Equality Bill [Lords]

Public Bill Committee, 8 December 2005.

Standing Committee A

Clause 80 - Regulations

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 162, in clause 80, page 45, line 40, leave out 'or harassment'.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss amendment No. 163, in clause 80, page 46, line 4, leave out sub-paragraph (c).

Dominic Grieve (Conservative, Beaconsfield)

We now come to part of the Bill that is not controversial in its intention but, I regret to say, is extremely controversial in terms of the way in which the Government have decided to implement it. Although we are mindful of the Government's problems, the introduction of complex legislation relating to discrimination on the grounds of sexual orientation on the basis of providing one paragraph of vague guidelines to bring in subsequent regulations is profoundly unsatisfactory. The Minister for Women and Equality will have noted last week's debates on religious discrimination; she will know that important issues needed to be considered then and that we are, in effect, to be deprived of the opportunity of doing that now.

The general problem with regulations, as and when they are brought in, is that there is no possibility of amendment and thus no opportunity to improve them. I know that the Government intend to consult widely before any regulations are introduced, but I am sure that the Minister will be the first to agree that, even after lengthy consultation, it sometimes happens that someone in Committee either here or in another place has an idea that commends itself even to the Government. On that basis—at the risk of repeating what was said on Second Reading—I must register my considerable concern at the manner in which we are proceeding. We do not want to send out a signal that we are not interested in discrimination on the grounds of sexual orientation. We support what the Government are trying to achieve. All we can do—short of considering on Report whether the clause should be in the Bill at all in its present form—is examine the detail this morning to see whether the framework can be improved.

Amendment No. 162 relates to harassment. Given that in another place harassment was removed from the part dealing with discrimination on grounds of religion or belief, what should be done with the clause? The Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), will appreciate our anxiety. There could be a logical argument for saying that harassment should be included in the regulations. Indeed, the hon. Gentleman said that he might return to harassment in religious discrimination, after the publication of the report that the Government have commissioned.

The difficulty is that, if we leave the provision in its present form, it will be impossible to remove harassment unless the Government voluntarily decide to do so. My view is that if harassment is not considered suitable to be included in the legislative framework for religion, there are compelling grounds to leave it out in respect of sexual orientation. I should be grateful to hear the response of the Minister for Women and Equality on that point. The hon. Lady will have noted that amendment No. 160 would ensure that the regulations are of a more prescriptive nature. The merit of our persuading the Government to accept the amendment is that we would have proper definitions. The amendment would also ensure that harassment had subsequently to be included in the regulations.

For those reasons, I ask the Minister to explain why harassment has been kept in for sexual orientation, but removed for religion. I ask her also to explain to the Committee, in perhaps a bit more detail than was possible on Second Reading, how the Government intend to proceed generally in dealing with the regulatory framework, given that Parliament will not have the opportunity to consider it in detail.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

This appears to be a time for a general discussion of the clause, so I shall first say a few words about its genesis.

The Minister and Committee members will know that my party has long argued for equality on the basis of sexual orientation of the sort that we are discussing—indeed, the first time that we made a serious attempt to achieve that was when my noble Friend Lord Lester introduced an Equality Bill in the House of Lords a number of years ago. It was extremely disappointing that the Government did not take that opportunity to bring in that sort of equality—that is, to end discrimination on the grounds of sexual orientation in the provision of goods and services. Ending that discrimination has been in our manifesto on a number of occasions and there is no doubt that the Government have similar intentions. Labour's 1997 manifesto said—

Janet Anderson (Labour, Rossendale and Darwen)

Order. If the hon. Gentleman intends to speak on the general nature of the clause, he may prefer to do so on clause stand part, because I have had an indication that another Member would like to contribute on clause stand part. It is entirely up to the hon. Gentleman; he is at liberty to carry on now, if he wishes.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to you for giving me the options of carrying on or not, Mrs. Anderson. I will carry on, and therefore limit my remarks on clause stand part. I have started, so I will finish, so to speak. I have tabled no amendments to the clause.

In the 1997 Labour manifesto, there was a commitment to end unfair discrimination wherever it existed. There is no doubt that the Government agree that the sort of discrimination faced by gays and lesbian in the provision of goods and services exists and is unfair. One has to ask why, three manifestos and eight years on, we are still trying to get legislation on to the statute book. It is a big disappointment, not only to me but to Members of all parties, that we are still in this situation; it certainly is to the community of people who face that type of discrimination.

We read about cases of such discrimination regularly, and it almost certainly occurs far more widely than we read about, because victims are not necessarily always in a position to, or willing to, complain. We are talking about the sort of discrimination that leads to the atrocities—there is no other word for them—that we read about in which, tragically, people are killed on the basis of their sexual orientation, as courts have found. We know that there is a great deal of queer-bashing, too. The fact that it is still lawful to discriminate in the provision of goods and services on the basis of sexual orientation at least eight years after that should have ended, given what politicians have said, leads to an atmosphere in which queer-bashing and hate crimes can take place.

The Government decided that they were going to end discrimination and make unlawful any unreasonable and unfair discrimination on the grounds of religion or belief. The Bill presented an opportunity to do the same in respect of sexual orientation There is no doubt that discrimination on those grounds is just as acute, widespread and damaging to the fabric of our society, and just as hurtful to the victims. It was extremely disappointing that the Government chose not to take the opportunity of the Bill to do that, especially as they had decided, rightly, to tackle the problem in respect of religious discrimination.

The problem is the creation of hierarchies. The Government are not directly responsible for the discrimination that people face, but they appear to be creating a hierarchy of victims of discrimination, and that is provocative and deeply disappointing. That is why Lord Alli and others rightly proposed amendments to ensure that the same provisions apply to discrimination on the grounds of sexual orientation. My hon. Friend the Member for Romsey (Sandra Gidley) made those points on Second Reading and they have also been mentioned in the House of Lords. It was disappointing that the Government resisted those amendments. Instead, they have compromised and included a clause giving regulation-making powers.

In so far as that is better than nothing, as Lord Lester said in the House of Lords, it is welcome compared with the previous position, although it is a second-best option, or a third-best option given that we have had other opportunities to make provision. Nevertheless, we should welcome it in those terms. However, it raises the sort of problems that the hon. Member for Beaconsfield (Mr. Grieve) mentioned in that the regulations will not be subject to amendment and scrutiny, as is possible during Committee and other stages of primary legislation. It would be helpful if the Minister gave some assurances so we know what to expect at a later date.

On harassment, the hon. Member for Beaconsfield made, as usual, an interesting and important point on whether the timing of the Bill will ensure that harassment provisions are not controversial. No one wants to see harassment in the criminal sense, or in the sense of the general tort, against people because of their sexual orientation. However, there is a balance to be struck with free speech, which is a difficult issue for a liberal to deal with. People with strong religious views may wish to express them and, while not they may not be discriminating in the provision of goods and services, that may be felt by some to be harassment. We have to ensure that we get the balance right. The balance goes further in respect of restricting free speech than it does in respect of religion, because people can argue about religion and it is natural that one religion will attack another. I do not think that an attack on someone's sexual orientation has the same value in free-speech terms, because sexual orientation is innate—something that someone is—rather like race and gender.

There are difficult issues to deal with in connection harassment and I hope that the Minister will offer to pre-consult Members of both Houses, rather than just produce draft regulations and have the usual consultation, and discuss with us how the Government propose to deal with that. The understanding is that the regulations will come into force at the same time as the religion or belief measures. Perhaps the Minister will clarify that. If that is so, it will be useful to know whether she envisages that happening before or after the outcome of the discrimination law review and whether that review has any relevance to the way in which harassment will be dealt with.

The definition of harassment will be important. I do not support the amendment, which I suspect is probing, but it raises issues about which we need reassurance.

I should also like to know how exceptions will be dealt with. I should be grateful if the Minister explained that, although not in detail, because that would be pre-empting the regulations. There is concern among those who are campaigning for equality for lesbians and gay men that the provisions for exceptions in subsection (3) will allow too many exceptions, particularly in those areas where we know that there is already discrimination. Clearly, some people who discriminate wish to discriminate; they will think that they have good reason to do so and they will seek exceptions. There will have to be objective justification for those exceptions in a way that the Government did not require when it came to some of the part 2 exceptions for religious organisations, religious charities and faith schools.

I would be grateful if the Minister assured us that the exceptions made in such regulations will be subject to objective justification and that there will be a high threshold for exceptions because of the distinction that I have urged her to consider between matters to do with religion and those to do with sexual orientation. One is a belief, the other is a part of who one is to a far greater extent. Subsection (3)(e) makes a clear reference part 2:

''whether or not of a kind similar to those provided for by Part 2 of this Act''.

That is indeed the question. Will the regulations be similar to those provided for by part 2 or will they be drawn more stringently?

I am conscious of that concern, which is held by Stonewall and others from the lesbian and gay community and those who support them, because in the employment regulations in respect of sexual orientation, where one would have thought that the threshold for exception would be higher because they deal with one's income, career and means of support, a broad exception was made for religious organisations. I consider it to be very broad, as did the trade unions, Stonewall and other such organisations. The exception is over-broad because it allows religious organisations to continue to discriminate either on the basis of doctrine or because significant offence would be caused to a significant number of the congregation of that religion. That is as high a test as that given in part 2, but even that was too broad and too low a threshold for the exceptions than that that should be warranted by this clause.

Since the Government clearly felt that they could allow people to point to doctrine or say that a significant number of their congregation would be offended if they continued to employ a gay person, does the Minister think that such exceptions are appropriate, civilised and likely to arise from part 3? It is an important point. The record of our debates will show that the matter was highly controversial. We would feel much less happy about giving regulation-making powers to the Government to provide exceptions like those in the employment regulations or anything broader. Although the clause is welcome compared with the original draft of the Bill, I hope that the Minister understands that there is great concern about the delay that has occurred and the hierarchy that has been created, and a worry that there will be over-broad exceptions for discrimination against people on the grounds of sexual orientation.

Meg Munn (Labour, Sheffield, Heeley)

Good morning, Mrs. Anderson. I thank the hon. Member for Beaconsfield for the way in which he moved his amendment and the spirit in which that was done, which was helpful. As hon. Members know, we accepted the amendments that inserted clause 80 on Third Reading in the other place. We were pleased to be able to accept the amendments as they offered a welcome way to address the considerable concerns shared by many Members of both Houses about the absence of protection from sexual orientation discrimination in the provision of goods, facilities, services and public functions. Let me tell the hon. Member for Oxford, West and Abingdon (Dr. Harris) that it was not a subject of compromise. There was concern that the amendments tabled to replicate part 2 would not achieve the desired outcomes and the present route was deemed to be a more acceptable way of achieving a shared aim.

The Government are strongly committed to achieving full equality for lesbian, gay and bisexual people. We have demonstrated that commitment in numerous ways since 1997, and we are proud of our record. Let remind hon. Members of a few of the important steps that we have taken. We have equalised the age of consent for gay men, repealed section 28 of the Local Government Act 1988 and outlawed discrimination in the workplace on the grounds of sexual orientation. The latter was mentioned by the hon. Member for Oxford, West and Abingdon. We must examine that issue in the context of the provision of goods, facilities and services. It is too early to say whether we will adopt the approach that was used for the employment regulations. However, we are well aware of concerns on that matter.

The Government have also passed the Civil Partnership Act 2004, and this week we celebrated its coming into force. We have also taken action to tackle homophobic crimes and issued guidance on tackling homophobic bullying. The power provided in clause 80 will lead to a further important change in the law. The regulations will mean that gay men and lesbians need no longer put up with the discriminatory treatment that has blighted areas of their daily lives for too long. We intend to implement sexual orientation discrimination regulations in October 2006, alongside the religion and belief provisions in part 2 of the Bill. That answers questions that have been raised by hon. Members in Committee and on Second Reading. Those measures bring us a welcome step closer to achieving the comprehensive rights for gay, lesbian and bisexual people that this Government have been working to achieve for eight years.

The amendments raise questions about the scope of the regulations, and whether it should be possible for them to cover harassment. As hon. Members will know, harassment in the context of public functions was originally included in part 2 of the Bill, but was removed by amendments in another place. As the Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East, made clear in a previous sitting, that was not the Government's will, but we have accepted that in the specific context of religion or belief discrimination, it is appropriate that that issue should be considered further in the context of the discrimination law review. However in the context of the sexual orientation order-making power, we have not yet had the opportunity to carry out the detailed consideration of the issues and consultation with interested stakeholders that was done before the provisions in part 2 were drafted. It would, therefore, be inappropriate to limit the scope of the order-making power as proposed.

We have always said that new measures to prohibit sexual orientation discrimination should be developed through close consultation. That must include those who are discriminated against, the businesses and public sector organisations that provide the services that will be covered by the regulations, as well as other groups—for example, those who hold religious convictions. We propose to publish a consultation paper early next year setting out the issues to facilitate that process so that we can develop appropriate and targeted regulations that are effective in tackling sexual orientation discrimination.

I hope that hon. Members will agree that consultation is essential. In response to the point raised by the hon. Member for Beaconsfield, we want to engage in a very detailed process that involves all the interested parties. We expect that a great deal of time and effort will be given to that consultation because, as he said, the regulations cannot be amended and we want to ensure that we have taken account of the full range of views.

James Brokenshire (Conservative, Hornchurch)

I thank the Minister for that clarification. Could she go further and give any indication of how long she anticipates the consultation will take and therefore when the regulations might be introduced?

Meg Munn (Labour, Sheffield, Heeley)

The hon. Gentleman is getting very good at interventions—he knows that, as soon as someone takes a breath, that is the point at which to jump up. I said earlier that we intend to implement both the provisions on religion and belief the sexual orientation regulations by October 2006. We must therefore begin the consultation process fairly quickly. I hope that members of the Committee will bear with me on the exact details, but that time scale requires us to move fairly quickly if we are to meet the deadline.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the Minister clarify whether she would consider adopting the approach to consultation that I suggested? My concern is that the first time that we will see the regulations will be when the Government table them for approval by both Houses of Parliament. At that point, it is more difficult politically for the Government to withdraw them, take them away and redo them. Would the hon. Lady consider an approach in which there is the opportunity to comment on draft regulations before they are tabled to be voted on, rather than merely inviting comment on a consultation paper on the issues? That might give the Government greater flexibility.

Meg Munn rose—

Mr. Grieve rose—

Meg Munn (Labour, Sheffield, Heeley)

I give way to the hon. Gentleman.

