Equality Bill

Public Bill Committee, 18 June 2009.

Clause 19

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 170, in clause 19, page 14, line 4, leave out ‘in comparison with persons who are not disabled’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: amendment 171, in clause 19, page 14, line 7, leave out ‘in comparison with persons who are not disabled’.

Amendment 172, in clause 19, page 14, line 10, leave out subsection (5) and insert—

‘(5) The third requirement is a requirement to provide an auxiliary aid or service where it would enable disabled persons to make use of, or facilitate the use by disabled persons, of a service or other relevant matter, and to take such steps as it is reasonable to have to take to provide the auxiliary aid.’.

Amendment 173, in clause 19, page 14, line 12, leave out ‘in comparison with persons who are not disabled’.

Amendment 174, in clause 19, page 14, line 13, at end insert—

‘(5A) For the purposes of the application of Parts 3 (services and public functions) and 6 (education), the requirements set out in subsections (3), (4) and (5) apply where disabled persons generally are or may be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.’.

Amendment 154, in clause 19, page 14, line 15, at end insert—

‘(6A) In taking reasonable steps to avoid the disadvantage, A must take such steps as afford disabled people equal access or, if that is not practicable, to approximate access to, that enjoyed by the rest of the public, to the matter in the applicable schedule to which the duty to make adjustments applies.’.

Mark Harper (Conservative, Forest of Dean)

It is a pleasure to serve under your chairmanship, Mr. Benton. I shall try to brief, although there are quite a number of amendments to explain, some of which are linked. They concentrate primarily on disability. Amendments 170, 171 and 173 are related to the duty to make reasonable adjustments under clause 19 and the comparator that focuses on persons who are not disabled. Our amendments are supported by the Disability Charities Consortium. I want to probe the Minister on such matters.

The consortium believes that the comparator provisions under the clause are undesirable and should be removed as they could lead to serious problems for disabled people when trying to enforce their rights in respect of goods, services and auxiliary aids, where the comparator concept does not currently exist under the Disability Discrimination Acts. Although we understand the Government’s desire to provide consistency across reasonable adjustment provision, my understanding and that of the DCC is that they are doing so by introducing comparators in areas of disability discrimination legislation where they did not previously exist. Therefore, the worry is that such provisions will be weakened.

The problem with the comparator is whether we would then have a rerun of the problems in the Malcolm case. Under clause 19(3), (4) and (5) a reasonable adjustment is required only when a disabled person is put at a substantial disadvantage in comparison with people who are not disabled. The use of a comparator is not new in disability discrimination legislation generally. The same language exists in the employment provisions of the DDA, but the comparator is not used in part 3 for goods, facilities and services when an anticipatory duty is owed to disabled persons as a whole, and nor is it used in relation to the duty to provide auxiliary aids and services.

The reason for the concern is that comparators were brought to light in the Malcolm case when the concept of related discrimination was undermined through the Law Lords’ reinterpretation of how the comparator in a case should be decided. That had previously been established in the case of Clark v. Novacold. Indeed, that problem has been recognised in the Bill in provisions that would put the legislation back to where we thought it was prior to the Malcolm case.

Amendment 172 inserts at the end of the clause new wording that would require providers of goods and services to provide auxiliary aids and services when that would facilitate the use of such services by disabled people. Such a provision would remove the requirement for a comparator. Will the Minister clarify the effect of the change in wording in the Bill, compared with that in the DDA? In part 3 of the DDA, service providers already have to provide auxiliary aids when reasonable, if those aids would facilitate or enable disabled people to make use of services. The threshold—or trigger—for providing the aid is when it would otherwise be impossible or unreasonably difficult for the disabled person to make use of such services. A comparator would not be needed to establish that discrimination has taken place.

The Bill provides that the aid should be provided when disabled people have a substantial disadvantage in comparison with those who are not disabled, and the DCC is concerned that that substantial disadvantage must be determined through the use of a comparator. It considers that that might weaken the legal protection that disabled people already have under the DDA. The amendment would, in similar language, put the threshold found in part 3 of the DDA back into the Bill. I seek an explanation from the Minister of the changes and their effect in order to ascertain whether the amendment is required.

Amendment 174 would explicitly include the anticipatory nature of reasonable adjustments. As I said, part 3 of the DDA says that the providers of goods and services must anticipate the needs of disabled people, ensuring that the services that they provide are accessible. They must think about such matters in advance, not wait for problems to arise or to be contacted by someone who has had a problem obtaining goods or services. The anticipatory nature of the reasonable adjustment duty is essential to its working. Again, the DCC, on behalf of a range of disability organisations, wants to ensure that that aspect is maintained in the Bill. We believe that the amendment would achieve that.

Amendment 176, to schedule 2, deals with physical features. We wish to retain the approach laid down in the DDA, which is that the focus must be on removing or altering physical features that cause a barrier for disabled people before considering other means that do not involve eliminating it. One cannot just think of a way around the problem—a work-around. One must first consider whether the barrier should be removed. Only if that was unreasonable could one fall back on going around it.

The amendment would omit paragraphs (3)(a) and (3)(b) of the schedule, replacing them with four new sub-paragraphs. The first is on whether the feature can be removed; the second is on whether it can be altered; the third is about providing a reasonable means of avoiding it; the last is about reasonable methods of providing the service or exercising the function in a different way. However, that order must be followed, so that one first thinks about making it as easy as possible. The amendment would provide a clearer and more systematic approach for service providers, which would be an improvement. Will the Minister say how that compares with the Bill, which is effectively different from the DDA?

I hope that the Committee will forgive me for speaking at such length on these wide-ranging amendments. I look forward to hearing the Solicitor-General’s comments.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Welcome back to the Chair, Mr. Benton.

I wish to speak to amendments 154, 155 and 234, tabled by me and my hon. Friend the Member for Oxford, West and Abingdon. The hon. Member for Forest of Dean made some interesting points, and I shall listen carefully to the Solicitor-General’s response.

Through amendment 154, we seek clarification from the Minister. The amendment would emphasise that duty holders must not only make reasonable adjustments, but that the asymmetry applied to those with disabilities under discrimination law must be preserved, so that optimum reasonable adjustments are made that are inclusive and a long-term solution, rather than just a temporary one. An example of the latter would be if a disabled customer wanted to enter a bank that had steps but no ramp, and the bank’s reasonable adjustment was to put up a doorbell allowing the customer to ring for someone to get the wheelchair up the steps. In our view, the optimum reasonable adjustment would be for the bank to build a ramp to facilitate the same service.

Tim Boswell (Conservative, Daventry)

In no sense do I wish to subvert the substance of what the hon. Lady says, as I agree that it is important that service providers should make the best possible provision. Indeed, it is often in their own interests. Nevertheless, does she not think that in legal terms it is slightly quaint to impose a double duty—to be both reasonable and optimal? One can meet one without the other. I believe that she is hoping for people to meet the optimum test. In that case, we need to change the law and should say so.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the hon. Gentleman. That may be a helpful intervention, as I am not a legal expert. I am probing the Minister on which is the best wording to arrive at an optimum solution that maintains the asymmetry for people with disabilities.

John Mason (Scottish National Party, Glasgow East)

Following on from the previous intervention, many people would consider it quite unreasonable just to put a bell in and expect that to be the answer. It might not be optimal, but we are trying to achieve the reasonable, and a bell seems absolutely minimal.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That may or may not be the case. It would have to be argued in law, but the purpose of the amendment is to try to ensure that the reasonable adjustment is not simply cosmetic, but affords equal access or access that is as near to equal as possible. In particular, adjustments must be made to secure equal participation in society. It is critical to disabled people that the duty is not diluted in any way so as to reduce that participation. We should not be happy with a minimum or a rudimentary gesture towards adjustment, and that is what the amendment says. I am more than happy for the Minister to adjust the wording if she thinks that I am making a point that is worth responding to.

The Equality and Human Rights Commission supports the amendment. It welcomes the introduction of the single substantial disadvantage trigger, but it is concerned that the duty is constructed so that its primary focus is avoiding disadvantage, rather than removing barriers that prevent disabled people’s full participation. The amendment would have the twin benefits of consistency and clarity of approach and would make it clear in the Bill that, for example, a service should, wherever possible, be provided to a disabled person in the same way as for a non-disabled person, and that might, could and sometimes should deliver asymmetric effort.

Amendment 155 relates to the comparison by reference to circumstances, in relation to reasonable adjustment. We want to remove the like-for-like comparator. I shall give an example. We want to make it explicit—there were comments from the Conservatives along these lines—that one should compare a blind person with a guide dog going into a restaurant with a seeing person who has no dog. The defence is not, “We do not allow dogs.” The comparison is with someone who is sighted, and a reasonable adjustment should be made. Therefore, there can be a material difference between the circumstances, because again we come back to the asymmetric nature of the protected characteristic.

Amendment 234 relates to clause 195, page 138, line 44, which deals with the regulations that apply to the provision. They are extremely important regulations that deal with what is probably one of the most fundamental real-world effects or changes that will enable people with disabilities to get something that they need changed for the better. However, that has been left out of the list of orders and regulations in subsection (5), which require the affirmative procedure. Should there be a change to the regulations, it is vital that that they are subject the affirmative procedure; there should be debate and the measure should go before both Houses. I shall be interested to hear the Minister’s response to those points.

Vera Baird (Labour, Redcar)

I am grateful for the opportunity to set out our response on these matters. The following is a good point for me to make at the outset. Various parties on the Committee may say that a particular provision is supported by x body and another by y body. I am not suggesting for one moment that that is not the case, but on many such occasions that body, rather than asserting that there is something wrong with what we are doing, wants to probe why we are doing something differently. We all need to put assertions that the EHRC supports this or that provision in that context. Of course, I am glad to seize the opportunity to discuss such issues, because they are probably cases in point. The important thing is to understand why we want to proceed, rather than necessarily to find that there is something wrong with how we want to proceed.

The measures deal with the duty to make reasonable adjustments for disabled people, which is obviously unique to the provisions of disability discrimination legislation and a cornerstone of the protection that the Bill provides. We need to ensure that the new provisions work, so it is good to look at whether there are better ways to proceed, although we are pretty satisfied that we have things right.

Amendments 170, 171 and 173 would remove the comparator entirely from clause 19. The reasonable adjustment duty is triggered when the disabled person is

“at a substantial disadvantage... in comparison with persons who are not disabled”.

A substantial disadvantage is a disadvantage that is more than minor or trivial.

It might be worth saying at this stage that the test of substantial disadvantage is a significant clarification. It introduces better consistency to our approach and is a lighter test for a disabled person to discharge than what preceded it. The hon. Member for Forest of Dean mentioned the trigger for services provision in the DDA, and there are two thresholds—that the use of services is impossible or unreasonably difficult without the reasonable adjustment. Clearly, “impossible” and “unreasonably difficult” are much higher tests for a disabled person to pass than “substantial disadvantage”. The test is now also one single test, so that is definite progress.

The employment provisions in the DDA contain a comparator like that in the Bill. We have no evidence that the use of a comparator in that context has led to any difficulty, and nobody has cited such evidence here. To put things pretty straightforwardly, having a substantial disadvantage test, which is good, raises the question, “Substantial disadvantage in comparison to whom?” We therefore need a comparator to make sense of that steadier, more consistent provision. That comparator has worked well in employment, and we think it will work well in this case. Removing the comparison with people who are not disabled would make it far more difficult to pinpoint when somebody had been disadvantaged.

