Equality Bill

Public Bill Committee, 11 June 2009.

Clause 1

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 2, in clause 1, page 1, line 29, leave out subsection (3) and insert—

‘(3) A Minister of the Crown may by regulations list public authorities to which this section applies.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment 107, in clause 1, page 2, line 17, after ‘England’, insert—

‘(l) the Financial Services Authority;

(m) the Office of Communications;

(n) the Office of Fair Trading;

(o) the Office of Gas and Electricity Markets;

(p) the Security Industry Authority.’.

Amendment 108, in clause 1, page 2, line 17, at end insert—

‘(l) Transport for London;

(m) London Fire and Emergency Planning Authority;

(n) London Development Agency;

(o) Metropolitan Police Authority.’.

Mark Harper (Conservative, Forest of Dean)

It is a pleasure to serve under your chairmanship this morning, Mr. Benton. I shall speak to amendments 2 and 4 and the group of measures before us. I shall see whether you let me get away with making some wider remarks on the clause or whether you wish me to hold them over for a stand part debate.

Amendment 2 is straightforward. It deals with how the Government have decided to set out the public authorities to which the clause relates. The strategy they have adopted is to list a number of authorities, but clause 2 gives Ministers the power by regulations to amend primary legislation. The Conservatives are reluctant to allow Ministers the power to amend primary legislation by order and the amendment sets out a different approach.

We would set out a power for Ministers of the Crown by regulations to list public authorities to which the measure applied. If they wished to add or remove public authorities from that list, they would simply change the secondary legislation. That is a better way to go about things, rather than allowing Ministers to amend primary legislation by order. This is a technical amendment.

Amendment 4 would remove subsection (4), which applies the measure to partner authorities of local authorities “in relation to” their

“preparation and modification of a sustainable community strategy.”

To explain the purpose of the amendment, I need to explain our concerns and objections to the measure. Ministers are a little confused about the difference between discrimination and disadvantage, which point my hon. Friend the Member for Weston-super-Mare has made before.

Ministers appear to be confusing the poor opportunities of socio-economically disadvantaged communities with discrimination. That is a wrong-headed approach because the solution to sorting out socio-economic inequalities is to deal with their root cause, and for Ministers and other public authorities to tackle them. For example, the reason for the educational disadvantage experienced by those who come from poor areas is often that they do not have access to good schools. The duty in the Bill is not the solution; rather, it is for bodies to do something to arrange the provision of good schools.

My concern about the measure, and the argument for the amendment, is that Ministers are in danger of setting expectations that are destined to fail—it is as if the clause says, “Everyone has the right to a good life.” We do not solve such problems simply by passing a law. A good example is the fuel poverty legislation that the House passed a number of years ago. It effectively said that fuel poverty would no longer exist. Of course, several years after that legislation was passed by the House and the other place, fuel poverty still exists—indeed, it is getting worse, not better. That is a fundamentally wrong-headed approach to solving some of those problems.

Tim Boswell (Conservative, Daventry)

On that specific point, is it not the issue that although it may well suit Ministers to place on public authorities high-sounding obligations that look tremendous on paper, in the absence of sanctions that could in an extreme case apply to individual members of those authorities, as in the example of fuel poverty, they amount to nothing?

Mr. Harperrose—

Joe Benton (Labour, Bootle)

Order. Before the hon. Gentleman replies, may I take the opportunity to refer to his opening remarks? It is perfectly all right to allow as broad a scope as possible for debate on the amendments, but I remind the Committee that in relation to clause stand part I have the power to circumvent any further discussion if, in my opinion, the clause has been discussed adequately. I just point that out, but there is no harm at all in what is going on.

Mark Harper (Conservative, Forest of Dean)

I am grateful for your guidance, Mr. Benton.

My hon. Friend the Member for Daventry made a good point and it goes wider, because if we put responsibilities on a range of authorities—we are talking about a significant list and there are amendments that would widen it—we must think about not only the duties that we are placing on them, but the resources that we grant them. If we place a lot of responsibilities on public authorities without the concomitant resources, we may be setting up not only Ministers, but that significant list of authorities, to fail. From a public policy perspective, that is not sound.

Let us consider the partner authorities and the sustainable community strategy, which raise another issue. The authorities listed fall into two categories. Some are unelected quangos, which are in effect at some point responsible to central Government. Others, however, such as county and district councils, the Greater London authority and London borough councils, are elected authorities. The decisions to be taken about the extent to which they take into account socio-economic inequalities and disadvantage and the extent to which they make judgments about resource allocation are legitimate judgments, but they are judgments for political discourse.

It is for electors to make decisions when they elect different members of those authorities and it is for those authorities to make the decisions in debate, weighing up all the factors concerned. It is proper for that to be done at that level and not for Ministers to seek to put duties on them.

Amendment 4 relates to the authorities drawing up their sustainable community strategies. They would, by their very nature, be better drawn up at a very local level by those authorities that know their areas best, know the people the best and know the relevant factors. They are very familiar on the ground with the disadvantage and the socio-economic factors, and it is for them to draw up the strategy, recognising that they are accountable to the people who elect them.

There is a different argument, and Ministers perhaps have a stronger case when they talk about bodies that are subordinate to Ministers, but even then it is really for Ministers to make political judgments about socio-economic inequalities and resources and how they allocate them, and for those arguments to take place in the House and the other place.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

Does the hon. Gentleman accept that the equality duty, be it in respect of gender, race or whatever, should apply equally to all authorities? If so, what is the difference between that and the disadvantage caused by socio-economic inequalities?

Mark Harper (Conservative, Forest of Dean)

The hon. Lady comes back to a point that I made at the beginning about stamping out discrimination and confusing discrimination with disadvantage. They are not the same thing at all. The socio-economic inequality referred to is different qualitatively from the protected characteristics and stamping out discrimination.

I think I am right in saying that in the evidence-taking sessions the hon. Lady was concerned that the clause does not apply to the Scottish Government. One thing I thought while she was making those points was that, particularly in relation to those hon. Members who supported Scottish devolution, the decisions that the Scottish Government make on their policies and resource allocation and how they go about tackling disadvantage are surely for Scottish electors to consider when they choose who represents them in the Scottish Parliament. The Scottish Government have to make those decisions when they weigh up their public spending priorities and other decision making. It is surely in that forum that those challenges should be addressed. If the Scottish people feel that the Scottish Government are not making the right decisions, they have the opportunity to throw them out.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

I totally agree. I am a firm supporter of Scottish devolution—I would even say that I am one of its more ardent supporters among my colleagues—but there is the capacity to adopt the duty in Scotland through a Sewel motion. It would then be up to the Scottish Government and the Scottish public authorities to decide how to implement it. I think that the Scottish people want Westminster and the Scottish Government to work purposefully together.

Mark Harper (Conservative, Forest of Dean)

The hon. Lady makes a good point. Clearly, I would have no objection if the Scottish Government decided to do that. It would be a matter for them, and if they wished to adopt the duty, that would be absolutely fine. My point is that devolution implies that authorities will tackle things differently.

John Penrose (Conservative, Weston-Super-Mare)

Does my hon. Friend agree that an additional distinction can be made between disadvantage and discrimination? The grammar of discrimination is rightly all about perpetrators and victims—people discriminating unfairly against others, who lose out as a result. Disadvantage is an important concept, and the Government have rightly made efforts to wipe it out, but it is very different. It is not about perpetrators and victims in the same way that discrimination is; it is about systematic problems and failures and about assisting, helping and supporting. By definition, the public policy solutions required to deal with disadvantage are very different from those required to deal with discrimination, which is why disadvantage does not fit so well in such a Bill.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend makes a good point when he says that the solutions to socio-economic disadvantage are quite different from those required to stamp out discrimination. Indeed, one reason why we tabled a reasoned amendment on Second Reading was that although we were happy with the bulk of the Bill—indeed, the simplification and codification in it are welcome—we did not think that this part fitted well with the rest. Indeed, it looks like it has been squeezed in at the beginning or tagged on, albeit not as an afterthought, but not elegantly.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The Bill’s title is the Equality Bill, and given that socio-economic disadvantage is the greatest inequality there is, it would have been negligent of the Government not to include it. My criticism is that their proposals are a weak way of including it. Does the hon. Gentleman agree?

Mark Harper (Conservative, Forest of Dean)

No, I do not. As my hon. Friend the Member for Weston-super-Mare said, the remedies and powers in the rest of the Bill to prevent discrimination are quite different from the solutions to socio-economic disadvantage.

For the avoidance of doubt, I should say at this point that we are in no way saying that there are no issues with socio-economic disadvantage. Indeed, on Second Reading, my right hon. Friend the Member for Maidenhead (Mrs. May) made it clear in her opening speech, as I did in my winding-up speech, that there are issues with socio-economic disadvantage. Ministers and former Ministers have been frank about that. Indeed, the Home Secretary, when he had responsibility for education, said:

“It is actually getting harder for people to escape poverty and leave the income group, professional banding or social circle of their parents. In fact, it’s harder to escape the shackles of a poor upbringing in Britain than anywhere else in Europe, and about the same as in America.”

There clearly is a problem with lack of social mobility and people being trapped in disadvantage, but we do not think that the solution is to include these measures in the Bill. Clearly, the Government, of whichever party, will have a big job dealing with the reasons for disadvantage, whether by improving families’ ability to stay together or looking at the educational opportunities available to people to give everybody an equal opportunity to succeed. However, the proposals are a profoundly mistaken way to deal with the issue.

I mentioned fuel poverty legislation, and the Government also plan to introduce a Bill to eliminate child poverty. To be fair, the Government had some success in dealing with the issue, but child poverty figures are now going in the opposite direction. We cannot solve such problems by passing a law; we solve them by tackling the root causes. A number of those who appeared before us in our evidence sessions were fairly relaxed about the proposals and supportive of them, but most did not think that they would make a huge difference. That is the flaw and why this is not the way to tackle socio-economic disadvantage.

Vera Baird (Labour, Redcar)

In fact, almost everybody who was asked about the provision—they were repeatedly probed by members of the hon. Gentleman’s party—was immensely supportive. The hon. Gentleman makes the point that it is not the solution; of course it is not, because the problem is entrenched and difficult. However, what is the harm of it? It will help. EDF has 50 members, each with a large membership, and they all think that this will help. ROTA, which also gave evidence in favour of the proposal, has 1,500 member organisations, each with many hundreds of members, and therefore with many discrimination strands, and they think that it will help. What does the hon. Gentleman say is wrong with the proposal?

Mark Harper (Conservative, Forest of Dean)

I do not think that it will make much difference, if any. Bills are not about sending messages; they are about changing the law. If one is going to put a duty on public sector authorities, and if that duty is not meaningful and will not make a significant difference, it sets expectations that simply will not be delivered. It also puts a burden on authorities. There will be lots of compliance that authorities will have to tackle. There will be lots of words in annual reports and people doing reports about how they are complying. If the reality is that it will not make any difference, an awful lot of money will be spent with an awful lack of outcome.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the hon. Gentleman confirm that he said he does not believe—I think he is right, actually—that legislation should be solely for the purpose of sending out a message? It must be shown to fulfil another need or be effective in itself, and arguing that it sends a message is not a good basis for legislation, whether in this area or any other area, such as criminal justice.

Mark Harper (Conservative, Forest of Dean)

Yes, I agree. Legislation ought to be effective. From the conversations that I have had and the evidence that I have seen, I do not think that this is the way to go about it. The issue is serious, and there is a real problem. One could argue that setting out ways in which every member of our society has an equal opportunity to succeed—it does not mean that we will have equal outcomes, but everyone will have a fair chance—is probably one of the most important parts of public policy. But this is not how one goes about doing it. I do not think that it fits well within the Bill—it detracts from the Bill rather than adding to it—which is why we oppose it.

On amendment 2, will the Minister comment on the approach, because we do not think that giving Ministers the power to amend primary legislation is welcome? It would be better to set it out differently, but I recognise that that is a technical point, which we can discuss. Amendment 4 is an opportunity to discuss where the appropriate level for the decisions sits and the appropriate forums. We do not think that this particular approach is a sound one.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

May I say what a pleasure it is to sit on a Committee where you are the Chair, Mr. Benton? I look forward to working on the Bill and probing and improving the legislation, where possible.

I rise to discuss our amendments 108, 109 and 181, amendments 2 and 4 tabled by the Tories and amendment 107 tabled by the SNP. It is quite clear that partner organisations, regulators and a whole range of authorities and agencies could have the duty, and I want to find out which of them might be included in the lists. Amendment 108 relates to the partner agencies as part of the Greater London authority. Transport for London, the London Fire and Emergency Planning Authority, the London Development Agency and the Metropolitan Police Authority are clearly strategic authorities and partners involved in pursuing, delivering and implementing policy.

The clause does not make it clear whether those GLA family members are covered by the socio-economic duty. Schedule 19 lists them individually for the general public duty, but that is not so in the clause. My purpose is to get the Minister to elucidate whether they should be named as individual partner bodies. Their roles are extremely strategic and they act independently of the Mayor, although in the matter of political direction, the Mayor of London is at the top. The bodies in question cover some of the areas of highest inequality in the country.

The list in clause 1 includes police authorities, but fire and rescue authorities constituted by a relevant scheme are not included in the same way, and amendment 109 would provide for those to be included in the socio-economic duty. Those are single-function authorities, but a socio-economic duty would ensure the consideration that the Government have deemed it important for all bodies to have regard to. Social inequality in the question of where and how to give fire cover is very important. The authorities cover huge areas—West Midlands fire service, for example. The situation is anomalous in relation to police authorities, and we cannot see why police authorities but not fire authorities should be included.

Amendment 181 is supported by Citizens Advice. We think that the provision should require bodies with inspection or regulatory duties also to have regard to socio-economic inequalities. Regulators play a huge part in the provision of public services that matter, and they sit in judgment, so it is right that they should consider the socio-economic duty. The example given by Citizens Advice is Ofgem. It argues that if Ofgem had had such a socio-economic duty, it would have acted much sooner to deal with the issue of poorer customers being charged more for metered electricity, which is obviously an important point.

I forgot to say in beginning, Mr. Benton, that I want to deal with the wider issues on clause stand part.

I want to discuss the Conservative amendments 2 and 4. We agree with amendment 2 to the extent that the list in the clause is imperfect, as I hope that I have shown. However, the Liberal Democrats would much prefer a prescriptive list to the delegation to Ministers or a future Government of the power to list authorities. Delegation of the power would make the application of socio-economic duty subject to the whims of Ministers or the Government of the day, which would mean uncertainty in the Bill. As to amendment 4, there are many examples of partner authorities that should be covered, because of their strategic nature and their potential impact in reducing socio-economic disadvantage.

Joe Benton (Labour, Bootle)

Order. I interrupt the hon. Lady because I have been thinking about what she has said about not discussing the broader issues at this stage. On reflection, and bearing in mind my earlier ruling, we may not have a stand part debate, and it would be helpful—I do not say that it must happen—if she were to address the broader issues. That is a suggestion, not a ruling.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Thank you for your guidance, Mr. Benton.

Vera Baird (Labour, Redcar)

I hope to assist the hon. Member for Forest of Dean. We do not wish to have a clause stand part debate, but the ball is entirely in the hon. Lady’s court.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I understand.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

On a point of order, Mr. Benton. The hon. Member for Forest of Dean, who speaks for the Conservatives, raised a number of general points, but my understanding is that the points that my hon. Friend the Member for Hornsey and Wood Green wishes to raise are wholly different from and unrelated to the issues relating to public bodies in this group of amendments. Because they are specific, finite points relating to the question whether there is alternative way of doing what the clause seeks to do, they would fit best in a separate debate. Will you, Mr. Benton, reflect on your current advice—it is obviously your ruling to make—to see whether separating things out would aid debate?

Joe Benton (Labour, Bootle)

I am glad the hon. Gentleman has mentioned “advice” as opposed to “ruling”. It will depend precisely on how proceedings go during the discussion of the amendments. I was merely pointing out that it would be helpful. It is not a ruling and you can leave the advice. It does not necessarily mean that there will not be a clause stand part debate, but if the hon. Member for Hornsey and Wood Green is so disposed to talk in general terms, it might be helpful. It is entirely a matter for her, and it is not a ruling.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank you, Mr. Benton, and I am happy to be helpful on this occasion.