Dominic Grieve (Conservative, Beaconsfield)

I agree with what the hon. Member for Oxford, West and Abingdon has just said. One of the problems, as I am sure the Minister is aware, is that when the Government put out regulations for consultation, all sorts of people fail to notice. It is only when the regulations actually arrive in Committee on the day on which they are debated as a statutory instrument that everyone is suddenly up in arms because they see something that they do not like. One possibility that the Minister might like to consider—I think that it would be a novel approach, although it may have been done previously—would be to submit the draft statutory instrument to the relevant Select Committee, so that questions could be asked about it and comments made before it was presented to the House.

Meg Munn (Labour, Sheffield, Heeley)

I thank both hon. Gentlemen—a double intervention; I have never done one of those before. I will think about what would be the best way forward. We want to adopt an approach that really does enable hon. Members, as well as all the other people to whom I have referred, to be properly consulted.

The Government have been criticised, not just this morning, for not moving quickly on this issue. However, moving quickly has its dangers because if the processes that the hon. Gentlemen have mentioned are to achieve what they should achieve, they will take time. We want to move as quickly as we can, because we have taken into consideration people's concern that the religion and belief regulations and the regulations on sexual orientation be introduced at the same time. That puts some constraints on the process. However, as I said, I shall consider the hon. Gentlemen's proposals.

Ideally, the Government wish to proceed on the matter within the context of the discrimination law review. That is why we initially resisted calls to undertake this process at an earlier stage. We believe that the benefits of the discrimination law review are that we can examine our approach across the whole range of inequality and discrimination issues and arrive at a much more comprehensive, simple and easy-to-understand framework which deals with all those issues.

We have been a listening Government in responding to the calls to act more quickly, but the discrimination law review is available to deal with any issues that arise subsequently. In saying that, I am not saying that I do not want to have a proper consultation; I am trying to reassure hon. Members that if issues arise after the regulations in relation to a whole range of matters of law—hon. Members will be aware that sometimes there are unintended consequences of legislation—we will have the opportunity to put any matters right through the discrimination law review and the subsequent steps that will be taken leading to a single equality Bill, as is set out in our manifesto. I hope that that provides some comfort.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

What the Minister is saying is that the outcome of the discrimination law review will not be available before the regulations are made. I understand what she says in that regard. Given the controversy about harassment, I think she is suggesting that there is a need to ensure additional consultation or thought-sharing about harassment in respect of these regulations pending the full outcome of the discrimination law review, and particularly about how harassment will be dealt with in relation to the religion strand and other strands that have not yet been tackled. Is that a correct understanding of the timing, and can she give an assurance that there will be further discussions with hon. Members about how harassment will be dealt with, given that we have this vacuum?

Meg Munn (Labour, Sheffield, Heeley)

The hon. Gentleman should perhaps wait to hear what I was about to say on that.

On the discrimination law review, our commitment is to a Green Paper in the spring—who knows, we may have a long spring next year—and then to develop our further thinking on the basis of that consultation.

On the specific issue of harassment raised by the amendment, it is precisely because we do not at this point want to rule out the possibility of including it in the regulations that we do not want to limit the scope of the regulations that can be made under the clause at this point, but we will give proper consideration to that in the consultation.

It was extremely regrettable that the hon. Member for Oxford, West and Abingdon referred to a hierarchy of inequalities. That was not helpful and is not our intention. The fact that we are asking the discrimination law review to have a proper look at the framework on discrimination indicates that we recognise that progress has been made for different sections of our communities in ways that are not helpful to people seeking redress for discrimination or to people providing goods and services and employing people. I particularly regret that the hon. Gentleman used the word ''provocative''. We are not being provocative; we are responding to concerns that have rightly been raised by people outside and inside the House. The hon. Gentleman should welcome the progress that we are making.

I have made the case against the amendment and I ask the hon. Member for Beaconsfield to withdraw it.

Dominic Grieve (Conservative, Beaconsfield)

I have listened carefully to the Minister. She will appreciate that these are probing amendments.

The situation is unsatisfactory and I believe that the Minister acknowledges that. One asks oneself whether a whole lot more time and trouble will be spent if the Government do not accept that when the review has taken place they should introduce a short Bill to cover these areas. Such a Bill would enable the matter to be considered in this place and the other place, and in Committee. When dealing with a matter of such importance, which we must get right, and when there is unanimity of aim throughout the parties in the House on what we want to achieve, that is all the more reason to ensure that the detail is correct.

The Minister knows the reality and we all know what we intend, but there is always the law of unintended consequences. As she rightly highlighted, the rights of people not to be discriminated against on the grounds of sexual orientation, for example, might clash with the rights of people to practise their religion or belief properly, and balancing those rights is a real problem. Somehow, we in the House must find our way through that maze. I wish the Government well in doing that by consultation, but the problem with consultation is that it comes to an end. My experience is that consultation involving hon. Members never works because we have far too much on our plates to become involved in scrutiny and response by letter to the Government's request for views. Inevitably, the matter lands up in Committee as part of a statutory instrument, and then suddenly everybody is up in arms about it when some of the problems could have been ironed out earlier. I have seen that happen far too often not to realise that that is the way that the world works.

The apparent inability of Members of the House, whether in Standing Committee or Select Committee, to express their views about the detail will be one of the real problems that the Government will have to face. I urge the Minister to find a way in which a Select Committee can comment on the draft regulations. They will need to be published long before they are put before each House because what the Government say they intend to do and what appears in the regulations can often be different, albeit unintentionally. We discussed that in earlier sittings. That is all the more reason why, with something of such complexity, there should be a full opportunity for that to happen.

The proposals were probing amendments. I concede that there might be circumstances when we want harassment on the grounds of sexual orientation, but not on the grounds of religion or belief. That is a logical position to adopt. I do not want to be prescriptive today and remove the harassment clauses. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 160, in clause 80, page 46, line 1, leave out 'may' and insert 'shall'.

This is really the promulgation of our earlier debate, and I do not intend to take up much of the Committee's time. Clearly, ''shall'' is prescriptive and ''may'' provides the Government with great latitude, so we must ask ourselves to what extent we want to fetter the Government and say what they should be doing. It could be argued that by inserting ''shall'' into the clause, we are saying that they should be producing something similar to the discrimination rules under part 2 of the Bill. The probing amendment is designed to ensure that the Government understand that people will be looking to the provisions under subsection (3), including exceptions and definitions that are elsewhere in the Bill. As the Bill is drafted, the Government have a let-out clause. They could produce regulations that bear no relation to the rest of the Bill and it would be within their powers to do so. That is the problem with Henry VIII clauses. The position is unsatisfactory.

Celia Barlow (Labour, Hove)

I was delighted to hear the Minister say that she aims to move as quickly as possible and that, at the same time, there should be consultation on goods and services. I am worried, however, that the power to make regulations in respect of goods and services discrimination on the grounds of sexual orientation should be considered at the same time as other provisions under the Bill. I was pleased that the Government accepted the amendment tabled by Lord Alli in another place. I know from my constituents in Hove and Portslade exactly how important the regulations will be to many of them. That was highlighted on Monday at an event that the Minister and I both attended to celebrate civil partnerships.

I want to establish what timetable the Government have in mind. It is important to set out when and how the regulations will be introduced. There has been great worry about that. There has even been some mischief-making on behalf of the Green party, which said that regulations on sexual orientation will be delayed. It is important to give the lesbian and gay community an assurance that what will happen will happen, and happen quickly. The changes in terms of sexual orientation should be implemented at the same time as those on religion and belief in part 2, because that would signal to both gay and faith communities that no discrimination will be tolerated. It would also make things easier for the businesses and services that are involved, for example, with the civil partnership. In my constituency, a number of companies and businesses have been set up purely to cater for this change in legislation. However, other businesses with a more varied and eclectic clientèle would find it difficult if the regulations were brought in piece by piece.

I know that consultation still has to take place on the scope of the Bill, and I welcome the fact that we have been given an indication as to when it will start. However, it is vital both that the protections should be comprehensive and robust and that we should have a clear idea of the timetable for their introduction. The lesbian, gay and bisexual community feel that they should have equality with the other communities that are covered so excellently in the Bill.

Meg Munn (Labour, Sheffield, Heeley)

As the hon. Member for Beaconsfield has said, the effect of the amendment would be to require the sexual orientation regulations to do all the things listed in clause 80(3)(a) to (i). That would be undesirable. If we were to carry out our consultation in that context, our hands would be tied with regard to the outcome. I should not like that to happen. As an approach to developing new regulation, it would not meet the most basic better regulation test that secondary legislation should be brought forward only where it is necessary and appropriate.

To respond to my hon. Friend the Member for Hove (Ms Barlow), I said earlier, as she acknowledged, that we aim to introduce these regulations together with those on religion and belief. That reflects the approach that was taken in relation to employment regulations. Our target date for that is October 2006. She is right to raise the issue of the response of businesses, whoever their customers are. That is one of the categories that we want to ensure has the opportunity to comment on the consultation. I do not want to set out a more specific timetable at this point because that would be unhelpful in that it would tie our hands. Everybody on all sides is seeking the same outcome, so it would not be sensible to do that. However, we are aware that it is already December 2005, so the processes need to commence very shortly.

On my hon. Friend's comments about the need for comprehensive and robust regulations, we must aim for the best regulations that we can have. The opportunities that are presented by the discrimination law review, which is well under way, enable us to continue to keep all matters under review. We can consider them as we work to develop a simple but comprehensive framework that will cover all groups. I am sure that hon. Members will agree that it cannot be right to limit our options in a significant manner at this stage—that would be to deny ourselves the opportunity to produce properly targeted regulations that are likely to be effective in addressing the sort of discrimination that we want to use this order-making power to tackle.

I hope that hon. Members will agree that a key advantage of the order-making power in clause 80 is that it allows us to address the issue of sexual orientation discrimination at the earliest possible opportunity, without denying us the opportunity to take the time needed to explore and resolve fully the complex issues that arise in this area before detailed proposals for legislation are introduced. I appreciate the way in which the hon. Member for Beaconsfield spoke to the amendment, but I ask him to withdraw it.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful for the Minister's response, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Janet Anderson (Labour, Rossendale and Darwen)

May I say for the benefit of the Committee that the general provisions of the clause have been thoroughly aired, so I do not propose to call a stand part debate unless any members of the Committee seriously object to that?

Clause 80 ordered to stand part of the Bill.

Clause 81 - Prohibition of discrimination

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 164, in clause 81, page 47, line 4, leave out sub-paragraph (c).

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments: No. 165, in clause 81, page 47, line 5, leave out sub-paragraph (d).

No. 166, in clause 81, page 47, line 6, leave out sub-paragraph (e).

No. 167, in clause 81, page 47, line 7, leave out sub-paragraph (f).

Dominic Grieve (Conservative, Beaconsfield)

We now consider public functions in relation to sex discrimination. The clause would make it unlawful for a public authority exercising a function to do any act that constitutes such discrimination.

Exactly the same issue—exemptions to the prohibition—applies to this clause as to the clause on religious discrimination. The grounds for exempting from the provisions the Security Service, the Secret Intelligence Service, GCHQ and the part of the armed forces of the Crown that assists GCHQ are, however, even weaker than the ones that may apply in the case of religious belief. I know that it has become almost standard practice in House of Commons and House of Lords legislation of this sort to include those bodies in the list, but I hope that the Minister will explain in detail why that is necessary.

After all, I should have thought that any issues of national security would apply identically to people of whatever orientation, whether gay or heterosexual, and it is difficult to understand why this particular exemption should be applied. Will the Minister say, as far as she can, what internal mechanism may operate in those organisations to allow complaints to be made administratively if the protection of the Bill is not extended to people working in those organisations?

Meg Munn (Labour, Sheffield, Heeley)

I thank the hon. Gentleman for creating the opportunity for the Committee to discuss the exemptions that apply to the intelligence agencies in the context of sex discrimination in the same way that we did when we discussed national security matters in the context of part 2 on Tuesday.

As the hon. Gentleman said, Amendments Nos. 164 to 167 would remove from clause 81 the exceptions provided in that clause for the Security Service, the Secret Intelligence Service, GCHQ and the parts of the armed forces that assist GCHQ in accordance with the requirement of the Secretary of State.

The amendments would make it unlawful for the intelligence agencies, as we may collectively call them, to commit any act in exercising their functions that would constitute discrimination or harassment. In the light of Tuesday's debate, and from what the hon. Gentleman has just said, I understand that he wants me to set out the rationale for exempting the intelligence agencies from the prohibition on discrimination, the reason why the Government believe that the exemption should remain, and why we cannot accept his amendments.

When we considered the policy on sex discrimination in public functions and any exceptions to it, we paid close attention to all the relevant issues when we developed the exceptions provided for in new section 21A of the Sex Discrimination Act 1975. We considered the specific circumstances of sex discrimination and the exceptions to the comparable provisions relating to discrimination in public functions in the Race Relations Act 1976 and the Disability Discrimination Act 1995. It is not surprising that many of the exceptions that we have provided mirror those in the race and disability prohibitions, as there are obvious reasons for consistency. That includes the exceptions for certain bodies exempted for constitutional or national security reasons, such as Parliament and the security services.

However, we did not simply slavishly roll forward the status quo into this legislation. Our view is that the exemption is justified. The intelligence agencies need to be as unfettered as possible in the discharge of their activities and responsibilities. We need to remove from them any uncertainty about whether they are falling foul of the discrimination requirements. There may be sound operational reasons for exercising their functions in respect of one sex or another. If they were not exempt, that might constitute unlawful discrimination, and that is simply not what we want to achieve. We do not want to apply such constraints to their operational autonomy, or cause uncertainty about whether they are breaching discrimination laws when conducting activities that have an overwhelming operational logic.

