties are involved and we need to explore how the law will work in practice. That will take time.

Amendment No. 74 would insert a definition of gender reassignment as

“an individual’s gender representation when a person has proposed, commenced or completed reassignment of gender (within the meaning given section 82(1) of the Sex Discrimination Act 1975 (c. 65)).”

The amendment is consequential to new clause 10, which would insert a new part 4, equivalent to part 3 on sexual orientation, giving the Secretary of State powers to make regulations outlawing discrimination against transsexual people in the provision of goods and services. The amendment is problematic because it introduces a definition of gender reassignment that is inconsistent with that in the Sex Discrimination Act, which defines discrimination on grounds of gender reassignment as discrimination on the ground that a person intends to undergo or is undergoing gender reassignment or has at some time in the past undergone gender reassignment. The difference in wording, particularly the addition of the words “an individual’s gender representation” could cause confusion, not least for the courts and legal practitioners.

Amendment No. 84 would extend the Secretary of State’s order-making powers in part 3 in relation to discrimination or harassment on the ground of sexual orientation to include the ground of “transgender status”. While the discrimination faced by transsexual people in the provision of goods and services has some similarities to those faced by people who are discriminated against because of their sexual orientation, there are a number of issues unique to transsexual people which we need to consider properly. The term “transgender status” is problematic because there is no established legal definition. Without a clear definition, the courts would struggle to uphold the law that would result from the amendment, as was illustrated by the hon. Member for Epping Forest a short time ago.

I understand the intention behind amendments Nos. 71 and 72. Transsexual people are protected from discrimination in employment and vocational training by the Sex Discrimination Act. They will not be covered explicitly in the requirement on public authorities, with the gender duty, to promote equality of opportunity between men and women. However, transsexual people will benefit as men or women from the general obligation to promote equality of opportunity between the sexes.

The effect of amendment No. 71 would be to extend the gender duty to include the promotion of equality of opportunity between transsexual people and others. We believe that it is better to consider that issue under the discrimination law review. There is, of course, nothing to prevent public authorities from ensuring that their public functions or goods and services are provided to transsexuals or transgender people on the basis of equality of opportunity. Indeed, we encourage them to do so.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

One can understand that there might be complex cases for exceptions that require consideration, but we do not believe that the matter requires a further review, and nor does the Minister in relation to sexual orientation. The positive duty on public authorities is a general duty, so it does not necessarily need detailed consideration, because the issue of exceptions does not arise with general duties and because it is separate from new clause 10. What are the Minister’s arguments against doing that to provide protection for people as transsexuals rather than just as men and women, which, as she says, the Sex Discrimination Act and the positive duty already cover?

Meg Munn (Labour, Sheffield, Heeley)

The hon. Gentleman brings me back to my earlier point that this is not the only area in which people are pressing for general duties to go further. One benefit of the discrimination law review is that it provides an opportunity to examine both existing duties and those that are to come into force shortly on race and disability and on the gender duty in the Bill. We want to learn from them. We want to consider how those duties work best and how to take them forward.

All that brings us back to the point that the Bill was never meant to do everything. Hon. Members are right to press Government, but the Government are committed to addressing these matters and are considering them in the discrimination law review. We want to do that in a full and complete way. If we continue to do things piecemeal, we will inevitably leave out certain groupings, and they will have to wait. I ask the hon. Gentleman to be patient and to wait for the discrimination law review to move on to its consultation phase. As I said, there is nothing to prevent public authorities from ensuring that they provide public functions or goods and services to transsexual or transgendered people on the basis of equality of opportunity, and we would encourage them to do so.

Amendment No. 72 goes wider than the current protection against harassment in respect of employment and vocational training. As I said on Tuesday on amendment No. 50, there is also a problem with the use of the word “transgender”. It all comes down to definitions and clarity of purpose, which are vital if the courts are to uphold the law. Public authorities must be clear as to their obligations, and accurate guidance must be available to assist them in carrying out their functions and delivering goods and services.

The word “transgender” implies a wide range of identities, including transvestites, who express an alternative gender role only occasionally, intersex people, who are born with an ambiguous biological sex, and those who express themselves as neither male nor female—a point that we discussed on Tuesday. Transsexuals, who have an overwhelming need to transition and to live permanently in that role, are protected against discrimination under the Sex Discrimination Act. That is the definition used in the Bill.

Although the amendment is well intentioned, it would cause confusion, and we should avoid that because it would reduce clarity and certainty about how the law should apply. That is why I strongly believe that the discrimination law review is the best vehicle to consider and make recommendations on these issues. I therefore hope that hon. Members will not press the amendments.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the Minister consider one more point in relation to the positive duty? If the discrimination law review said that the positive duty on gender should refer specifically to transsexual people, rather than just to men and women, that would presumably be legislated for. No sooner would public authorities have sorted out their approaches and policies, therefore, than they would have do everything all over again. There must be some merit in dealing at least with the positive duties and the burden of regulation on public authorities all in one go, so that everything will not have to be repeated when the discrimination law review deals with issues such as AIDS. If we are going to deal with gender, we might as well deal with everything in one go.