Moving on to some wider issues associated with amendment 4, the Liberal Democrats think that the socio-economic duty is generally a good and important thing. There may not be enough similar measures in the Bill. Because the measure came in at such a late stage, there was not adequate time to consult all the relevant bodies. There is no greater inequality than the socio-economic divide, and I regret that the duty in the Bill is so weak. We fully support its aims, but we feel that the measure is more about sending a message than imposing an actual duty. In reality, most authorities and agencies have some regard to the issue already, certainly at local council and government level.

How much consultation were the Government able to do on the socio-economic duty? The measure was introduced very late, but it is one of the most important elements of the Bill. It is in clause 1, so the Government have given it some import, but I would have liked that to have been reflected in the depth of the consultation. Had that happened, there would have been ramifications. The measure might not simply have been an attempt to deal with the symptoms rather than the cause.

John Mason (Scottish National Party, Glasgow East)

As this is the first time that I have spoken in Committee, may I say that I appreciate your chairmanship, Mr. Benton? I want to make some general points to begin with before specifically discussing amendment 107, which is similar to the proposals that we have heard about this morning.

The Scottish National party and the Government of Scotland very much support the Bill and welcome the fact that different strands of inequality are being brought together. A lot of good has been done in recent years, but much remains to be done, for example, on equal pay for women. Also, are the reasonable adjustments for disabled people moving forward fast enough? That I and others will table amendments to the Bill does not take away from the fact that we very much support it.

I am very supportive of the socio-economic duty. One reason why I am in politics is to try to reduce the gap between the rich and the poor. I asked about that last week in what was my first question to the Prime Minister in the House. My first question on this specific duty is this: are we going far enough? There is little power of redress. Will the Minister explain exactly what will be different under the legislation? For example, the city that I am most familiar with is Glasgow. My experience of Glasgow is that both the local authority and health services take poverty into account when allocating resources. For instance, in the east end of Glasgow, there is a lack of breastfeeding and a particular problem with smoking, and the NHS and the council have targeted that together.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

I do not disagree with anything that the hon. Gentleman has said. In Scotland, extensive measures are taken to tackle disadvantage, but before 1997, the link between poverty and ill health, for example, was not recognised by the Government and support did not filter down to that level as it does today. If he supports the power, will he urge his party to put sectional interests aside and adopt a socio-economic duty in the Scottish Government?

John Mason (Scottish National Party, Glasgow East)

The hon. Lady is jumping slightly ahead to my next paragraph, so I will move on as I think it will address her question.

Will the Minister explain how things will be different in practice in a city such as Glasgow as a result of the power? What can happen now that will not be able to happen in the future?

Vera Baird (Labour, Redcar)

Obviously, the power will not make the slightest difference to Glasgow, as the Scottish Government have not accepted it.

John Mason (Scottish National Party, Glasgow East)

It will affect bodies such as the Department for Work and Pensions, I think.

Stephen Hesford (Labour, Wirral West)

Theoretically.

John Mason (Scottish National Party, Glasgow East)

Theoretically at least, if the power applied throughout Scotland, what difference would it make? Perhaps I should be asking what difference it will make to Manchester or Birmingham.

Mark Harper (Conservative, Forest of Dean)

Perhaps the Solicitor-General was being a bit roundabout. I suspect she was really wondering—given that the hon. Gentleman said that he and the Scottish Government support the power, and given that his answer focused particularly on the difference it might make to his constituents in Glasgow—why the Scottish Government do not want it to apply in Scotland.

John Mason (Scottish National Party, Glasgow East)

I will answer both those points eventually, as I have a letter here from the Minister for Housing and Communities, Alec Neil MSP. The basic position of our party and the Scottish Government is that we are totally committed to challenging socio-economic inequality. It is a question of the best way to go about it and whether the Bill goes far enough, as has been mentioned.

The letter says:

“The Scottish Government has supported the principle of the Equality Bill from the outset and continues to support it. A number of provisions in the Bill require the legislative consent of the Scottish Parliament, and the Scottish Government introduced a Legislative Consent Memorandum... on 7 May.”

I believe that is working its way through the process.

The Minister for Housing and Communities goes on to mention the socio-economic duty, saying

“it is correct that the socio-economic duty... will not extend to Scotland. Scottish Government officials have only had limited contact with the Government Equalities Office (GEO) on the proposals for a socio-economic duty”.

The suggestion seems to be that the Government in Westminster have not been doing a lot of talking to the Scottish Government to explain the duty and whether we should take it through.

Vera Baird (Labour, Redcar)

I have no idea where that suggestion comes from. I have been to Scotland several times and given evidence to the Scottish Parliament, and officials have been in pretty constant contact. We would be pleased if we persuaded the hon. Gentleman’s party to take on the duty, and we have done our level best to do so. Compare and contrast Wales, where we have had far less trouble persuading the Government that it will be helpful to their people.

I assure the hon. Gentleman that we have had an enormous amount of contact. He is in a funny position—I acknowledge that straightaway—in that he seems to support the measures, although he does not think they go far enough, but his own Government will not have anything to do with them.

John Mason (Scottish National Party, Glasgow East)

I would be happy to act as go-between if the two Governments would like to use my services.

Emily Thornberry (Labour, Islington South and Finsbury)

Does the hon. Gentleman not agree that his constituents would be somewhat alarmed by this situation? Surely they sent him to Parliament to deal with precisely this sort of problem, if it really is a problem.

John Mason (Scottish National Party, Glasgow East)

In one word, yes. Let me read the next paragraph of the letter, because it might clarify things further:

“Within our devolved powers we are able to carefully consider how we can direct our efforts to tackle poverty, reduce inequality, and promote social mobility in a way that is most appropriate to Scotland. As it is, we are completely committed to reducing socio-economic inequality in Scottish society. Our Solidarity and Cohesion targets commit us to taking serious action to reduce the gap between the rich and the poor, both at an individual and an area level. Achievement of these targets will be supported by a wide range of measures already in place.”

I take that to mean that the Scottish Government remain to be convinced that the proposed power has teeth.

Mark Harper (Conservative, Forest of Dean)

I confess to being confused. If we take my view, the hon. Gentleman’s comments make perfect sense. He has set out his view that the Scottish Government have wide-ranging targets and measures to deal with socio-economic disadvantage. In that case, they are getting on with it, and presumably the electorate are happy with that, because the Scottish National party did well in the last elections. It seems, therefore, that he should be supporting my view too.

However, if the hon. Gentleman accepts the view that he has already expressed—this power is appropriate and the only thing wrong with it is that it does not go far enough—it seems strange that he does not want the Scottish Government to adopt the proposed power. Most of his remarks appear to agree with what I am saying, but coming from him, they do not seem consistent or logical.

John Mason (Scottish National Party, Glasgow East)

I am sorry if I am not explaining myself well enough. Let me try again: I, the Scottish Government and our party are totally committed to challenging socio-economic disadvantage, and I believe that we are more committed to that than the Westminster Government—

Jim Sheridan (Labour, Paisley and Renfrewshire North)

Will the hon. Gentleman give way?

John Mason (Scottish National Party, Glasgow East)

Let me finish my sentence. I believe that we are more committed to that than the Westminster Government, so we want to find something better than this socio-economic duty. As has been said by the Conservative party, it seems to have been tagged on a bit, even though it is at the beginning of the Bill. We want to find the best solution. We can use this measure, for now, but we should try to find something better.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

I remind the hon. Gentleman that his Government have been in power for two years. Will he tell me one measure that they have introduced to address socio-economic disadvantage?

John Mason (Scottish National Party, Glasgow East)

I think we are probably straying from the subject. However, I would suggest that reducing prescription charges is one. I know that the Welsh are ahead of us on that—they have free prescriptions—but we are reducing charges, while in England they are increasing.

I am not as familiar with the situation in England as I am with that in Scotland; perhaps Scotland is simply slightly further ahead on some of these issues. Another slightly different factor in Scotland is the concordat between central Government and local government—I assume from the comments of the hon. Member for Forest of Dean that the Conservative leader would agree with this kind of measure. Instead of central Government imposing lots of new duties on local government, they very much work in agreement. That has certainly been welcomed by the Labour party in Scotland.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

To put it very mildly, the concordat is on a shaky peg and might well break down, although I accept that it did happen. In my area, the Tory and Scottish National party council is shutting things down and making cuts left, right and centre. The concordat means little to the people I represent. However, does the hon. Gentleman agree that this is a missed opportunity? The Scottish Government simply want to plough their own furrow. They do not want to co-operate with Westminster. As usual, they want to pick a fight with it, instead of being constructive.

John Masonrose—

Joe Benton (Labour, Bootle)

Order. Before the hon. Gentleman replies, I suggest to the Committee that we have discussed the intentions of the Scottish Parliament at inordinate length. Can we please return to the amendment?

John Mason (Scottish National Party, Glasgow East)

I apologise for everybody else’s interventions.

I am grateful to Citizens Advice for its help on amendment 107. Clause 2 provides for the list of authorities in clause 1 to be added to through regulations. I believe that it is important for the duty to apply clearly to key regulators, Executive agencies and non-departmental public bodies, particularly those with an economic impact. Would it not be better to include those in the Bill now to ensure fairness as we come out of the recession, rather than waiting for a Government to include the bodies at a later date? That would mean regulators taking the duty into account when setting regulatory policies and strategies.

The amendment suggests five additional authorities, although there could be more—this is just for starters. The Liberal Democrats have mentioned a few other bodies and similar arguments apply to each of those. Often, there is already a duty on them that might include socio-economic issues, but extending the duty specifically to cover them should strengthen their resolve.

I want to consider specifically the Office of Gas and Electricity Markets. Ofgem’s principal objective is to protect the interests of existing and future consumers, promoting effective competition wherever appropriate. In addition, when carrying out those functions Ofgem must have regard to the interests of individuals who are disabled, chronically sick, of pensionable age, on low incomes or residing in rural areas.

That is of particular concern to me, as a number of poorer people in my constituency are struggling with fuel bills, paying more for electricity and paying in advance through a pre-payment meter. That is a real problem. Extending the socio-economic duty to Ofgem would reinforce its ability to deal with that issue and justify the regulator prioritising its work on socio-economic inequalities ahead of other matters, such as certain competition issues. The amendment could bring about a slight difference in emphasis.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I have a great deal of sympathy with what the hon. Gentleman is saying. Particularly because so much of the direction of public services has been delegated to regulators such as these, away from elected Governments, it is important that we use every opportunity to give them a steer when there are certain public policy outcomes, such as the elimination of disadvantage, that we would like to be delivered through utilities or public services, without putting too much of a burden on industry. That is why his amendment and the Liberal Democrat amendment, which says much the same thing in respect of regulators, are so important.

John Mason (Scottish National Party, Glasgow East)

I appreciate the hon. Gentleman’s intervention and agree with his point.

Vera Baird (Labour, Redcar)

I am being as sympathetic as I can, but our concern is that there is no point putting a duty on regulators if a duty cannot be put on the people they regulate. It cannot, because we are talking about the private sector, so what is the point?

John Mason (Scottish National Party, Glasgow East)

One suggestion is that the regulator must prioritise the work that it does. Specifically giving the regulator the socio-economic duty as well would, we hope, push that up its agenda. I know that in many cases the regulator is struggling with a wide agenda, but I believe that the point of the Bill is in some cases to double-underline duties that may or may not apply to other authorities. If this duty applies to other authorities, it should apply to the regulator as well.

Tim Boswell (Conservative, Daventry)

Let me try to help the hon. Gentleman. Does he agree that a consideration in this respect might be whether the regulator would require the introduction of a particular social tariff to meet the problems of disadvantage? That at least, whatever the merits of the clause, might be a perfectly proper steer that the regulator could be obliged to give.

John Mason (Scottish National Party, Glasgow East)

That is an extremely good example and there are probably others. I appreciate the intervention. If the duty already applied to Ofgem, the regulator, following its conclusion that consumers on pre-payment meters were subject to unfair price differentials, might have been able to act more swiftly and take decisive action.

As well as regulators, certain Executive agencies and non-departmental public bodies should be subject to the duty. Although it may be argued that those public bodies will be covered by the duty applying to Departments, it should be made clear whether that is the case. I would appreciate the Minister clarifying that. One example would be Jobcentre Plus, in the same way that the duty under the Disability Discrimination Act 2005 to promote disability equality applies to certain Executive agencies and non-departmental public bodies.

Finally, I oppose Conservative amendments 2 and 4 and support amendments 108, 109 and 181.

Tim Boswell (Conservative, Daventry)

May I also welcome you to the Chair, Mr. Benton? I think that we will have a positive and constructive Committee. I promise to speak about some of the general aspects of the amendments and the clause without straying on to the issue of Scotland. However, it is just conceivable, in view of my wife’s nationality and certain involvements that I have in Cardiff, where I come across the Welsh Assembly Government, that I may advert to that body. That is not a threat; it is simply that we have heard a lot about the different implications of devolved Administrations.

I will not indulge myself at length, but it comes as a wake-up call telling one that it is time to go when one finds that Cabinet Ministers were born after one had left higher education. I was shocked to discover that the other day, but it also prompts my first general remark. Forty-five years ago, I had the first—and probably only—lesson in moral philosophy that I can remember, which was to the effect that there is a distinction between saying that something should happen and saying that there should be a law that something should happen. That is the general issue raised by this place.

The Solicitor-General has been very kind to me on occasion, and I hope that there will be no argument about whether we are interested in inequalities. There could have been that argument, and there could still be in respect of certain members of my party and other parties, but we need to be alert to such factors.

Among local authorities in my county and most others, and even among regulators, which we recently discussed in relation to an amendment, there is a disposition to even things up and, to use a phrase that I used on Second Reading—I am interested in the human rights side, as well as the discrimination and equalities issue—to treat people decently. That is really why we are in business in Parliament, and we should not have an argument about that. The issue, however, is how we deliver that and whether it is appropriate to have a general duty.

When I interrupted the excellent speech by my hon. Friend the Member for Forest of Dean, who was making a perfectly reasonable distinction between inequality and discrimination, I adverted to my concern that the proposals did not amount to much, particularly when there was no opportunity of litigating in private to correct failures by a public authority. There are no teeth, although that does not necessarily mean that we should never have legislation.

During our evidence sessions, the Solicitor-General objected to my slight penchant for principles clauses, which we may have occasion to discuss later. She said that such a clause would not add value and that it was not clear how it would operate in practice. However, one could reasonably turn her argument against her and say that if she does not like principles clauses, she should accept that clause 1 is, in a way, a clause of generality or principle, which may not have many teeth or substance and which may serve a political rather than a purely functional purpose.

I add another general concern, which strays forward into clause 2. It relates to the operation of so-called Henry VIII clauses. The only other reminiscence that I will relate to the Committee is that the first house I grew up in was a farm house. It was nothing very grand; indeed, it had previously been used to store onions. It was called Bull’s lodge. Bull was in fact Boleyn, as in Anne Boleyn. It was a small hunting box that had been owned by Sir Thomas Boleyn. It was next to New hall, which happened to be one of Henry VIII’s palaces. Indeed, we found evidence that he and Anne had been courting, because there was a secret passage between the two. That is the early memory, but I was going to say that Anne Boleyn had a nasty time at the hands of Henry VIII, and we should resist Henry VIII clauses in principle.

John Penrose (Conservative, Weston-Super-Mare)

I will not try to try to top my hon. Friend’s penchant for reminiscing, and I certainly cannot come up with anything that wonderful. However, does he agree that the danger in the clause, and the objections to it, as laid out by my hon. Friend the Member for Forest of Dean, relate not so much to a Henry VIII clause problem as to a King Canute clause problem? The Government are trying to stand in front of the advancing waves of inequality and order them to retreat. If they are to deal with inequality via disadvantage, they need to build some sea walls or a dam to hold them back, rather than just standing there ordering the waves to go back. That is the problem with the Bill.