The hon. Gentleman made a fair point about an internal mechanism for dealing with the issue; I hope that he is content for me to write to him to reassure him and other Committee members about the processes. These days, we have to be especially vigilant about national security matters, as I am sure that all Committee members agree, and the arrangements for exclusion of the intelligence agencies from the prohibition on discrimination are proportionate to the need. I invite the hon. Gentleman to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for her response. I certainly look forward to her letter setting out the internal administrative procedures. I believe that there are some in place; indeed, at one level there is a system involving a senior High Court judge, to whom complaints about various kinds of impropriety by the security services can be brought internally. I rather assume, therefore, that there is also a complaints procedure for those who think that they are being unfairly discriminated against on any basis. It would be helpful for the Committee to know exactly how that works. Subject to that, I accept that there is some merit in what the Minister says, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Vera Baird (Labour, Redcar)

I beg to move amendment No. 139, in clause 81, page 48, leave out lines 30 and 31 and insert—

'The provision of separate services exclusively or primarily to members of one sex where justified by a legitimate aim and where the means of achieving that aim are appropriate and necessary.'.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following: Amendment No. 140, in clause 81, page 48, leave out lines 32 to 37 and insert—

'The maintenance or adoption of specific measures to prevent or compensate for disadvantages linked to sex, where justified by the aim of ensuring full equality in practice between men and women and where the means of achieving that aim are appropriate and necessary.'.

Amendment No. 141, in clause 81, page 49, leave out lines 1 to 16.

New clause 14—Sex discrimination exceptions for public authorities—

In the Sex Discrimination Act 1975 (c. 65) the following shall be inserted after section 34—

''35 Exceptions for Public Authorities

(1) Sections 29 (1) and 30 shall not be construed as rendering unlawful—

(a) the provision by public authority of the goods, facilities and services exclusively or primarily to members of one sex where justified by a legitimate aim and where the means of achieving that aim are appropriate and necessary; or

(b) the maintenance or adoption by a public authority of specific measures to prevent or compensate for disadvantages linked to sex, where justified by the aim of ensuring full equality in practice between men and women and where the means of achieving that aim are appropriate and necessary.

(2) In subsection (1), a 'public authority' includes any person certain of whose functions are functions of a public nature.''.'.

Vera Baird (Labour, Redcar)

The amendments and the new clause are an attempt to point to a solution to a problem in the clause. The amendments have a techie aspect to them, although the issues that they address are deep, so it will take me a moment to set out my point.

As my hon. Friend the Minister says, clause 81 puts new section 21A into the Sex Discrimination Act 1975. The new section outlaws sex discrimination in the discharge of public functions by a public authority or a private body. In effect, it reverses a House of Lords case, and it is new and very welcome.

There are exceptions to the new duty not to discriminate, which are set out in subsection (9) of new section 21A. The ones that I am concerned about allow for the provision of single-sex services where they are appropriate; I am thinking of domestic violence refuges for men or women, single-sex swimming lessons, and that kind of thing. Of course, in parts 3 and 5 of the Sex Discrimination Act 1975 there is already a duty not to discriminate on the basis of sex in the delivery of public services such as education and health. There are exceptions to that older duty, too—again, to permit the delivery of single-sex services where they are appropriate. However, although new section 21A will outlaw sex discrimination in the delivery of public functions, and parts 3 and 5 of the Sex Discrimination Act 1975 outlaw sex discrimination in the delivery of public services, the exceptions in the two pieces of law are quite different in ways that will cause problems. Those in the old Act are much narrower than those in new section 21A. I share the view of the Equal Opportunities Commission, to which I am indebted, that the exceptions in new section 21A are too wide and could easily be abused to evade its legislative purpose.

Amendments Nos. 139 to 141 would therefore narrow those exceptions and make deletions as appropriate. They do that by substituting a much more stringent test for the justification of single-sex provision. They refer to the definition in the 2004 European directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services. The directive does not include the wide exceptions in new section 21A, but takes a principled approach to exceptions to the duty against sex discrimination. It bases those exceptions on the very good principle of proportionality, under which separate services are

''justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.''

That is language with which lawyers who contend in human rights and equal rights areas are very familiar. That proportionality test is clear and is one of principle.

In any event, the equal treatment directive, which provides the test in my amendments, comes into force in the UK in December 2007. If the wide tests in new section 21A remain, they will, at the very least, have to be interpreted in the light of the new directive from December 2007. One will have the wide tests in the new section for six months and then the narrower tests controlled by the directive. That does not seem to be the right way to go about setting up a new duty against discrimination and recording exceptions to it.

If amendments Nos. 139 to 141 were accepted, they would narrow the extent of the exceptions to the new public duty in new clause 21A. However, they would leave untouched the exceptions to the duty in the 1975 Act not to discriminate, which are very different from the exceptions in the new section and the equal treatment directive. Consequently, new clause 14 would also include in the 1975 Act the tests for exceptions from the directive. As a result, the exceptions to the duty in new section 21A and in parts 3 and 5 of the Sex Discrimination Act would be narrower and the same as each other. Again, that is linked to the principle of proportionality—I did warn the Committee that this issue had its techier aspects. However, the import of the amendments is to narrow the exceptions to the new duty not to discriminate and to make them the same as the old duty not to discriminate. That is what this is all about.

Why do that? If we are introducing duties not to discriminate, it is rational to ensure that the exceptions are the same. The accident that the policy has changed in the 25 years between the first Act and the second—so there are different exceptions—does not help when trying to set down the law, which needs to be clear.

There is no reason why there should be different tests. The duty not to discriminate on the grounds of sex in the 1975 Act applies to the delivery of public service across the board, including education and health, which is a wide area. The duty not to discriminate in the performance of a public function, which would be included by the new section, is a much narrower provision in terms of reach, but there is no reason why the exceptions should be different.

Although I said that one is a narrow area of activity and the other is a broad area of public activity, it is not clear which duties placed on public authorities will fall within which provision. For instance, if we consider a typical argument for an exception to the duty not to discriminate on the basis of gender, such as the provision of a domestic violence refuge, there is widespread agreement from a policy perspective that such places should be single sex, but individuals have attempted to challenge public authorities for not providing refuges for men when they provide refuges for women.

If the local authority provided a refuge, it would be delivering a public service, which would fall under the duty in the old Act and the exceptions would be those under that Act. If the local authority funded another organisation to set up a domestic violence refuge, it would not be acting under the old Act and relying on its exceptions, but would be acting under the new section and relying on the wider exceptions contained in it. So, if there were two identical domestic violence refuges funded in different ways, one might be a lawful exception and the other might not, because the exceptions are different.

I hope that the example I have given makes the point that the two duties are alike, but they are not easy to separate. There is no rational reason why the exemptions should be different. The amendment attempts to narrow the exemptions, compatible with achieving the purpose of an end to discrimination on the basis of sex and bringing the two bits of legislation close together. I hope that I have managed to explain that, without sending everybody to sleep or confusing them hopelessly. Obviously, there is a techie aspect, but I am sure that the Minister can grasp that that is important when one is introducing new duties. The gender duty, which goes way beyond stopping discrimination and into the promotion of gender equality, will also be impacted on by the incompatibility of exceptions. That is the wrong way to introduce a new duty. The new duty has to be clear and everybody has to understand what is outside it, but with the current mismatch between the 1975 Act and the new proposal, that will not happen.

Dominic Grieve (Conservative, Beaconsfield)

I have considerable sympathy with the amendments tabled by the hon. and learned Lady and I look forward to hearing the Minister's response. The amendment reflects the equal treatment directive and therefore that is likely to be the test that will be applied in any event and will, ultimately, be the interpretation through which the provision Government has drafted will be looked at.

The amendments have the merit of a slightly greater degree of simplicity, rather than the series of repetitive statements in the Bill. Having said that, however, perhaps the Minister can provide a compelling reason why the current wording should remain. The hon. and learned Lady makes her most powerful case in saying that if that interpretation test is to be applied within 12 months in any event—and I believe that that is the case—it seems slightly strange that it should not be in the Bill, especially as my impression is that it will achieve exactly the same result as the Government's own wording.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. and learned Member for Redcar (Vera Baird) has explained the situation well and I do not propose to repeat all that she said.

I strongly support her amendment, because it seems to me that the provision will cause great confusion, not least for local authorities. They have to implement the goods and services directive by April 2007, but eight months later the goalposts will be moved. Not only does that seem unhelpful to local authorities but it widens the scope for potential mischief makers. There are always people who try to challenge things that they do not like, particularly as far as the provision of single-sex services is concerned, and the scope for such people to bring cases will, it seems, be widened. The issue will ultimately be settled only when there is firmer case law, although I am sure that that is not the Government's intention.

To go back to the domestic violence refuge example, the provision of a refuge will fall under either of the Acts in question, depending on who provides the funding. However, ancillary services are also provided to those refuges and it is not clear which piece of legislation they will fall under, although it seems to me that many such services will fall under the auspices of the Sex Discrimination Act 1975. It is generally unhelpful to have that disparity in a similar area of policy—to have to look to different pieces of legislation according to who provides the services. It would be much simpler to align the two in the way outlined by the hon. and learned Lady. I am not wholly familiar with all the details, but I gather that there have been similar problems as a result of differences between the Race Relations Act 1976 and statutory instruments with a slightly different flavour that have been introduced later.

If the Minister assured us that all would be brought into line, we would probably all be reassured. It would be helpful to know whether she is aware of the potential problem that has been mentioned and is happy to live with it, or whether something is going to be done to eliminate that potential problem.

Meg Munn (Labour, Sheffield, Heeley)

Clause 81 amends the Sex Discrimination Act by inserting new section 21A, which extends the Act to prohibit sex discrimination in the exercise of public functions, subject to certain exceptions. The clause includes a table of exceptions that sets out circumstances in which the prohibition of discrimination does not apply. A number of those exceptions are for the provision of separate services for men and women when that is a more effective way to provide the services, or when they are needed to overcome disadvantages affecting only one sex.

Amendments Nos. 139, 140 and 141 would remove those exceptions completely and replace them with the drafting in the amendments. They are designed to create single-sex exceptions compatible with the gender directive. New clause 14 would introduce a new or replacement section into sections 29 to 30 of the 1975 Act, which deal with goods, facilities and services and premises, setting out comparable exceptions for public authorities to provide separate services for men and women. It aims to achieve consistency in the exceptions between section 21A and sections 29 and 30—my hon. and learned Friend the Member for Redcar was right to say that it all gets a bit technical. The new clause also introduces a new definition of public authorities that differs from the one used in other parts of the Bill.

I am aware of the concerns expressed by the Equal Opportunities Commission about the exceptions to the new provisions that the clause introduces into the Sex Discrimination Act. New section 21A prohibits discrimination on grounds of sex in the exercise of public functions. I understand that although the EOC welcomes the aim of providing exceptions for gender specific needs, it has a number of concerns—first, that the exceptions are too wide and may, if not qualified, allow discrimination intended to be prohibited by the new section 21A; secondly, that the exemptions may not be compatible with the gender directive; and thirdly, that there is inconsistency between the new exceptions and those in sections 29 and 30 of the Sex Discrimination Act dealing with goods, facilities and services and premises.

We have given all those points careful thought and I shall deal with each in turn. First, however, I will explain why the new prohibition is an essential part of the Bill. It is needed to provide comprehensive protection against sex discrimination in the delivery of public functions, thus bringing public sector activities such as policy making, decision making, administrative functions and, where not already covered, service delivery within the Sex Discrimination Act. It is also essential to underpin the gender duty. There has been a general welcome for the new provision. When drafting it, we took care to ensure that the provision would not lead to banning public functions that take the form of services that are best delivered on a single-sex basis. That type of service must be allowed to continue and must not be stopped by this extension of the law. The main purpose of the exceptions is to permit that.

I shall deal together with the breadth of the exceptions and compatibility with the gender directive. Amendments Nos. 139 to 141 address those issues. When drafting the exceptions, we considered whether there was a need to qualify them along the lines proposed by the EOC and sought the advice of parliamentary counsel. He advised that the current drafting was fully satisfactory, but agreed that it was advisable to ensure that there could be no conflict with provisions of the gender directive. As a result we made an amendment to the clause on Third Reading in the other place to amend new section 21A(4) of the Sex Discrimination Act to make it clear that the provisions of community law, which include the gender directive, have primacy. No further action is needed on that score.

New clause 14 addresses the EOC's third point, on the need for consistency between the new exceptions and those in sections 29 and 30 of the Sex Discrimination Act dealing with goods, facilities and services and premises. That arises because many services provided by public authorities fall under the provisions of that Act applying to goods, facilities and services, where narrower exceptions apply. The fact that the boundary between a public authority's activities that would be regarded as a service and those that would be classed as public functions is not always clear makes for some uncertainty about which exceptions may apply in a particular case.

I appreciate that that is not ideal. For a period prior to the introduction of the single equality legislation, different sets of exceptions will apply to the two areas. However, the question of definitions and exemptions in discrimination legislation, both in the Sex Discrimination Act and in other statutes, needs to be looked at across the board, and the discrimination law review is the right place to do that. Making ad hoc changes in the Bill, which would soon be superseded by the single equality Bill, is not the right approach. The discrimination law review will allow debate and discussion, and lead to effective solutions for the longer term.

I appreciate the need to provide maximum clarity to public authorities—a point that has been raised by hon. Members. We will do all we can to make sure that public authorities are well informed about changes ahead. Providing clear, timely guidance will be the best way to manage any practical difficulties arising from the introduction of new section 21A.

I understand that the new definition of public authorities proposed in the amendment reflects concerns that the wording used in the Bill to define them may prompt questions about whether different definitions are intended from those in the Human Rights Act 1998 and the Disability Discrimination Act 2005, which establishes the duty on public authorities to promote equality in respect of disabled people. That is not the case. Although the wording used may be slightly different, the policy intention and, in our view, the legal effect is the same. The very small differences in wording reflect the parliamentary draftsmen's approach to drafting. There is no difference of substance between the definition in the Bill and those used in earlier measures. We intend them to have identical breadth and are confident that a court would not interpret the definitions differently.

On the gender duty, the Equal Opportunities Commission expressed concern that a public authority's employment functions might be excluded from the gender duty because of the definition used in clause 81. I assure the Committee that the gender duty covers the breadth of a public authority's activities, including its employment functions. Those are covered by both limbs of the duty. The first limb contains the requirement to have due regard to the need to eliminate all sex discrimination that is made unlawful by the Sex Discrimination Act, including the prohibition on discrimination in employment in part II. The second limb contains the obligation to have due regard to the need to promote equality of opportunity between women and men. That obligation covers everything that a public authority does, including its employment functions, its services and its public functions, such as its policy, regulatory and enforcement work, to the extent that they are relevant to gender equality.

I am not persuaded that the amendments are necessary. It is important that we introduce a new prohibition on sex discrimination in the provision of public functions now, and provide the necessary exceptions, recognising that further consideration will be given in the discrimination law review. I hope that my hon. and learned Friend will consider withdrawing her amendment.