Amendment 172 would really alter the dynamics of how the reasonable adjustment duty is designed to work. It would increase the circumstances in which the service provider was required to make a reasonable adjustment by providing an auxiliary aid or service—that is in subsection (5)—because it would replace the substantial disadvantage threshold with a reference to enabling or facilitating the use of a service.

Obviously, we have to balance the rights of the disabled person and the other party, but the amendment would have the significant disadvantage of removing the consistent test of substantial disadvantage. It would also unfavourably move the balance towards the service provider. We think that substantial disadvantage is the right approach.

All the evidence that we have is that the reasonable adjustment duty has greatly increased disabled people’s access to services over the years, and we are widening its application in the way that I have suggested. With respect, I therefore invite the hon. Member for Forest of Dean not to press the amendment.

Amendment 174 is about the anticipatory duty against the three reasonable adjustment requirements in relation to education and services. This is not straightforward, but it is none the less clear that if one casts an eye over paragraph 2(2) of schedule 2 on services, and over the education provisions in paragraph 4(1) of schedule 13, one sees that the content of the amendment is already present in the Bill, so there is no need for it.

In an earlier debate, amendment 154, tabled by the Liberal Democrats, was called the optimising amendment. It would achieve the outcome that we seek by means of a service provider making a reasonable adjustment. The disabled person would have similar or equal access to a service, but there are drawbacks in doing it that way. It would introduce another comparator—one level of service against another—which is over-complicated. The example of the bell, which prompted the intervention from the hon. Member for Glasgow, East, is a case in which it was found that that was not sufficient.

Tim Boswell (Conservative, Daventry)

A point that has troubled me a little in the past, which might be behind the intervention on the bell, although I cannot speak for my hon. Friend the Member for Forest of Dean in this matter, is whether there is a frequency test. If that happens once a year, it is clearly very different from something that happens with one bank customer per day. Is that something on which the legislation will be sensitive?

Vera Baird (Labour, Redcar)

That is almost the point that I was going to come on to. The adjustments have to be reasonable. I suppose if there was only one occasion a year when something happened or it was foreseeable that it would happen, it might not be reasonable to require those adjustments and they might not be reasonable adjustments.

I was coming on to talk about reasonableness, though briefly. The hon. Member for Hornsey and Wood Green expressed the concern that we might be in danger of requiring merely cosmetic changes, which would not be reasonable adjustments. They cannot be cosmetic; they have to be reasonable. That is the point of the definition, so that danger is not really present. The outcomes of the duty that she seeks are best ensured by the provisions that we have drafted, and there will of course be a code of practice and guidance afterwards.

Amendment 155 seeks to remove the need to make a comparison with a non-disabled person, but it would not achieve that. Where provision or practice puts someone at a substantial disadvantage compared with a non-disabled person, clause 19(3) requires that reasonable steps must be taken to avoid it. We have the comparator and that is the right approach. Otherwise, how would an employer or service provider judge whether they were putting disabled people at a substantial disadvantage? Again, we need to ask the question, “Who?”

To make the comparison work, we must compare like with like. As clause 22 sets out, that means comparing a disabled person with someone whose circumstances are not materially different. Clause 22 makes it clear that the comparator has to be like for like. It works well in clause 22 and the amendment is not necessary.

Amendment 176 would bring the language of the DDA into the Bill where a physical feature puts a disabled person at a substantial disadvantage. We heard evidence in Committee that the absence of a reference to removing the feature as an option is being interpreted as weakening the provision, but that is not the intention and we do not think it is the case. The emphasis is on taking reasonable steps to avoid the disadvantage, which might require removal. If that is at the root of the thinking here, it is not a danger that needs further consideration.

Exemplifying how the duty might be delivered in different circumstances, which is partly what the amendment proposes to capture, is best done in practice. Clause 19 is essential to protect the disabled. Having outlined how we see it working, I respectfully say that we have it balanced, we have it right, and we have improved and simplified the law, particularly the tests.

Amendment 234 relates to the regulation-making power in clause 21, which carries forward DDA section 21 powers, which have been exercised a number of times—for instance, when we extended to service providers the duty to make reasonable adjustments. Most recently, they have been used to make the Disability Discrimination (Transport Vehicles) Regulations 2005, which relate to the duties of transport service providers to make reasonable adjustments. There are all sorts of examples of the powers having been used beneficially.

The regulations tend to be a bit esoteric and technical, because they involve meeting new developments to ensure rights, so I do not think for one moment that Parliament ought to spend its time on them. It is best that the changes are in regulatory power. It is correct that the regulations use the negative procedure, but if we introduce regulations that might change schedules in the Bill—under clause 21(3), for example, not this one—they will use the affirmative procedure.

All such regulations will be affirmative where they can change legislation and negative where they deal with technical, esoteric powers that, due to their nature, we do not feel merit more parliamentary time. There is absolutely no intention to usurp power; we just think that that is a convenient location at the right level for subsidiary legislation.

I hope that that is comprehensive and that I have persuaded hon. Members that the clauses work well as they are and the amendments are not necessary.

Mark Harper (Conservative, Forest of Dean)

I thank the Minister for that and I should say at the outset that I agree with her. When I expressed the concerns supported by the DCC, it was very much because the DCC wants to establish them. I was not intending to set up any kind of contest or to pray in aid lots of people on my side.

The Minister made a good point about the comparator test being in the employment provisions and the fact that that has not led to any issues. I know that the Government are keen to avoid nervousness, but the DCC is concerned simply by the change of goods and services from the DDA to the Equality Bill. I know that Ministers want to make absolutely certain that there is no regression, to use a phrase that we have been using throughout Committee proceedings, and no weakening. She made that point clear.

Given that concerns about the comparator have been particularly highlighted by the Malcolm case, that clause 14 contains provisions to deal with it and that the Minister said during a previous sitting that she is working with the DCC and hopes to introduce changes to the wording of clause 14 to deal with some of the concerns on Report, I think that we can avoid the comparator’s creating a rerun of the Malcolm case.

On amendment 176, the Minister spoke about the Government’s intentions in making it clear to service providers what they should be doing to remove physical difficulties. As long as guidance from Ministers and the EHRC makes it clear that the first thought should be removing the problem, not just looking for a quick work-around, that can be dealt with in guidance. She addressed that concern. Given all those reassurances, I beg to ask leave to withdraw the amendment.

Clause 22

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I rise to question the Minister as to the explanation behind subsection (3), which states:

“If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is a civil partner while another is married is not a material difference between the circumstances relating to each case.”

It would be helpful if that was clarified.

I have had a note from the Lesbian and Gay Christian Movement also seeking to clarify the background and pointing out that there may be a problem. I am not sure that that is right, but I am not sure it is wrong. The letter explains that the movement favours

“the legal equalisation of civil partnership and marriage, and where there is good reason to apply a restriction across the board (eg if there were no accommodation at an hotel suitable for couples)”

considers that would be all right. It goes on:

“Where people are discriminated against purely because they are in a civil partnership, however, when no such restriction is applied to the married, this is not acceptable.”

I am sure that that is the motivation behind existing legislation and the Bill.

The Lesbian and Gay Christian Movement interprets clause 22(3) as dealing with the type of case in question by

“treating the denial of services, work etc. or other discrimination as one relating to sexual orientation.”

The concern is that that might not meet the case. The letter says something that I am not sure is right in spirit, although it may be in law, which is that

“the status of civil partnership implies no intrinsic sexual relationship, that its contribution to the stability of society as a whole was strongly stressed by the Government and accepted by others throughout the discussion and passage of the civil partnership legislation, and that”—

I think the implication is that this was a result of that fact—

“many Christian leaders supported the passage of that Act, including in particular eight out of the ten Bishops voting in the crucial final decision on the then Bill in the Lords, and indeed a former Archbishop.”

That was because we have clerics in our Parliament as of right.

Concern is expressed in the letter and this is the nub of it:

“It would be bizarre if the Bill led to those contracting civil partnerships (or indeed marriage) being themselves treated adversely by comparison with those who had chosen not to contract these relationships. Indeed, this would negate the whole—and welcome—purpose of including them in the protected categories at all.”

I wonder whether the letter is making the point, although I find it difficult to sustain this argument, that sexual orientation may be a distraction from the main reason for discrimination. I hope I have given the Minister a chance at least to understand the concerns that have been put to me, even if I do not necessarily recognise them as justified.

Vera Baird (Labour, Redcar)

I have partially grasped the concerns. Explanatory note 96 puts pretty simply the point of subsection (3), which is that a civil partner who is treated less favourably than a married person in similar circumstances is being discriminated against because of sexual orientation. As to the issue about the definition of civil partnership and its not necessarily having to be sexual, I suppose that that is just a nod—perhaps an important nod, to some people—in the direction of the fact that, in law, for a marriage not to be void it must have been consummated. There is no such requirement in a civil partnership. That may be where the leeway arose, and it might not be unhelpful leeway to have available, for several reasons.

I suppose that I should say that, for the purpose of discrimination law, marriage and civil partnership are treated the same, so any discrimination between the partner in one of those as opposed to the other will be discrimination on the basis of sexual orientation. I hope that that is comprehensive enough.

Clause 24

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 230, in clause 24, page 17, line 26, at beginning insert, ‘Subject to subsections (2A), (2B), (2C) and (2D),’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: amendment 38, in clause 24, page 17, line 27, leave out ‘or’ and insert ‘and’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I think that amendment 232 to clause 27 is consequential on the amendments that I and my hon. Friend the Member for Hornsey and Wood Green have tabled. I am happy to deal with it now rather than on clause 27, if that is convenient, although obviously you would need to agree to that, Mr. Benton. However, if I deal with it appropriately now, I will not need to speak to it later.

There is a threefold purpose to my amendments. The first is to extend the protection from harassment in law to captive populations—people who cannot escape harassment, and vulnerable people in particular. That could include people in the education system—pupils at school, for example—or users of public services who, given the nature of those services, might be vulnerable. They might rely on those public services and they should not have to suffer harassment while accessing them.

The clause provides protection from harassment to all the strands except two; I will come to that during the clause stand part debate. However, other parts of the Bill specifically exclude discrimination on the grounds of sexual orientation, religion and belief, and gender reassignment—to use the Government’s term—in certain areas.

Tim Boswell (Conservative, Daventry)

For the information of the Committee, will the hon. Gentleman clarify whether the definition of public services that he has in mind regarding captive audiences and groups includes prisoners? There are concerns about harassment and discrimination among certain groups of sensitive prisoners.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Indeed. Clearly, imprisoning people as part of the criminal justice system is a public service. It is a public function, even if it is delivered by the private sector under contract. There has never been any argument about that and human rights laws apply. If we are identifying a distinction between the general delivery of services and public services, as I urge the Committee to do, and saying that there should be greater protection where people are receiving public services, that point applies.