Tim Boswell (Conservative, Daventry)

That was a helpful intervention although I would go further. What might be termed hard defences against inequality—I have some experience; I do not make much of it, but I used to be the Minister with responsibility for sea defences—are not always better than what might be called soft defences, which try to change culture and explain that certain things are not acceptable. Nevertheless, the intervention was helpful.

Emily Thornberry (Labour, Islington South and Finsbury)

I am getting confused and I wonder whether the hon. Gentleman will enlighten us. If Opposition members of the Committee think that this is a King Canute clause, with my hon. and learned Friend the Solicitor-General standing before the sea and ordering it to go back, what alternatives do they suggest? What are the hard defences that we are not using?

Tim Boswell (Conservative, Daventry)

I am grateful to the hon. Lady. She reminds me of the anecdote about a gentleman went to a conference, which a friend had advised him to attend, because he was confused. On his return, his friend asked how he was. The man replied, “Still confused, but at a somewhat higher level.”

Mark Harper (Conservative, Forest of Dean)

Perhaps I can help the hon. Lady. I alluded to a specific issue. One of the clear disadvantages that many people from poorer backgrounds face is the lack of availability of excellent schools. They cannot offset the disadvantage of their parental income by going to a good school that enables them to reach their full potential. The solution is for central Government and local authorities to implement policies that ensure that there are more good schools and that those children have access to them. That is the solution, but it will be achieved not by putting this measure into law, but by political action and the necessary steps being taken. That is how we tackle socio-economic disadvantage.

Tim Boswell (Conservative, Daventry)

I am grateful to my hon. Friend. He prompts me to make one point, but I promise to reply in substance to the hon. Lady’s question in a minute. In my constituency, I have a continued, strong concern that in pursuing what might be called—perhaps unfairly—an urban agenda, the Government tend to overlook the fact that there are areas and pockets of rural deprivation that can be just as intense, and are often aggravated by relative affluence alongside them.

In rural areas such as my constituency and that of my hon. Friend, there are issues such as whether or not young people have access to wheels and can get about and get a job or further education. It is incumbent on us all, whatever our politics, to take those matters seriously, and I hope that that is not a matter that divides us.

Prompted by the hon. Lady—I would have said this anyway—there is some analysis to be done on the clause. The Bill is about equality and dealing with discrimination, and it reflects and consolidates a body of law that aims to protect the individual from discrimination. However, I am concerned that the clause sits ill with that, as it is an injunction to public authorities at a strategic level. The essence of discrimination is that it is at a tactical level—there is one exception, which I will perhaps come on to—and not at a strategic level. The exception might be institutional deprivation—not racism—in some local authorities that prevents them from dealing with issues for their less disadvantaged persons. If the Government are arguing that, I would like the Solicitor-General to say so. My view is that if that is happening, the ballot box is the answer, not a Government intervention or a clunky legal process. Unless that is the case, however, it is better for local authorities to make decisions.

I apologise for not having spotted this earlier and put down an amendment, but clause 1(1) refers to

“making decisions of a strategic nature”.

I am not clear whether those are intermediate decisions. I could understand it if the clause mentioned drawing up a strategy, as that would be similar to having ministerial guidance about a strategy for a local or public authority, but this is somewhere between high strategy and a tactical decision, which I suggest is the main focus of discrimination in practice. Somewhere along the line, every time people make a decision, there is a difficult evidential problem of how to decide as a local or public authority whether that is a strategic decision. If it is not a strategic plan and something appears to come out of that, then they have to decide whether it deals with socio-economic inequalities.

It needs to be recorded that there are other considerations for public authorities, which may need to balance other factors, including the welfare of the majority of their inhabitants, for example, and overall economic development, if that is not consistent with dealing with socio-economic inequalities. Those are fundamentally political decisions. Unless there is some equivalent of institutional racism—I am interested to know whether there is any evidence for that; I do not think that there is—those decisions are better left for local and public authorities and our other administrative mechanisms, such as inspection.

Inequality has to be dealt with locally. There is a national issue of concern, which is why we are here trying to get this right. But delivery will be at local level and that means making, as I have suggested, a tactical decision, perhaps when siting a school or a clinic, or something like that, or the involvement of a non-governmental organisation to try to extend the efficiency of the public sector. Again, it is appropriate that such decisions are made locally.

I understand the motives behind the clause and it is just conceivable that it might do some good as a kind-bully pulpit, but that is the only argument for this clause, which is not well articulated. The remedies and sanctions under it—

Mark Harper (Conservative, Forest of Dean)

My hon. Friend says that the clause is a bully pulpit, which means that there is a danger of passing laws to send messages, which we discussed earlier. If a clause is going to be used to send a message, the message needs to be clear. There is a fleck of clarity in the first part of the clause. I talked earlier about disadvantage and the need to increase equality of opportunity, but the clause mentions inequalities of outcome. There is a significant difference between equality of opportunity and equality of outcome. If a piece of legislation is going to be passed to send messages, there needs to be clarity about the message that is sent.

Tim Boswell (Conservative, Daventry)

That is an honourable and proper stricture. If one is looking for ways of dealing with redressing the inequality of outcome, I suggest a measure of redistribution within the tax system. [Hon. Members: “Hear, hear.”] I thought I would get some results with that. At least then we could have a discussion about it. There is the slight danger that the message being sent by the clause is, “Oh dear. We’ve got an unequal society and we’re going to legislate to stop it.”

Vera Baird (Labour, Redcar)

Do it take it from what the hon. Gentleman has said that he is on board for the 50p tax rate and off board for inheritance tax?

Tim Boswell (Conservative, Daventry)

I hope that the Solicitor-General will not go too far down that line, because it might distress you to know, Mr. Benton, as she well knows, that the 50p rate is likely to have a negative real yield and that measures to ameliorate inheritance tax have been encouraged by the Government themselves in response to Conservative initiatives. But we will leave the issue of redistributive taxation.

We would feel happier with a society where people had opportunity and were not frustrated, discriminated against or humiliated. Whether the clause, with its high-sounding rubric and poor, questionable and indirect delivery, will achieve that is a matter that we may wish to test later on.

John Howell (Conservative, Henley)

I, too, welcome you to the Chair, Mr. Benton.

I want to follow a couple of comments made by my hon. Friend the Member for Daventry and mention my recent experience as a county councillor—I was in that role until last week—during which time I held the portfolio on equalities for three years. With that portfolio, I was keen to move away from the output-based duties and tick-box exercises that had led to the exercise of the duties in question becoming discredited, and towards a more outcome-based series of plans, on which action could be taken.

Tim Boswell (Conservative, Daventry)

I do not want to interrupt my hon. Friend’s argument, but perhaps I can tell him something that will be some consolation to him: he may not know that the leader of his excellent county council lives a mere whisker across the constituency boundary, about a mile from me. So near am I to that constituency boundary that I regularly receive missives from Oxfordshire county council through the postal system, telling me how well it is doing. I can say that those are genuine achievements, which I welcome and encourage people in Northamptonshire to emulate.

John Howell (Conservative, Henley)

I thank my hon. Friend. I have learned in my year here that flattery comes rarely in one’s parliamentary life, so it is always nice to have it unprompted from an hon. Friend.

In changing to outcome-based plans, one of the most crucial things to understand is that the choices are political. Whether they are called strategic, tactical or tactically-strategic is neither here nor there; they are political choices in relation to what outcomes are wanted. It is impossible to achieve a large number of outcomes, so there is a need to be selective about them.

In reality there was a significant overlap between the socio-economic disadvantages in the county and the groups covered by the existing equalities duties. Paragraph 42 of the explanatory notes gives an example from the health sector about targeting specific groups where health inequalities existed and the messages might not have got home for a variety of reasons. That was already being done as a political priority, and there was no better example of it than the joint appointment of a director of public health between the county council and the primary care trust, precisely so that there could be a focus on such disadvantages across the area, and so that the equality duties that already existed could be used as a significant lever for achievement. My question, therefore, is what additionality the measure brings to that system, which is already working.

My second question arises from experience of unintended consequences. I am thinking of the Building Schools for the Future programme in my constituency, where there are pockets of deprivation, despite its description by The Guardian as “opulent”. There are enormous areas of deprivation, some of which are semi-urban but some of which, as my hon. Friend the Member for Daventry mentioned earlier, are places of obvious rural deprivation.

The Building Schools for the Future programme places a clear emphasis on building schools where there is socio-economic deprivation—I do not have a problem with that. However, the orientation and limits that have been set have produced results that do not match need, meaning that although one can visit a school and, on leaning accidentally against the wall, come away with bits of wood in one’s hand, because it is so rotten, one can still be told that the school deserves nothing because it is not in a socio-economically deprived area.

That is an unintended consequence, and we need to be careful when we include the type of duty in question with much harder—stronger, rather than more difficult—duties which, in my experience, are being exercised with great fairness and awareness, including political awareness, of what is happening in a council area.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is a pleasure to follow the hon. Member for Henley, who is my neighbour. He has made a fine contribution to the House in his short time here and I remember his maiden speech. My feelings about him are somewhat strengthened by the fact that I spent weeks, ultimately fruitlessly, wandering around villages in the north of his constituency during the by-election seeking to prevent his election—I still have the blisters.

I have a few points to make in respect of clause 1, and I wish to ask the Minister to reconsider a couple of things in respect of the amendments that deal with regulators, one of which was tabled by my hon. Friend the Member for Hornsey and Wood Green and I, and the other, which is more detailed, by the hon. Member for Glasgow, East.

The Minister said that although she thought that there might be merit in imposing a duty, such as it is, on inspectors and regulators, it would not be consistent or rational to do so because one could not impose the same duty on the bodies they regulate. She might therefore consider that such a measure might be fruitless in some way. I question that, because the duty in clause 1 is that the bodies to which it applies must, when carrying out their functions,

“have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.”

The Minister explained on Second Reading that that was as far as she could go.

We are not talking about any sort of guarantee on socio-economic disadvantage, so it is not right to say that simply because the duty to bear socio-economic inequalities in mind cannot be imposed on the private sector, one should not impose a duty on the inspectors of the private sector. It would not do any harm if the inspectors of utilities, for example, concentrated on the duty or were to make a point of it by giving advice or making representations, in a non-binding way, to those they inspect. The fact that someone is not bound to follow advice, that there is no legal duty for them to do so, or that there is no duty to implement advice—or even to have regard to it—does not mean that that advice should not be given. Advice can be a steer for those who are regulated, and regulators could set out their priorities and focus. Will the Minister reconsider her opposition to the thrust of the proposals, if it is based only on the fact that the duty does not apply to all those regulated by the inspector? It does not need to do so to obtain the benefit set out by the hon. Member for Glasgow, East.

Sometimes public and private sector bodies are subject to regulation and inspection by regulators and inspectorates. Health service inspectorates, for example, cover private and public sector organisations. The same defence of the Minister’s opposition does not apply in those circumstances. Indeed, given that organisations in the health service are subject to so many demands, including, rightly, those in the clause, it would be helpful if health service inspectorates had to have regard to socio-economic inequalities in their inspections of organisations. Otherwise, there will be a concentration purely on other matters, such as quality and efficiency. They are important, but we might lose an opportunity to deal with equity, which is a big issue for primary care trusts, which are rightly listed. It should also be an issue for providers, because their policies on the cost of car parking, for example, can have serious equity implications.

Rather than list all the providers, as the Minister has chosen not to do in the Bill, we could deal with the problem by ensuring that the health service inspectorates have regard to socio-economic inequality in the advice they give to, or in the metrics they develop for judging, health service providers. They would be able to point to the Bill and give a clearer steer. I hope the Minister deals with that in her response.

I also wanted to make a point on the need to send a message. I agree with the hon. Member for Forest of Dean that we should not legislate solely for the purpose of sending a message, especially when such messages are usually not received and understood by the recipients, so that becomes a waste of legislative time. I do not even think that it is a good supplementary reason. My hon. Friend the Member for Hornsey and Wood Green and I support the clause—with reservations, because we think that it is not the best way to do things and that it does not go far enough—not because it sends a message, but because it might have an impact. I asked the hon. Member for Forest of Dean to confirm his view because many of us are sick and tired of hearing politicians in this House say in the criminal justice field, for example in relation to the criminalisation and classification of drugs, that the point of a provision is to send a message, when even the Government’s advisers are clear that there is not a shred of evidence that that message is received or understood. I will take the opportunity, if I have one, to quote his view to his colleagues on his party’s home affairs team who do not share it, at least on that issue.

Finally, there is the question of whether this is the best way to achieve the Government’s genuine intention of dealing with socio-economic inequalities. I do not believe that it is simply a way to provoke the Conservative party into arguing that there is some form of class war, and I was glad that the hon. Member for Forest of Dean did not rise to that bait in the tone and tenor of his remarks. I do not believe that that is the Government’s intention; the Government’s intention is to tackle the problem.

However, I do not think that there is a choice between the clause and, for example, dealing with taxation. My party is untainted by what the hon. Member for Daventry called the Government’s collusion in the inheritance tax arms war that took place 18 months ago. We think that that was a regressive step. It would be a regressive tax change, and it is far better to make progressive tax changes.

To return to our fundamental point, there must be alternative and better ways of dealing with the problem. The Government should at least have considered that through formal consultation, rather than leaping straight for such provisions at the last minute. That was why my hon. Friend the Member for Hornsey and Wood Green asked whether the Government had consulted on the question of whether socio-economic disadvantage should be a protected characteristic. Why not argue that that might be a way forward, whether or not we deal with it at a later stage, as we might well do? It would be interesting to know whether the Government considered a range of options before arriving at the present one.

This is very much a clause stand part debate. In relation to my earlier point of order, most of the clauses in the Bill are restatements of existing laws that we all support on race and disability discrimination, and clause stand part debates are unlikely to be sought on any of them. On brand new legislation, where a principle is involved, it is likely that a clause stand part debate will be sought, certainly by Liberal Democrat Members. We will seek to engage with the Government behind the scenes. I ask the Minister and the Conservatives to consider engaging us in conversation about what debates they wish to have on clause stand part. There will be isolated areas where we, separately from the Conservative party, will want to agree with the Government, or to disagree because we do not think that they have gone far enough. It is slightly easier to make such points in a separate stand part debate, if they are made briefly.

Vera Baird (Labour, Redcar)

Mr. Benton, I do not know whether you are now in a position to decide whether we will have a clause stand part debate. It seems to me that everybody has fed into our debate on the amendments all that they want to say about the general principle. However, I assume that we will not overlook the presence of amendment 110, which will follow separately—thanks for that indication.

I welcome you to the Chair, Mr. Benton, and look forward to your wisdom, which has already been helpful, on how to run the Committee sensibly and fluidly and, with a bit of luck, with a touch of fun occasionally. I have been groping for a historical story to tell back, but have failed miserably.

Amendment 2 proposes to replace the list of organisations to which the duty applies with a power to list the public authorities in regulations. I just cannot see the point, really. It is a new duty covering only a limited number of organisations, so it is important that they are listed as early and clearly as possible. We think that we have them more or less right, and it is not a long list because it is intended to apply only to high-level strategic bodies taking key decisions.

We think that we should make it clear to the public and to everyone else to whom this will apply that we do not intend to add significantly to that list, but of course one cannot future-proof the clause, so it is necessary to have an element of flexibility, which is what we have sought in the drafting. We respectfully suggest that there is not much point in amendment 2, although it has helpfully probed the way our minds have worked on the matter. In a sense, oddly enough, and in contrast with most of the other amendments, the proposed subsection would extend the clause’s scope, so I am pleased to assume that most Members see the value of the duty, because they want to broaden its ambit.

I will now deal with the other amendments in what I think is the most appropriate order. Amendment 107 was tabled by the hon. Member for Glasgow, East, who impressed me with his commitment to ending socio-economic equality and whom I invite to try to persuade his colleagues on the matter, as he offered to be a go-between and speak to us and the currently intransigent Scottish Government. We would welcome his mediation and anything he could do to encourage his colleagues to see what we think is sense.

The hon. Gentleman said that he supports the clause as far as it goes, which I am glad to hear. If the Scottish Government want to go further, that is fine, but the amendment prompts us to ask why they do not also support the clause as far as it goes and make a clear statement that they seriously intend to tackle socio-economic inequality.