Vera Baird (Labour, Redcar)

Of course I shall. The important thing is not to push the amendments into the Bill but to be satisfied that the Government are well apprised of the complex nature of the problem and its potential impact. It is clear from the Minister's reply that they are.

I wonder about my hon. Friend's comments on the definition of a public authority. I do not think that that was part of my proposals. It may be in amendment No. 47, which was not selected. However, the answer was very interesting all the same. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 ordered to stand part of the Bill.

Clause 82 - General duty to promote equality, I beg to move amendment No. 143, in clause 82, page 50, line 1, leave out 'and'.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss amendment No. 144, in clause 82, page 50, line 2, at end insert

'and

(c) to promote equality of opportunity for those with unpaid responsibility for the care of another person or persons.'.

Vera Baird (Labour, Redcar)

This amendment is not techie at all, really. My purpose is to probe how the new duties will help carers by proposing the addition of a duty to promote equality for unpaid carers. I am by no means attempting to add a further strand of equality at this stage of the Bill's progress; I simply wish to find out what the Government think about the position of carers.

The Equality Commission for Northern Ireland deals with caring as a separate strand; there is a positive duty on public bodies which includes promoting equality between persons with dependants and persons without dependants. In the future we may have to consider some specific provision in relation to carers. For the moment I am questioning whether the duty to promote equality for women and men will adequately ensure that the caring that they both do will be recognised by public bodies covered by the duty in the way they design their services and in their employment practices.

It will be for a public authority to ensure that it is promoting sex equality once the gender duty comes into force. Although there is no bar on any individual challenging discrimination thereafter, the point is to try to prevent that. My concerns come under two headings: parents and carers other than parents. EOC research shows that fathers increasingly want to play an active part in their children's lives, with eight out of 10 new fathers saying that they would like to stay at home to care for their new child. Other EOC research shows that fathers of under-fives are doing about a third of child care.

None the less, society still works on the assumption that mothers continue to be the main carers, and public service providers might correctly interpret the new gender duty as meaning that they have to adjust their services to reach both men and women carers. For example, GPs might be more flexible in allowing men to attend with their children; but if the health centre provides a mother and toddler group, will the primary care trust realise that it needs to include those men who look after their children?

When considering non-parent carers—those with caring responsibilities—I was surprised to discover that the gender divide is more evenly split, with 11 per cent. of men and 14 per cent. of women aged over 16 providing care. It is often unpredictable, but carers do not like to ask for time off or for flexibility—caring is less visible than parenthood, and it is not often recognised as a legitimate reason for any sort of flexibility. The Government propose extending the right to request flexible working to carers, which is welcome. However, because caring does not split along gender lines, it will be difficult to ensure that the particular needs of carers will be dealt with by the duty to promote equality.

If carers were all women or all men, one could see how proper provision could be made through the application of the gender duty, but as they are so mixed it is not at all clear that their special interests will be recognised by public authorities in a sufficiently detailed way. I would be interested to know the Government's thinking on the problem.

Meg Munn (Labour, Sheffield, Heeley)

I am grateful to my hon. and learned Friend for moving the amendment. She will be aware that the Government are keen to consider the sensitivities and complexities of balancing working lives with caring responsibilities. We recognise the enormous and valuable contribution that carers make to society and we are keen that they should have greater recognition.

My hon. and learned Friend has helpfully described the issues that face carers and discussed the important question of the roles that men and women take. The Government have and will continue to act to ensure the recognition of carers. Employment legislation since 1997 has helped women to advance in the workplace and enabled parents and carers to balance work and family life. The Work and Families Bill, which had its Second Reading on Monday, will extend the law to cover carers of adult relatives; they will be able to request flexible working from April 2007. The Bill before the Committee will empower the Commission for Equality and Human Rights to carry out the important role of the Equal Opportunity Commission for promoting equality for parents and carers. That will be done by raising awareness and encouraging good practice in equality and diversity.

The amendments propose that a duty be laid on public authorities to promote equality of opportunity for carers. However, they are not the best way forward. I have said before that our good friend the discrimination law review is considering the duties that should be required of public authorities. That is the right place to deal with the complex issues that will arise when extending the duty to cover carers. We would need to consider the issues in detail and consult interested and affected parties, especially on the scope of the term ''carer''. That will include consideration of other public sector duties to promote equality of opportunity between persons with dependents and persons without, including the one in Northern Ireland, to which my hon. and learned Friend referred. As she knows, we intend to bring forward a single equality Bill within the life of this Parliament, so the matter is not one of principle; it is about consultation and ensuring that the matter is properly considered.

I thank my hon. and learned Friend for bringing the matter to our attention, and trust that she will withdraw her amendment.

Vera Baird (Labour, Redcar)

Again, I am happy to withdraw the amendment. I am very reassured and cheered by the obvious depth of the Government's understanding of the complexities that the new gender duty introduces and its effect on carers. We all look forward to being back in a couple of years to try to reconsider it all. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I rise to give the Minister the opportunity to place on the record her explanation of the different definition of ''public authority'' in the context of a question that I am going to ask. I had not expected her to explain the matter before.

In clause 82(2)(a), the term ''public authority'' is defined to include—as it is in the previous clause, I should say—

''any person who has functions of a public nature''.

The definition in the Human Rights Act 1998 is:

''any persons certain of whose functions are functions of a public nature''.

The wording is different. This is a sensitive area, because case law has not given as wide a definition of ''public authority'' as some people, myself included, would like. It would be helpful if the Minister explained—if there is an explanation—why the wording is different and gave an assurance that the one in the Bill is no narrower than the definition under the Human Rights Act, which as I said, is slightly different. The wording

''any person who has functions of a public nature''

is easily capable of encompassing people who have some public functions as well as private functions. It would help if the Minister could make that clear.

Meg Munn (Labour, Sheffield, Heeley)

I made this clear only a few moments ago, but the hon. Gentleman was not in the Room. For clarity's sake and because it is an important part of the Bill, I shall say a few words on the public sector duty.

On whether the use of different definitions from the ones in the Human Rights Act and the Disability Discrimination Act are intended, let me say that although the wording may be slightly different, the policy intention and the legal effect are the same. It is a very small difference in the parliamentary draftsman's approach, but no difference of substance between the clause and earlier provisions.

The clause introduces into the Sex Discrimination Act 1975 a duty on public authorities to promote equality of opportunity between men and women. It is similar to the duty that public authorities currently have to promote opportunity and good relations between different racial groups, and their recently approved duty under the Disability Discrimination Act 2005 to promote equality of opportunity between disabled persons and other persons.

To put the clause into context, we announced in the White Paper establishing the Commission for Equality and Human Rights in May last year that steps would be taken to introduce a public sector duty to promote equality of opportunity between women and men. Following the Government's equality statement in the context of the McPherson inquiry into the murder of Stephen Lawrence, action on race was swiftly taken to impel institutional change as quickly as possible by legislating for a public sector duty on race equality. Although it is still early days, a report issued in 2003, ''Towards Racial Equality'', found that just under 70 per cent. of respondents felt that their work to date on the public duty had produced benefits leading to a positive impact on the approach that public bodies take to matters relating to race and ethnicity. As the Committee is aware, the Government passed a similar duty to promote equality for disabled people in the last Session of Parliament.

Clause 82 introduces a similar duty in relation to gender. It will build upon legislation that has advanced equality for women and men. After 30 years of legislation, it is clear that there still remains room for improvement in achieving a lasting cultural change and this is the opportunity to ensure that public services can lead the way. Creating a truly responsive public service means ensuring that public authorities are fully aware—

It being twenty-five minutes past Ten o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o'clock.

Standing Committee A

Clause 82 - General duty to promote equality, oposed [this day], That the clause stand part of the Bill.

Meg Munn (Labour, Sheffield, Heeley)

Welcome back, Mr. Gale. I was mid-paragraph, or even mid-sentence, so I shall go back to the beginning of that paragraph to create some consistency.

Creating a truly responsive public service means ensuring that public authorities are fully aware of the differing needs of their staff, customers or end-users, and building in robust mechanisms for them to respond to such needs at every level and in every aspect of their functions. At a higher level, we see that as a vital component of the culture change in the public sector.

Clause 82 introduces a new section 76A in the Sex Discrimination Act 1975, which provides for a public sector duty to promote gender equality. The clause imposes a general statutory duty, as distinct from clause 83, which provides powers for the Secretary of State to impose specific duties on public authorities to assist them in achieving the general duty.

In October, the Government issued a consultation document ''Advancing Equality for Men and Women: Government proposals to introduce a public sector duty to promote gender equality''—a snappy title—on those specific duties, requesting comments by 12 January 2006. A copy has been placed in the Library. The clause was amended in another place to bring an explicit reference to harassment into subsection (1). That took place on the back of the recent amendment of the Sex Discrimination Act 1975 through the implementation of the equal treatment amendment directive. The new provision will require all public authorities to have due regard to the need to eliminate unlawful sex discrimination and harassment when carrying out their functions, and to promote equality of opportunity between men and women.

The general duty also ensures protection against contraventions or breaches to the terms of contractual pay and benefits as legislated for in the Equal Pay Act 1970. As the Committee is no doubt well aware, the gender pay gap still shows disadvantages for working women.

The gender duty, which we intend to come into effect from 1 April 2007, will apply to any person who carries out a public function. That definition is deliberately wide and accords with similar definitions utilised in the general duties for both race and disability equality. The duty will apply to easily recognisable public bodies such as Departments, local authorities and national health service trusts. Private sector bodies that provide services on behalf of a public authority, such as running a prison, also fall within the scope of the gender duty.

Private sector bodies are covered by the gender duty only in relation to areas of work that constitute a public function. For example, it will apply to a private contractor to the extent that he provides security services to a prison but not in relation to any of his services provided for customers or businesses in the private sector. Therefore, the duty will not apply to private contractors who do not carry out public functions.

We recognise that this is a complex area where careful guidance will be needed to clarify how and when bodies are subject to the duty. It is part of the current public consultation exercise. Subsections (3) and (4) of proposed new section 76A list various exceptions in the form of public authorities which need not comply with the duty and functions to which the duty does not apply. These exceptions are similar to those provided in respect of the duties on race and disability equality.

Broadly speaking, the duty will not apply to bodies that make law in Great Britain, including the General Synod, or to the intelligence services. Neither will it apply to court proceedings or proceedings in Parliament, even though in the case of the latter it will apply, for example, to the parliamentary authorities who employ Commons and Lords catering and cleaning staff, the Libraries and so on.

Eleanor Laing (Conservative, Epping Forest)

I make a small point. I wonder why in clause 82(3)(c) there is a reference to the Scottish Parliament, when in clauses 51 and 81, where the exceptions are similar to those in clause 82, there is no mention of the Scottish Parliament.

Meg Munn (Labour, Sheffield, Heeley)

If the hon. Lady will allow me to continue, we will get a full answer to that shortly. It is an important point.

The exceptions of which I spoke—in relation to Parliament, for example—which preserve the full discretion of our law-making and security institutions, are justified. Subsection (2) of clause 83 amends the 1975 Act to make it necessary for the Secretary of State to consult the commission before making an order to add to the list of exceptions. Although it would be unusual, and certainly undesirable, for the Secretary of State not to make full use of the expertise and experience of the commission in this respect, the purpose of the requirement is to provide complete certainty that the commission's voice will be heard. Our proposals have been warmly welcomed. They constitute a vital leap in the field of gender equality and ensure that there is increasing confidence that public services will meet the differing needs of both men and women, and that all will benefit. I have explained those matters in detail, because I want the Committee to be clear about the importance of the public sector gender duty.

On the specific point raised by the hon. Lady, clauses 51 and 81 are not about making specific laws, but about public functions. The reason why the specification is in this clause is to do with the Scottish Parliament being in a position to make laws in the way that we do. If any further clarification on that is required, I am sure that we can provide it.

Question put and agreed to.

Clause 82 ordered to stand part of the Bill.

Clause 83 - Specific duties

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 146, in clause 83, page 51, line 11, leave out 'subsection (1)' and insert 'subsections (1) and (2)'.

No. 147, in clause 83, page 51, line 15, leave out 'subsection (1)' and insert 'subsections (1) and (2)'.

No. 148, in clause 83, page 51, line 18, leave out 'subsection (1)' and insert 'subsections (1) and (2)'.

No. 149, in clause 83, page 51, line 21, leave out 'subsection (1)' and insert 'subsections (1) and (2)'.

No. 150, in clause 83, page 51, line 24, after 'section 76B (1)', insert 'or section 76B (2)'.

Meg Munn (Labour, Sheffield, Heeley)

I shall to speak to all the amendments in one block. I thank my hon. and learned Friend the Member for Redcar (Vera Baird) for tabling them and therefore for allowing a discussion on these issues.

I am aware of the concerns of many people, including the teaching unions, about the fact that not all educational institutions might be covered by the specific duties under the gender duty. I should like to make it clear that it has always been our position that all public authorities, including educational institutions such as schools, colleges and universities, are covered by the general duty.

The duty requires public authorities to have due regard to the need to eliminate discrimination and harassment and to promote equality of opportunity between women and men. However, when we came to launch the consultation document on the specific duties, on 4 October, we stated that we were giving

''further consideration to the extent to which it would be appropriate for the specific duties to apply to schools, colleges and universities.''

That further consideration was to address a concern that the Department for Education and Skills originally had about whether the requirements of the specific duties would be inappropriate in the light of the policy framework known as the new relationship with schools and the understandable desire to limit bureaucratic burdens on all educational institutions. The same considerations apply regarding the disability duty introduced in the Disability Discrimination Act 2005 and its application to schools. Since then, the Department for Education and Skills has agreed that the disability duty should also apply to educational bodies, subject to a light-touch approach being taken.

Since the launch of the consultation document, a series of round-table discussions are under way, in collaboration with the Equal Opportunities Commission. Those discussions have led to growing recognition of the case for the specific duties applying to schools and other educational institutions. I am also pleased to say that my right hon. Friend the Minister for Schools has confirmed that she agrees, in principle, to extending the specific duties to education on the understanding that our officials continue to work together to ensure that appropriate arrangements for different education bodies are agreed, and that the relevant regulations and supporting guidance on the way in which the specific duties will apply are light touch, flexible and relevant to the realities of life in school and at other levels of education. That approach is entirely reasonable: as we made clear in the consultation document, our aim for the gender duty is to focus on outcomes rather than on imposing burdensome processes.