Let us deal first with education. In education, there is no protection from harassment on the grounds of sexual orientation, gender reassignment and religion or belief. I understand that in respect of gender reassignment that exclusion exists only in education. There is protection from harassment on the grounds of gender reassignment in the provision of services, but not in education. It is amazing that education should be singled out as the one place where young people, who are likely to be in education, are not protected against harassment on the grounds of gender reassignment as defined in the Bill.

Harassment in those circumstances means violating the dignity of someone on the grounds of gender reassignment. That might involve someone who is on the journey towards gender reassignment, for example, or even before that, if the House accepts the definition of gender reassignment proposed by the Liberal Democrats. Under my amendment, harassment would also include the creation of an

“intimidating, hostile, degrading, humiliating or offensive environment for B.”

I do not see how it can be considered acceptable for any school to be allowed to get away with that happening to a vulnerable pupil.

I understand that gross cases of harassment might be dealt with by direct discrimination legislation, but we need a protection that applies to cases that fall short of that, just as other strands are protected. It is not good enough to say that it is okay because if someone is picked on in a specific way by a teacher, for example, that passes the threshold for direct discrimination. On that basis, why have any harassment provisions in schools when direct discrimination provisions already apply in the worst cases?

On sexual orientation, the evidence that harassment exists in schools is even stronger. That is why the omission of some form of protection concerning sexual orientation is a concern. I accept that issue has been controversial for a while, and I have not always argued as strongly as I do now that we need protection on the grounds of sexual orientation in harassment provisions generally. Indeed, my party and I were supportive when the sexual orientation regulations provided not to do that—when such matters were dealt with by regulation.

Part of that was, first, a concern that free speech might be inhibited in the general provision of services and, secondly, that primary legislation was needed to delve into whether the definition of harassment would be so strict that it fell on the wrong the side of the balance, restricting freedom of speech—chilling freedom of speech—and making some speech unlawful, which would have been disproportionate to what we wanted to do.

The case has been made that there is a problem in respect of the amount of homophobic bullying that is known to take place in schools. Many schools are failing even to develop policies specific to homophobic bullying. In other words, they are not doing what they need to do to start to tackle the problem. It is unacceptable in such circumstances for there to be no legal protection against harassment on the grounds of sexual orientation. That would focus the minds of governing bodies of schools, whether faith or other schools, on the fact that they have a legal obligation to protect vulnerable pupils and that the creation of an environment that is intimidating, hostile, degrading, humiliating or offensive is not acceptable.

I am sure that the Government agree that such a thing is not acceptable. The religious witnesses at the oral evidence sessions also agreed that they would not want to see it, but for some reason they thought that the law should not apply. That is an unsustainable position. If the problem is serious enough to say that it should not happen and there is evidence that it does happen—there is no doubt about that—there is no reason to provide a legal exclusion on such grounds.

I hope that the Government do not share the view that such a thing is unacceptable but that it does not have to be provided for in law. In respect of sexual orientation protection in schools, we believe that the case is at its strongest.

Arguably, there ought to be protection from harassment on the grounds of sexual orientation in the delivery of public services. It seems wrong that people receiving public services, which are often their right—there is sometimes only one provider available—should have to suffer harassment without recourse to law. The providers, because there is no legal obligation, do not prioritise the need to educate their work force that harassment ought not to take place, however strong the views about the morality of sexual orientation or other matters.

It is not good enough to rely on the argument that there may be a variety of service providers available. In the case of discrimination on the grounds of race, we did not argue that one was entitled to have a whites-only bus on the basis that there was a bus with mixed passengers following just behind and that that was all right for the lady in the United States who objected. The Government quite rightly used that argument—I remember Ministers doing so, and I applauded them—when people sought an exemption from the injunction not to discriminate on the grounds of sexual orientation when providing adoption services to lesbian and gay people. Catholic adoption agencies argued, for example, that there would be other providers that lesbian and gay parents could go to. That is not an acceptable way to deal with unjustified discrimination, saying, “Oh, we can, because there is another organisation down the road.” Sometimes a school or a service provider is the only service provider in the village—to paraphrase a comedian in relation to sexual orientation. Therefore, people in receipt of public services have a right not to be harassed.

In those areas there is a clear argument for having the protection. The question then moves on—in this matter, I shall deal with the amendment standing in the name of the hon. Member for Glasgow, East—to the conjunctive versus the disjunctive version of clause 24(2). The wording is that the “purpose or effect” referred to in subsection (1)

“is... violating B’s dignity, or... creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

The original directive uses not the disjunctive “or”, but the conjunctive “and”. The hon. Gentleman highlights that in his amendment, but it would be difficult to change that protection, which is clearly a higher protection, because it is easier to qualify for an either/or definition than to satisfy both limbs. The principle of regression probably means that it is not possible for us to go back and undo protection against harassment on existing grounds.

Whatever the merits of that argument, my proposal would not do that, but I recognise that there is an argument for a slightly narrower definition which is based on the need to have respect for freedom of speech and the idea that too low a threshold for harassment claims might intrude on freedom of expression. Clearly, the conjunctive version will be narrower, because behaviour would have to have the purpose or effect of violating the dignity of someone to whom it was directed and creating an environment that was

“intimidating, hostile, degrading, humiliating or offensive”.

Our proposal for harassment protection on the grounds of sexual orientation and gender reassignment uses that version. People will argue that it is a lesser protection than currently. They might argue that a one-off occurrence of harassment is difficult to fulfil the limb, which would be required with an “and”, that it creates an environment—it is hard to create an environment with a one-off action. If the one-off action were sufficiently serious, it might well be caught by provisions on direct discrimination; if it were not so serious, it would be reasonable to take a “two or three strikes and you’re out” approach, as currently exists in harassment law regarding the actions of third parties for which employers have some responsibility. That is a reasonable balance.

I looked carefully at whether creating an offensive environment—that is the easiest of the environments to create—on the ground of sexual orientation even when that is not intended goes too far, but I cannot think of any scenario, even in the teaching of religious education, in which it is acceptable to create an offensive environment. There is no need to do so. If a teacher of religious education needs to say that some religions believe that homosexuality is sinful or worse, they can do so, but that does not create an offensive environment unless they actually say, “Homosexuality is sinful.” It is not appropriate for school teachers to tell people that their lawful behaviour or that of their parents is sinful and stands to be condemned. Describing what other people think would not fulfil those grounds, but if people feel that it would create too great a constraint, we would be willing to consider the matter, because it is important to have some protection.

The same provisions apply in principle to religion and belief: there needs to be protection for people against harassment on the grounds of their religion or belief in schools or when they are in receipt of public services. Exactly the same arguments that I made in respect of sexual orientation apply. Other forms of the law—there is cross-party support for this—recognise that it is difficult to avoid causing offence on the ground of religion based on the religious sensitivities of B. Often, one religion’s theology is offensive to another’s by definition. I make no criticism of that because it is the way of such things. It is probably also true of politics, although that is not covered. It is therefore reasonable to have a significantly narrower definition of harassment to ensure that the usual conduct of religious behaviour is not caught.

It is therefore reasonable to argue that there should be protection from harassment on the grounds of religion and belief on a conjunctive definition that omits the term “offensive” with regard to environment. No matter how sensitive or thin-skinned someone is—I do not use that term pejoratively—I do not believe that it is appropriate in education and in the delivery of public services to create an

“intimidating, hostile, degrading...or...humiliating...environment”.

So even if someone does not find something such as a poster offensive, I do not see how we can defend not outlawing the creation of an environment with the characteristics I just described. Therefore, the amendments that stand in my name, which are my best attempt to construct such an argument in the frame of an amendment, rather than a new clause, seek to strike the right balance between extending protection and preserving free expression.

I have not read into the record the examples of homophobic bullying that exist in schools, sent from organisations such as Schools Out, Stonewall and OutRage!. However, I am sure that hon. Members are aware of them, and do not need me to do that here. None the less, I want to pay tribute to those organisations for their long-standing work, in partnership with parliamentarians of all parties in this House over many years, to highlight the problems.

Turning to the clause stand part, the issue with the test in subsection (3) is interesting. The question is whether it is sufficiently objective for the purposes of the existing protection, and whether it is sufficiently objective to provide enough protection for the freedom of expression and behaviour, where we seek, as I do, to extend protection from harassment to new grounds. I will be grateful—this is the reason I am flagging it up—if the Minister gives us the benefit of her views, based on her experience and insight, regarding how objective she believes the test is.

The wording of the subsection is:

“In deciding whether conduct has that effect,”—

the effect that I have described, in the currently disjunctive definition in subsection (2)—

“each of the following must be taken into account—

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.”

The question is whether paragraph (c) is a stand-alone issue for the courts to decide, or whether it still relates to the perception of B. It is important not to argue that it is regression, but I hope that the Government will agree with the following: separating out the perceptions of B and A and seeing whether it is reasonable for the conduct to have that effect would create a more objective test, so that someone outside may ask, “Is it reasonable that that behaviour creates the environment without having as much reliance on the perception of B as would exist if that was all in the same paragraph?”. In other words, it asks whether it is reasonable for the conduct to have that effect by taking into account the perception of B and all the circumstances, or whether that is the case by taking into account all the circumstances of the case, including, in particular, the perception of B. It strikes me that that is a slightly more objective test. I hope that that is the case, because there needs to be some objectivity here.

We know what we are trying to get at. Pictures of pin-ups in workplaces clearly create the environment that is talked about, and indeed may violate the dignity of a woman. It is not a question of subjective perception or the need to be particularly sensitive, even if there were a woman in the workplace who did not find that offensive—that is a reasonable, objective test to be made. I am not arguing that that is regressive in any way, but I hope the Minister will agree that it clarifies that the test of reasonableness does not relate to the perception of B, but is, in a sense, a stand-alone issue.

The other point that I want to raise on clause stand part is the exclusion of marriage, civil partnership, pregnancy and maternity from the list of protected characteristics. The missing characteristics raise the question why there is no coverage at all, even in existing protected environments such as the workplace, where we know this sort of harassment currently exists. I believe that the Minister has been asked about the matter by the Joint Committee on Human Rights, among others. It would be useful if she could explain why the list of protected characteristics in subsection (5) does not extend to those two areas.

Without giving examples of the sort of mischief that I am trying to cover, I hope that I have made a very strong case for the extension of harassment protection on the grounds of sexual orientation to schools and the provision of public services, on the grounds of gender reassignment to schools and on religious grounds, on a narrower definition, to schooling and provision of public services. This is a controversial matter. After the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, which included a harassment provision, were introduced by the Government, as a take-it-or-leave-it measure, they were challenged in judicial review in Northern Ireland. The court rightly upheld the regulations in general, and the only part that did not survive the challenge—rightly so, in my view—was the harassment provision. That was based mainly on a lack of consultation, but the judge also referred to concerns by the Joint Committee on Human Rights.

That does not mean, however, that there should never be any protection from harassment. The Government did not get it quite right in the 2006 regulations, and were wise not to put them in the Great Britain regulations, because by their nature they were unamendable. The Bill gives us an opportunity to deal with this matter in a considered way, and I hope that the Government will view my probing amendment—it would not be appropriate to divide on it—as a way in which to open this debate, so that we can hear either the Government’s justification or their willingness to consider the matter further.