I know that the hon. Gentleman did not vote on Second Reading. I do not know whether that indicates that he was confused about the position then, but that would be entirely understandable.

John Mason (Scottish National Party, Glasgow East)

To clarify for the Minister, I was in fact at a conference that day and unable to attend the debate.

Vera Baird (Labour, Redcar)

Well, we missed the hon. Gentleman. I know that the amendment is well-intentioned. It would apply the duty set out in clause 1 to certain inspectorates and regulators that he has pinpointed, including those covering financial services, communities and utilities, which are essential to people’s lives and lack of fair access to which is likely to influence socio-economic outcomes.

The difficulty is the one I put to the hon. Gentleman to reflect on while he advocated his case: extending the duty to the regulators would have no effect on those bodies, which cannot have the duty extended to them as it applies to strategic public authorities, so that is where it would stop. If a body has no duty to abide by clause 1, giving the inspectorate the duty to abide by that clause cannot drive the statutory obligation into the recipient of the inspection. It simply cannot.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

The Minister makes a good point in logical terms, but many people would be sympathetic to the intention of the amendment, because we all know that many of our poorer constituents are adversely affected by, for example, fuel prices and pre-payment meters. Has she had discussions with Citizens Advice about that and what does she think made it feel that the amendment was viable?

Vera Baird (Labour, Redcar)

I assume that it is the line of reasoning the hon. Member for Oxford, West and Abingdon put forward, but I think that it is defective in exactly the way I have said: if one puts a duty on someone, an inspectorate can drive it, but if they have no duty, putting the duty on the inspectorate cannot drive that duty through. We have to do it in different ways, which of course we are doing.

Again, I do not know what the Scottish Government are doing about this, but we are trying to get rid of the penalty on pre-payment meters. We have a consistent, strong and immediately applicable plan to replace all pre-payment meters with smart meters so that the penalty will, as soon as is practical, be driven out of our poorest sections. Many things are being done broadly to assist action against fuel poverty, as the hon. Member for Glasgow, East knows, and it is slightly odd that he seeks to drive in that indirect way bodies that cannot be driven in such fashion while saying, “Well, actually, my Government do not think that the clause is worthwhile.”

Tim Boswell (Conservative, Daventry)

Is the Minister saying—I think she is, but it would be useful to have confirmation—that if there is a disturbing practice or outcome in private sector delivery, the regulator of that private sector is at least not precluded from making comments to encourage improvements in the practice, even if it is outside the statutory duty, just because the delivery is entirely within the private sector?

Vera Baird (Labour, Redcar)

That is done, as the hon. Gentleman knows, and there is an agenda, which everyone has talked about, to try to use those powers to minimise socio-economic inequality, among other things that regulators try to do. My point is reasonably clear. It is about statutory duty.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Will the Minister give way?

Vera Baird (Labour, Redcar)

Of course, but the hon. Lady’s amendment is slightly different and I will come to it in a moment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

There is a disconnect or illogicality about saying, as the Minister did to Conservative Members, that something does no harm, so what is the objection? I ask her the same question: what is the harm in giving the duty to a regulator when it can only do good if its advice is to “have regard to”, even if it cannot compel? The clause is not one that compels.

Vera Baird (Labour, Redcar)

It does no harm to include a provision such as clause 1. Even under the Tory position that it does not go far enough and will not be effective there is no harm in it. We believe that it is quite a strong measure, but from the Tory position there is no harm in it because it is bound to push things in the right direction.

The point is simple, and I have made it three times. If there is no statutory duty, people cannot be compelled to comply with it by putting a statutory duty on inspectorates. The matter is straightforward, and I do not understand why the hon. Member for Oxford, West and Abingdon is shaking his head. Otherwise, we simply could not reach the electricity suppliers and so on. The argument, with which I am hugely sympathetic because the intention is obviously to drive the agenda, just does not work.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not understand why the Minister believes that it would not be worth ensuring that regulators of, for example, the utilities—the case in respect of health workers is separate, but even stronger—could pass comment on the performance of the people they regulate, whether or not they have a statutory power to enforce that or whether or not there is a duty on those who are regulated to take note.

It would still be useful, not least for transparency and understanding, that the public authority concerned—inspectorates are public authorities—could judge utilities’ performance in that way. Utilities are not prevented from taking heed of what the inspectorate says, even if there is no statutory duty to do so.

Vera Baird (Labour, Redcar)

They can, they do and they will carry on doing so. That specific statutory duty cannot be driven by the regulators, but they may make whatever comment they want about how suppliers deliver. The health service is very different, and I will turn to that.

Mark Harper (Conservative, Forest of Dean)

Before the Minister does so, I want to pick her up on how she characterises our approach. We are not saying that the provision does not go far enough. It is the wrong approach for solving these significant problems. Other hon. Members have said that they agree with the approach but that it does not go far enough; we believe that it is simply the wrong way to approach some of the issues. I want to clarify that for her.

Vera Baird (Labour, Redcar)

I was trying to deal with the separate point that the hon. Member for Hornsey and Wood Green raised, and I am sorry if I misrepresented the hon. Gentleman. He is right, and he did not say that the measure does not go far enough. He said that there are better things to do, but we will do this, because we believe that it is a compelling way forward and that it will help immensely in driving socio-economic inequality from our public services.

On the whole, regulators do not take pre-strategic decisions about service planning or commissioning, nor do they expect to do so, but those are the decisions that we want to influence.

Mark Harper (Conservative, Forest of Dean)

May I pick the Minister up on that, because I am not sure that it is true? Ofwat, the regulator for the water industry, is not mentioned in the provision, but it certainly takes key decisions because it is responsible for considering the capital programmes suggested by the water companies and weighing up against a range of objectives the implications of those plans for water prices. Those are significant and strategic for the industry. Clearly, the regulator receives guidance from the Government on what it is supposed to achieve, but it makes significant decisions about the price of water.

Ann Winterton (Conservative, Congleton)

I remind the Committee that with this we are discussing the following: amendment 107, in clause 1, page 2, line 17, after ‘England’, insert—

‘(l) the Financial Services Authority;

(m) the Office of Communications;

(n) the Office of Fair Trading;

(o) the Office of Gas and Electricity Markets;

(p) the Security Industry Authority.’.

Amendment 108, in clause 1, page 2, line 17, at end insert—

‘(l) Transport for London;

(m) London Fire and Emergency Planning Authority;

(n) London Development Agency;

(o) Metropolitan Police Authority.’.

Vera Baird (Labour, Redcar)

It is good to be under your chairpersonship on this Bill, Lady Winterton. I understand that we are going to be less peripatetic than before, which might help logistics. We did wonder whether we ought to introduce an extra strand in the Bill for wandering MPs: we had have three rooms. We shall proceed more easily now that we are not wandering about so much.

I was still talking—not wishing to sound as if I have been long-winded—about amendment 107. Many people have chosen to have a piece of the amendment 107 pie. I draw the Committee’s attention to a new document that has appeared. Members know well that there is a new single equality duty on public authorities, and that will be supported by specific duties. We have undertaken to consult on how the specific duties should be put together. That document is now available on the Table at the back of the room if Members would like to take a copy.

The hon. Member for Forest of Dean said that sometimes regulators of the kind referred to in amendment 107 did indeed have some strategic input. I accept the point that he made, although they are better characterised as reactive. However, even where they take or influence such decisions, they implement them through the bodies that they regulate, and the duty will not fall upon the bodies that are regulated. There is no lack of sympathy among Ministers with the intention behind amendment 107. It has been argued with great strength, and has garnered support, and we will look again to make sure that we are not wrong, but we think it misses the target at which it is aimed.

I turn to amendment 181, which, again, would extend the duty to all public sector inspectorates, with the purpose of driving it through the public sector more broadly. Again, I sympathise totally, but similar arguments apply. Those inspectorates do not, by and large, take the long-term decisions that we want the duty to hit, and if they do, they implement them through the bodies they inspect. Unless we are prepared to extend the duty to the whole public sector—we have limited it to the groups that we regard as the strategic ones—there is no real point in extending it to the inspectorates.

Tim Boswell (Conservative, Daventry)

Is the Minister saying—this again is genuinely for information—that she considered the possibility of extending the duty to the public sector at large, and having derogations from that where it clearly was not appropriate or necessary? Is that a model that we should have realistically pursued, rather than this slightly odd system of specifying part of it and adding in bits of it that we have forgotten?

Vera Baird (Labour, Redcar)

I do not think we are doing quite the latter. We think that we have got into this part of the clause all the relevant strategic authorities, but we cannot be sure we have, so we kept a residual power to add to it. There has been a deliberate process of looking at those authorities to ensure that the duty bites on the right decisions, rather than thinking that it should be applied more widely and allowing everyone else in later.

As for the inspectorates that inspect the public authorities that are covered by the measure, it would be redundant to put a duty on them. The duty has been placed on the public authorities listed in clause 1(3)(a) to (k). They all have the duty. The inspectorates will have to inspect them to make sure that they carry out their statutory duties, because that is part of the matrix of their inspection. We are having detailed discussions with the Audit Commission and the other inspectorates to ensure that there are worked-out ways in which that will be done, because it is key that they should be appropriately monitored. Therefore, there is no need, where the measure bites on the public authority itself, to make it bite on the inspectorate that will inspect it. We have already heard the arguments earlier today that, if the duty is not placed on the body, it should not be put on the inspectorate.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

In relation to the health service, I want to probe the Minister. First, what is said by some inspectorates has a strategic impact. What a health service inspectorate says can significantly affect the way in which the body that it is inspecting delivers its service. There is therefore an argument to say that the inspectorate, when giving its rulings, must have regard to the impact that its ruling will have on socio-economic disadvantage, otherwise inadvertently it might say that the body must do more of something, even if that has primary care trusts, for example, choosing not to provide some of the services that we need.

Secondly, what about organisations such as the National Institute for Health and Clinical Excellence? Its recommendations are hugely strategic and have a huge impact on what the health service delivers as well as equity in the health service. Will the hon. and learned Lady give further thought to whether that should be included in the list?

Vera Baird (Labour, Redcar)

With great respect, the hon. Gentleman is missing the point. No one will stop inspectorates saying—as he has put it—what they want and expect, or going through their usual matrix, added to the ordinary matrix of inspections. On every public authority to which the measure applies will be the duty to ensure that it has been complied with. It is really not that complicated.

Amendment 4 relates to subsections (4) and (5). They are important because, when the long-term vision for an area set out in its sustainable community strategy is being put together, all the parties involved are to give due consideration to the desirability of addressing socio-economic inequalities. The long-term strategic planning in which they are engaged is where the duty should be biting, yet amendment 4 proposes that we remove the provision, which will leave the local authority that needs to be planning strategically with its partner organisations the only one that has the duty at the time. It is vital that, when all the public service partners come together to make strategic decisions about their long-term vision, they all have the duty then, not at another time.

Tim Boswell (Conservative, Daventry)

To be clear, is it the intention that, when a public authority enters into a strategic partnership with another public authority, the duty under clause 1 would bind them in the act of going in, as well as the body that was the successor, which was the outcome of the partnership? I assume that it is.

Vera Baird (Labour, Redcar)

Is the hon. Gentleman talking about machinery of government changes binding successor authorities?

Tim Boswell (Conservative, Daventry)

More or less, yes. It may be that a local authority is conscious that it is not doing very well on poverty and could do better in association with another authority. One of the factors that might underlie its decision to seek a partnership could be its need to discharge its duty under the clause. If that is the case, can I be clear that the act of it concluding a partnership is itself a clause 1 activity, as well as whatever comes out of the partnership if it is agreed to?

Vera Baird (Labour, Redcar)

As far as I follow that, I think that the answer is yes. Let us look back at subsection (4), which is always a good place to start. It says that the clause also applies to an authority that

“is a partner authority in relation to a...local authority”—

it deals with specific partner authorities for local government—and that

“does not fall within subsection (3)”

The measure only applies, however, so far as the authority is involved in preparing or modifying the sustainable community strategy. Going back to the core words makes it clear what the impact is. As for successor authorities post-local government organisation, I doubt that this applies.

We ask that Members do not press amendments 2, 107, 181 and 4. We shall look again to make sure that there is not anything in the points that have been made about the power of the inspectorates.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was about to say something else before the hon. and learned Lady said what she just said. When I pressed her, she said that it was simple and therefore implied that I do not understand. What has happened is that I have failed to get across my point accurately enough. If she is willing to look at the matter again, it will be better if I put my point in writing rather than take up time now because we have had a long debate on the clause. I am grateful that she is willing to hear anything more that we have to say on that subject because I have not put across some of the points. We have not had an answer on NICE as an example of a strategic body that is not listed, which has huge implications for the approach that applies in the health service. She does not need to reply to that now if she is willing to hear further representations.

Vera Baird (Labour, Redcar)

I am not remotely convinced that NICE is a body to which one would want the duty to apply. It is not appropriate always to put that up. The Financial Services Authority was another bad example where the duty would conflict with some of the other targets that it has by statute. I do not think for one minute that we have absolutely hit the spot. I did not intend to suggest that the hon. Gentleman was not understanding by saying that it is a straightforward point but it is a straightforward point and I have made it three or four times. If he writes to me, I will read his comments with great care, but I do not doubt that he has in his usual way adequately made his point.

Amendment 108 proposes to extend the scope of the duty in clause 1 to a number of London-specific bodies. The London Development Agency is already covered under paragraph (j) in clause 1(3), because it has been set up under the Regional Development Agencies Act 1998. The LDA is, therefore, already in the clause. We agree that the Metropolitan Police Authority has strategic responsibilities that are relevant to tackling socio-economic duties and is to a sizeable extent analogous to other police authorities. We will definitely look at that.

Transport for London is a bit more complicated because the Greater London Authority Act 1999 puts the relevant strategic responsibility for transport in terms of an integrated policy on to the Mayor. We thought therefore that we had covered it. We will, however, consider the detail and the division of that responsibility. If we think that Transport for London should be brought in, we will come back with such a proposal. The same can be said for the London Fire and Emergency Planning Authority, which is also the subject of this amendment. We will consider that one alongside the other fire and rescue authorities that amendment 109 suggests should be included. About half of the 46 fire and rescue authorities in England are already covered, as they are local authorities, but about half would not be.

My experience reflects that of the hon. Member for Hornsey and Wood Green. Fire authorities do a good deal of work in deprived areas. They have their tenders out in deprived areas rather than in the fire station; they are doing a lot of work about fire prevention and smoke alarms; and they engage with the public in deprived areas where most fires start. They do a good deal of good work. My own Cleveland fire service, under strategic decisions taken by the authority, is excellent at engaging youngsters who, through its tentacles, it finds are about to go off the rails or are not gainfully occupied. It brings them in to do what is called the life course, which is to train them as mini-fire people for a week. Somebody—usually me—then presents them with a certificate.

It makes a huge impact on a young person who would otherwise be leaning against a wall in some fairly run-down estate to be taught discipline and have a wonderful time on a fire engine with these wonderful he-men who are good role models in a way the police cannot be. That does them enormous good, as it does when one gives them a certificate to say that they have achieved something, often for the first time. I agree therefore that the fire authorities have a strong role in tackling socio-economic underprivileged people and we will look again at that.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister for taking on board the amendments and having another look at them. To reiterate what she said, I sat on the London fire authority and the Metropolitan Police Authority when I was a member of the GLA. There is far-reaching work that could be done and it is important that that duty is placed on those authorities.

Vera Baird (Labour, Redcar)

That is what scrutiny is all about.

May I make one or two general remarks in response to points made in the debate this morning? Both Opposition parties were as one that we should not legislate to send out messages. They seemed to suggest that as a criticism, but it is only they who have conjured up that this is sending out a message. It is not. It is legislating for a purpose. It is vital that public authorities prioritise tackling persistent inequalities, carry on doing it and do it every time that they consider strategic routes forward. Many parts of the public sector do it—of course they do now—but there is no legal duty to do it. The measure fills that gap and, in the opinion of pretty much everybody who has been asked about it in the course of this Committee, can be guaranteed to drive the agenda forward by imposing the statutory duty. It is integrally linked, as the hon. Members for Henley and for Daventry both said, with the discrimination elements of the Bill in that, of course, poverty and powerlessness make it much harder to battle with discrimination and discrimination itself can undoubtedly generate poverty and powerlessness.