I am also pleased that the EOC intends to produce sector-specific guidance for the particular situations of different levels of education. It is important to respond to the different ways in which institutions operate, and their different needs, and to help them implement their obligations effectively. As hon. Members will be aware, we are still in the consultation period on our specific duties, the closing date being 12 January. Afterwards we will need to analyse the responses carefully in order to publish a Government response to consultation three months after the closing date. The response will clarify our plans for the regulations for the specific duties and confirm how we intend the specific duties to apply in respect of educational institutions. I hope that that is sufficiently reassuring and invite my hon. and learned Friend to withdraw her amendment.

Vera Baird (Labour, Redcar)

I thank my hon. Friend for that statement. The EOC specifically asked me to express its gratitude for the helpful and open way in which she and her officials have discussed the matter all the way through. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 ordered to stand part of the Bill.

Clauses 84 to 89 ordered to stand part of the Bill.

Schedule 4 - Repeals

Clause 92 - Extent

Meg Munn (Labour, Sheffield, Heeley)

I beg to move amendment No. 1, in clause 92, page 56, line 6, after 'But', insert—

'(a) section [Sexual orientation: regulations for Northern Ireland] extends only to Northern Ireland, and

(b) '.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government new clause 1—Sexual orientation: regulations for Northern Ireland.

Meg Munn (Labour, Sheffield, Heeley)

When sexual orientation discrimination was debated in the other place, the Government made clear their view that it is simply not acceptable for that sort of discrimination to occur in a modern and diverse society. On Report, my noble Friend Baroness Scotland referred to the commitment made my right hon. Friend the Secretary of State for Trade and Industry to legislate at the earliest possible opportunity in this Parliament to tackle sexual orientation discrimination.

Clause 80 enables us to fulfil that commitment to legislate to prohibit sexual orientation discrimination in Great Britain. However, it does not apply to Northern Ireland. It has its own long established and detailed anti-discrimination framework, which is separate from the framework that applies to Great Britain. However, there is no reason to believe that discrimination on the grounds of sexual orientation is any less invidious in Northern Ireland than in any other part of the United Kingdom.

This Government consider that people in Northern Ireland should not lack the protections from discrimination available throughout Great Britain. We also believe that such protection must be consistent with the broader framework of mechanisms that already exist in relation to anti-discrimination and equality law in Northern Ireland. The amendment will ensure that protection from discrimination in Northern Ireland need be no less than that existing elsewhere in the United Kingdom.

Amendment agreed to.

Clause 92, as amended, ordered to stand part of the Bill.

Clause 93 - Short Title

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Is it possible for the Minister to explain why the amendment is being made? I am not sure that it is one we have debated before.

Meg Munn (Labour, Sheffield, Heeley)

I am happy to explain the purpose of the amendment to any members of the Committee who may not have had the privilege of dealing with what is known as a privilege amendment before. It completes a formal piece of parliamentary procedure. When a Bill is introduced in the Lords, as this one was, at Third Reading in the Lords a ''privilege amendment'' is moved formally by the Government. The reason for the Lords making the privilege amendment is that it is the privilege of the Commons to control charges on public funds. To avoid infringing this privilege, the Lords therefore formally declare that nothing in a Bill starting in their House involves such a charge.

The amendment removes the House of Lords self-denying privilege amendment in subsection (2) of clause 93. The Bill involves a charge on public funds—for example, in relation to the cost of the commission—which it falls to the Commons to control. I hope that that has clarified the purpose and effect of the formal piece of parliamentary procedure completed by Amendment No. 20.

Roger Gale (Conservative, North Thanet)

I am sure that the hon. Member for Oxford, West and Abingdon (Dr. Harris) will take comfort from the fact that the rights of the Commons remain inviolate.

Amendment agreed to.

Clause 93, as amended, ordered to stand part of the Bill.

New clause 1 - Sexual orientation: regulations

New clause 2 - Adaptations of rented housing in Scotland

New clause 8 - Monitoring of exception in relation to immigration cases

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move, That the clause be read a Second time.

The new clause was proposed my noble Friends Lord Dholakia and Lord Lester in another place on Report and Third Reading in order strongly to urge the Government either to consider a new monitor for immigration to consider the way in which the exception relating to discrimination that we have provided for in part 2 of the Bill works or to extend the duties of the current race monitor to do that. It is important to explain why it is necessary for that to be covered and to ask why neither option seems acceptable.

When exemptions were made to the race discrimination provisions for immigration functions—understandable exemptions given that rules will apply to certain nationalities and, arguably, at least in theory, that may well go beyond nationality, to other factors—the Government appointed a monitor to produce a report to Parliament to show that the exceptions were being dealt with fairly and appropriately. In that way, we are not solely reliant on the ability of often vulnerable people—in many cases, outside this country—to bring appeals or judicial reviews where appeals are provided for. The purpose of the independent race monitor is also to provide public confidence in the way in which that aspect of immigration control is administered. She is paid out of public money to perform that function and annual reports are available.

Discrimination dealing with religion or belief is, if anything, as sensitive or even more sensitive. Part 2 proposes something that is in itself acceptable: exceptions for immigration. That is dealt with under the public duties clause in subsections (4)(f) and (4)(g) to clause 51, which we discussed earlier. Given that this is a more sensitive subject, it is reasonable that the Home Office immigration service and the public would be reassured if there were some oversight of how things were done.

The amendment was described in the House of Lords as a modest proposal and, on Report, the Minister, Baroness Scotland, agreed to take it away and consider it. It was proposed again on Third Reading. The point was made again that it is reasonable to have that assurance and this confidence-building measure in respect of the immigration service. Immigration officers have wide powers and although the police are subject to the Police and Criminal Evidence Act 1984, immigration powers are not always subject to it. My noble Friends felt that there was a need to safeguard the way in which the immigration rules are applied. In response, Baroness Scotland rejected the arguments, and I want briefly to analyse her comments so that we can take the argument forward rather than simply repeating it.

Baroness Scotland claimed that the exception in clause 52—I believe it is now clause 51—is

''relatively narrow in comparison with that which is provided at Section 19(D)''—

of the Race Relations Act 1976. She said that it could affect a large number of nationalities and many people, and that

''it may apply wherever there are objective grounds for believing that it is reasonable to subject people of different nationalities to differential treatment for the purposes of immigration control.''—[Official Report, House of Lords, 19 October 2005; Vol. 674, c. 854.]

I understand that there could be a large number of authorisations affecting a large number of people.

Baroness Scotland then said that the discretion to discriminate on grounds of the public good through the exercise of an exception in respect of religion or belief is likely to apply to individuals and is unlikely to be an everyday occurrence. Therefore, it would affect a relatively limited number of people. In that case, one could argue that the race monitor's role could be expanded to cover those cases. It would not require an extra salary, extra staff or an extra provision, so that in itself is not an argument for not doing it, particularly in such a sensitive area. There have already been appeals against the Secretary of State's exercise of discretion. For example, the Government did not win in the case of Reverend Moon. They were not successful on all their assertions. Surely it would be better to have monitoring that would enable the Government to learn from those mistakes.

Baroness Scotland went on to say that it was assumed that the proposal would be a relatively easy thing to do, would not take too much time and would be an add-on that could be easily accommodated. She explained that the people to whom she spoke believed that that was not the case, but it was not entirely clear why.

It seems reasonable for us to ask that the exercise of the exception in this case is subject to a monitor. If we are talking about fairness, particularly in respect of sensitive issues such as religion and immigration, it does not seem too high a price to pay. I hope that even the hon. Member for Epping Forest (Mrs. Laing) would accept that it would not involve a huge amount of money or time if someone who is already paid were to take on this duty as well. It is a question of having confidence that the exception is used appropriately and fairly, and I urge the Minister to reconsider the Government's position.

Eleanor Laing (Conservative, Epping Forest)

I do not have a great problem with the amount of money that the proposal would cost. It would be an added burden on the taxpayer, but it would be minimal. However, my party is unconvinced that it is necessary to add yet a further regulation, so we do not support new clause 8.

Meg Munn (Labour, Sheffield, Heeley)

I welcome the hon. Lady's support for the Government's position.

Eleanor Laing (Conservative, Epping Forest)

We do consensus now.

Meg Munn (Labour, Sheffield, Heeley)

Yes, we do.

As the hon. Member for Oxford, West and Abingdon said, new clause 8 replicates one debated in the other place. We resisted it then and, despite further consideration, we continue to resist it. On balance, we do not feel that it is right to reproduce the arrangements in the 1976 Act. I shall not repeat the arguments in full, as he has referred to what my noble Friend Baroness Scotland said, but I shall enlarge a little.

Discrimination is lawful by virtue of the section if it is covered by legislation undertaken or authorised by a Minister acting personally. Some ministerial authorisations allow discrimination in making immigration decisions, although the current ministerial authorisations permitting discrimination by the less favourable treatment of certain groups allow for discrimination in the process used to consider individual cases, but not in the actual decisions made. For example, arrivals of a particular nationality may be subjected to more rigorous questioning purely because of their nationality, but a decision to allow or refuse them leave to enter the UK will be taken purely on the basis of whether, in the immigration officer's view, they satisfy the requirements of immigration rules.

Such treatment must be authorised by a Minister, and those authorisations are reported on by the independent race monitor. There are 10 or so in force. In this case, a relatively small number of authorisations may affect a great many individual cases spanning a large number of nationalities. Although the race monitor may consider individual cases in her assessment of the overall effect of a ministerial authorisation, it is not part of her statutory role to seek a review of the decision in such cases.

The situation in the case of the exception in part 2 is different. As the hon. Gentleman said, the discretion to discriminate on grounds of public good is likely to be exercised with regard to individuals rather than groups, and that is unlikely to be an everyday occurrence. A remedy for failure to exercise that power correctly is available through appeal, if the conditions for appeal are satisfied, or through judicial review.

I am not sure exactly what it would lead to should the monitor also be asked to consider decisions taken under paragraph (g), as the hon. Gentleman suggested, but there would be other differences. To the extent that the exception allows a determination that a particular religion is not to be treated in the same way as other religions—for instance, because it encourages children to renounce contact with their family—leading to a refusal to grant recognition for the purpose of admission as a minister of religion, that is not analogous with the power to authorise discrimination in respect of nationality, and will affect only those individuals who can otherwise satisfy the technical requirements needed to obtain that privileged admission. It is in any case always open to the persons involved to seek admission under a different category, provided that they satisfy the relevant requirements of immigration rules.

In these circumstances, judicial review is the appropriate method of challenging the determination. To introduce a monitor would be unnecessarily bureaucratic. The appointment of a monitor would not in any case provide recourse for any individual cases. On the grounds that I have given, I continue to resist new clause 8.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I note with interest the support given by the hon. Member for Epping Forest for the Government's position on this immigration matter. I know that that is the trendy thing for her party to do. It remains to be seen whether it causes major difficulties for either her party or Labour Members.

I am grateful for the Minister's response as far as it went. In respect of her last remarks, I point out that the proposed measure would not be instead of judicial review. The whole point of a monitor making reports to show how something is operating is to reduce the chance of it operating in a way that does not meet the appropriate standards of administrative law, and therefore to avoid future judicial reviews, especially where they may find against the Government regularly. It is right to say that the provisions of the exception in clause 51(4)(g) may well apply to groups of people, so we are not talking solely about individual cases. I have not argued that the monitor should be able to take up individual cases, but clearly she is entitled to comment on them as she comments on the impact of a statute in the area of her remit generally.

My concern about excluding a person on the ''conducive to the public good'' basis is that the Government have said previously that they will use the list of unacceptable behaviours that was produced in the summer for consultation and then confirmed, because those are highly contentious. Indeed, they were seriously criticised by the Joint Committee on Human Rights in its report, published on Monday, on the Terrorism Bill and associated matters. It criticised not least the fact that the list of unacceptable behaviours allows people to be excluded on the ''justifying terrorism'' basis. That will probably be applied to groups of people on the basis of their religion. It is not even the case that people would be excluded on the basis of encouraging terrorism indirectly, but on the basis of justifying terrorism under a wide definition.

I urge the Government to consider what the Joint Committee on Human Rights said about that list of unacceptable behaviours. It was not one of those areas where there was a major division in the Committee, although there was concern among Labour Members about its scope. In so far as it relates to the exercise of the exception, I live in hope that the Government, on considering the opinion of the JCHR, might ask whether it would be appropriate to see whether the system is being operated fairly. Otherwise, there will be a large number of legal challenges to the use of the power under the exception in clause 51(4)(f). The decision not to take advice from an independent monitor will be one that the Government live to regret.

In the hope that at some future point we will succeed in providing a safeguard and an attempt to create more public confidence in the way the system works, rather like my noble Friends Lord Dholakia and Lord Lester, I beg to ask leave to withdraw the new clause.

Motion and clause, by leave, withdrawn.

New clause 9 - Public authorities and human rights

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move, That the clause be read a Second time.

On Second Reading and at various stages in Committee, there have been concerns about the definition of a public authority and whether organisations exercising a public authority function are covered by the Bill. I feel that many of those matters are unresolved at this stage.

The new clause seeks not to deal with the wider problem, but with the particular concern that care homes are not covered. There is a particular problem, because many older people spend time in a care home that might not be run by the local authority but is paid for by it. There is widespread concern that there have been various abuses of human rights in some care homes, although I stress that I mean more poorly run ones, because many clearly have very high standards.

There is no redress under the Bill. The amendment seeks to extend the definition of a public authority under the Human Rights Act 1998, to protect those older people who receive care services from private and voluntary agencies. That would include care homes, day care and domiciliary care in people's own homes. It is important to consider that because of the sheer scale of private provision. In 2004, more than 91 per cent. of care home places and two thirds of domiciliary care services were provided by private or voluntary sector providers. This is an area where there is currently a large loophole.

We have previously discussed the Cheshire case of 2001, which established case law in this area. Hon. Members will be pleased to hear that I do not intend to repeat the arguments, because they are widely on the public record. Case law means that an older person in an independent care home or who is receiving care from an independent agency is not protected.

I believe that that is contrary to the Government's intentions. It is a matter of public record that they are committed to seeking a case to challenge, to try to address the issue. However, four years on, it is disappointing to learn that that case has not yet come to light. What resources have been put into seeking out a case? How has the situation been monitored to ensure that an opportunity has not been missed? Have any cases been considered potentially suitable for the Government to take action on but then for some reason dismissed?