Emily Thornberry (Labour, Islington South and Finsbury)

In the past 12 years, huge changes have been made to equality legislation, and the gay and lesbian community is now on the verge of absolute equality under the law. However, much remains to be done. Clearly, one of the most important areas on which people quite rightly focus is the way in which young gay and lesbian people are treated at school. The extent of homophobic bullying is frightening, and anything that we can do to stamp it out is incredibly important. I also seek clarification from my hon. and learned Friend on whether the legislation, as proposed, is sufficient to do everything possible to ensure that young and vulnerable people, who are just finding themselves, are not subjected to bullying.

John Mason (Scottish National Party, Glasgow East)

I shall speak, in particular, to amendment 38, although I shall refer to comments made already. Once again, I am speaking in a personal capacity, rather than on behalf of my party.

I tabled amendment 38 primarily to probe why the definition of harassment adopted in the UK is wider than that found in the relevant EU directive. The test for harassment in the Bill, and in previous legislation, including the 2003 employment equality regulations, has two alternative limbs: the unwanted conduct has the “purpose or effect” of violating the victim’s dignity or of

“creating an intimidating, hostile, degrading, humiliating or offensive environment”

for him.

That definition first appeared in the Employment Equality (Sexual Orientation) (Amendment) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003. Those regulations implemented EU directive 2000/78/EC. Article 2.3 of that directive defines harassment in these terms:

“Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds ... takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.”

There is a difference here. Instead of violating dignity or creating a hostile environment being alternatives, in the directive they are cumulative. To prove harassment under the EU definition, it must be shown that the conduct violated dignity and created an offensive environment, which is clearly a higher test.

I do not claim to be an expert in this area, but I am curious about whether the Solicitor-General can explain why, in implementing the 2000 directive, the wording was altered in this important way. It is important, because it is obviously easier to prove harassment under the UK test than under the EU test. For example, if I cannot persuade an employment tribunal that someone violated my dignity, I might still be able to persuade it that the person created an offensive environment. In other words, under the UK test I get two bites at the cherry, whereas the EU test would require me to prove not one but both limbs before my claim would succeed.

I do not underestimate the importance of tackling harassment in the workplace or anywhere else. On Tuesday, we considered the Ladele case, in which it was clear that the Christian woman involved was poorly treated by her employers and, at the first instance, the tribunal made a finding of harassment.

Emily Thornberry (Labour, Islington South and Finsbury)

That person was a registrar in my constituency, where a large number of gay weddings, as we call them, take place. Every day, many gay couples leave the town hall, finally having been allowed to have some sort of union. This woman decided that, despite the background in my constituency, her religious beliefs were more important than those of the people whom it was her job to marry, by registering their union. She put that above her employment obligations and, quite rightly, her case was turned down on appeal—and so it should have been, because she was employed to do a job and she should have just done it. If she did not like it, she should have got another job.

John Mason (Scottish National Party, Glasgow East)

I thank the hon. Lady for her heartfelt intervention, but is there not room in a diverse community—especially one like her constituency—to allow a place both for gay marriages and for people’s individual consciences? Can we not have a society where both those things live together?

Diane Abbott (Labour, Hackney North and Stoke Newington)

I do not want to prolong this argument, but the hon. Gentleman has asked the Committee a question and I should like to answer it. I am familiar with the part of London where this took place and familiar with the community from which that registrar came. I am clear that some people use their religion as a vehicle for cultural bigotry, clearly and simply. Precisely because I know those communities well, it is important to draw a line and say, “You cannot use your religion to allow your bigotry to affect how you carry out your duty to the public.” If we do not draw the line, bigotry will encroach ever more on the delivery of public services. Parliament has to take a stand against that.

John Mason (Scottish National Party, Glasgow East)

I thank the hon. Lady for her heartfelt intervention. We are clearly dealing with a difficult area. If one thing comes out of this Committee’s consideration of the Bill, I hope it is that the Government will realise that we are in a difficult area. That does not mean that we should not talk about this matter, but the Government need to be wary of trying to restrict religious belief and practice too much.

I totally agree that we should come down on bigotry, but the problem is defining it, because one person’s bigotry is another person’s belief. Sadly, it appears that, in society, and perhaps in this Committee as well, it is okay to call religious people bigoted, but it is not okay to call other people bigoted.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

The hon. Gentleman represents the Scottish National party on this Committee and I am beginning to wonder when we will get the SNP view of the situation. He implies that we should be weaker and should comply with the EU situation, rather than have stronger provision for this country. Why is he suggesting that?

John Mason (Scottish National Party, Glasgow East)

I am suggesting that the EU has set a reasonable standard. There is a danger that we will either catch out too few or too many people under the provisions on harassment. It is for the Government, this Committee and the wider House to judge and decide where they want that line to be. All I am trying to do is to point out that there are two different standards, and some people feel that they are being too easily caught out on the grounds of harassment.

To return to the previous point, can we allow a person any room at all for conscience? We do so on the issue of abortion. It is argued that the registrar should not have the job if she will not perform all the functions of her organisation, but by the same logic, every nurse and doctor in this country must carry out abortions. However, we have decided to allow a bit of freedom for conscience. It seems to me that we and the authority are surely big enough to do the same in this case.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I have several points to make, although we are straying somewhat off the topic of harassment. First, that exemption, which I support, does not permit discriminatory behaviour. It involves provision of a service and falls short of discrimination, although some people might feel that they must go further. It does not involve picking on people; it involves a procedure.

Secondly, on the Ladele case, it is only fair to say that what she wanted to do was discriminate, which is why the employment tribunal found against her. It is also right to say that the Employment Appeal Tribunal did not uphold the findings of harassment. It needs to be recognised that not every sentence and every letter was written as well as it might have been, but in the end, the council was cleared of that charge. That is important.

Thirdly, it is not illegal to be bigoted on any grounds, because that is included in freedom of belief, but what we try to do is constrain that when it affects other people, particularly in the workplace. That is why I think that there is a particular responsibility to protect people from being discriminated against in the workplace. One does not need to discuss whether it is cultural bigotry or not—I am sure that the beliefs are sincerely held—but there must be some protection for the victims of that belief, if I can put it that way.

John Mason (Scottish National Party, Glasgow East)

Yes, and I see Ladele as the victim in that situation. She might not be the only victim, but I certainly see her as one.

Tim Boswell (Conservative, Daventry)

Does the hon. Gentleman not agree at least that the major test in terms of the service users—in that case, the gay couple who wished to recognise and celebrate their relationship in a civil partnership—is whether they are able to use the service? If the registrar is the only registrar in a local authority area and such a couple are unable to discharge their wishes because there is no other person who can fulfil them, that perhaps makes the case significantly different from whatever reservations of conscience an individual registrar might have.

John Mason (Scottish National Party, Glasgow East)

As I see it, a health service must provide abortions and a local authority must provide registration of civil partnerships. The organisation must provide all those services, but I do not see that it automatically follows that every individual in that organisation must provide every service.

Several hon. Membersrose—

John Mason (Scottish National Party, Glasgow East)

I am happy to give way, but I realise that you do not want to spend all day on this matter, Mr. Benton.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

This is a difficult area, and we are trying to get the balance right, but as discrimination law has advanced so far as to bring into play factors that did not exist before, it is important that we get it right. That extends to a whole range of issues. There might be people who do not wish to police a gay march, or firemen who will not attend certain incidents. On the execution of public duty, it is important that we make it clear here and now that carrying out public services cannot be a matter of conscience in the way that the hon. Gentleman might wish. That is not signalling against a genuinely held conviction or people’s conscience; it is a necessity in the modern age. People with such convictions might ultimately make different choices about their careers.

John Mason (Scottish National Party, Glasgow East)

The logical extension of that is that anyone with a conscience on certain issues, whether religious or otherwise, will be squeezed out of public services. Anyone with a serious problem of conscience will no longer be able to work at a state school or a public hospital. Surely we want a more diverse and inclusive society than that.

Emily Thornberry (Labour, Islington South and Finsbury)

Perhaps the hon. Gentleman will accept the argument in these terms: a registrar’s duty is to ratify a contract that is justified in law passed by Parliament. Parliament passed a law allowing civil union between gay couples, so it is her job to ratify that contract. If she does not like the law, she has to get another job—she has to move out and do something else.

Joe Benton (Labour, Bootle)

Order. Before the hon. Gentleman replies, let me say that we are in danger—we are not quite there yet—of discussing the merits of the case concerning the registrar, which is not part of the amendment. It is fair enough to use examples, and I have no objection to that, but I do not want the debate to be any more personalised. We are moving in that direction—I can sense it coming—so I want to add a cautionary note that we must not personalise these issues by referring to a specific case. We should keep to the merits or demerits of amendment 38.

John Mason (Scottish National Party, Glasgow East)

Thank you very much for that guidance, Mr. Benton.

Let me try to finish the point. I take the point about the legal duty, but I see the legal duty to provide the service as being primarily on the local authority. We will touch on schools later, and there are similar facets there. As I see it, however, every individual in the authority does not necessarily have to carry out every duty, and that is clearly the case, because some people do one job, while others do another job. If the authority had only one registrar, there would be more of a problem—sorry, I should not have mentioned the registrar. However, if lots of people do the same job, it is possible for them not to carry out every duty.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the hon. Gentleman for giving way, because there are a couple of important points. If the local authority’s charter says that its employees will not discriminate on grounds of race, sexual orientation or whatever in the delivery of services, the authority has to be able to live up to that charter without employees saying that they want to opt out without any come-back.

Through the hon. Gentleman, I would also like to say to the hon. Member for Daventry, for whom I have huge respect and genuine affection, that it is not acceptable to say that everything is all right as long as someone else fulfils the duty. Someone may have sincerely held beliefs that mixed-race marriage is wrong, and one could respect those beliefs by saying, “All right, you don’t have to do the marriage, because no one else has those views.” However, it would still be wrong for a public authority to give credibility—

Emily Thornberry (Labour, Islington South and Finsbury)

Will the hon. Gentleman give way?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am intervening on the hon. Member for Glasgow, East, so the hon. Lady will have to intervene on him. It would still be wrong for a public authority to give credibility to a prejudice, because that would give it the green light. Even if some forms of discrimination are sincerely held beliefs, we should not allow them to be exercised.

John Mason (Scottish National Party, Glasgow East)

I must make some progress or I will get in trouble with the Government Whip.

Emily Thornberry (Labour, Islington South and Finsbury)

If I undertake not to interrupt the hon. Gentleman again, may I just make one last point? A high number of marriages end in divorce, and a registrar might have firmly held beliefs that someone should not enter into a second marriage after they have been divorced. If they began to discriminate on that basis—even if they were one of five—and other registrars held that view, a large number of people in my constituency would be unable to get married.

John Mason (Scottish National Party, Glasgow East)

Even most religious people would accept that marriage is perfectly acceptable after a divorce, so that is a bit of a red herring.

Tim Boswell (Conservative, Daventry)

In the spirit of the last two interventions, will the hon. Gentleman at least concede that, in a sense, we are not pursuing absolutes in this matter, whatever people’s consciences are? There will be some quite proper reservations about the employment in a public job of persons who, for example, support a minority or extremist party, and that is defensible in certain conditions. My concern is that people should have the widest possible freedom to exercise their conscience as long as, and to the extent to which, it is consistent with the discharge of the public authority’s duties and its provision of public services. That is a difficult balance to find, but it is not an absolute one.