If people are discriminated against, they cannot get a decent job and they will remain poor and powerless. There is a key engagement with the discrimination aspect in clause 1. That, I suspect, is why many organisations, such as the Runnymede Trust, Race on the Agenda and all who work in single-sector areas, have spoken in favour of it. A huge body of people working in the individual strands see the measure as an addition to their work and welcome it.

Socio-economic disadvantage may not be a racy phrase, but it does capture what we want to deal with. The hon. Member for Henley is not in his place, but he talked effectively about the need for outcomes to be a key focus, rather than outputs. We completely agree and that is why the clause is couched in these terms, but in order to get better equality in outputs, one has to look at lack of opportunity. The hon. Member for Forest of Dean talked about lack of opportunity. One also has to look at lack of aspiration. I used to live in a mining village in County Durham and an older miner there, some years ago, told me that people thought, two generations ago now, that when they got a public library in that village, that would empower everyone to go out and find a strong life. Poverty leads to poverty of aspiration, poor education leads to a lack of appreciation of what one can do with a library, so we have to look not only at the opportunities that libraries can give, but at aspiration. There is a complex interplay of factors.

Tim Boswell (Conservative, Daventry)

I promise that I will not rise to speak all the time. I think it is an extremely important clause and I do not wish to dissent at all from what the hon. and learned Lady just said about poverty of aspiration. One word troubles me; I think it was implicit in my earlier remarks, but perhaps she would like to say a word or two about whether it is possible to tie down what is a “strategic” consideration, or a “strategic” decision. The last thing she or I would want is to have lots of litigation saying that this was purely a tactical thing or an administrative issue—the kind of thing we get on the Floor of the House when people are arguing about Ministers’ responsibilities. Is she reasonably satisfied that this is precedented and will either be coherently self-certified by the authority or be something that would, if necessary, stand up in court?

Vera Baird (Labour, Redcar)

I will come to the issue of “strategic” shortly, but you have to listen to the advertisement first. We have done an enormous amount to tackle inequality. We can be proud of our record in reducing inequality. We introduced the national minimum wage, helping about a million low-paid employees. We have lifted 900,000 pensioners and 500,000 children out of poverty and put in place measures to help another 500,000 children escape it. We have increased our spending on early learning and child care to over £5 billion—four times the amount that was being spent in 1997—and we have increased higher education spending by nearly 50 per cent. and created about 300,000 more student places to give more pupils from all backgrounds the chance to benefit from enhanced education.

The argument advanced this morning by the hon. Member for Forest of Dean that the statutory duty to try to end fuel poverty had had no impact is not correct. We made very good progress. We saw four million households lifted out of fuel poverty and that duty drove that agenda over a very considerable time. Of course, gas and oil prices then went rocketing and we had to start again. It is not right to suggest that that more complex picture is evidence that the fuel poverty duty did not work—it did. It is actually potent evidence that this will work as well.

We have made good progress. The Organisation for Economic Co-operation and Development study, which covered the period 1985 to 2005, shows that inequality and poverty, which had both risen in the 15 years to 2000, fell dramatically in the final five years of the study—faster in the UK than in any other OECD country. Despite our efforts, we know that there are still pockets of entrenched poverty in some parts of this country. We do not think that this is the entire solution, but we think that it is part of it.

We think we have struck the right balance with the organisations that the duty will cover. There are essentially five kinds: central Government Departments, regional development agencies, local authorities, police authorities and key health bodies—primary care trusts and strategic health authorities. The hon. Member for Glasgow, East talked about Jobcentre Plus—I think he was talking about executive agencies—which will be covered because the Department for Work and Pensions itself is covered, so its agencies are too. The only other bodies covered will be local public service partners that help local authorities when they draw up their sustainable community strategy. We think that is important.

We were also asked who we consulted, now that I have said who is involved. We spoke to representatives of all the bodies in clause 1(3)(a) to (k) and representatives from the third sector and the private sector. We have a list that I am ready to write out and deliver to all members of the Committee—I could read it out if the Committee wants me to be tiresome. It is clear that we looked at, for instance, the Homes and Communities Agency, the Planning Inspectorate, the child poverty unit, community transport, better regulation, local and regional bodies, the Society of Local Authority Chief Executives, the human rights officials, the TUC, Unison, the Audit Commission, Her Majesty’s inspectorate of constabulary and the Equality and Diversity Forum. All manner of people were consulted about clause 1.

“What did they say?” was probably a good second question; the contention, I suppose, was that by not consulting we did not hear any views on the clause. There was general agreement across those bodies and the others we consulted—who I will include on the list—that the duty would usefully support the extensive existing work across the country to tackle socio-economic inequality and to ensure a more consistent, concerted approach across organisations. It will pick up areas that are being missed and improve the co-ordination of work.

The public sector likes the flexible, non-prescriptive approach. Some third sector bodies wanted us to be more prescriptive. We sense that we might have got it right. All the consultees said that the duty should be strongly applied to central Government Departments. That is a clear message, which we have taken to heart. There was agreement that guidance needs to be carefully drafted. Not only did we consult, but we received a positive first response saying, across the piece, that this will help, even if it is not the only answer.

By “strategic decisions” we mean the points where key policy-making decisions are being made—setting overall priorities and targets, allocating funds and commissioning services. These seem to be the key points where those organisations now have to consider what they can do to tackle socio-economic disadvantage. For a Government Department that probably means its three-year funding settlement negotiations with the Treasury. A major policy decision for a local authority would be when it draws up its local area agreement—that is quite likely. For an RDA it would be when it re-evaluates its key programmes, which they do systematically, and sets priorities for the year ahead. It is less about needing extra resources, although some would be required, than about organising resources with this as a high priority. I hope that we have hit the right people at the right point by referring to strategic authorities. We have had a fair amount of discussion on targeting and monitoring. We have resisted the pressure to be very prescriptive, but we have engaged with all the monitoring, inspecting and regulatory organisations to ensure that the duty will be looked at as part of the matrix of things that they look for.

Mark Harper (Conservative, Forest of Dean)

With regard to guidance and conversations that the Minister has had with those inspectorates, does she think that the monitoring will be by way of a matrix or by way of a narrative of considering the decision-making? I ask because inequalities and outcome are referred to. Will there be measuring of movement of specific indicators or, rather than looking at outcomes, will the concern be more about how organisations go about taking strategic decisions? I do not know what sort of conversations happened.

Vera Baird (Labour, Redcar)

I think that they are still ongoing. We are not trying to prescribe particular processes, and different inspectors will probably need a different approach. We are, though, quite satisfied that it will come within the matrix of inspections, so there will be publication of the extent to which objectives required under clause 1 have been attained, however they be measured in each case. What will follow will not be some heavy enforcement mechanism. Inevitably, though, the political people involved in the local authority—or the practitioners—who press for child poverty relief, will see the outcome and will press the authority to do more. That is how we intend it to work.

In summary, we need to do more. Central Government cannot succeed on their own, so we must drive the agenda through all the authorities. The duty will put all the good work that we, and others in the public sector, are doing, on to a statutory footing. It will help us drive progress and promote better outcomes for people who need the most help, with minimum bureaucracy and maximum flexibility. It is a core function of public services clearly to tackle all inequalities whether they arise from a characteristic, life, age or race, or whether they are due to poverty more generally. This is, overwhelmingly, the right thing to do.

I have indicated which amendments we seek to have withdrawn, and which we will consider but for whose withdrawal we would be obliged. We will return to those.

Mark Harper (Conservative, Forest of Dean)

Given what the Minister said and given that I explained that amendment 2 was a probing amendment, I beg to ask leave to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 110, in clause 1, page 2, line 35, leave out subsection (7).

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

My hon. Friend makes a good point, but even if the Government wanted to preserve their ability to have policies such as the ban on work or the imposition of vouchers for asylum seekers, this measure would not preclude them from doing so as it merely suggests that they should have due regard to the issue. Asylum seekers currently face many hurdles and handicaps due to policies that may or may not be justified, and they should not be overlooked in other areas because of that disadvantage.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank my hon. Friend for clarifying my point. Another issue is whether the Secretary of State for Health could, or should, consider the socio-economic impact on asylum seekers of a refusal to give treatment for HIV/AIDS while they wait for a decision about their status in this country. Although asylum seekers can have emergency treatment, they cannot have non-emergency treatment and that might force them into illegal routes in order to buy antiretroviral drugs. Such things should be considered if we are thinking of these matters in terms of all our people, even those waiting to obtain the rights that people get once they have indefinite leave to remain.

Do the Government seek this exemption because they are fearful of a judicial review on policies such as refusing asylum seekers the right to work or treatment for HIV? In Haringey I see the consequence of such decisions. They are very long term and affect a vulnerable group of people, instilling hardship into their lives. The problem is that due to the way that decisions are taken, that can last for years on end.

Another example would be the Border and Immigration Agency, as this provision would allow it to ignore the negative impact of the charges given to people who are applying for status in this country, or passports, when those people have no means of support other than help from NASS, if they are entitled to it.

I want to invite the Minister to elaborate further on the amendment and on subsection (7), and give us some idea of how the issues that I have raised might be addressed if that subsection is not removed.

Tim Boswell (Conservative, Daventry)

I am sure the hon. Lady has her heart in the right place; I have a lot of sympathy with her argument and think that the Solicitor-General has a case to respond to. However, there are two things that have rather taken down my approbation. First, she let out the revealing phrase “second-class citizens” but it is precisely because those persons are not citizens and are subject to immigration control that the issue might arise.

We might have much wider concerns about the operation of the border and immigration system, but I do not think that the Committee wishes to hear them this afternoon, nor am I seeking to covertly change the law in this area. However, the hon. Lady’s point, which it is right that the Committee should address, is whether persons who are asylum seekers, or whose status is not determined, have human rights. We need to remember throughout the process that although people are in a position where they may be disadvantaged by administrative action, they are not removed from the map. Many of us have considerable concerns—I had a very eloquent letter from a constituent this week—on precisely the issue of the treatment of people before their condition is determined. We should consider that in a different context.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I would like to change the comment that I made about second-class citizens and second-class human beings.

Tim Boswell (Conservative, Daventry)

I take the hon. Lady’s point. Really, some human rights are indivisible and are not applicable in relation to citizenship. I was going to share with the Committee one of the brisker exchanges I had with a prison director in my constituency regarding the actions of a prison medical officer, who was denying some prescription from a prisoner, whose health, I thought, was at risk. I wrote a rather brisk letter saying that if that went on, they would be in prima facie breach of article 2. The decision was reversed in a week, and so it should have been.

There is a serious point here. Whatever asylum and immigration system we have, we need to be firm and fair at the same time. We cannot just write off people as second-class human beings—to use the excellent phrase that has been deployed—because people have human rights. At any rate, the Committee needs the Minister’s assurance that the clause is not some covert way of smuggling in further unpleasantness over and above the inherent difficulties of the situation at the expense of immigrants and asylum seekers. If we have some assurance on that, we will all feel a little easier on the provision.

Vera Baird (Labour, Redcar)

Subsection (7) is important and must remain in the Bill. I will take a moment to explain it. For a start, let me explain what it will not do. Certain public authorities, as the hon. Members for Hornsey and Wood Green and for Daventry know, have a duty of care towards people who are subject to immigration control. The subsection will not affect that in any way. Nor will it affect those public authorities that go beyond—as I know my local authority does—responsibilities in this regard. Many do, but it is up to them to treat each situation on its merits.

For instance, people who have refugee status usually have full access to services and are allowed to work. We have a clear aim for those who are legally allowed to remain in this country, which is to earn citizenship. We want them to learn English, find employment, integrate into society, contribute to the country and be welcome additions to it. We run integration programmes for refugees to try to ease their way out of socio-economic deprivation. We try to give initial decisions on applications for asylum relatively quickly—we are far quicker now than before. Following appeal, if necessary, we try to aim for within six months.

In the meantime, as the hon. Member for Hornsey and Wood Green knows, the applicants have statutory rights. They are legally entitled to remain in the country and are not here unlawfully, but it is not appropriate to force authorities to give particular attention to the socio-economic disadvantages of that group. No public body will be forced to go beyond their existing responsibilities, but their existing responsibilities are substantial.

The rationale is pretty clear, and I put it as bluntly as necessary. Our position on people who are here unlawfully is that we are keen to deter them from entering and remaining here illegally, and to remove them if they are not entitled to be here. Unless people have shown that they have a right to remain, we leave it to the public authorities, whose responsibility it is to ensure that people are subject to immigration control and are not pressured by the new duty, and I believe that they seek to deal with people in a compassionate way.

Tim Boswell (Conservative, Daventry)

For the record, will the Solicitor-General confirm that there is absolutely no detriment proposed or likened from the clause to the existing human rights and rights in law that they have?

Vera Baird (Labour, Redcar)

It is about not adding the new duty on to authorities that already have clear statutory responsibilities for this body of people.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am heartened by the Minister’s reassurances, but perhaps it is in the execution and the time lag that some of these issues come to my surgery, for instance, where I do see the situations that I described and real hardship. They must fall between the intention and the reality. However, I take what the Minister said and I thank her for it. On that basis, I beg to ask leave to withdraw the amendment.

Clause 2

Mark Harper (Conservative, Forest of Dean)

I will be brief. I just want to pick up from our previous discussion one or two of the Minister’s remarks about the nature of the public authorities. This clause, which is the one that I said we were not very happy with, gives Ministers the power by regulations not just to add public authorities that are subject to the duty, but to remove authorities and to vary the functions to which it will apply. The Minister said she felt that the Government had covered most of the authorities that they wanted, but they had left the power to add them in case they had missed any, and her response to the amendment tabled by the hon. Member for Hornsey and Wood Green suggested that there were one or two authorities that the Minister needed to consider again.

However, given that the Bill has these authorities in it and the Committee has now accepted them, it seems to me that Ministers being able to take them out pretty much whenever they felt like it would not be acceptable. I would therefore like the Minister to say a few words about where Ministers thought they might use the powers. Is it an administrative thing? In other words, is it about taking authorities out when they cease to exist or there is a reorganisation and they are called something different or the machinery of government changes? Are we pretty much stuck with the list barring that happening, or will it be the intention of Ministers to take out authorities for other reasons? I would like some understanding of Ministers’ thought processes.

Vera Baird (Labour, Redcar)

We have already exhibited an interest in being flexible about the list. If we change it, of course, it will be changed before the Bill becomes law, so then, we hope, the list will be as comprehensive as all parties here have been able to make it by considering the purpose of it and being able to add and take off what they wanted to. I am therefore hoping that we are getting even nearer to the right list, but yes, the point of this clause is to future-proof the list. First, we need to specify the right bodies and we think that we have picked the correct ones. However, the machinery of government can be subject to change; functions of particular bodies can change, as can the bodies themselves. New ones come and old ones go.

Tim Boswell (Conservative, Daventry)

On the strength of having recently attended the Council of Europe social, health and family affairs committee, perhaps I can ask the Minister to at least consider a situation where a public authority is working with an international organisation. Therefore, the authority would not be wholly in command of the situation, but there would be a strategic implication. Will she consider whether there is a possible loophole that needs covering?

Vera Baird (Labour, Redcar)

I will certainly reflect on that. The hon. Gentleman spends his spare time in an interesting way. When old bodies are wound up and new ones are established, we need the flexibility to vary the provision, if necessary. It is for that kind of thing, or where change means that we no longer have the list, because the list’s contents have changed.

In addition, we need the power to add the Welsh bodies to the list. We are hopeful that Welsh Ministers will decide to extend the duty to their relevant bodies in due course, sooner rather than later. It will take a bit of time, so we need this clause to make provision for that to happen. I hope that the hon. Member for Forest of Dean is satisfied that, as he put it, we will not be putting bodies on and taking them off when we feel like it. The intention is that it will not be used often.