If, in four years, a case has not come forward, it is disappointing to think that we might be here in two, three or four years' time re-rehearsing the same arguments. A fairly simple amendment should be able to settle the matter once and for all.

Eleanor Laing (Conservative, Epping Forest)

I want to ensure that we have understood what is intended by new clause 9 and what would be its effect. I do not disagree with the hon. Lady's intention to try to establish or make clear the rights of people in care homes. In many cases, they are people who cannot speak up for themselves, and it is important that their rights be protected. Sadly, in many cases there has been a need for such protection because of bad behaviour by proprietors, negligence or other problems. I do not disagree with that aspect of the Liberal Democrats' intentions, but I am concerned that widening the definition of public authorities would bring in care homes. Such organisations, as public authorities, would then have a duty put upon them in respect of religious discrimination. Many care homes are owned and administered by religious bodies, and I believe that they are entitled to discriminate because that is the very nature of their existence. I would not wish to see their right to choose who should be in their care compromised if their charity is administered by a particular church. There are, for example, many Jewish care homes in my constituency. While they might minister to people of other religions as well, I protect their right to discriminate with regard to the people whom their organisation exists to benefit. They should be entitled to do that.

Sandra Gidley (Liberal Democrat, Romsey)

We are attempting to ensure that basic human rights are covered, rather than discrimination strands. That is the difference.

Eleanor Laing (Conservative, Epping Forest)

I appreciate that. I had hoped that that was the hon. Lady's intention. In that case, I shall address my question to the Minister who has, no doubt, had extremely good legal advice. It is not clear to me whether the effect of the new clause might be wider than that intended by the hon. Member for Romsey (Sandra Gidley). I want to be certain that the position of charities and other religion-based organisations that run care homes for those adhering to their own religion is not compromised by the new clause.

Meg Munn (Labour, Sheffield, Heeley)

Older people in residential care are, of course, among the most vulnerable people in our society. I am sure that all Committee members share the concern of the hon. Member for Romsey that those living in care establishments should receive high standards of treatment. The Government share the dissatisfaction with the interpretation made in the Leonard Cheshire case. However, we do not believe that legislative amendment is the answer.

Let me outline how we are dealing with the proper interpretation of public authority as the phrase appears in the Human Rights Act. We believe that the problem lies not in the drafting of the Act but in the way in which the courts have interpreted it. As the Joint Committee on Human Rights found, any further legislative attempt to refine the definition of public authority is likely to lead only to additional uncertainty. Similarly, an amendment dealing with one discrete area, as this new clause would, is unsatisfactory as it would create pressures to treat other areas similarly. That would lead us to yet another list in primary legislation which, as is the way with such lists, would tend to be overtaken by events and become exclusive instead of inclusive.

We have, however, taken effective measures to mitigate the problem in the short term. As recommended by the Joint Committee on Human Rights, we have put procedures in place to identify a suitable case in which to intervene to argue for a reconsideration of the meaning of ''public authority''. We believe that the prospects of overturning the Leonard Cheshire decision are promising. We have set up arrangements with the registrar of civil appeals and the head of the administrative court to identify such a case. This matter is a high priority for the human rights policy team at the Department for Constitutional Affairs. That team looking for a case in which to intervene, and it will lead work to examine the issue as part of the discrimination law review. That consideration and consultation is the right way to consider a possible extension of the scope of the Human Rights Act.

As recommended by the Joint Committee and the Audit Commission, we have issued guidance to public authorities on contracting for services. We hope that that guidance will assist in the provision of services compatible with convention rights. That approach, based on contract specification, enables the protection of the Human Rights Act to be extended not only to those residing in establishments covered by the Care Standards Act 2000, but, potentially, to all consumers of public services delivered under contractual arrangements. Having said that, our minds are not closed about the prospects of legislative amendment. As I have indicated, a strand of the discrimination law review is specifically considering this matter. If a suitable way is found, a refinement of the scope of the Human Rights Act could be possible, but this is not a matter on which it would be right to rush.

All those measures seek to reinstate the Government's original intention for the scope of the Human Rights Act. The Act was never intended to impose duties on purely private parties to comply with convention rights. The amendment would, however, expand the scope of ''public authority'' to include any establishment or agency covered by the Care Standards Act. All those bodies would, therefore, be covered in respect of all their functions by the duty in section 6 of the Human Rights Act.

On the point about religious organisations raised by the hon. Member for Epping Forest, I immediately thought of my own Church's Methodist Homes for the Aged. We do not believe that the amendment would affect that part of the Bill, but we will, in any case, wish to consider the matter within the discrimination law review. Private organisations may well provide functions that are not of a public nature at all, but, under the proposed new clause, section 6 of the Human Rights Act would apply to them. That would be a significant extension of the ambit of the Human Rights Act. Anti-discrimination legislation in respect of goods, facilities and services, which is, by necessity, more tightly drawn and more certain in its effect, is the means by which we currently regulate such activities. The discrimination law review will, of course, consider extending the regime in respect of goods, facilities and services to include age discrimination.

I hope that I have demonstrated the seriousness that the Government attach to this important matter, and I am grateful to the hon. Member for Romsey for raising it. We are committed to resolving the issue effectively, but we believe that our approach offers the best chance of a lasting solution. I hope that, with those reassurances, the hon. Lady will withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister for that comprehensive reply. I said from the outset that the new clause was probably an imperfect way of solving the wider problem, but I felt it important to draw attention to the problems faced by some vulnerable residents of our care homes. The fact that we have waited four years for a suitable case to arise highlights a problem in the system. While I welcome the guidance given to local councils, it might be useful were users and their relatives also provided with some simple guidance on what they could expect as basic human rights and what sort of things could be challenged. I am sure that there are organisations that would willingly help with that challenge, because there is a lot of concern about the fact that much behaviour goes unnoticed and is not acted on. I look forward to seeing what the review comes up with in due course. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 11 - Harassment by third parties

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move, That the clause be read a Second time.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss new clause 12—Harassment in the provision of services—

'(1) The Sex Discrimation Act 1975 (c.65) is amended as follows.

(2) In section 29 of the Sex Discrimination Act 1975 (discrimination in provision of goods, facilities or services) after subsection (1) insert—

''(1A) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to subject to harassment a woman who seeks to obtain or use those goods, facilities or services.''.

(1) In subsection 29 (2) for ''subsection (1)'' substitute ''subsections 1 and 1A''.

(3) In section 29 (4) for ''subsection (1)'' substitute ''subsections 1 and 1A''.'.

Sandra Gidley (Liberal Democrat, Romsey)

New clause 11 deals with harassment of employees by third parties and would ensure that the equal treatment directive was properly implemented in terms of harassment. New clause 12 would extend the protection of service users from harassment to the provision of services in both the public and private sectors.

The Government have amended the Sex Discrimination Act to make it unlawful for a public authority to undertake any action that constitutes harassment when it exercises a public function. They have also placed a positive duty on public authorities to have due regard to the need to eliminate harassment when carrying out their functions. The Government's amendments rely on the definition of harassment recently inserted into the Sex Discrimination Act by the Employment Equality (Sex Discrimination) Regulations 2005. Those regulations implemented the equal treatment directive, which came into force on 1 October.

Those are welcome moves, but the Equal Opportunities Commission has raised concerns that the interpretation of harassment adopted in the regulations is worryingly narrow. In particular, liability for harassment by third parties is covered only by the current statutory definition of harassment in very limited circumstances such as in employment and vocational training, if the employer or training provider fails to take preventive or remedial action because of the sex of the complainant. New clause 11 would address that sort of problem.

An example of how such a problem might arise is a situation in which a woman working in a local authority facility was harassed by a customer. Employers have a duty to prevent all such incidents, and one would hope that a good employer would provide a safe working environment for all staff. However, under the current provisions, that woman would have no grounds on which she could challenge her employer, unless she could prove that the employer would have treated a similar complaint from a male member of staff more favourably or could show that the employer might have taken preventive action to protect male employees in similar circumstances. In a situation in which the employer had failed to protect all members of staff from harassment, it is difficult to see how a woman could take action under the Bill as currently drafted. Moreover, there are some situations in which women might be more liable or vulnerable than men to harassment.

As the legislation is currently drafted, a woman is required to have a hypothetical male comparator before she can pursue any sort of case. However, other countries have interpreted the directive differently. One example is the Republic of Ireland, where there is no requirement for a comparator of the opposite sex in order to bring a claim, but solely a need to show that there was unwarranted conduct related to any of the discriminatory grounds.

New clause 12 would extend the harassment protection to users of goods, facilities or services in the public and private sectors under section 29 of the Sex Discrimination Act. That section currently outlaws sex discrimination in the provision of goods, facilities and services, but does not outlaw harassment. In due course, the Government will have explicitly to outlaw harassment in services provided by the public and private sectors, to comply with the goods and services directive, which will be implemented eight months after the gender equality duty enforcement date of April 2007. In April 2007, public bodies will have to apply the definition of harassment and, eight months later, they will have to include services covered by section 29 of the Sex Discrimination Act. It was seen that, as in all things, it would be much better to aim for some simplicity and the new clauses would achieve that result.

Meg Munn (Labour, Sheffield, Heeley)

I want to say at the outset that members of the Committee should be in no doubt that the Government believe that harassment is abhorrent and should not be tolerated. However, I shall explain why we are not minded to accept the new clauses. As the hon. Lady said, the Employment Equality (Sex Discrimination) Regulations 2005 came into effect on 1 October 2005. They inserted into the Sex Discrimination Act 1975 the definition of harassment, including sexual harassment. Until then, case law had established that certain forms of unwanted behaviour carried out because of a person's sex constituted harassment and amounted to sex discrimination for the purposes of the Sex Discrimination Act. That definition applies to employment and vocational training only.

The definition of ''harassment'' under the Sex Discrimination Act mirrors the definition under the Bill. It outlaws discrimination in employment on the grounds of race, sexual orientation, religion and belief. The same approach is being taken in forthcoming legislation on age discrimination in employment. Under discrimination law, harassment is when a person subjects another to unwanted conduct, which has the purpose or effect of violating the other person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Under the Sex Discrimination Act, harassment is unwanted conduct on the grounds of the victim's sex. The Act also outlaws sexual harassment, which is unwanted verbal, non-verbal or physical conduct of a sexual nature, a concept that applies in sex discrimination only. Section 41 of the Sex Discrimination Act makes an employer liable for an act of discrimination or harassment carried out by another, as long as that person is employed by him and carries out the act in the course of his or her employment.

New clause 11 would extend that precarious liability further to cover sexual harassment by third parties. It would mean, for example, that if a client subjected an employee to sexual harassment and the person's employer does not take reasonable steps to prevent the third party from doing that, the employer would be liable for the act of sexual harassment. In practice, an employer would be liable for acts of sexual harassment carried out by others, over whom he has no direct control. That would be a significant extension of the law and its desirability would need to be considered carefully.

For example, is it justifiable for an employer to be held liable when the harassers themselves face no sanction for their unacceptable behaviour? If that were considered to be a fair way in which to approach the matter, how would the employer know whether he had taken reasonable steps to prevent the harassment from occurring and, thus, had stayed within the law? We need to consider such matters carefully before deciding whether there is a need to extend the scope of the harassment provisions in the way proposed by the new clause.

We want to ensure that greater consistency is achieved by the protection afforded to different groups, whenever that is appropriate. The new clause would not only put sex discrimination legislation significantly out of step with legislation covering the other equality strands, but would lead to inconsistency within the Sex Discrimination Act itself. That raises the question why consideration of that extension of the law should apply only to sexual harassment. The principle of third-party harassment would also apply to harassment on the grounds of sex and harassment in the other equality strands. For both reasons, we believe that the discrimination law review is the appropriate vehicle by which to give full and proper consideration to such issues. We would need, in particular, to consider whether the approach suggested in the new clause assigns responsibility for third party harassment in an appropriate way.

Section 29 of the Sex Discrimination Act makes it unlawful to discriminate on grounds of sex in the provision of goods, facilities or services. New clause 12 would extend that provision to make harassment in the provision of goods, facilities or services unlawful, too. The Government support the principle behind the new clause. Indeed, we are already committed to bringing in protection in that regard, but we consider that now is not the right time to do so. As I have made clear, we are considering harassment, including sexual harassment, in the discrimination law review. I am sure that members of the Committee will be aware by now that a key objective of the review is to remove unjustified inconsistencies in the protections afforded to different groups of people. That is the light in which we shall consider harassment.

Through the review we are consulting with a range of stakeholders, and it is vital that we consider their perspectives. It will help us to ensure that goods and service providers are aware of and prepared for any new responsibilities that they may have. On that basis, will the hon. Lady withdraw the motion?

Sandra Gidley (Liberal Democrat, Romsey)

The new clause was tabled partly to try to establish the Government's thinking. At this stage of Committee deliberations, after many accusations about the Opposition and inequalities in the Equality Bill, and after my hon. Friend the Member for Oxford, West and Abingdon was taken to task this morning for using the phrase ''hierarchy of inequalities'', it seems ironic that we should always have a counter-accusation.

I understand the difficulties with the third party, but it strikes me that there are probably many cases in which potential problems are highlighted and ignored—for example, a woman attendant who does not feel safe from harassment in a particular environment. That problem could be drawn to the employer's attention and knowingly not dealt with, because the employer knows that there is no redress. The new clause would have been helpful in such situations, but I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 15 - Employment Equality Regulations (amendment)

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move, That the clause be read a Second time.

The motion asks why no amendment has been made to the Employment Equality (Religion or Belief) Regulations 2003 to bring out what is considered to be the better approach to the issue in this Bill. Clause 43 has a definition of religion and belief that everyone considers appropriate, because it is aligned closely with the Human Rights Act. In clause 76, the Government propose that the old definition of religion and belief in the 2003 regulations should be amended to account for the new definition.

In clause 44 a new version of discrimination has been drawn up as the result of an amendment in the House of Lords, which effectively merged two sub-paragraphs into one:

''A person (''A'') discriminates against another (''B'') for the purposes of this Part if on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treats others (in cases where there is no material difference in the relevant circumstances).''

Prior to that amendment, the wording was such that it appeared that if the religion was A's religion, it would be exempted.

The Government were right to make it clear that A's religion or belief would be covered, without necessarily conceding that that was the effect of the original wording, because the effect would apply whether or not the religion or belief was A's religion or belief, as long as the discrimination was on grounds of the religion or belief of B or any person except A. It does not matter whether it happens to be A's religion.