John Mason (Scottish National Party, Glasgow East)

The word “balance” is one that I like. I hope that the Solicitor-General will take the points made on board. This is an incredibly difficult area. I had better move on.

The reason for asking the Solicitor-General to explain the position is the concern in some circles that specific laws against harassment, especially if they are widely drawn, may create a risk to free speech. I presume that there is a risk that someone could claim that mere disagreement with them over an issue related to a protected characteristic had created an offensive environment or made them feel violated. However, those are subjective terms.

The law on harassment is controversial. In 2005, the Government considered introducing harassment on the grounds of religion in the provision of goods and services. Since then, they have undertaken a discrimination law review and they concluded that the Bill should not introduce harassment on the grounds of religion or sexual orientation in the provision of goods and services. Indeed, clause 27(8) specifically excludes those grounds. I assume that the Government saw that introducing the right to sue for offending feelings while receiving goods or services had the potential to unleash a wave of litigation.

Harassment has a more limited application in the provisions of goods and services, but on employment it applies to all strands. One obviously has less choice in the working environment than in the marketplace. For example, if one does not like the atmosphere in one shop, one can go to another; but it is much harder to switch if one does not like the atmosphere at work. If we are to have a harassment law on all grounds for employment, and if we are to apply it also to the provision of goods and services and some other grounds, we must be careful about the threshold in order to prevent misuse. The definition of harassment is already set about with limitations. The question is not whether we have limitations, but what they should be. Why is it necessary for us to go further than the EU?

Vera Baird (Labour, Redcar)

I intervene to deal with the hon. Gentleman’s point while he is still on his feet. He is right that the EU test is narrower than ours. He said that our wider test, as he characterises it, has been in our law since 2003, although we think that it has been in our law since 2000. We would break the principle of non-regression if we narrowed it to the EU test. Does he have an answer other than that which is prohibited?

John Mason (Scottish National Party, Glasgow East)

I raise these points for discussion. If it is impossible to wind things back, I must accept it. However, I am grateful for the clarification provided by the Solicitor-General, although perhaps she is not aware of why, in 2000 or 2003, a different definition was brought in.

Finally, and I hope briefly, I touch on the amendments tabled by the hon. Member who represents Abingdon—I wish to save time by not saying the full name of his constituency, or will that upset the people of west Oxfordshire? I wish to speak to amendments 230 and 231—and possibly 232 and 233, which are related. They seek to extend the harassment provisions to cover religion and sexual orientation in the provision of public services. I am naturally interested to see that the definition uses the “and” formulation of my amendment rather than the “or” formulation used by the Government. However, given what I have said, I obviously oppose extending the Bill to cover harassment on those grounds.

I shall touch on some of what the hon. Gentleman said. He mentioned the question of schools, and specifically mentioned homophobic bullying. I am sure that we are unanimous in agreeing that such behaviour should not happen. I know that schools—both faith schools and other kinds—are desperately trying to tackle bullying of all kinds, and I fully support them in that. I understand that faith schools in England and Scotland want to teach, for example, that sex outside marriage is wrong; indeed, that forms part of the ethos of such schools. However, we do not want such a statement to be thought of as bullying. For example, in Glasgow every child lives in the catchment areas of two schools, so every family and every child can choose between a faith school and a secular one.

Emily Thornberry (Labour, Islington South and Finsbury)

What, therefore, would happen to a young man whose Catholic parents want him to go to a particular school, but who, at the age of 13 or 14, decides that he is gay, and finds himself bullied by teachers who tell him that there is something profoundly wrong with him because he wants sex outside marriage?

John Mason (Scottish National Party, Glasgow East)

There is a difference between making a statement such as, “I believe it is wrong to have sex outside marriage,” and bullying. The two are not the same. I hope—I certainly have faith in Glasgow schools of all descriptions—that schools are attempting to tackle bullying at all levels, but that is not to say that they accept all forms of behaviour as just being okay.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman is saying that there are some schools—state schools, state-funded schools—providing that public service that want to teach that gay sex is always wrong. They can cover it on the basis of sex outside marriage but, as the hon. Member for Islington, South and Finsbury said, that means that gay sex is always wrong, always sinful and something to be condemned, to put it mildly. I cannot believe that this Committee, this House—certainly this applies to my party—and the Government think that that is acceptable. A school must not do that. A school can say that certain organisations or religions believe that, but it has a terrible effect on young people who are gay, lesbian, bisexual and so on.

The evidence, which I have not read out, although I could, shows that the feeling that one is being bullied and instances of bullying are a particular problem in faith schools, precisely for the reasons that the hon. Gentleman gives. It is not right for him to hide behind the argument that their ethos says that sex outside marriage is wrong. That means that being gay is always wrong if people express it sexually, which every gay person is entitled to do within the law.

John Mason (Scottish National Party, Glasgow East)

Our policy—this is our party policy, for the benefit of the hon. Member for Ayr, Carrick and Cumnock—is that if sufficient parents want a particular type of school, be it religious, non-religious or whatever, we would aim to provide that type of school. It could be Catholic or we could be talking about other Christian denominations. We have at least one Jewish school in Scotland and we are looking at Muslim schools in Scotland as well. Those would be schools run by the public sector.

I believe in diversity. If there is one thing that I am trying to get across in Committee, it is the idea of diversity, of live and let live, of being inclusive and of allowing different views. We do not have to have all schools saying that marriage is unnecessary or not particularly a good thing. We can have some schools saying that marriage is a good thing. We can have other schools taking a more relaxed view about the issue. Parents would have a certain amount of choice about which one they wanted their child to go to.

To take another example, is it unrealistic to imagine that someone could walk into a parish church or faith school on polling day, cast their vote and then claim to have been religiously harassed while in receipt of public services because of the presence of a cross or Bible verses on the walls? The amendment is dabbling in dangerous territory, and the Government have taken the wise course and left that alone.

The hon. Member for Oxford, West and Abingdon seems to be treating religion or belief less favourably than other characteristics. His harassment test for sexual orientation and for gender reassignment in his proposed new subsections (2A) and (2B) in amendment 231 is an

“intimidating, hostile, degrading, humiliating or offensive”

environment, but for religion in subsection (2C), the test is

“intimidating, hostile, degrading or humiliating”.

“Offensive” has been left out. That seems a little inconsistent.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I must take issue with the hon. Gentleman. Actually, the amendment would provide protection for religions. He gives the example of a cross or another religious symbol in a school that is used on polling day. That should not be forced to be covered up just because another public service is being delivered there. In fact, I would find it hard to argue that it was offensive. That is why my definition leaves out “offensive” from the idea of being harassed on religious grounds—to protect the religious freedom of other people. In fact, the motivation is opposite to that which he suggests.

John Mason (Scottish National Party, Glasgow East)

I can deal only with the words that the hon. Gentleman uses, but I am happy to accept his reassurance about the intention. He also used the term “thin-skinned”. I think that he was perhaps referring to religious or similar people. The word “bigoted” has already been used—again aimed at religious people. I find both difficult. If I was using those words about other people, people would rightly be offended, but there we go.

I am grateful that the Minister has said that she does not want to create a hierarchy of rights. I hope that she will reject amendment 231 for that reason. I do not agree with harassing anyone, but we have to be wary of turning schools, if this is what is intended, into a battlefield for competing world views. The Government seem to realise that there is too much scope for causing division, hence clause 80(1) specifically excludes the religion—

Joe Benton (Labour, Bootle)

Order.

Ann Winterton (Conservative, Congleton)

I remind the Committee that with this we are discussing the following: amendment 38, in clause 24, page 17, line 27, leave out ‘or’ and insert ‘and’.

Vera Baird (Labour, Redcar)

Welcome back to the Committee and the debate, Lady Winterton. Amendments 230, 38 and 231 would make various changes to the definition in the applicability of harassment. At the outset, I would like to deal with the question raised by the hon. Member for Oxford, West and Abingdon about why marriage and civil partnerships are excluded, because that point stands aside from the main thrust of the arguments.

We have already rehearsed the fact that the document “Discrimination Law Review” found little evidence of discrimination to justify the inclusion of marriage or civil partnership in the Bill as a protected strand, and there really is no need to include harassment. The hon. Gentleman also asked why pregnancy and maternity were not protected against harassment, but if a woman was subjected to that, there would be harassment related to her sex in any case, so there is no need to cover it in this provision. I hope that those two side points have been dealt with.

I shall now discuss amendment 38 as its reach is smaller and it is the most easily dealt with. As the hon. Member for Glasgow, East has said, British discrimination law contains a harassment provision. To show harassment, a person must show either that their dignity has been violated by unwanted conduct or that an intimidating, hostile, degrading or offensive environment has been created as a result of something. It is either/or—the disjunctive approach. By contrast, the definition in European equal treatment directives requires both limbs—the conjunctive approach.

It is difficult to see how the two concepts differ in practice. Conduct that violates somebody’s dignity will almost always create an offensive environment for that person. Therefore, if there is an extension by our treatment of those two limbs as disjunctive, we regard that as a small extension. That is the first point. The point that I rehearsed with the hon. Member for Oxford, West and Abingdon in an intervention is that our disjunctive approach, which is arguably a touch broader, was introduced to law as long ago as 2000 when the Race Relations Act 1976 was amended to implement the relevant European directive. He gave another example of a different branch of equality law where that disjunctive approach was present.

To use the conjunctive approach—the European approach, which is perhaps slightly narrower—would be regression. We would be going back from what we have already done and we are not allowed to do that under the principle of non-regression. That is another reason why we cannot implement the proposal.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

As the Solicitor-General will be aware, I agree with her. Such a move would indeed be regression because it would narrow the definition. I want to probe her further on this question as it is relevant to my amendments.

I believe that the conjunctive approach would be a significant narrowing because violation of dignity is a personal and subjective thing. Whatever one thinks of the objective test and the extent of that in the legislation, it is harder for violation of dignity to be dealt with subjectively than it is to deal with the environment question. One can see evidence of an environment and that can be objective, whereas one’s own dignity, and whether it has been violated, is much more difficult to judge. I agree that there is a difference, but does the Solicitor-General accept that, on that basis, it might be more than just a slight difference?

Vera Baird (Labour, Redcar)

No, I do not think so. It is broader, but not significantly so. It must stay broader, because we cannot regress—I, for one, do not want to regress that in any way.

Next, I will deal with the issue of objectivity and subjectivity that the hon. Gentleman raised, as it fits in with amendment 38 and the ones that he tabled. To reassure the hon. Member for Glasgow, East, if we are broader in this respect than is Europe, there is an additional element in our law, which is the objectivity that is required where harassment is not deliberate or intended. That is clear in clause 24(3), which the hon. Member for Oxford, West and Abingdon referred to.

For conduct to be regarded as harassment, one must take into account the factors involved: the perception of the victim, all the other circumstances of the case and, importantly, whether it is reasonable for the conduct to have the effect of harassment according to the definition in clause 24(2).

I want to reassure the hon. Member for Glasgow, East—this is on another limb—whose fear is that it is too easy to be harassed, which could restrict in particular religious freedom of speech, which is his interest. He will be reassured to know that that extra part is in there.