Clause 4

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 115, in clause 4, page 4, line 9, leave out ‘reassignment’ and insert ‘identity’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following: amendment 118, in clause 15, page 11, line 3, leave out ‘reassignment’ and insert ‘identity’.

Amendment 119, in clause 15, page 11, line 12, leave out ‘7(1)’, and insert ‘[Gender identity] (1)(a)’.

Amendment 120, in clause 24, page 17, line 37, leave out ‘reassignment’ and insert ‘identity’.

Amendment 121, in clause 24, page 17, line 42, leave out ‘reassignment’ and insert ‘identity’.

Amendment 123, in schedule 3, page 151, line 18, leave out ‘reassignment’ and insert ‘identity’.

Amendment 124, in schedule 3, page 157, line 20, leave out ‘reassignment’ and insert ‘identity’.

Amendment 125, in schedule 3, page 159, line 5, leave out ‘reassignment’ and insert ‘identity’.

Amendment 122, in clause 188, page 134, line 26, leave out ‘reassignment’ and insert ‘identity’.

New clause 8—Gender identity—

‘(1) A person has the protected characteristic of gender identity if the person is or is perceived to be—

(a) a person intending to undergo, undergoing, or having undergone gender reassignment, where gender reassignment means a process which is undertaken under medical supervision for the purpose of reassigning the person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process;

(b) a person living permanently in the gender role different from that expected of a person of their recorded natal sex;

(c) a person who has, by virtue of the Gender Recognition Act 2004 (c.7), received recognition of their acquired gender for all legal purposes; or

(d) a person who has a gender identity that is different from that expected of a person of their recorded natal sex, provided that behaviour is not unlawful or offensive.

(2) A reference to a transgender person is a reference to a person who has the protected characteristic of gender identity.

(3) In relation to the protected characteristic of gender identity—

(a) a reference to a person who has a particular protected characteristic is a reference to a transgender person;

(b) a reference to persons who share a protected characteristic is a reference to transgender persons.’.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Amendment 115 is intended to widen the definition of who is protected in transgender discrimination. On these Benches, we have a high degree of concern about the narrowness of the protection in the definition of gender reassignment. The issue is not just about reassignment, which is the medical end to a process. We would also have concerns if, additionally, it were about the process that leads only to medical gender reassignment.

This is a vulnerable group, perhaps one of the most vulnerable in society. It is also a small numerical group who, even at the medical end, have a low number of operations. That sits atop a spectrum of a whole range of people who have concerns or confusion about their gender identity. With young people—this is particularly supported by the European Court of Human Rights—there is a great deal of concern about those who have not reached a decision or found their way in terms of gender identity. A great many people have gender issues. In some countries, there is actually a third gender. That spectrum, which leads from slight confusion to actual medical gender reassignment at the other end, is very wide. People can find themselves anywhere on that spectrum. What I would like to hear is that this Bill—this legislation and protection—is so important that it is not just there for what can be identified medically, but for how people feel and where they find themselves in life.

The amendment to clause 7 defines what we would see as “gender identity”, not “reassignment”. We use the protective characteristic to protect all transgender—including gender variant people—while also allowing for more specific references to transsexual people, where appropriate. At the same time, if I leap across to the new clause, it would not have a chilling effect or prevent offensive jokes on gender presentation from inadvertently being covered by a protective characteristic.

One wants to be able to have entertainers such as Dame Edna Everage, for example, and not chill her out so that she cannot say anything. We think that the clause, on which Press for Change helped, delivers protection for all those characteristics and all those people on the spectrum wherever they find themselves, but does not affect life in terms of entertainment or humour.

Most of the amendments are consequent on the lead amendment being enacted. I disagree with the argument that the amendment is not necessary because it could be caught by other protections. It is so important, and it would be wonderful if we could give an explicit and unambiguous protection for those who are not so definite about where they are on the spectrum and who are not definite about reaching the other end. Many people never get to the medical operation or even near it. The protection extends to how people feel about their gender rather than what they are medically.

The new clause would also provide future-proofing for the Bill because, once amended, it would be in line with the international human rights, equality and diversity statements, the recommendations of the United Nations, the Yogyakarta principles, the Council of Europe, the EU and others, ensuring that the Bill will not suddenly fall foul of a claim in this area in the next couple of years.

It is important to include the term “gender variant”, because it allows the Bill to protect children or adolescents without requiring them to choose gender reassignment at a stage in their lives when their identities are still flexible and forming. Much change happens in those adolescent years. If there is any criticism of the amendment for not being perfect, which is entirely possible, I would be grateful if the Government were to ask their officers to look for any unintended consequences. The intention of the amendment is so important, I am anxious that we get it right. I am happy for the Government to take that away, should they be so minded, so that we do not narrow down the protection to the very few who need it but leave out the vast number of people who live in a far less certain world in the process to medical gender reassignment.

Tim Boswell (Conservative, Daventry)

By no means will I guarantee regularly to associate my views with those of the hon. Member for Hornsey and Wood Green, but in this case I will. The Committee will know the views—we have already referred to this in the evidence sessions—that I have formed in relation to gender reassignment, because I was involved in the Gender Recognition Act 2004. We should remember in passing that that was an achievement, which I think the Government can rightly record, and I am delighted that it was passed with our support.

Nevertheless, the Act was driven by a European Court of Human Rights case, which said that the issue had to be dealt with. One of the glories of this place, and one of the glories of the European convention in keeping us to our vocation—if I can put it that way—is to look at the protected status of minorities. It is well known that those involved in gender transition at whatever stage are a small minority. I happen to have a distinguished and very articulate constituent who has been in touch with me about the legislation. He is following our every word, as we go through the Bill.

I have strong sympathy with the arguments, and I just want to draw out two particular points. First, as the hon. Lady has said, it is very much a spectrum of consideration. At one end is the full acquisition of legal status through the issue of a gender-recognition certificate, which takes us in the United Kingdom out of the idea of a three-gender situation, because it in effect switches from one to the other, being a kind of digital solution. However, long before that there will be people who have inclinations or concerns, others who may be seeking treatment—often with difficulty in finding access to it, or getting the appropriate counselling—and others then moving on to medical interventions and therapies. Eventually they may move through the whole spectrum or, in certain cases, reverse away from that and not take it forward. Those are very intense and personal decisions for a limited number of people. It is really important—I cannot see it as subversive of anyone or of any policy, or likely to cause cost—to embrace as many of those people as we possibly can. I would like to see the widest possible clear definition.

My second point has particular bearing when read with the age exclusions in the Bill in relation to persons under the age of 18. That lady constituent of mine who has been in touch with me has drawn attention to the fact that she has been concerned about her status and sexuality since her teenage years—she is now of mature years and is older than me. There is some plausibility in arguing, as came out in the evidence sessions, that there is a battery of local authority responsibilities in relation to persons under the age of 18 in school, for example. Nevertheless, given that people live in the community as well, and as such concerns, confusions, doubts and very difficult personal situations can start earlier, it is important to make sure that young persons, who are vulnerable enough in their teenage years, who have that extra incubus or difficulty to contend with are covered by legislation. If the Minister can look at whether more can be done in that area, it would be very welcome.

Vera Baird (Labour, Redcar)

The hon. Member for Hornsey and Wood Green referred a number of times to a medicality of definition. Let me assure her that there is no medicality of definition. It is removed from the old definition that related to gender reassignments. Although we are discussing the matter under clause 4, the definition of gender reassignment is in clause 7—it is clear why she needs to discuss it under clause 4, none the less—where there is no medical reference whatsoever. It is not a medical definition; it is about a personal process.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister for that information, but:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”—

that sounds pretty much as if it is an end-game decision and process to a complete reassignment. “Medical” might be the absolute end but before that is a total reassignment of gender, whereas I am arguing that gender identity is more complex than an absolute switch. There are stages in which people do not change physically at all, but they do change, and they need to be protected at whatever point they are at. That is the point that I am trying to make.

Vera Baird (Labour, Redcar)

I hope none the less that the hon. Lady accepts that there is no reference at all to medicality in the Bill. The existing law talks about being under medical supervision, which may be what has misled her, but there is nothing here. We have deliberately left that out. The process is a personal one that an individual chooses to go through—I did not want to argue about the presence or absence of free will or any other way it might be driven, but it has nothing to do with medicality. I hope she has got that point.

Tim Boswell (Conservative, Daventry)

I look forward to clause 7, which uses the phrase

“is proposing to undergo, is undergoing or has undergone”.

In the spirit of my remarks, I am wondering whether a better formulation for the Minister’s consideration might be “is considering undergoing”. “Proposing to” rather implies a definite decision, albeit one that has not yet been implemented, whereas “considering” could cover the ambiguous issues in which many young people in such a situation, and others, find themselves involved. I do not have that final rubric, but it might be an idea that would make the provision a little wider without destroying the clarity that is required.

Vera Baird (Labour, Redcar)

I acknowledge that and give way to the hon. Member for Hornsey and Wood Green.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That is a helpful comment. However, the word “reassignment” implies that there is a reassignment as opposed to an identity confusion anywhere on that spectrum. Even the word “considering”, implies considering a complete reassignment, whereas people may not ever get to considering reassignment—they may be wondering about their gender, which is not the same thing.

Vera Baird (Labour, Redcar)

It is difficult to protect someone who is only wondering about their gender. What we are considering is that many people’s gender identity is the same as their sex—mine is and the hon. Lady’s is. Therefore, sex is protected, it is one of the extant characteristics. If one changes one’s gender identity away from one’s sex toward the other, then one is reassigning one’s gender identity. That is what the provision is about.

Mark Harper (Conservative, Forest of Dean)

I am becoming increasingly confused. The new clause proposed by the hon. Member for Hornsey and Wood Green provides a definition of gender identity. However that new clause, given the debate that has just been happening, specifically talks about gender reassignment and specifically reintroduces the concept of medical supervision. However, the whole point of what is in the Bill—or certainly as I read it and explanatory note 57—is that the medical necessity in provisions in the Sex Discrimination Act 1975 was specifically removed, thereby widening the range of people who would be protected. I felt that that was a sensitive change. New clause 8 seems to be going in the opposite direction. I draw that to the Minister’s attention, and perhaps the hon. Member for Hornsey and Wood Green may want to intervene in due course.

Vera Baird (Labour, Redcar)

It is clear that part of the definition in new clause 8 reverts to that medical basis of reassignment, but it is only part of the definition, so the hon. Lady is not totally regressing, although it is probably what is leading her astray about our definition.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I want people who are transsexual to have the protection as well, so that the measure is all-encompassing, wherever one is on the spectrum—not just medical, not just reassigned. However, in terms of what the Minister said regarding someone dressing as a different gender, that might be temporary—a passing phase. I want that protection wherever one is on the spectrum, so that the definition is as broad as possible so as not to exclude anyone. I repeat that this is a tiny group of people who are incredibly vulnerable—probably more so than any other group.

Vera Baird (Labour, Redcar)

Let me put it this way. We are confident that our definition includes everything in new clause 8 except, possibly, subsection (1)(d), which I do not entirely understand. That is why I say that I cannot be confident about it. However, it must be made clear that the term “gender reassignment” is about a personal move away from one’s birth sex into a state of one’s choice, so that one is no longer protected by sex and is in a different category. That is what the provision is about. It makes it clear, by deliberately leaving out the medicality, that we are talking about a personal process, which may be proposed but never gone through. It may be considered, in process, or it may have happened. Its nature may be a medical one. Its nature may be in choosing to dress in a different way.

The whole of that range is satisfactorily covered. If it is not, the perception element in the definition of discrimination in clause 13 may cover others who are perceived to be in the category we protect under clause 7, even if, in fact, they are not. I will say one more thing before I give way to the hon. Member for Oxford, West and Abingdon. There is an illogicality in new clause 8 as well, because it states:

“A person has the protected characteristic of gender identity if the person ... is perceived to be”

undergoing a transition. One does not make somebody into something by perceiving that they are it. If someone perceives that I am over 60, they will not make me over 60, and I will not have that characteristic. It is not there that it is necessary to put the point about perception. The definition of discrimination in clause 13 is wide enough to deal with perception. The new clause, however, is over-complicated and completely illogical at that stage, and we could not accept it in any event on that basis, but the real point is that we have covered everything the hon. Lady has covered.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister’s last contribution was very helpful in delineating the difference between us, and I accept that as long as clause 13 covers perception, as the explanatory notes describe it as doing, then that is the best place to put the definition. That is just a criticism of new clause 8. However, the question is whether her reference to reassignment will actually be an obstacle for someone who, for example, chooses to dress in the clothes of the other gender but actually has denied thinking about reassignment and just chooses because of their gender identity to cross-dress. We worry that the Minister’s definition will exclude those people from protection, because it refers to reassignment, even if it is just proposing reassignment. That may be the only difference between us, given what she has just said.

Vera Baird (Labour, Redcar)

I shall try to make our intention as clear as I can. I am entirely satisfied that clause 7 fulfils our intention. Clause 13 covers the definition of discrimination, which is deliberately couched widely enough to include discrimination by perception and association, and comes to the aid of the category about which the hon. Member for Hornsey and Wood Green is particularly troubled.

The explanatory notes state that a person who was “born physically female” and decides to live as a man,

“starts and continues to live as a man”,

with no medical intervention at all—just passes as a man—will have undergone gender reassignment. He will have started that process by proposing to do it in the first place, and will have continued it, but if he had started it—had proposed it, but withdrawn—he would still have been covered while he was proposing it. All the various vacillations of the process—often a very long one, is it not?—are very adequately covered by the definition, which is our intention, and we have fulfilled it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister has just described someone who chooses to live as another gender from the one they were born in. If we take the case of cross-dressing, the decision is not always permanent; it is not always an every-day decision and not always an all-the-time-in-any-day decision. It can be intermittent. Given what the Minister has just said, can she reassure us now or at a later stage that she is confident that her definition is wide enough to capture the need to protect people who, because of their gender identity, and not for the hell of it, choose on some occasions—not permanently or seeking to do so permanently—to appear as, and live as the gender other than that into which they were born?

Vera Baird (Labour, Redcar)

Will that not be a question of fact in each case? Is it a characteristic, or it just something somebody fancies doing, not because they are driven by gender identity, but because they like to cross-dress? I do not know his name, but whoever is behind Dame Edna Everage cross-dresses for that purpose, but he is not driven to it. I do not think that Dame Edna will be involved in this clause, although in every other way she is safe with this Government. However, somebody who was driven by a characteristic would be in the process of gender reassignment, however intermittently it manifested itself.

It is hard to see why that would not be the case, but I can see that it would be a question of fact in each case. The person would be rescued anyway by the association and perception provisions.

Tim Boswell (Conservative, Daventry)

The underlying problem may arise from the use of the phrase “gender reassignment” because that is a relict of the medical process. If I have correctly understood the concerns expressed by the hon. Member for Oxford, West and Abingdon, he is worried about people who may manifest some of the behaviour of someone who is contemplating trans-gender but may have resisted medical reassignment. The Solicitor-General is saying in effect that anything about the issue of transsexuality, however tentative, however reversible and however expressed, is somewhere covered. If that is what she is saying, and she can reflect on it and assure us that it is so, we would be a lot happier. There is a worry that once we start setting out criteria that a court has to consider if there is an accusation of discrimination, people will ask for objective tests, which would be easy to frustrate or argue against in a particular case and could then cause a great deal of distress to the individual.

Vera Baird (Labour, Redcar)

How a court determined the question if the unfortunate situation that one hopes will not arise ever arose would be a matter for the court. The use of the term “gender reassignment”, which in the earlier definition did connote medicality, has now been specifically rid of that component. I cannot say more often or with more emphasis that we are talking about a personal process that may or may not have medicality.

Lynne Featherstonerose—

Vera Baird (Labour, Redcar)

I will give way, although I have an “angels on the head of a pin” sense about this debate.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The debate may hinge on a pin head but it is vitally important to a particular community. I am seeking reassurance from the Minister—although I know she feels she has probably already given it. I have constituents who are indeterminate and would not necessarily be identified as gender reassigned or as one sex or the other. They are somewhere in between and unidentifiable physically. I want to make sure that those people are protected. They may not even be on a journey; they may just be indeterminate in their gender identity, so there is no reassignment at all. Would that be covered?