Meg Munn (Labour, Sheffield, Heeley)

The hon. Gentleman is persistent; I will give him that. The discrimination law review will not suddenly drop lots of information from on high in one go; the whole purpose of the review is to engage a wide range of bodies, including public authorities. I cannot pre-empt what will come out of it, because that would be nonsensical, but there may be a better way of looking at the promotion of equality and duties that we cannot foresee at this point. Although I commend the hon. Gentleman on his persistence, he will not change my mind on the issue.

Eleanor Laing (Conservative, Epping Forest)

I appreciate what the Minister has said and I accept her explanation. As has been the case with so many parts of the Bill, we have suggested improving the provisions to make them more universal and therefore more consistent across various strands, but the discrimination law review is, of course, still under way. In many ways, it would have been better if the Government had waited until the equalities review and the discrimination law review were completed. They could then have introduced one Bill, and we would not have had such anomalies. However, I appreciate that they want to set up the new commission with its new powers as soon as possible. We all want it to work well, so I shall not press the point. In particular, I agree with the Minister that for transgendered people, in the widest of definitions, issues of pensions, employment and divorce are serious and very complicated. Such matters should not be rushed in any legislation, and therefore I welcome the deliberations of the discrimination law review.

Sandra Gidley (Liberal Democrat, Romsey)

It is disappointing that despite yet another attempt to address one of the inequalities in the Equality Bill receiving an allegedly sympathetic ear, we will see no change. It is particularly disappointing for we Liberal Democrats because the hard work of Lord Lester in the other place meant that the Equality Bill of 2003 was well thought out and would have addressed some of the problems. It is disappointing that the discrimination law review took some time to be announced. I am pleased that it is taking place, but why the time lag? Why has it taken so long?

The more we discuss the Bill, the more it appears to be more inappropriately named. It would be better named, “It’s equality, Jim, but not as we know it.” It does not provide equality for all people but its very title has raised expectations. It is with some reluctance that I will withdraw the amendment; we may revisit the subject in the future. I beg to ask leave to withdraw the amendment.

Clause 35 - General

Hywel Williams (Plaid Cymru, Caernarfon)

I want to refer to the definition of race on page 21. As hon. Members and the Minister know, the concept of race has been problematic in the past. It is defined in the clause by reference to, among other things, “national origin”. That is not itself defined. National origin can also be problematic. Dr. Gwynfor Evans, a former Member of this House, said that anyone could be Welsh as long as they were prepared to take the consequences. National origin is what I say it is; it is a matter of self-definition. That might give some difficulties if one was alleging some wrong.

A friend of mine, who comes from Yorkshire, is married to a Welsh woman—and a Welsh speaker, at that—and has two sons, Owain and Rhodri. He occasionally asks me whether I have any idea of their national origin. I say Welsh, of course, because they are prepared to accept the consequences. There has been controversy about the matter. Some Members might recall the Brewer Spinks case in the early 1960s, when Brewer Spinks Ltd. tried to ban its employees from speaking Welsh. It led to a huge amount of controversy, to demonstrations and to a climbdown by Brewer Spinks before the law had anything to say.

In subsequent cases, people have alleged discrimination and all kinds of wrongs on the basis of national origin, which then defines race—people have been annoyed at being called Welsh, Taff or Taffy—and such cases have been decided. This is a slippery area of the law, and I want a reassurance from the Minister that the Government have fully thought the matter through.

Eleanor Laing (Conservative, Epping Forest)

I thank the hon. Gentleman for giving way. I intervene merely in order to give him some moral support as I am an ethnic minority Scot.

Hywel Williams (Plaid Cymru, Caernarfon)

I thank the hon. Lady for her support.

There have been problem cases that have brought the law into disrepute because it is unclear. The area has been brought into further disrepute by the many complaints brought against such people as A.A. Gill, Jeremy Clarkson, most infamously Anne Robinson and most recently the Prime Minister. Those cases were not pursued, but there is controversy and we need some reassurance.

There has also been controversy about discrimination involving language that defines national origin, which itself defines race. The outcome of cases in that field has been less than satisfactory. I refer the Minister to the first and most prominent such case, that of Jones andDoyle v. Gwynedd county council. Jones and Doyle alleged discrimination because they were not employed because they could not speak Welsh. As it happens, the judgment by Kilner Brown was that there was no discrimination. However, there have been further cases, and Kilner Brown himself said that language could not be used to define national identity, which could not then be a case for racial discrimination because it was clearly ludicrous to allege that, for example, Mrs. Hughes and Mrs. Jones having tea together in Bangor were from different racial groups merely because one spoke Welsh and the other did not.