Regarding the objectivity of the test, the hon. Gentleman pointed to the fact that the definition of perception in clause 24(3) is couched slightly differently than in the old law, and that is right—we have tried to make it clearer. As he said, the elements of reasonableness are now separated, which may flag up the issue to some extent, but the important thing is that hypersensitivity cannot be used.

The hon. Gentleman feared that a person who was hypersensitive to a religious problem would say, “It is perfectly reasonable for me to say that that is harassment because I am hypersensitive, so the ‘reasonable’ test is passed.” That would make it a subjective reasonableness test, which it is not.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I welcome the Minister’s comments and give more strength to her arm in making the issue clear. This will be helpful. These issues have been subject to debate in the literature and this is a useful opportunity for her to clarify the Government’s intention.

Vera Baird (Labour, Redcar)

In fact, this is already in domestic law. I am sorry to fumble, but for just one moment I lost the page where the case is set out.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I think this is useful because, as I understand it, the previous provisions seemed, as I said, to have one paragraph that did not seem clearly to separate the perception of B from the test. In “Equal Opportunities Review”, among other places, the matter has always been raised as a concern—a sensitive person might consider that the reasonableness test relates to them. I am interested to hear what more the Minister can say on that.

Vera Baird (Labour, Redcar)

I am grateful to the hon. Gentleman for his intervention. The lesson learnt is not to eat one’s lunch while still at the papers, or two pages could get stuck together.

To reassure the hon. Member for Glasgow, East, the test has been set out in a case called Driskel v. Peninsula Business Services Ltd. The judgment said that the facts of a case in which harassment is alleged

“may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow”.

What we have done is replicate the current law. The reassurance is helpful to make it clear that although clause 24(3) says that the perceptions of B, the victim, are an important factor, the question whether it is reasonable to regard something as harassment is not for the victim to decide—it is an objective test. I hope I have provided reassurance on that aspect.

Amendments 230 and 231 together make up what I am afraid would evolve into a massively complex picture. They would provide protection against harassment on the grounds of sexual orientation and the grounds of religion or belief in the provision of services in exercise of public functions by public authorities. The definition of sexual orientation would be the disjunctive definition.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The conjunctive.

Vera Baird (Labour, Redcar)

Forgive me, the hon. Gentleman is right. So, that would be narrower and it would mean that the complainant had to show that the harassment had both effects that we have already discussed. It would be the same for religion and belief, but removal of the “offensive” adjective in clause 24(2)(b) would result in the second limb of the test

“creating an intimidating, hostile, degrading, humiliating”

environment. However, if it was offensive, presumably to the person who was religious, it would not amount to harassment, so there is a higher test for the religious. People could have more of a go at the religious under the hon. Gentleman’s provision than they could someone else.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

To make it clear, as I did to the hon. Member for Glasgow, East, the amendment would allow more freedom for the religious to run the risk of offending other people on their religious grounds. It is not simply aimed at giving less protection to the religious. It is a religious-versus-religious thing. As we have recognised in other forms of the law, including incitement to religious hatred, there have to be higher tests all round so that free speech is not interfered with.

Vera Baird (Labour, Redcar)

I shall try not to tease the hon. Gentleman again.

The amendment would also extend protection against sexual orientation and gender reassignment harassment to part 6, which is about education. It would use the definition of harassment that requires both limbs and retain the definition of “offensive” in the second limb of harassment.

In conjunction with another amendment, amendment 231 would extend protection against religion or belief harassment to the education section of the Bill, but using the narrowest definition of harassment and leaving out “offensive” again. I hope that I have all those right. They present a massively complicated picture, and one of our aims is to simplify the law and not make it almost incomprehensible. We do not want to extend protection for the sake of harmonisation.

The hon. Gentleman is keen on harmonisation. It seems he wants everything to be protected, arguably with the odd exception, but I have promised not to tease him. We do not want to do that. We want to legislate where there is a need for it. We do not see any need for any of those provisions.

There is no question of devaluing sexual orientation or religion or belief. There is no evidence that people are being harassed because of their sexual orientation or religion or belief in situations outside work. We have done a good inquiry on it and we have consulted. We asked for evidence and whether there was a need for express protection against religion or belief and sexual orientation harassment in any of or all the fields of the provision of goods, facilities and services; education; the management or disposal of premises; and the exercise of public functions. Nothing came back that convinced us or even started to persuade us that there was any need for such protection.

I turn to what the hon. Gentleman called captive communities. I understand that, as well as the example of prisoners suggested by the hon. Member for Daventry, but he is really driving at people such as schoolchildren. If someone is harassed in a shop, they can go to another shop, but a child housed in school does not have that freedom of choice. I understand that concern. None the less, we have not had any evidence that there is any difficulty relating to harassment in those captive communities.

Before I come to the question of bullying in schools and homophobic bullying, let us not forget that the public sector equality duty is in place and that that has a role in ensuring that public authorities—the service providers and the performers of public function—will have to give due regard to the need to foster good relations in respect of protected characteristics.

Turning to the hon. Gentleman’s significant concern about bullying and harassment in school, and whether these proposals are a way to tackle that, we really do not think there would be any practical benefit. We think that—not exclusively—most bullying at schools is pupil to pupil, and what we need to focus on is bullying action plans to stop that occurring, because the relationship between one child and another is not caught by discrimination law. Therefore, introducing that protection would not help anyone to take action against that kind of bullying.

The Department for Children, Schools and Families has put a duty on head teachers to have measures in place to prevent bullying, but the same Department has guidance for schools on dealing with homophobic bullying and it also will produce guidance very soon on tackling transphobic bullying in schools. There is already guidance on bullying in relation to race and religion.

If staff in a school treated children in a way that constituted harassment either because of their belief or because of their sexual orientation, that would be discrimination and it would be caught by the discrimination provisions. We simply do not see a gap to fill.

I hope I have run through this step by step and point by point, and I hope that the hon. Gentleman appreciates that these proposals would produce an enormously complex outcome in any event, but I hope and trust he is satisfied.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Before the Solicitor-General finishes—she is coming to a summary of her conclusions—I want to deal with the question of schools. I note her point on homophobic bullying and how it is potentially different and could be treated differently from harassment on the basis of sexual orientation by a member of staff. I also note her point that a difference in treatment of a pupil by a member of staff would be discrimination.

I refer the Solicitor-General to the findings of Stonewall’s 2009 teachers’ report, which, in respect of homophobic staff, report that more than two in five secondary school teachers and three in 10 primary school teachers have heard homophobic language or negative remarks about gay people from other school staff. Also, half of gay pupils have heard homophobic remarks from teachers and/or other school staff and 30 per cent. report that adults have been responsible, for instance, for homophobic bullying in their schools. There is then reference to some teachers being homophobic.

Does the Solicitor-General not accept that there is some evidence that does not count as discrimination, because it may not be demonstrated in differential or detrimental treatment, although it shows that there is a staff-to-pupil problem in some attitudes? Indeed, would she count as harassment the idea of children being told that gayness—and their parents, if they are gay—is innately or objectively disordered and sinful?

Vera Baird (Labour, Redcar)

I do not know of a school that I have come across that talks to its children in that way as a matter of course in any event. What we are looking at is truly legislating where there is a need, not legislating where there is no need.

The hon. Gentleman refers to Stonewall, but Stonewall, as he heard, gave evidence to us only about a week ago to the extent that it has no evidence of the need to extend protection against sexual orientation harassment in schools. We will legislate if it is there, but it is not. Stonewall must be the expert, and it says it is not. I hope he will withdraw his amendment.

Diane Abbott (Labour, Hackney North and Stoke Newington)

I have listened carefully to my hon. and learned Friend’s arguments, and I will support the Government on this matter. However, I want to say a word about the question of homophobic bullying, because I think she perhaps does not take it as seriously as she should.

One has to be a parent of an adolescent child who is in school to understand the reality of homophobic bullying, because to my certain knowledge it occurs in London schools. It is a paradox: for grown-ups it has become less and less acceptable to engage in casual homophobia, but homophobic abuse of the sort that one hears quite normally in primary and secondary schools, certainly in London, is something I never encountered when I was going to school.

Furthermore, physical and verbal homophobic abuse do not occur in a vacuum. They occur in a school society where “gay” is a common term of abuse. A child can attract the term “gay” for a range of activities, including wearing their school blazer, putting up their hand in class, doing their homework, admitting to reading a book or taking what is deemed by their peers an undue interest in educational matters. All those things get boys in London schools labelled “gay”.

Some teachers, perhaps older teachers, see that as a joke, but I believe that it contributes to an atmosphere where boys—particularly working-class and black boys—feel inhibited from exhibiting anything other than what may be described as stereotypical male education-hating behaviour.

Such an atmosphere—where “gay” is a term of abuse and all sorts of behaviour that we, as middle-aged, liberal, educated people, may consider normal—is smeared as “gay”, which can be difficult for pre-adolescent boys and can lead to specific physical and verbal abuse of individuals. I believe that creates an intolerable atmosphere for many boys and some girls in our schools.

I do not accept my hon. and learned Friend’s assurances that legislation covers it. It is not my experience, as a parent and someone who goes into schools, that we are doing enough to say that such an atmosphere, such language and such physical abuse are not acceptable. It is all very well to talk about schools having codes of conduct on bullying—every school in Hackney, North and Stoke Newington has a code of conduct on bullying—but I cannot tell her that every school does not have a problem with bullying. A code of conduct is a long way from instilling in children a way of behaving.

The other day I read in the newspaper about a little American boy—12 years old, good looking and charming, by all accounts—who hanged himself because he was consistently abused at his school and accused of being homosexual. We cannot look at the physical act of bullying as an isolated act. We cannot understate the manner in which a toxic, homophobic culture has taken grip in many schools.

The earliest race relations legislation did not result in a wave of prosecutions, but created a climate and signalled society’s attitude to such behaviour. Anything that the law can do—not just to enable individuals to be prosecuted, but to create a climate and signal our attitude to such a climate in schools—will help some very frightened and unhappy boys. They exist at this time—today, as we speak,

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is a powerful contribution from the hon. Lady. I feel exactly as she does. My consideration of this, and agreeing with her, does not lead me to support the Government, although I am not as natural a supporter of the Government in all matters as she is.

Diane Abbott (Labour, Hackney North and Stoke Newington)

That is my Whip.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

From a sedentary position, the hon. Lady tells us that she is being effectively whipped at the moment. I am not saying that that is a form of bullying on any grounds, but I hope it does not continue as it would be a personal tragedy for her and a waste for the House and the media world if she were kept in line more often than she is.

Moving on to a substantive point, as I said, my reading of the situation, given the evidence of harassment in schools on the grounds of sexual orientation, for example, leads me to argue for a change in the law. The fact, if it is the case, that Stonewall does not agree on that is of interest, but the Minister was on stronger ground when she argued that law should be based on the evidence of a mischief and whether the law is an effective way to deal with it.

That is the basis on which I would be prepared to make my stand here—and indeed others, at later stages of consideration of the Bill—rather than saying that because person X or a particular lobbying organisation does not support a particular proposal, for whatever reason, that should be the end of the matter. Other organisations, such as the Equality Network in Scotland, Schools Out and others, not only recognise the problem—as Stonewall, which does excellent work, does—but have a different prescription for the solution.