Vera Baird (Labour, Redcar)

We have not found evidence of discrimination against people who one might call third sex. We have not found discrimination against people like that at all. What causes discrimination is characteristics that other people can see. A state of indecision within oneself or a tentative reflection on where one wants to be on the spectrum will not light itself up so that somebody can discriminate against the person who is thinking or feeling that way.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I would argue against that point because there are people who are indeterminate or third gender of whom it cannot be said which sex they are and they face discrimination simply because they do not look quite as expected in either gender.

Vera Baird (Labour, Redcar)

We have not come across discrimination against any such people that has not been linked to a separation—however tentative, however temporary and however partial—of gender identity and real sex.

Tim Boswell (Conservative, Daventry)

Would the Minister at least agree that it would be extremely undesirable in terms of humanity and public policy if any individual who was in this ambiguous position felt under any pressure to undergo some physical process of gender reassignment by medication or whatever on the fear that otherwise they would not be able to avail themselves of defence under the protective characteristics provisions. The last thing we want is to drive somebody into doing something they do not want to do in order to get them protections they feel they need.

Vera Baird (Labour, Redcar)

There is no suggestion anywhere that a person has to be driven into a medical process. As I have said innumerable times, quite the reverse. Gender reassignment, as defined, is a personal process so there is no question of having to do something medical, let alone something surgical, to fit the definition.

The hon. Member for Daventry was worried that the protection would not apply to young people but it does. In due course I am sure we will have a debate about age discrimination not applying to people under 18, but all the rest of the statute does so. I ask the hon. Member for Hornsey and Wood Green not to press the new clause. I understand why she tabled it, but it was on the false basis that medicality is the key. I hope that I have explained that it is not.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Before my hon. Friend the Member for Hornsey and Wood Green responds, I should like to make two quick points about what the Minister has just said. First, the whole Committee is grateful to her for explaining the intention behind the wording of clause 7. Even though we are discussing it under the hook of an amendment to clause 4, the wording of clause 7 is critical.

The Minister used two arguments, which are important and I recognise the intellect behind them. Proposing to undergo a process of reassignment does not involve medication or medicality. We accept that. Just because part of the definition in new clause 8 reintroduces that point, it does not mean that we think that is the criterion. Obviously it is not, because the other three components of our definition in new clause 8 have nothing to do with being under medical supervision.

The problem is the use of the term “gender reassignment” and the process of gender reassignment, to which one must refer to have any protection, even if protection can be obtained by arguing that the person is proposing to undergo gender reassignment. The hon. Member for Daventry helpfully suggested the idea of “considering”, but even that would not capture someone who has absolutely decided that they will not reassign themselves—that is in their own terms. Although the Minister may say that cross-dressing because of their gender identity is in itself a process of gender reassignment, I do not think that it is for Parliament to tell people how to describe their own processes. Those who do not wish to have gender reassignment resist the idea that they are seeking gender reassignment simply because they have a gender identity that involves adopting facets and characteristics of a gender, for example in the way that they dress, that is different from the one they were born in.

It would be unfortunate if the Bill ran against the face of advocates for that group of people. That is why we still think that the definition in clause 7 is unsatisfactory. The Minister said there is no evidence—another limb of her argument—that the sort of people we are talking about are discriminated against. That may or may not be the case. We will have to go back to their representatives to see whether they can give us some examples. It is generally one of the benefits of equality law that we can act to provide protection before there is clear evidence of discrimination. That is exactly what happened under disability, race and gender, where many more data were made available after the law came in.

Finally, the Minister says that in any event we can rely on the read-in provisions of perception in clause 13. Obviously we hope that is true. The problem is that I do not think it should be necessary for us to use that back-door approach to get protection in such a limited area, on the basis that if someone is cross-dressing, other people will perceive that they are gender reassigning even if they feel that they are not. That might catch it, but it is more than slightly unsatisfactory. The Minister might accept that it is unsatisfactory from an intellectual point of view, even if from a practical point of view it might catch almost every case.

Vera Baird (Labour, Redcar)

I cannot see anything to take exception to in relying on perception and association. They are key developments in the law of discrimination and very important components of protecting people. Perception should cover cross-dressers, whatever the draft would afford.

Nobody here is suggesting how people should define themselves. What we need to do to nail it finally is to look at new clause 8 and see whether it includes anybody who is not covered by our clause.

First, the medical definition in subsection (1)(a) is undoubtedly covered by our clause. Secondly, a person living permanently in the gender role other than their birth sex is covered. Thirdly, somebody who has received gender recognition would obviously be covered, and fourthly, somebody

“who has a gender identity that is different from that expected of a person of their recorded natal sex”,

is covered too. Where is the deficiency in our clause? Each and every one of those cases is covered, and I have said that at least 15 times.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister. She has tried hard. Perhaps the problem is not in the totality of the clause, but in the title of “protected characteristic”. It is the differential between gender reassignment and gender identity that for me is the most forceful issue.

Vera Baird (Labour, Redcar)

In the hon. Lady’s proposed new clause, a

“person has the protected characteristic of gender identity”

if they fall into one of the four categories that I have just set out. The new clause that she drafted would not add anything to those categories.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister, but I am not sure that subsection (1)(d) of the proposed new clause is covered. It is people with the protected characteristics who press for change and the community behind them who are the most vulnerable, and the ones to whom we have to try to give future-proofing for almost any eventuality on the spectrum, which is barely discussed in the world as we know it. I am worried, but I will not seek to divide the Committee. I ask the Government to give a little more thought to that differential between the words “identity” and “reassignment”, which send out completely different messages to that community and to others. I beg to ask leave to withdraw the amendment.

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 6, in clause 4, page 4, line 11, at end insert ‘or paternity’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following: amendment 139, in clause 16, page 11, line 15, leave out ‘maternity’ and insert ‘parenthood’.

Mark Harper (Conservative, Forest of Dean)

The amendment is short and probing. It would simply add “or paternity” to the protected characteristic “pregnancy and maternity”. There are two reasons for the amendment, one of which is similar, I suspect, to the reason for the amendments on parenthood tabled by the Liberal Democrats to cover fathers in those clauses that refer to maternity and maternity breaks from work. Given the developments that I think are supported across the parties in increasing the role of fathers in bringing up their children, especially at the early stage, I wish to explore with the Minister whether she feels that having another look at that might help.

The second, slightly wider reason, is one that we looked at when we discussed the gender pay gap. A number of the witnesses in the evidence sessions mentioned that one of the reasons for the gender pay gap might be that, in many cases, women are still the primary carers for children. Because of the compromises that they have to make in their working lives to look after their children, they might either not be paid as much, or not progress as far in their career. Another reason for exploring the issue is that fathers taking more of a role may equalise the roles of mothers and fathers in the workplace, and be of benefit to fathers and their children. It might also even up the roles that mothers and fathers take in looking after their children, which in itself might help to deal with issues such as the gender pay gap, when that occurs because of the choices that people make.

This is a short amendment and I have given a short explanation. For both of the reasons that I have outlined, I wish to explore with the Minister what thinking the Government have done about the role of fathers and paternity. As I have said, I have noticed that the Liberal Democrats have tabled some amendments on fathers as well. Given the developments that we have had since the parent legislation that has been rolled over into the Bill, the Government might give that some thought.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will be relatively brief, as I will essentially make the same argument as the hon. Gentleman. It is important that we probe the Minister’s thinking on this subject. Many consequential difficulties, to quote Nicola Brewer’s assertion, have arisen from people not employing women because their maternity benefits were so good. If we can equalise the entitlement for men, not only might it encourage men to take part more—I am sure that all the Gentlemen in this room already do—but it will further protect women from discrimination in the workplace.

Amendment 138 is slightly different. We do not understand why the Minister is only extending the period of protection for mothers—and indeed fathers, because amendment 141 is for fathers—from 26 to 52 weeks. We do not understand why it is protected at 26 weeks, when the allowances for mothers—and fathers, we hope—now extend longer than that. We understand why that has been cut down, but the essential point of all the amendments is to create equality between men and women in their care for their children.

Vera Baird (Labour, Redcar)

Amendment 6 would add paternity to the list of characteristics. Amendment 138 would extend the period of time a woman is protected from maternity discrimination in non-work cases. Amendments 139 and 141 would give men the same protection against paternity discrimination in non-work cases. Amendments 140, 149 and 151 would give men protection from paternity discrimination in the workplace for the period from when their child was conceived to 52 weeks after birth. Amendment 150 would give new fathers protection from discrimination for taking, or trying to take, paternity leave. Amendment 152 would prohibit indirect discrimination where the relevant protected characteristic is parenthood.

Forgive me for stating the obvious, but paternity would apply to men only. There are clear and well established reasons why women need protection against pregnancy and maternity discrimination, but there is no equivalent evidence to suggest a problem where men are discriminated against outside the workplace, particularly if they are new fathers. As my colleague put it to me last night, what the lads usually do is take a new father out for a drink; they do not start to discriminate against him. We have not found any evidence to suggest a new strand that needs protecting.

We would add characteristics if there was a need. We recognise that fathers as well as mothers should spend the time they need with their families and be able to balance work and family life, but discrimination law is not the way to tackle that. There is separate provision, alluded to by the hon. Member for Hornsey and Wood Green, which advances the cause of balancing work and life, and we will continue with that. When rights are given, they will of course be in the legislation that gives remedies in case those rights are breached.

Tim Boswell (Conservative, Daventry)

If an employee becomes a father for the first time and requires, beyond the normal immediate provisions of paternity leave, time off for “exceptional family circumstances” under employment law, would there be a prima facie breach of employment law or would there be discrimination if the boss said, “Look, I am really getting fed up with this. You are away all the time, you are producing these pretexts which arise out of your being a father and I am going to sack you.” We need an assurance that the boss would not be able to do that.

Vera Baird (Labour, Redcar)

Yes.

Let me top off my argument on the amendment, which is acknowledged to be probing, by saying that I agree that it would be only beneficial if we could move to a situation in which we can commit to extending maternity leave with pay to 52 weeks at some point. After the first six months, during which we think that leave is better allocated to the woman, the leave would become transferable. That would mean that the woman could take six months leave and then the man could do so. In a direct sense, that would be a great aid to work-life balance and to redressing the traditional imbalance in roles.

One of the Opposition Members, talking about the amendments on that point, said that such a provision would take away the point of discriminating. I am not talking about husband and wife now. An employer faced with a man and woman who are both job applicants will not know which one will take the time off, and there will be no point in discriminating against the woman who is going to get pregnant. That has always seemed to me a key point of that proposal. I hope that I have given the necessary reassurances on parenthood and paternity.

That leaves me with the question of the protection of maternity and breastfeeding, raised by the hon. Member for Hornsey and Wood Green. The 26-week period of protection is not the end of the protection. We have brought in special protection because we want to enhance the 26-week period, which is what the World Health Organisation and the Department of Health recommend for exclusive breastfeeding. We want to frame that and light it up, to make it clear that there is special protection during that period. We want to use every available facility, including discrimination law, to encourage breastfeeding to continue.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I do not understand why there should be any time limit for breastfeeding. Why should discrimination be allowed at any point?

Vera Baird (Labour, Redcar)

I do not know how long the hon. Lady has in mind, but discrimination is not allowed at any point.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

As I understand it, six months is the minimum EU requirement. Is that correct?

Vera Baird (Labour, Redcar)

Six months is the recommended period during which breastfeeding should be the exclusive way that the child is fed. After that, the recommendation is to start to mix foods, but of course breastfeeding may continue. The hon. Lady need not worry about protection stopping. It does not stop. It is sex discrimination in any event to discriminate against a breastfeeding mother. We have made a special characteristic of those first six months for the purpose of enhancing their importance.

It is a shame that the relatively recent 2005 infant feeding survey showed that the majority of mothers in this country stop breastfeeding long before the recommended 26 weeks are up. We want to flag up that period and give encouragement. As I have said, after that period, any discrimination continues to be direct sex discrimination. If we want to get technical, there has been a successful claim, notwithstanding that sex discrimination requires a comparator, but that has not presented an obstacle.

I hope that with that reassurance, the amendments will not be pressed, although they have provoked a useful debate.

Mark Harper (Conservative, Forest of Dean)

I thank the Solicitor-General for that useful debate. Given her reassurances to me, the hon. Member for Hornsey and Wood Green and my hon. Friend the Member for Daventry, I beg to ask leave to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 111, in clause 4, page 4, line 15, at end insert ‘caste’.

Mark Harper (Conservative, Forest of Dean)

I rise to speak briefly for two reasons. First, I want to say one or two things about the amendment. It and the following amendments raise another issue, which is relevant to how the Minister might decide to tackle this one. Part of the point of the Bill is to codify and simplify the law. If we go through the population, pick out lots of different groups and invent a new protected characteristic for every single one of them, there is a danger that we will make the whole thing very complex. I am a little concerned that that is what we are in danger of doing.

On a specific point, I suspect that the hon. Member for Hornsey and Wood Green has had correspondence from the anti-caste discrimination alliance. It also sent a copy of the letter from the Government Equalities Office. Two points were raised, and I want to the Minister to address them. The first is on the lack of evidence. GEO specifically referred to an informal survey of 20 key stakeholders that the Department for Communities and Local Government conducted to see if they were aware of evidence. It would be helpful if the Minister outlined the nature of the stakeholders, without necessarily listing them all, because there is concern that the stakeholder groups might well be those from castes that do not suffer discrimination. Unless the Government spoke to organisations representing those who do suffer discrimination, they may well not have picked up evidence of it. We would appreciate some reassurance on that point, as well as on whether the GEO or the DCLG is keeping the matter under review, so that if evidence emerges, the Government can take the appropriate action.

Secondly, if such evidence became available, rather than invent a new protected characteristic, could caste be subsumed in the protected characteristic of race, given that that already includes colour, nationality and ethnic or national origin? If it was thought that it was sensible to act in that case, rather than create yet another protected characteristic, could a new dimension be added to an existing one?

Vera Baird (Labour, Redcar)

The amendment would add caste to the list of characteristics. I am invited to add it, in a sense, speculatively, and I do not propose to accede to that invitation. We are always willing to consider whether there is a case for legislating on caste discrimination, but it is not a matter of the Government “claiming”, as the hon. Member for Hornsey and Wood Green put it, that there is no evidence of it; it is the fact. We have done our best to look for the necessary evidence, but we have not found any. There really is not sufficient evidence to suggest that caste discrimination is a significant problem domestically. We would protect if it was seen to be a problem, but we cannot find any evidence to justify such a measure. One has to appreciate the areas in which domestic legislation prohibits discrimination—in the workplace, in vocational training, in the provision of goods, facilities and services, in education, in the management and disposal of premises and in the exercise of public functions. There is no evidence that, in those areas, caste discrimination is occurring.

In response to a report published by the Dalit Solidarity Network in 2006, the Department for Communities and Local Government carried out what the hon. Member for Forest of Dean talked of as an informal look, but was, in fact, a scoping survey. The survey was carried out by contacting a number of Hindu, Sikh and Muslim organisations to ask whether they were aware of any evidence that individuals or communities had been discriminated against on the ground of caste in Great Britain. The scoping survey was, in fact, designed to pave the way for a formal consultation if the evidence came up in the survey, but it did not, so there really was nothing to take us further forward in a process that we were perfectly willing to engage with if there had been.

Although I am sure that many members of the Committee have had correspondence about this issue from what I shall in shorthand, without the slightest disrespect, as a write-in campaign, there is, apart from the odd piece of anecdotal evidence, none of which we have been able to drive down to a factual basis, still no evidence from that campaign that the territory which can be covered by anti-discrimination legislation is impacted upon by caste at all.

John Mason (Scottish National Party, Glasgow East)

I take the Minister’s point that there is very little evidence at the moment. Can she at least give the assurance that, if evidence comes to light in the future, she will look at this issue again?