Those are the sorts of complications that have arisen. It is a slippery matter, and I merely seek the Minister’s assurance that the matter has been thought through.

Meg Munn (Labour, Sheffield, Heeley)

I had not intended to speak to this clause other than to answer questions, so I will confine my remarks to the matters raised by the hon. Gentleman. The definition of race used in the legislation follows that contained in section 3(1) of the Race Relations Act 1976, and we believe that it has stood the test of time. However, the Government are aware that as a result of the Race Relations Act 1976 (Amendment) Regulations 2003, which implement the EU race directive in UK law, some of the racial grounds are treated differently from others in the 1976 Act. For example, harassment is expressly unlawful only on the grounds of race or ethnic or national origins, not on the grounds of colour or nationality. That difference came about because the European Communities legislation under which the regulations were made can be used only to make provisions implementing EU obligations or dealing with related matters.

The Government intend to iron out those and other undesirable inconsistencies across the whole of discrimination law. The discrimination law review will be the appropriate place in which to deal with that and I look forward to hearing the hon. Gentleman’s considered contribution to the consultation on that. Other than to commend his Welsh friend for marrying somebody from Yorkshire, I have nothing to add.

Clause 36 - Dissolution

Meg Munn (Labour, Sheffield, Heeley)

Clause 36 is a necessary procedural clause. Its purpose is to ensure a smooth transition between the existing three equality commissions and the new CEHR. It provides the Secretary of State with an order-making power to dissolve the existing equality commissions or remove specified functions from them. In that way, it is a counterpart of clause 1, establishing the new commission. It will be used to wind up in due course the Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality. There needs to be flexibility in timing, but also a degree of certainty. The order-making power could be exercised to dissolve each of the commissions or to switch functions from them to the new commission at a different time. However, it must be used to dissolve each existing commission by 31 March 2009.

We are working to launch the CEHR in October 2007, with the functions and powers of the DRC and EOC folding in just before that date. Although we have agreed with the CRE that it will not join at that stage, we specified a date by which all the commissions must cease to exist. Imposing the date of 31 March 2009 will ensure that the gap between the CEHR’s operational launch and the race strand being included does not extend beyond 18 months.

As I have already said, the power includes the flexibility to remove specified functions from the existing commissions. That will make it possible to transfer functions gradually, as part of the complex transition process. It will allow the functions of the existing commissions to be transferred to the CEHR in a strategic and well managed process.

The order-making power is subject to the negative procedure under clause 41. That is justified because we are talking about a series of highly technical and detailed provisions, the purpose of which is to implement the principle of dissolution of the former commissions and transfer to the new one; and that principle, of course, is embedded in primary legislation—in the Bill.

Clause 37 - Transfer of property, &c.

Meg Munn (Labour, Sheffield, Heeley)

Making the transition towards the CEHR will be a hugely complex process. We have the three existing commissions to consider, whose primary functions will in time reside in the CEHR. However, the functions and powers are only part of the story.

The clause sets out the process for transferring the property, rights and liabilities of the existing commissions to the CEHR. It effectively gives the Secretary of State the power to ensure a smooth transition. Subsection (2) allows the Secretary of State to direct each of the existing commissions to provide information on property, rights and liabilities, or information relating to the exercise of its functions that may be needed in connection with the establishment of the CEHR or the closure of the existing commissions.

The Secretary of State can also direct the existing commissions to make property, staff or facilities available to the CEHR as he deems necessary. That power would be used, if necessary, primarily to provide the CEHR with resources in the early stages, to allow it to begin work with the three commissions towards its operational launch. It will obviously be important to strike a balance between building up the new commission and ensuring that the existing commissions are not restricted in fulfilling their objectives.

The Secretary of State can also give a direction to the existing commissions not to take action in specific circumstances. It is clearly important to ensure that no significant new commitments are entered into unnecessarily. For example, one of the existing commissions could be directed not to enter into a new, large IT contract for a system that would not be compatible with the new body’s processes. However, the CEHR steering group is advising on a raft of transition issues, including mapping the assets and liabilities of the existing commissions, so the use of that power will be kept to a minimum.

The Secretary of State may also direct any of the existing commissions to prepare a scheme to transfer their property, rights or liabilities to the CEHR or to another specified person. We envisage that such a person may be one of the sponsoring Departments, which could take items that may be surplus to the CEHR’s requirements. A transfer scheme may specify or describe the property, right or liability to be transferred, such as office furnishings or an existing and ongoing contract; or the scheme may generally refer to it as part of a larger undertaking from which it is being transferred. When preparing a scheme, the existing commission must consult either the CEHR or the person to whom the transfer is being made. A scheme will come into effect once approved by the Secretary of State, subject to any modifications.