Vera Baird (Labour, Redcar)

As the hon. Gentleman well knows, we have evidence from all those bodies—I cannot say from the Scottish one, but we have evidence from the others. The contribution from my hon. Friend the Member for Hackney, North and Stoke Newington was immensely touching and very strong. Much of it would not be covered by discrimination law if we agreed to the hon. Gentleman’s amendment. With greater understanding now, we appreciate that there is a sizeable problem, but we always have to remember the limitations of what we are doing. This is not the way to solve the problem.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not think there is anybody on the Committee who cannot recognise the problem. I do not doubt the Government’s intentions in tackling the wider issue—not just harassment, but pupil-to-pupil bullying and so forth. I have not spent long going over examples this morning or now, but it would be appropriate to do so because we are dealing with specific legislation.

My point is that the case is made on the terms of a mischief. Without changing the culture and training and without procedures being put in place, legislation is never sufficient on its own, but leaving a gap uncovered sends the message to the providers of services—including schools—that this sort of bullying and harassment is not as serious as other forms, such as racial harassment and bullying. That message relates not to the substance, but to whether there is a legal obligation. In fact, this form of bullying is just as serious if not more so, on the basis that it is not always as universally condemned as—thank goodness—racial harassment and bullying are. I accept the Government’s point about the single equality duty on public bodies, which, in respect of sexual orientation, is a form of section 28 in reverse. That section was so bad that there is no reason why it should not be reversed. We will debate that later, but the Liberal Democrats do not believe that it is sufficient in these terms.

To respond to a couple of points that the Minister made on the substantive basis of the amendments, I accept that they are complex. I wanted to deal with the issue in an amendment, but it was difficult to do that in the way that the clause is laid out. I am glad that she was able to understand what was covered, and I agree that if something similar ever comes to fruition during the passage of the Bill, we will have to find a neater way of doing it.

The amendment makes the point that the provisions need to be extended. Even if we eliminate a form of discrimination and detriment that occurs in this country, we would not repeal the law even though the mischief has gone. Therefore, one does not have to look too hard, where the principle of the case is made out, for evidence of something that would be covered by a harassment division and not direct discrimination. In her reply, I think that the Minister made it clear that, by definition, not all cases of harassment involve discrimination and, if the comments or conduct do not amount to different treatment per se but just create that environment, they would not be covered.

There is a huge gap in the provision of public services and in schools, as well as for religion and, indeed, sexual orientation. The House will need to come back to this matter. I have clearly not yet persuaded the Minister of that point, but I do not feel that there is any virtue in dividing the Committee on the complex set of amendments that I have tabled. On that basis, I beg to ask leave to withdraw the amendment.

Clause 26

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 10, in clause 26, page 19, line 3, leave out paragraph (a).

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following: amendment 196, in clause 26, page 19, line 3, at end insert

‘, so far as relating to any goods or services which are not provided by or on behalf of a public authority’.

Amendment 156, in clause 26, page 19, line 4, leave out paragraph (b).

Mark Harper (Conservative, Forest of Dean)

It is a pleasure to see you in the Chair this afternoon, Lady Winterton. I will speak to amendment 10 and my hon. Friend the Member for Weston-super-Mare will hope to catch your eye to speak to amendments 196 and 197.

Amendment 10 is probing. One of the organisations that support the age discrimination legislation applying in whole to those under 18 got very excited and fulsomely supported my amendment. However, it will be disappointed when it finds out that the amendment is intended to probe and to provoke a discussion on the appropriate scope of the Bill and why the Government have taken such decisions.

For the benefit of those who do not have the clause in front of them, it is intended to amend age discrimination provisions and states:

“(1) This Part does not apply to the protected characteristic of—

(a)age, so far as relating to persons who have not attained the age of 18;”.

The amendment would remove that age restriction. I want to make the point to the Minister that a number of outside organisations have highlighted the fact that discrimination against young people takes place. I expect that we will discuss that in more detail when we consider some of the other age discrimination parts of the Bill. Young people may experience discrimination on the basis of their age. With older people, there is what we could call—for the purpose of the debate—good discrimination and bad discrimination. We say that young people should and should not do a wide range of things, and we put age limits on when they can and cannot do certain things, based on protecting them.

Providers of other services might also make judgments, aside from those statutory rules, to set age limits that they feel are appropriate, based on the enjoyment of services for other customers. For example, some restaurants and all sorts of other providers have age limits that are not necessarily to do with alcohol supply, but with the age of children in that environment, such as insisting that parents accompany their children.

I understand the sense of some of the issues raised. Some young people are perfectly capable of doing certain things at one age, whereas others of the same age might not be. The difficulty is in setting an objective test, or way of putting that into legislation. That may be why the Government have decided to exclude those under 18 from this part of the Bill. The amendment’s purpose is to test that and enable the Minister to set out the Government’s thinking in more detail, so that it is on the record and we can probe it to see whether any of the examples given by those organisations hold water.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I rise to support amendment 10. I, too, want to probe the Minister’s thinking about the exclusion of under 18s from the protection of the Bill. The commission wishes us to probe the Minister’s thinking. It strongly supports the amendment, because it believes that the clause would introduce discrimination to under-18s. It says that the amendment would bring that age group within the full scope of the proposed public sector equality duty set out in clause 143. I share the concerns of some of the organisations that have contacted me.

Mark Harper (Conservative, Forest of Dean)

May I make it clear that the provision will not exclude young people from the protection of the Bill? It relates just to services and public functions.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the hon. Gentleman. I am talking about goods and services. He used the example of a restaurant, where people want to be quiet and do not want children running around. Surely, the issue is how a child behaves; the point is that there should be no noise or running around. The clause should not provide a blanket exception for children if we want an inclusive society in which they play a full part. I am sure that many Members have been to continental Europe, where children play more of an integral part in society and behave perfectly well when taken out with adults to restaurants. I want to explore the Minister’s thinking on how we are targeting an age group, as opposed to the behaviour of the individual.

On goods and services, indirect discrimination might be experienced by a child. I do not know how many members of the Committee have been into the ladies in Parliament.

Mark Harper (Conservative, Forest of Dean)

Just the ladies, I suspect.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I do not know what is in the gents, but the ladies have adult-size hand dryers and child-size hand dryers. That is very good practice, as such thinking incorporates children in the provision of goods and services. That should rightly apply to a range of public services.

One can go on endlessly thinking of instances, but I shall not hold the Committee up too long with my examples, as they are not exceedingly brilliant. Should a car hire firm offer to provide car seats for children, not just because that is good business, but because it is the law? Obviously, that is good practice and good business, but there is an issue about provision, including in the private sector. Restaurants or instructions are probably the most common examples. Should we think about how to write the instructions on the use of a fire extinguisher, so that a child could use it? Although such things are not necessarily common occurrences, they can involve the provision of public services.

I understand the concerns about cumbersome exemptions, but my understanding is that the Australian Age Discrimination Act outlaws age discrimination in a range of areas beyond employment. That Act is able to set out the differences without them becoming cumbersome and burdensome. Young Equals—I am sure that we have all received one of its briefings—is convinced that those concerns can be overcome by robust legislation. I, too, will be interested to hear the Minister’s response about how we might improve our inclusion of children into society and the protections in respect of goods and services under this part of the Bill.

Clause 26(1)(b) will remove the exclusion of married and civil partners from the goods and services provisions. Our amendment 156 would put that protection right back. I want to explore whether the Minister really has no evidence whatsoever, even on the hypothetical example of a gay bar or club excluding those who are members of a civil partnership because it does not want to admit couples. The amendment is intended to probe the Minister’s thinking, to find out why the Government have removed those two technical characteristics from the provision of goods and services.

John Penrose (Conservative, Weston-Super-Mare)

It is a pleasure to see you in the Chair, Lady Winterton.

I shall speak to amendments 196 and 197, which I hope are complementary to amendment 10, which was moved by my hon. Friend the Member for Forest of Dean. These amendments serve to round out an earlier stage of the debates that we had on Tuesday, when I asked the Minister for reassurance about whether targeted promotional and marketing activities that involve companies aiming their goods or services at particular groups of people would remain legal, as they always have been. The Minister was able to give some fairly solid and comprehensive reassurances that that was perfectly feasible, providing things were done in a positive rather than a derogatory way.

This pair of amendments seeks to probe the Government’s thinking not on market targeting, but on market access. In our debate last Tuesday, we talked about companies such as Club 18-30, which seeks to provide holidays to people of a particular age range, or Saga, which seeks to provide holidays to people at the other end of the age range. We clarified that it was perfectly appropriate to target promotional materials at people in the appropriate age range without fear of legal problems.

The follow-up, perhaps slightly harder, question concerns Club 18-30 targeting its promotional materials at people who are 18 to 30, then getting an application from someone who is 50 to go on one of its holidays. Can the company turn down that person on the basis of age? Equally, if Saga gets an application to go on one of its holidays from someone who is 30, is it appropriate—legal—for the company to turn it down?

This does not just apply to the travel industry. The insurance market has been much discussed. A number of organisations have made submissions saying that evidence shows that it is harder to get some kinds of insurance if one is older. Interestingly, Saga has come up with some additional evidence that, although not all insurance companies provide insurance to people who are at the top end of the age range, there are a number of companies, including Saga, that do. According to Saga’s research at least, in well over 90 per cent. of cases, people who had been initially turned down by their normal insurer—presumably because of age—were able to find insurance elsewhere. Therefore, although the individual insurer that they were using might have been unwilling to allow access to their products, or was willing to allow them access only at a much higher price, they were not completely shut out of the insurance market.

The question that we are asking in amendments 196 and 197 is what the Government’s thinking is on where to draw the line. That is important because the Government are seeking in later clauses—I will not try your patience with them at the moment, Lady Winterton, as we will deal with them later—to acknowledge that there are examples of “good discrimination” and “bad discrimination”, to use the terms already used by my hon. Friend. In other words, the Government are seeking to take powers to allow Ministers to declare things to be legal. That causes a great deal of anxiety. Many companies are concerned that their goods and services may be deemed to be illegal until the Minister gets round to declaring them to be okay.

The purpose of the amendments is to take the legal threshold back a step or two to something that—I hope that the Committee will agree—is just anything provided on the basis of public service; surely, that should be provided universally. I also ask the Minister to build up from that foundation and share with us the Government’s thinking on what is an acceptable set of principles to distinguish between good and bad differentiation on the grounds of age and sex.

In the previous debates on market targeting, we mentioned insurance companies such as Sheilas’ Wheels, which aims to provide insurance to women. If Sheilas’ Wheels refused to give me insurance because I am male, would that be illegal? What is the Government’s thinking about the underlying principles? Other examples were mentioned. Today, I can think of gay clubs that might want to exclude heterosexual people. One might think of gyms that operate women-only classes or sessions. There are lots of examples all round.

Diane Abbott (Labour, Hackney North and Stoke Newington)

Some gay clubs have a big problem with drunk, heterosexual women who insist on gaining entry.