The 2003 regulations do not include the same definition. My new clause, which is by definition probing, was meant to ask whether the Government intend the same read-across. If not, why not? If yes, we would support it. Uniformity in this area of law is useful.

On Tuesday we mentioned an area where the Government have chosen not to make the regulations match the provisions in the Bill, which was the test for an exception for continued discrimination or discrimination by a religious organisation, religious charity or faith school. The Government argued that that was different because the organisations were small and should have a threshold different from and much lower than the controversial exceptions in the regulations. There is no clear reason why the basic definition of discrimination should be different, and I hope that the Minister can define the Government's intention.

Meg Munn (Labour, Sheffield, Heeley)

New clause 15 would, as the hon. Gentleman said, amend the Employment Equality (Religion or Belief) Regulations 2003 by removing regulation 3(2), and I thank him for providing us with the opportunity to discuss the discriminator's religion or belief as defined in those regulations. The Government have already revised, in the other place, the definition of discrimination in what is now clause 44. It was never the Government's intention that the Bill should allow a person to discriminate against another of the same religion or belief, nor do we believe that that was the effect of the original provisions. Nevertheless, to put the issue beyond all doubt, we tabled amendments in the other place so that the position is completely clear.

The Bill does not enable a person to discriminate against another of the same religion or belief in the provision of goods, facilities and services. As the hon. Gentleman has no doubt seen, there is a link between how the issue of the discriminator's religion or belief is dealt with in regulation 3(2) and how it was dealt with in the definition of discrimination in the Bill as originally drafted. The question, as he has rightly pointed out, is whether, having revised the Bill to achieve added clarity, we should also revise the regulations.

Regulation 3(2) makes it clear that the discriminator's religion or belief should not be a factor in considering whether discrimination has occurred in the area of employment or vocational training. However, I recognise that some have argued that regulation 3(2) may create a loophole whereby an employer, person A, could discriminate against someone else, person B, if that person was of the same religion but not, in the view of person A, properly observant. I can assure the Committee that it is not the intention or the effect of the regulation to allow discrimination in such cases.

A person who discriminates against any person because they do not share their beliefs would be covered by the regulations, as they cover belief as well as lack of belief. That means that person B would be protected if they did not share the same beliefs as person A, even within the same religion. In other words, it is the religion or belief of person B, not of person A, that counts. I am starting to wonder whether we should perhaps be using some sort of flow-chart.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am following the Minister.

Meg Munn (Labour, Sheffield, Heeley)

I commend the hon. Gentleman on his attention. To give an example, an employer who was a Muslim could not deny another, more secular Muslim employment on the grounds that they were not religious enough. The religion or belief regulations have been in effect since December 2003 and are working effectively. There is no evidence to suggest confusion or that regulation 3(2) is being used as a loophole to allow people to discriminate against others of the same religion. That said, I recognise the concern, and the Government have already changed the Bill to make the position clearer. Given that we are moving towards the end of our consideration and that I have given way on very little, and having listened to the points raised today, I will take the issue away and have another look at it. I hope that, on that basis, the hon. Gentleman is content to withdraw the motion.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We should welcome two things. First, the Minister has demonstrated an ability to tackle the issues in part 2—a pleasure previously restricted to her colleague, the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins). From that brief excerpt, she can see how much fun that was, and she too now has a good mastery of part 2.

Secondly, and more importantly, I am pleased that the Minister sees the point. As I think I made clear, I was not seeking to claim that the Government ever felt it would be right to discriminate in the way that some people might think was possible given the loophole. I am happy to assure her of that and I am grateful for her agreeing to take the issue away to see whether—for the sake of consistency, if nothing else—it would be wise to make the relevant changes. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Roger Gale (Conservative, North Thanet)

If the hon. Member for Bath (Mr. Foster) were present, he would now be sending a postcard to his mother. Before we come to new clause 16, I remind the Committee—my memory is not very long, but it does at least go back to Tuesday afternoon—that we had a substantial debate on most of the issues arising from the new clause and agreed to confine our comments strictly to matters of guidance. If the hon. Member for Oxford, West and Abingdon wants to move the new clause formally, listen to the Minister and then respond, that is entirely up to him.

New clause 16 - Guidance on application of prohibition in relation to school transport

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move, That the clause be read a Second time.

I shall indeed talk about guidance and I am conscious of the fact that we do not want to rehearse the principles of non-discrimination. In reading from the reports on guidance by the previous Joint Committee on Human Rights and the Education and Skills Committee, therefore, I shall seek to be brief and to keep strictly to the issue. The point that I seek to make with the new clause is that the current guidance is unsatisfactory and has been found to be so by both those Committees. If the Minister cannot assure me that guidance will be expedited to deal with the point, I fear that there will be continued discrimination.

I shall not go into this issue, but, as I said previously, there is discrimination against the non-religious on the basis that they are not provided with the same transport—to go the extra mile, as it were. The law on the issue is in section 509 of the Education Act 1996, which permits local education authorities to discriminate on the basis of religion or belief.

The current Government guidance on school transport takes the form of a departmental circular dated 21 January 1994. Paragraphs 29 to 31 deal specifically with transport to denominational schools and colleges. Those paragraphs are highly relevant and I shall explain what they say, because I want to argue that the guidance is unsatisfactory. Paragraph 29 says:

''Many LEAs exercise the discretion afforded by section 55 [Education Act 1944]''—

now section 509 of the 1996 Act—

''to provide free transport or assistance with fares for pupils or students who attend the nearest school or college of their parents' religious denomination, even though they could have attended a non-denominational institution nearer home.''

Paragraph 30 continues:

''From 1 October 1993, section 55(3) was amended by paragraph 15 of Schedule 19 to the Education Act 1993. In considering whether or not transport is necessary—and therefore should be free—under section 55(1), LEAs must have regard, in the exercise of their discretion, to all relevant factors. As amended, section 55(3) provides that LEAs shall have regard to (amongst other things) not only the age of the child or young person and the nature of his route to school or college, but also 'to any wish of his parent for him to be provided with education at a school or institution in which the religious education provided is that of the religion or denomination to which his parent adheres.' Thus while Parliament has continued to leave LEAs discretion in their assessment of this factor, it has made explicit the requirement to consider it.''

Paragraph 31 states:

''The Secretary of State hopes that LEAs will continue to think it right not to disturb well-established arrangements of the kind referred to in paragraph 29, some of which have been associated with a local agreement or understanding about the siting of denominational schools. He continues to attach importance to the preservation of the opportunity to choose a school or college in accordance with religious convictions.''

The problem is that the Joint Committee on Human Rights report on the draft School Transport Bill—the 17th report of the session 2003–04—called for the guidance, which was then in the guise of the draft prospectus on school travel schemes, issued by the DFES, to be amended, as it had recommended that the extant guidance be amended, because it referred only to pupils travelling to denominational schools. It was pleasing that the Government amended the draft prospectus when they formally introduced that Bill.

In the 20th report of the session 2003–04, the Joint Committee on Human Rights also recommended, notwithstanding the then impending introduction of the School Transport Bill and a more satisfactory revised prospectus, that the extant guidance be amended to ensure that it was right. The report referred at paragraph 6.11 to the key recommendation that the Government need to address:

''In our view these paragraphs in the current guidance on school transport are now positively misleading for LEAs in light of the Government's welcome acceptance . . . that free or subsidised school transport must be provided without discrimination on grounds of religion or belief . . . We cannot see any reason for not making the position equally clear to LEAs by amending the current guidance on school transport to the same effect. Unless it is made clear, we think there is a significant risk of LEAs being misled by the guidance into adopting or maintaining discriminatory policies and practices, and of the current guidance itself being subjected to legal challenge on the ground that it is not an accurate statement of the legal position.''

It continued in paragraph 6.12 with a short recommendation:

''We therefore recommend that the DfES amend the guidance contained in circular letter 21 January 1994 so as to include specific guidance on non-discrimination''.

That has not happened, and there was no Government response to the 20th report. That issue was picked up by the Education and Skills Committee in its report on the draft School Transport Bill, which said something similar at paragraph 66:

''A parent who expresses a strong philosophical view that a denominational education would not be appropriate for their child is in a similar legal position to one who expresses a strong preference for denominational education. Guidance issued to LEAs should clarify that different treatment in this case could amount to discrimination . . . In order to reduce the potential for discriminatory practices, and to clarify the legal situation under the Human Rights Act, guidance to LEAs must make clear that where transport arrangements exist to support parents' denominational preferences, they must also cater for strongly held philosophical preferences.''

Finally, paragraph 67 stated:

''The human rights implications of school travel schemes are complex and we have found evidence of existing confusion over legal obligations.''

It is important to note that another Select Committee considered the issue and found evidence of problems, so we should add that it is important that evidence be shown, otherwise the argument is purely theoretical.

The report continues:

''In this context, the guidance given to LEAs in the draft Prospectus is woefully inadequate. It is unacceptable simply to state that local authorities should take legal advice before submitting their applications. The Government should provide clearer guidance to LEAs on those school transport practices which it considers would be discriminatory, particularly as the Secretary of State could be subject to legal action for approving any discriminatory scheme. The Government should pay heed to the recommendations of the Joint Committee on Human Rights on the draft Bill when drawing up this guidance.''

The School Transport Bill did not complete its passage, so it was never tested under scrutiny. The problem, therefore, remains. Meanwhile, the 20th report did not receive a Government response, perhaps because we ran out of parliamentary time.

The fact that the problem still exists is shown by the explanatory notes. I dealt with them on Tuesday, so I shall not repeat the argument, but they continue to be positively misleading. In light of what I have said, I hope the Government will recognise that there is a problem with the extant guidance. Unless they can show evidence that problems are not caused by that guidance, which would contradict the Education and Skills Committee's view that there are problems, something must be done now, as well as in relation to the Bill.

The Joint Committee on Human Rights has raised this concern three times. We have not had a report on this Bill, so it remains to be seen whether the concern remains. I am not saying that the problem is being repeated, although it may well be if the Government are being consistent. Even before consideration of the Bill, the Joint Committee called—three times—for adequate guidance to ensure that there is not discrimination against non-religious parents of the sort that appears to exist at present, and that is encouraged, albeit unintentionally, by the Government's current guidance.

I hope that the Minister can offer reassurance on this issue. The Government's pronouncements will be examined closely by people who are suffering from what they consider discrimination. They might be persuaded not to bring legal action if they receive a satisfactory assurance that the Government are aware of the problem and are going to tackle it.

Eleanor Laing (Conservative, Epping Forest)

The hon. Gentleman has raised an important issue. I agree that there is a problem, and he explained it very well—I do not usually pay him that compliment. This issue has a long history. Many Committees and Governments of different political persuasions have examined it, but there is still a problem. The issue has not been properly tackled.

There can be little doubt that discrimination exists. Some children whose parents choose for them to go to a denominational school have to travel further than they would if they did not go to such a school, so their school transport is paid for, while other children, who might live less than half a mile under the limit for receiving free school transport to a non-denominational school, are disadvantaged because they cannot benefit.

In my constituency, there is a suggestion that children who attend a school for children with special needs should not have their school transport paid for if their parents' income is above a very low threshold. It is right for there to be limitations on budgets. However, because of that—these matters always come back to taxpayers' money—children whose parents follow a particular religion and choose a particular school and type of education for their offspring, which they have every right to do, get a financial advantage over parents whose children have special needs. Those children might even need to be transported in a wheelchair or by another costly means, but they do not benefit.

I have no precise and perfect solution to this problem, and I am not certain that new clause 16 would solve it perfectly either, but it would open the way for discussion, and I am sure the Minister will appreciate that. Like the hon. Member for Oxford, West and Abingdon, I ask her to give the Committee an assurance that the Government are aware of the problem and intend to address it in the near future.

Roger Gale (Conservative, North Thanet)

I cannot recall whether the Minister was present on Tuesday afternoon, but I know that the hon. Member for Beaconsfield (Mr. Grieve) was on the Front Bench when I ruled that we should discuss the matter of guidance. We had a considerable debate at that time. I appreciate that these are important issues that probably affect the constituents of every Member of Parliament. I ask the Minister to stick strictly to the matter of guidance, but if she wants to write to hon. Members on the broader issues, that is of course entirely a matter for her.

Meg Munn (Labour, Sheffield, Heeley)

I shall do my best, Mr. Gale. As has already been said, the Bill contains exemptions from the provisions on discrimination for local education authorities and public authorities on the grounds of religion or belief in relation to school transport. LEAs have a statutory requirement to provide free home-to-school transport for pupils who live a certain distance from their nearest school. They also have some scope to decide when transport is necessary in any other circumstances, and they consider each pupil's case on its merits, taking account of all relevant factors.

There is discretion, which means that LEAs often provide subsidised transport for pupils of a particular faith school that is outside the local area, although I stress that the discretion is not limited to transport to faith schools. LEAs may also—it is our clear belief that they should—provide subsidised transport to a non-faith school for a child whose parents are strongly opposed to their attending a faith school closer to home. The exception is needed to protect such special arrangements, whether they benefit those of a particular faith or those who for philosophical reasons seek an alternative to a faith school. I emphasise that LEAs can, and do, offer pupils free or subsidised transport in various circumstances.

The hon. Member for Oxford, West and Abingdon discussed this matter earlier this week, and I know that he understands the need for the transport exemption and has not sought to remove it. By seeking to require the Secretary of State to issue guidance on the provision of home-to-school transport—guidance that must have particular regard to the duty not to discriminate on the grounds of religion or belief, and to the duty on local authorities to carry out their functions relating to school transport with due regard to the Human Rights Act 1998—the hon. Gentleman is pointing it out that there is uncertainty about the provision of free school transport. I agree, and acknowledge that the home-to-school transport legislation is out of date. That is why we have included proposals to extend rights for home-to-school transport in the White Paper ''Higher Standards, Better Schools for All''.

The proposals will be included in the forthcoming School Transport Bill, and as a result of those proposals, the Secretary of State for Education and Skills will issue new guidance relating to the provision of home-to-school transport, a draft of which will be published alongside that Bill. The guidance should clarify the duties of LEAs with regard to the provision of school transport and their obligations to ensure fairness. I believe that that will be a more appropriate place in which to deal with the issues raised by the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am listening carefully to the Minister, and I note her comment about an alternative way of issuing guidance. Will she ask her ministerial colleagues to ensure that that guidance is consulted on, that it is taken seriously and that the concerns expressed in Committee are passed on? Will they also ensure that the Select Committees that have expressed concern about the existing guidance get the chance to comment on an early draft of the new guidance to prevent more public authorities from disagreeing about its appropriateness? Perhaps that is one way in which to deal constructively with the matter of the guidance.