Vera Baird (Labour, Redcar)

Yes, we are considering looking at it. I have found out about the stakeholders surveyed. The Hindu Forum of Britain and the Hindu Council were the two largest and the best we could do in terms of representative organisations in that field. They were, and to this day remain, totally against the introduction of caste legislation. We consulted a variety of predominantly Hindu groups and some Sikh and Muslim groups as well, and because this was a scoping survey and would have carried on to a more profound consultation, people did their best to ensure that we were not talking only to the discriminators, as it were, and not talking to the discriminated against.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Will the Minister go back to those organisations to ask why they were so against caste being included as a protected characteristic?

Vera Baird (Labour, Redcar)

Because it is socially divisive to have legislation against something that is not happening and is needed by no one. The hon. Lady is inviting us to introduce a new characteristic when there is no evidence that protection is needed. That is hardly going to contribute to community cohesion, and I think that those groups are very sensible in taking the view that they do, having, we are satisfied, conscientiously sought for what we asked.

As I said, we intended to carry on to a real investigation and consultation if there was the evidence to justify such a step. We were very willing indeed to do that, and we have no intention of stopping looking now that we have looked. Officials from the DCLG and the GEO, the Department that sponsors the Bill, are continuing to monitor the situation and to meet representatives of interested parties, but even as that happens, we are still not getting any evidence. The concern was rightly raised, but I hope that it has now been put to rest.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am reassured by the sincerity of the Solicitor-General and the efforts made by the Government to find evidence. I still worry about whether they will come back if such things occur, but at this point I am minded not to divide the Committee. I accept the reassurance of the hon. and learned Lady that the Government will keep looking, but hopefully no evidence will turn up. I beg to ask leave to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 112, in clause 4, page 4, line 15, at end insert—

‘genetics and family medical history’.

Mark Harper (Conservative, Forest of Dean)

The way that the hon. Gentleman came to a conclusion was helpful, given that I was about to ask about the matter. I agree with some of what he said, but there are two dangers in respect of insurance. First, it is already the case that, if something has happened to people that is known about, an insurance company is allowed to take that information into account. If someone has a terminal illness, an insurance company can decide not to write life cover for them or to do so on terms that would be expensive. He might say that that would be discriminatory. However, if that could be done, clearly the basis on which insurance is done would fall apart.

The second danger comes down to the quality of information , which is one reason the moratorium is in place. If individuals can arrange their own genetic testing and know their genetic inheritance, yet the insurance company is not allowed to use it, people will be able to get insurance for all sorts of things, which again may lead to that insurance not being available for everyone. There is a public policy issue to deal with here, but I am not sure that adding a protected characteristic to the Bill is the right way to go about it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was going to come to all the good points that the hon. Gentleman made and will deal with them in order to save time. He made three points, although he might not have realised that he made a third. The extra point is that part of the problem—unlike when someone is terminally ill and refused life cover, for example—is that even for single allele conditions the actuarial calculations are incredibly complex because many predictive genetic tests are simply not as predicted in all cases.

For example, the genetic condition may not be fully penetrative—it does not exhibit itself physiologically in every case in the same way in every person. It is complex, yet insurance companies may generalise and say, “We know that if we exclude these people we are at less risk of making an adverse offer and paying out a claim. Therefore, we can cut the premiums for everyone else—those who are not afflicted by this genetic predisposition.” If it were an exact science, there would be a stronger case for it, but it inevitably leads to rough approximations and generalisations, which are part and parcel of why this is unfair.

One key reason that this differs from having the condition when considering insurance is the fact that there is a significant public policy interest in encouraging appropriate people to have appropriate tests in their best interests and to ensure that family members, where appropriate and with consent, also have the information to help them to judge their genetic susceptibility.

As the moratorium is, by definition, not permanent, if people worry that a test will be used against them, that is a huge disincentive for those already at a health disadvantage to access the technology, have the test and get early intervention and lifestyle advice where that is relevant. There is a real problem of deterring people from accessing testing, as well as a problem for researchers who have an ethical obligation to ensure that those taking part are not damaged by taking part in research. If there is any concern that life chances will be harmed by taking part in the research and being randomised to the test, for example, the risk of randomisation cannot be offered with equipoise because the researcher knows there is a chance of discrimination. It holds back research.

I hope the Committee will accept that these are serious issues that have to be considered. This is not simply a matter of saying that people are not yet ill and that we can cross that bridge when we come to it—when they are disabled in employment protection terms or when they are symptomatic and insurance companies must be allowed to distinguish between people with serious conditions and those without. We are not suggesting that insurance companies should not be able to distinguish between people with symptomatic serious conditions.

There is an argument, which we heard in the caste debate, that there is not a huge amount of evidence that this discrimination is taking place. While there is a moratorium in respect of insurance, it may well be argued that there is not much discrimination. However, as I said in respect of gender identity—it is well recognised—anti-discrimination law should lead, not always just respond to established poor practice. It is there not only in case of discrimination, so that people can take advantage of it, but as a deterrent to discrimination that might occur. As we know from previous anti-discrimination law, it also enables data to be collected because there is a legal framework. Finally, in this case there are the positive public health and public policy advantages of not deterring people from taking the relevant steps.

In the insurance field, for example, relying on a moratorium does not give the required long-term assurances—this applies to employers as well as insurers. The United States is a country where there is great support for financial services, including insurance companies, some of which have done better than others in recent years. Nobody could say that the United States is hostile to the purchase of private insurance or that its people are not interested in trying to make as much money as possible out of the system—consistent with the law, of course, at least in most cases, and consistent with the ideals of the American dream.

In the United States, research has been carried out to check whether there would be significant gaming—adverse selection, I think it is called in actuarial circles—to identify whether people who were genetically at risk of serious disease would get insurance, up the premium, have the test and not disclose the results, or if the test was banned, take it anyway and screw the insurance companies. In the research that I am aware of, it was not found that that is likely to happen.

People with these serious conditions, or genetic susceptibilities to them, have other things on their mind and there is a cap on the amount of life insurance that people can get without providing the test. That is another way forward—they can get a reasonable amount, but cannot go for millions and millions—and it has worked well.

Members of the Committee will be aware of the Genetic Information Nondiscrimination Act 2008—an Act of the US Congress signed into law by President George Bush on 21 May 2008, which prevents medical advances in DNA testing from being adversely used by employers and health insurance companies against people with a genetic predisposition to particular health issues. I think that Act was passed by the House of Representatives by 414 votes to 1, which, by any account, is a significant margin. We would be fortunate to consider in the House anything that attracted such overwhelming support.

That Act refers to the use of family medical history—my understanding is that if the insurance companies had not resisted the restriction of the use of medical tests, they would probably have got away with still being able to use family history—and I have included the term “family medical history” in my probing amendment.

There are positive public policy advantages in doing this and there is clear evidence from other jurisdictions that it is felt to be necessary. We should not have to wait for gross examples of such discrimination in employment—that would put the onus on the victim to come forward before we would act—when there is a clear argument that the measure might be used. It would do away with the need for people to worry about whether the moratorium will continue past 2014 and give certainty to the insurance industry that this is not a path that it needs to spend a lot of time investing in and that we will share the risk. I speak as someone who is willing to pool that risk so that a genetic underclass is not created. I urge the Minister and the Committee to give consideration to the amendment.

Vera Baird (Labour, Redcar)

We reflected on this and concluded that there is no reason to include the amendment in the Bill. There is no clear evidence of a problem. All the examples sent to us that might be termed genetic predisposition would already be covered by disability discrimination. The hon. Gentleman referred to the insurance industry’s voluntary measure to guard against the inappropriate use of genetic tests, which could lead to certain people being asked to pay higher premiums. That is in place and will last until 2014. It is working well and he has not suggested that it is not.

The other relevant area is employment. The Human Genetics Commission reported in 2006 that it had no evidence of employers using genetic tests. The Information Commissioner has told employers that if they plan to use genetic tests, they must inform the Human Genetics Commission. These measures seem to be working well and are sufficient.

Mark Harper (Conservative, Forest of Dean)

On the moratorium and the fact that it is in place until 2014, is the Minister able to give the Committee any information about what the Department of Health’s view is on what the next steps might be, or are we at a stage where it is too early to think about that? Given that it is working well, is the Department of Health thinking of rolling that forward, perhaps indefinitely, or is it thinking about a legislative solution along the lines that the hon. Member for Oxford, West and Abingdon has spoken about?

Vera Baird (Labour, Redcar)

I will check that and drop the hon. Gentleman a line, so that I can give him a complete answer.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister rattled through that response very quickly, but she said that the moratorium was working well. The fact is that it is a moratorium and at some point, a future Government may end it. That would mean that people would be exposed to being required, before they can get insurance, to disclose any genetic test that they have had.

In addition, it is possible that employers may seek to take advantage of what is becoming a more available technology. Other than legislation in this area, I would like to know what future-proofing the Minister can provide that would prevent employers from discriminating against people who would not fall within the disability definition because they are healthy, are asymptomatic but have a genetic predisposition, or do not consent to their information being used by the employer. In itself, that is sufficient to trigger a problem for individuals. I would be grateful if she could provide some information on that.

Vera Baird (Labour, Redcar)

I rattled through the response quickly because I thought that we were finishing at 3 o’clock and I wanted to try to complete this section. Now we have more time, I am not going to say it all again, but I can slow my pace. The hon. Gentleman has not suggested the moratorium is not working well. Negotiations on an extension or whatever is to follow are for the future. In our view, it is not appropriate to deal with that in the Bill.

The Human Genetics Commission, to which the hon. Gentleman has referred quite a lot, found no evidence of employers using genetic tests. The Information Commissioner has made it clear that employers must inform the genetics commission if they plan to use them. That would trigger further inquiry. Again, he has not suggested that these arrangements are not working well and are insufficient.

This is perhaps a key point for me. If there were evidence of a problem—I make it clear that there is not scant or limited evidence, but no evidence, despite being open-minded about looking for it—it is by no means certain that discrimination law would be the right way to deal with it. It would almost certainly be better tackled through the use of data protection legislation, prohibiting the use of genetic test information in setting insurance premiums and vetting for employment, so I hope that the hon. Gentleman will withdraw his amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

First, I would like to apologise to the Committee if there was a 3 o’clock time limit that I was not aware of. The Government Whip has been extremely helpful—

Vera Baird (Labour, Redcar)

It was my mistake.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Had there been such a time limit, I would have spoken even more quickly, although I could not compete with the Minister.

I understand the thrust of what the Minister was saying. It would be impossible to respond to all her points, so the best thing I can do is take them away to discuss them with the Human Genetics Commission and others with a particular interest in this matter. We will see if there is a necessity to bring the matter back for further debate. In the meantime, I beg to ask leave to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 113, in clause 4, page 4, line 15, at end insert—

‘belonging to a disadvantaged socio-economic group’.

Mark Harper (Conservative, Forest of Dean)

I will not rehearse all the arguments about the socio-economic duty; we did so at length this morning. However, if a protected characteristic were added and, effectively, called a “disadvantaged socio-economic group”, how would one define such a group? Would it be only people who were poor, or would it be a more complex definition? I do not see a definition in the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I have to say that I have not defined that in an explicit way at this point because I want to probe the Minister’s thinking about whether the Government would even consider such a characteristic. Obviously, it would require a great deal of thought and work. There would be a number of legitimate concerns that such a protected characteristic would have unintended consequences. However, as other Members have said, that is always the case when new discrimination law is introduced. With will, the Minister might be persuaded to ask the Government Bill Office to establish what those unintended consequences might be, and what would qualify a person to be someone from a disadvantaged socio-economic background. Would it be simply poverty? The definition would be within the sense and meaning that the Government place on the socio-economic duty.

Emily Thornberry (Labour, Islington South and Finsbury)

I hope that the hon. Lady will not take this the wrong way, but is it possible that the amendment is a clear characterisation of what it must be like to be in a political party that has no chance of having any power? To put forward something that has such a vague aspiration and then ask the Government to go away and sort it out seems unnecessary; there is no background to it and it is not practical.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the hon. Lady for her helpful intervention. However, that is exactly the point of scrutinising legislation. The Government have come to the Bill at the end of a very long germination. I regard the new socio-economic duty as important, but it is not connected in the same way with the rest of the Bill, as Conservative Members said at this morning’s sitting. Therefore, this amendment seeks to test out whether the proposal would make a connection that gave the duty some substance and strength.

Also, one of the key purposes of the Bill is to eliminate the hierarchy between equality strands. Without giving the socio-economic duty that protected characteristic, we create a new hierarchy that will, at some point, need sorting out. I want to test the Minister as to whether that is an appropriate thought pattern or not.

Vera Baird (Labour, Redcar)

I do not want to be unfair to the hon. Lady, either. However, I think that she wants me to send the Bill team out to look for the unintended consequences of outlawing discrimination against something that she cannot define.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I would simply say that the disadvantaged socio-economic group would be a disadvantaged socio-economic group in terms of poverty.

Vera Baird (Labour, Redcar)

Let me make two points. I have reason to believe that I am a member of a group that would be socio-economically disadvantaged compared with the group that the hon. Lady is a member of. She would have to give me her lunch from time to time, if we enacted the provision, to put me right. It is not an unchangeable condition; it is not a characteristic. We want to encourage people no longer to be in disadvantaged socio-economic positions. We do not want to give them a right to stay there. It does not fit at all with any of the other characteristics. We need to root out the causes of socio-economic inequality, and that should be done not on an individual basis, but on a basis such as that set out in clause 1.

How will the hon. Lady define that? It is all very well to say, “I haven’t defined it because I want the Minister to do so, even though I think it’s a crazy concept.” Socio-economic deprivation is a relative concept. I am certainly more socio-economically deprived than the Queen, but does that mean that I should have some special protection? Some of those present may regard themselves as socio-economically deprived and may well take action, but against who? Against me because I am richer? I come from a very poor household, but do I still have some credit for that poverty, even though I have crossed the class barrier? It is impossible.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Forgive me, but I was simply trying to demonstrate that the duty on public authorities to “have regard to” socio-economic inequality is also difficult to define. It was a probing amendment. Anyway, I beg to ask leave to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 182, in clause 4, page 4, line 15, at end insert—

‘carer status’.

Vera Baird (Labour, Redcar)

The hon. Gentleman strongly argues the case for carers. There is no doubt about their good work, their importance and the commendable position that they occupy in the community. It is carers week and there has been a debate about carers in Government time today, between 12.30 and 2 o’clock. The Government recognise what carers do and how valuable they are.

Rightly, the starting point when looking at what constitutes a protected characteristic for the purposes of the Bill is to consider who a person is rather than what they do. The analogy is clear so I do not need to set it out, beyond saying that everyone has a sex, belongs to a racial group and has a sexuality. Some people subscribe to a religion or belief, some consciously do not, and some people have a disability. One might say that those are part of the core characteristics that make us what we are and, apart from religion or belief and gender, are ultimately not a matter of choice. They are qualitatively different from being a carer. We do not think that we could add to the protection and support that we firmly intend to give carers, demonstrated by the steps that we have taken, today and historically, by giving carer status a branch in the Bill. In no way does that diminish the often, even now, undervalued service that carers perform.

The hon. Gentleman knows about the Coleman case. A young woman—I assume that she was young, but I have not seen her—with a disabled child went to the European Court, after exhausting the remedies here, due to the way that she was treated by the firm she worked for. I am sorry to say that it was a law firm that used to instruct me. The court established that there was such a thing as discrimination by association with someone with a protected characteristic. In that case, it was discrimination on the basis of her association with her disabled child. We looked at what to do about the judgment, and decided that it was a good principle and that we should not merely take on the European Court’s judgment but extend the principle further across strands. That will help carers of disabled people straightway.

The other relevant strand is age. People will be protected against being discriminated against because of their association with somebody in a particular age group. We think that we have taken a major step forward and the best way to support carers is through such protection, together with the panoply of things such as the right to request flexible working, the right to careers advice and the emerging right to have breaks. The addition of further legal ground in respect of discrimination would not help them. They are a most deserving community that we intend to continue to champion and we are glad that we are able to do so through the mechanism in the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for her response. It provided the reassurance, which many want to see, that the Government’s view is that the needs of carers are adequately met and it explained why their position is different from many of, if not all, those with protected characteristics. On that basis, I beg to ask leave to withdraw the amendment.