The provisions set out in the clause are a necessary and common element in any transition process.

Clause 38 - Transfer of property: supplemental

Meg Munn (Labour, Sheffield, Heeley)

The clause provides for the effects of a transfer scheme. Under clause 37, property that is transferred from an existing commission to CEHR will vest in CEHR once the scheme comes into force. From that point, any action undertaken by an existing commission immediately prior to the transfer date or any action that is in the process of being undertaken, such as legal proceedings started by one of the existing commissions, will continue as if instigated by the CEHR. Agreements made by an existing commission prior to transfer will have the same effect as if they were made by the CEHR. The CEHR will thus have the same status in law as the commission from which the transfer was made.

Subsection (4) ensures that all property, rights or liabilities can be transferred to the CEHR or another specified person, whether or not they would normally be able to be transferred. It also removes the need for consent to be obtained to the transfer.

Subsection (5) pertains to the staff of the existing commissions. We have already made a commitment that all staff transferring to the CEHR will do so with the full protection of the TUPE regulations. The provisions in the clause will in effect safeguard the existing terms and conditions of those staff that transfer and will ensure that their period of employment continues with the new commission without being counted as a break in service for employment or pension rights. We are aware that a transition of the kind in question will always give rise to concerns and uncertainty among staff, but we hope that our assurance that TUPE will apply to the transfer, and that we are committed to a well managed, open and transparent transition, will go some way towards minimising some of those fears.

Clause 40 - Consequential amendments

Meg Munn (Labour, Sheffield, Heeley)

The clause introduces schedule 3, which makes minor and consequential amendments to various items of legislation, to reflect changes arising from the Bill.

Schedule 3 - Amendments consequential on part 1

Meg Munn (Labour, Sheffield, Heeley)

The schedule amends various items of legislation to take account of the creation of the CEHR. Those include substituting the new commission for the existing equality commissions, which have rights or obligations under existing legislation.

Clause 41 - Transitional: the Commission

Meg Munn (Labour, Sheffield, Heeley)

Hon. Members will understand why it is important to put some of these issues on the record, as they refer to people. The clause creates a transitional period at the outset of the CEHR’s existence during which the new chair and first commissioners will be able to consider and take important decisions as early as possible. For example, during the transitional phase, the clause allows for the minimum number of commissioners to be five, rather than 10 as set out in paragraph 1 of schedule 1.

During the transitional phase it will be crucial to ensure effective communication between the CEHR that is being set up and the three existing commissions, to provide for a smooth transition to the new body. To aid that, we have provided for a transition commissioner to be appointed by the Secretary of State from each of the existing equality commissions to the CEHR board. Those appointments will be in addition to other commissioners. The chair of each of the existing commissions will nominate one commissioner from that organisation, or indeed, him or herself, to act in that capacity. The transition commissioners will transfer knowledge between the organisations and provide vital input on current work programmes from each commission. They will partake in decisions on staffing and the transfer of property, rights and liabilities.

Transition commissioners will also be influential in shaping the new commission, and will be party to the decisions of the CEHR board as a whole. That will help to ensure that key issues for each of the existing commissions will be considered and taken into account in the decision-making process.

The term of appointment for the transition commissioners will continue until two years after the relevant commission either loses its principal functions or ceases to exist. A transition commissioner who ceases to be a commissioner in the nominating commission would no longer be eligible to act in that capacity. In that event, the chair of the relevant commission would have to nominate a replacement to the Secretary of State.

The transition process is hugely complex and careful planning will be required to ensure it is well managed and handled in a professional way. The clause will ensure that all three commissions are fully involved from the outset and that concerns over dilution of issues can be minimised wherever possible. This purely functional but necessary clause will help to smooth the transition to the CEHR.

Clause 42 - Transitional: functions of the dissolved Commissions

Meg Munn (Labour, Sheffield, Heeley)

This clause, too, is necessary to ensure a smooth transition. It provides for specific actions started by one of the three commissions, such as legal proceedings, consultation exercises or guidance documents, to continue to be undertaken by that commission after the function has been removed or the commission has formally ceased to exist. It also provides for an action started by an existing commission and transferred to the CEHR to be carried out by the CEHR as if it had started the action.

That is an important part of the transition progress, and ensures that the work programmes of the three commissions can continue. Clearly, we would not want legal proceedings to be jeopardised through a suspension or halt because the commission that had brought the proceedings no longer had a right to do so. Subsection (3) allows a code of practice issued by one of the existing commissions to continue to have effect after the function has been removed or the commission has been dissolved. The code of practice can be revoked by order by the Secretary of State at the request of the CEHR subject to negative resolution. It may also be revised by the CEHR under the terms specified in clause 15. Any consultation already undertaken under the code of practice by an existing commission prior to its dissolution or the removal of its function can be relied upon by the CEHR for the purposes of clause 15.