Meg Munn (Labour, Sheffield, Heeley)

I am a big fan of joined-up government, and I am certainly happy to pass on the hon. Gentleman's comments.

Kitty Ussher (Labour, Burnley)

I agree that the current guidance is quite confusing. I have a constituency case on which I would appreciate a response from the Minister, now or in writing, on what the current law would advise. A mother who is not Catholic but who nevertheless wanted her child to go to a Catholic school visited my surgery. She succeeded in her application, and so an atheist child attended a Catholic school. The school was some distance from her house and when she applied for free transport, the local education authority official told her that it would not be provided because she was not a Catholic parent. I believe that to be clearly wrong and discriminatory against that individual. Will the Minister say whether my assumption is right?

Roger Gale (Conservative, North Thanet)

Order. In the spirit of Christmas, I allowed the hon. Lady to ask her question, but I fear that the Minister will have to write to her with the answer.

Meg Munn (Labour, Sheffield, Heeley)

Indeed, I fear that it may be outside my competence to do so, but I shall certainly consider the matter.

The hon. Member for Oxford, West and Abingdon managed to interrupt me with slightly more than three words to go, as he tended to do to my hon. Friend the Under-Secretary. I hope that the hon. Gentleman is willing to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am willing to withdraw the amendment. I shall carefully consider the timings of the alternative approach. I was not sure whether the Minister meant that guidance would be produced under the Bill and that, in respect of school transport, it would refer to other guidance, or whether it is proposed first to enact the Bill, in which case there would still be a gap in respect of part 2 before the new guidance was formalised. Perhaps the Minister will write to me about the timing, as it is a legitimate point.

The hon. Member for Burnley (Kitty Ussher) raised a fascinating case. I do not propose giving a view on it because it is a complex matter. However, it underpins the need for clearer guidance, and I am sure that it is not the only case.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Roger Gale (Conservative, North Thanet)

Once again, I remind the Committee that on Thursday last, we had a considerable debate on clause 35. I therefore expect a fairly narrow debate on new clause 17.

New clause 17 - DISCRIMINATION ON THE GROUNDS OF

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move, That the clause be read a Second time.

I do not seek to explore the need to protect transgender people from discrimination in the provision of goods and services, because most of what needs to be said about it was said in previous debates. However, one point not raised previously concerns the Gender Recognition Act 2004. During the passage through the House of that legislation—I was a member of the Committee that considered it—the Joint Committee on Human Rights clearly indicated that it was appropriate for transgender people to be protected in connection with the provision of goods and services and other areas. The Joint Committee said that that Bill could usefully fill an omission, although the Government chose not to take that opportunity to do so. The Government have decided on a number of occasions not to close that gap.

The new clause explores how the Government have chosen to close the gap, which we believe could and should have been closed many years ago. The new clause would make it clear that part III of the Sex Discrimination Act 1975 applies also to transgender people. Because trans people are currently excluded from most aspects of the gender duty in so far as it relates to goods and services, the new clause would bring them within the gender duty, because part III currently applies to trans people only for vocational training.

I recognise that the new clause is not a holistic way of dealing with the problem of trans people because it does not provide for exceptions to be made, although I would argue that the need for exceptions is limited, given that exceptions already exist for the provision of separate sex facilities in respect of goods and services, as we heard from the hon. and learned Member for Redcar (Vera Baird). I understand that the Minister might not want to accept the new clause purely because it is not holistic enough to deal with the problem. However, it seeks to explore the way in which the Government seek to meet their obligations.

The Minister will be aware that Council directive 2004/113/EC of 13 December 2004 implements

''the principle of equal treatment between men and women in the access to and supply of goods and services''.

It requires protection to be provided for transgender people by 21 December 2007. My question is simple. Will the Government commit themselves to doing that, will they commit themselves to doing it by that deadline and, if so, how? Having failed to use the vehicle of the Bill, it is not clear whether they will be able to do so in the most appropriate manner by that deadline. It is a question of timing.

There are three approaches that the Government could take. First, they could use this Equality Bill, but by rejecting the amendments tabled by my hon. Friend the Member for Romsey and myself, they have indicated that they do not wish to use the Bill, although I live in hope that before Report, the Government will have seen the wisdom and justice of doing so. The other two approaches are to use the single equality Act promised after the discrimination law review and the equalities law, or regulations under section 2(2)(a) of the European Communities Act 1972. As the Minister knows, the directive states that the provisions need to be brought in by 21 December 2007. In cases where there is no primary legislation, legislation exists under the European Communities Act for them to do that quite quickly.

On the possibility of using the single equality Act, in the Committee's debate last Thursday, the Minister promised a Green Paper on discrimination law in the spring of 2006. We all know how long some seasons can last, given not just climate change, but Government deadlines for publication. The worry is that it might not be spring. However, assuming that it is spring—the Minister said a few moments ago in a semi-ironic way that spring can last a long time in relation to the publication of the discrimination law review—in the normal course of events, that might lead to a White Paper, following consultation, around six to nine months later. That brings us, at the earliest, to late 2006, and a Bill perhaps six months after that. We are talking about legislation that is likely to enter Parliament in mid–2007. Because such a Bill will involve various arrangements that will have an impact on other people, there may be delays in bringing in the legislation, and that would be seen as good government and good regulation.

The question is: if the Minister does not use new clause 17, can she be certain that the alternative—the single equality Act—will meet that 21 December 2007 deadline, which is only 107 weeks away? If she does not use the proposal in the new clause, the only alternative to meeting the deadline, other than the one that I have just described, is using the European Communities Act. As she will be aware, the problem is that the use of regulation would allow goods and services protection to extend only as far as the extent of the directive, and no further. It would not, for example, include education, which is a key issue for many transgender people who return to education following their change of gender, or the content of media and advertising, which are excluded under article 3(3) of the 2004 directive. Although the directive itself does not prevent Parliament from enacting more comprehensive provisions, use of the European Communities Act's regulation-making power reduces the scope. I do not believe—the Minister may agree, but I wait to see—that the use of the European Communities Act is a satisfactory alternative to bringing in this protection. I am seeking from her an indication of how she will meet the deadline if she does not use the Bill. If she cannot give that, my hon. Friends and I, and others, may wish to return to the matter on Report, to seek to draw her out further. I would be grateful for her response to my remarks.

Meg Munn (Labour, Sheffield, Heeley)

I understand why the hon. Gentleman continues to raise the matter, and I should like to reassure him that the Government support the intention that underpins his amendment. Indeed, we have already started the work that is needed to extend protection against discrimination for transsexual people to areas beyond the employment field. The hon. Gentleman has proposed that we can achieve our shared objective of ending discrimination against transsexual people by simply extending part III of the Sex Discrimination Act to cover gender re-assignment. Before I explain the reasons why we do not support the new clause, it would be helpful to set out what its effect would be. Part III makes discrimination lawful in the fields of education and the provision of goods, facilities and services in the management and disposal of premises. Provisions in the Bill will also bring the functions of public authorities within part III.

Part III contains a number of exceptions. Those are narrowly drawn and refer specifically to situations where it is clearly sensible that the principle of equal treatment between women and men is not an absolute requirement—at least, that was what was considered to be the case when the Sex Discrimination Act became law in 1975. We are committed to providing that protection and a key strand of our work in the discrimination law review is to make discrimination against transsexual people unlawful.

However, we must look at what that will mean in practice for transsexual people and all the parties to whom the law will extend. To do that, we need to consult on the issues faced by all who would be affected and hear views on our proposals. We are taking forward the necessary preparatory work for legal change through the discrimination law review. We will consult on our proposals in a Green Paper in the spring of 2006 and we want to hear the views of all interested parties on the proposals. We believe that this is the best way to ensure that transsexual people get legal protection against discrimination and that the law is clear and workable for those who will have responsibilities under it. On that basis, I hope that the hon. Gentleman is reassured.

Sandra Gidley (Liberal Democrat, Romsey)

Given that the Minister seems keen to pursue the route of the Green Paper and consultation, what assurances can she give us that protection for transsexual people will be in place by the deadline of 21 December 2007? As my hon. Friend the Member for Oxford, West and Abingdon has already outlined, the time scales for the Green Paper and a possible Bill in 2007—at the earliest—mean that there will be a gap in provision. It seems that we are unlikely to meet those deadlines.

Meg Munn (Labour, Sheffield, Heeley)

We are aware of the deadline. We are considering the range of options and our overall aim is to provide comprehensive protection. At this stage it is not possible for me to say anything more than that, other than that we want to ensure that we get the issue right and that we have covered it properly. That is why, as I have said many times, the Bill was never intended to deal with a whole range of equality issues. The discrimination law review is enormously important and is considering matters in a detailed way. That is the correct way to proceed and I trust that hon. Members will be reassured on that basis.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I see that the Minister was not keen to take an intervention before her last three words, but I hope that she might be able to give me an assurance. I wanted to ask her about something—it might be the fourth time I have mentioned this point. Will she assure us that she will implement protection for trans-people from discrimination in the provision of goods and services, in line with what the direction states—not just about goods and services—by the deadline of 21 December 2007? Is she able to give a categorical assurance that she will meet that deadline? It is a yes or no question. She is not rising to her feet. That is probably why she did not want to take my intervention, which shows that she is a consummate parliamentary performer, as we would expect.

The Minister has not given us the assurance that we required about the time scales. I want to put on record that I do not doubt her intention to provide this protection eventually. I am not seeking to take issue with that; the question is whether it can be done on time. The Bill is a vehicle that would enable us to guarantee doing that because it will be enacted before the deadline.

Although I shall withdraw the motion in a moment, in the light of what the Minister said we may have to return to the matter on Report and ask the Government to think again. In the absence of the Minister's assurance that she can meet the deadline required, they might have to use this Bill to do so after all. Until that time, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Meg Munn (Labour, Sheffield, Heeley)

I thank you, Mr. Gale, for your excellent chairing of the Committee, which enabled us to get through the Bill at a good pace, and on behalf of the Committee I thank your co-Chair, Mrs. Anderson.

I am grateful to my hon. Friend the Under-Secretary for his assistance, as he took the Committee through a significant part of the Bill. I am also grateful to Committee members from all parties for their contributions. In particular, I thank the hon. Members for Epping Forest and for Romsey for their well-informed comments and questions. Support was given to them by the hon. Members for Beaconsfield and for Oxford, West and Abingdon.

I am also grateful to the Clerks, the attendants, the police and the Hansard staff, and I thank the staff of the Departments concerned for their work. I am pleased that we have been able to take forward our debates in such a constructive and positive way, and look forward to a similar tone of debate on Report. I hope that the Bill will be reported, as is appropriate.

Eleanor Laing (Conservative, Epping Forest)

I echo the Minister's thanks to everyone involved in the background—that is, to the Clerks and the officials who worked on the Bill. I also thank you, Mr. Gale, and Mrs. Anderson for your incredible forbearance and patience in chairing this Committee. We did not discover consensus only yesterday; we have supported the general intention of the Bill since it was first debated in the previous Parliament, last April. Indeed, there have been no Divisions in this Committee, because we have managed to have proper discussion of a constructive nature on every single point that has come forward. Our proceedings have been constructive and pleasant, and I thank everyone in the Committee, particularly the hon. Member for Romsey, for that.

I pay particular homage to the Minister. This is her first Bill as a Minister, and she has taken us through it with courtesy and diligence. I am sure that every Committee member appreciates that. Nevertheless, despite the consensus and the fact that there were no Divisions, we reserve our position on the need to examine some of our concerns—particularly, of course, those about the use of taxpayers' money and there being too many regulations—on Report.

Sandra Gidley (Liberal Democrat, Romsey)

I add my comments to those of the two previous speakers. I commend you, Mr. Gale, and your co-Chair for your vigorous chairing; I do not think I have ever heard so many recommendations that letters be written in a Committee. I would recommend that approach to other Chairs, because it seems on occasion to curtail unnecessary debate. I pay tribute to the way in which our consideration of the Bill was arranged. It was particularly helpful that there were no knives, and we were able to have a fairly free-ranging discussion on every part of the Bill. I thank the Minister and the Whips for that.

I also pay tribute to the hon. Member for Epping Forest. On the whole, the Committee has been good-natured. There have been points of disagreement, but generally they have been about the use of public funds, an issue on which the hon. Lady is diligent—as are we all, although we perhaps have different priorities for spending that money. I also thank the Clerks, the police and the Hansard staff.

Although our considerations have been consensual, I echo the thoughts of the hon. Lady: some points will be brought back again on Report, because although we had answers to our questions, opportunities are being missed under the Bill. It is a shame that some issues are being carried forward, always with good intent and, in some cases—but not in others—for the good reason that they are complex issues that need resolving. We will return to those points later.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Before my hon. Friend sits down I wanted to mention that I have been struck by the promptness with which letters that were promised were written. I am sure that my hon. Friend would, like me, want to thank the ministerial team who must have had a hand in writing the Ministers' letters for the speed with which they did that, so that we could consider them in our work on the Bill.

Sandra Gidley (Liberal Democrat, Romsey)

I wholeheartedly associate myself with my hon. Friend's comments.

Finally, it has been a matter of particular note that the gender balance of the Committee, on the Government Benches in particular, has been somewhat unbalanced. I wonder if our male colleagues object to being left out, for once.

Roger Gale (Conservative, North Thanet)

I must be going soft in my old age. Not only were the previous five minutes entirely out of order, but I allowed one hon. Member to raise a constituency matter in a wholly inappropriate context, and allowed the hon. Member for Oxford, West and Abingdon to intervene on a point of order, which is also completely out of order. While we are out of order, I thank the Committee for the courtesy and good humour with which it has conducted business. I know that Janet Anderson would want to express appreciation of the thanks that have been given, and to thank the Committee for the extremely amicable conduct of the business.

I thank the Officers of the House, also. We could not do the job that we are required to do, sometimes in difficult circumstances, without their assistance, and we are most grateful. It is slightly premature, but this will be my last chance to do it, so I wish all members of the Committee a happy Christmas and a highly politically consensual new year. [Interruption.] Don't go yet! We have not finished.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at thirteen minutes to Three o'clock.