John Penrose (Conservative, Weston-Super-Mare)

I could make many comments, all of which would be wrong. I will therefore not make them. The hon. Lady illustrates the point very well. It is important for us to explore the matter. I hope that the Government can illustrate some of the principles that they seek to apply.

The Conservative party would like to make a couple of points to get the debate under way. It is clear that there are examples of characteristics that, although they may closely track age, could be a legitimate ground for differentiation. In some cases, insurance is a good example, because the risk for drivers’ insurance correlates quite closely with age. Incidentally, it does not just rise inexorably with age. It tends to start off very high for people who have just got their driving licence in their late teens. It then drops, and when we are all getting on a bit, it starts to rise towards the higher age range.

Interestingly, insurance companies that specialise in the area point out that, although the risk per mile travelled may go up as the miles travelled by people who are in the 70s, 80s and 90s tend to fall steadily, the combined risk may still be comparatively low. But that is a clear example of a goods or service where it may be perfectly legitimate to differentiate on the basis of age, as there is a genuine and evidenced example of changing risk—insurance is, by definition, all about risk. We need to have a view on that and understand it. Equally, I am sure that Sheilas’ Wheels and others would argue that women drivers have different risk profiles from men. That is the basis of a lot of its business and allows it to carve out a profitable one.

It is vital to get such matters on the record, if we can, which is why I am inviting the Solicitor-General to expand on them. The wording of our two amendments is less important than giving such an opportunity to the hon. and learned Lady. The amendments would merely take the basic level of law back to that of providing public services. All members of the Committee accept that, by and large, public services should be provided to everyone. It is hard to think of one that should not be provided to elderly people, but only to young people. For example, we want medical care provided across all age groups. That is a convenient peg, a starting point or a foundation stone on which I invite the hon. and learned Lady to construct her tower of ideas and principles with which I hope we can reassure several companies.

The danger of saying that certain issues will become illegal unless and until the Solicitor-General decides that they are not and uses some of the powers in later parts of the Bill, is that enormous uncertainty will be created in the minds of investors, management, staff and potential customers of many of the companies whose businesses could be affected. Depending on the hon. and learned Lady’s response, additional amendments might be tabled later in our proceedings.

Vera Baird (Labour, Redcar)

Let me consider first the age discrimination element in respect of children under amendments 10 and 196. Amendment 10 would extend the ban on age discrimination by those providing services and public functions to include children under the age of 18. It would, therefore, generally require service providers and those exercising public functions to treat children of different ages in the same way as each other and in the same way as adults. Different treatment could only avoid being unlawful discrimination if it was covered by an exception or if it was objectively justified as a proportionate means of meeting a legitimate aim.

Amendment 196 is more narrow. The scope of the ban would extend to children only in respect of goods and services provided by, and on behalf of, public bodies. Overall, the purpose of the Bill is to provide protection against discrimination and ensure equal opportunities. Children will be protected extensively, and it is important to make it clear that they will be protected against discrimination on the grounds of race, disability, sex, religion or belief, sexual orientation and gender reassignment, and against harassment because of disability, race and sex.

The Government have clearly put a lot of effort into considering whether they should extend age discrimination, particularly in services and public functions, to the under-18s. We concluded that there are better ways in which to tackle problems that children and young people face. Children’s organisations have presented a lot of examples of services in which the needs of particular children or groups of children do not always seem to be recognised or prioritised. For example, they say that young carers might be overlooked, when their needs are being considered, or young people’s access to public space not given enough weight in planning decisions. There are also a lot of anecdotal examples of children not being treated well.

We take such problems very seriously, but we do not consider that age discrimination legislation is the best way to deal with them. Discrimination law is not an appropriate way to resolve priorities of resource allocation or better ways of using the resources in children’s services.

Although no one has asked me to, I should like to take the opportunity to pay particular attention to children who are carers. Clause 26(1)(a)—this seems almost like an exception, but it is how the Bill works and it is a good thing—has the effect that children who are carers will benefit from the association protection by reference to the person for whom they are caring. When an under-18 is caring for a disabled person, he or she will be equally entitled to protection in respect of access to, and supply of, goods, facilities and services on account of association with that disabled person, as any adult carer. A child who is caring for an older person will also be protected from discrimination by association with that older person, despite the child not coming within the age discrimination ban. That is an important point, and will reassure the carer community. Whether or not they had already thought about the problem, I am sure that they would have done so in due course. I hope that that is clear.

Returning to the generality of younger people, we feel that extending age discrimination to children as children could have negative consequences. The analogy made by the hon. Member for Forest of Dean about age discrimination at the top end, makes that point. Broadly speaking, no age discrimination should be allowed at the top end. However, there will be a need for an exception, so that pensioners in Redcar can continue to have cheap fish and chips from private providers, for example, or so that they can continue to have their equivalent of the freedom pass from public service providers. I am sure that there will be exceptions in due course of the kind that the hon. Gentleman mentioned in relation to insurance. Sometimes, there will be an actuarial justification for an increase in premium or whatever. We will have a body of outlawed discrimination with some exceptions.

With children, it works the other way round. Nobody would see any need to distinguish between the way they treat a 72-year-old and a 77-year-old, but they would want to treat a two-year-old and a seven-year-old quite differently. They would not want to have to objectively justify that treatment on each occasion because it was unlawful age discrimination. Obviously there would be differences. If one was providing play for those two age groups, there would be differences in levels of supervision, kinds of play, educational inputs, health protection and so on.

In a sense, the emphasis goes the other way with young people. There are more exceptions, rather than a core of age discrimination legislation that one is able to point to in order to say that something should be banned. Justifiable different age-based treatment of children is widespread, and is fundamental to the provision of services to meet children’s needs at all ages. It would be fabulously complex to try to provide exceptions in the law to ensure that all that kind of treatment was exempted with clarity, and the provisions of those exceptions would be very important.

One can defend the different treatment of children of different ages on the grounds that it is objectively justified. That is fine, but it is a long process to have to go through, and the fear is that it would be massively complex, with the negative possibilities that I have mentioned. Certainly in the private sector, having to go through that entire process would be likely to have a chilling effect on the provision of services for children.

Such a law could also undermine the equality duty, which we will come to in due course. As everyone knows, public bodies will consider and address the age-specific needs of young people under that duty. A playground for toddlers, an adventure playground for older children or a reserved area for teenagers to congregate in, could all be part of a plan to meet the needs of young people under the equality duty. The concern that such things might have to be justified against a challenge by those who fall above the age limit for the toddler park or below the age limit for the teenage place, might discourage authorities from providing such facilities. We do not want them to be discouraged; we want them to be actively encouraged and that is what the public sector duty is about. If the measure is applied only to public bodies, clearly it would not have the same chilling effect on the private sector. Amendment 196 is narrower, but we still do not think that it would be an effective way to improve children’s lives. We still fear that public provision might be chilled.

We do not believe such a proposal to be the way forward, although we do not slight children or treat them as less valuable than adults. The Bill has an important contribution to make to the quality of children’s lives and it generally protects children from discrimination in the same way as adults. The new equality duty will support a better understanding of the services that are needed by children of all ages. That sets out as best I can why the Government decided against the amendment.

I turn now to amendment 156, which concerns extending protection from discrimination to marriage and civil partnerships with regard to the provision of services and the exercise of public functions. The same argument—that there is no evidence that such protection is needed—applies. I have already said several times that there is not much evidence that any protection is needed on the grounds of marriage or civil partnership. Although there is still some residual discrimination to be challenged in the employment field, we found no evidence of it anywhere else. We shall outlaw only what we need to, and no more.

Amendment 197 is clearly not intended at face value, because it would limit the application of part 3 of the Bill—on services provided by, or on behalf of, public authorities—in so far as it relates to sex. Private sector organisations would therefore be free to discriminate against women, men, or whatever, which has been unlawful since 1975—talk about regression. I know that the amendment has been put forward to test the points that the hon. Member for Weston-super-Mare has raised and that it will not be pressed.

Amendment 197 is a probing amendment to draw out debate on how the Bill deals with services that are justifiably delivered on a restricted basis to people who have a particular protected characteristic. The starting point must be that limiting access to particular goods or services on the basis of a protected characteristic—for example, sex—is, as a general rule, unlawful. However, there are situations in which businesses and public sector organisations might legitimately wish to restrict access to a service to people of a particular sex, and the Bill provides for that in a number of ways. First, only women, or only men, might need the service. For instance, it is obviously not discriminatory for the NHS to provide cervical cancer screening to women. That is expressly provided for in paragraph 24 of schedule 3.

It is also acceptable for a service provider to continue to provide a service in such a way that is commonly used only by people with a particular characteristic. That is addressed in paragraph 27 of schedule 3. For example, men usually use barbers, while women usually use hairdressers, although I think that is rather an old-fashioned example. Unisex salons are increasingly common—it says “unisex saloons” on my note, which is an encouraging thought for a drink later on. Barbers are not required to offer female hairdressing services. However, if a woman were to ask for a grade 2 haircut, which I assume is very short, the barber could not refuse to do that for her, unless there was some reason, or it was impractical to do so.

Secondly, a business can apply a restriction which adversely impacts on those of a particular sex and so is potentially indirectly discriminatory, but which can objectively be justified as a proportionate means of achieving a legitimate aim. For instance, if a baby group met only during the daytime, on a weekday, fathers, who have limited paternity leave and who, statistically, are more likely to be working full time, would be likely to find it more difficult to go to that group with their children. That would put them at a disadvantage compared with mothers. However, such a practice could be justified for various reasons, including demand, need, staffing and costs. Accordingly, the limited access for men, so long as it was justified objectively, would not amount to indirect discrimination.

John Penrose (Conservative, Weston-Super-Mare)

The Minister is giving a full explanation. Can I test her with another example, to ascertain whether I have understood the provision correctly? I keep on referring to Saga, because they have been active in providing examples for us. From what I understand so far, if a Saga holiday was being advertised and a 30-year-old applied to go on it, under the Minister’s first example, Saga would not be able to say, “No, you can’t come.” However, under her second example, it might be able to say, “No, you can’t come because we operate a system where all the booze is free and there is an open bar policy on our holiday.” That statement would be based on a set of assumptions, based on evidence that people in the older age range tend to drink much less than those in the younger age range, and that would materially impact on the costs of providing the holiday. Is that the sort of example that she feels would fall within the rules that she has just laid out?

Vera Baird (Labour, Redcar)

That is a weird example. If the hon. Gentleman has the brochure for holidays where the booze is all free, we will distribute it among participants in the Committee. I know what he means: if there is some justifiable reason why the whole costing process, the availability of accommodation or, in some cases, the fact that Saga sometimes has clergy going along, is worked out on the basis of an age group, it might be justified. Rather than picking on examples and defining how I think they will play out, it is better to allow the imminent consultation to deal with that.

None the less, let me clarify as best I can, at the hon. Gentleman’s invitation, the other ways in which it is possible to have single-sex services perfectly legitimately. Privacy and decency, or biological differences, might justify single-sex services or facilities. The Sex Discrimination Act 1975 specified services such as refuges for victims of domestic violence: generally, women would want to go to a refuge that was women-only if they were escaping from a violent man; men, because there are male victims of domestic violence, would probably want to go to some special provision. But one can see the point of that.

Another example is referral centres for victims of sexual assault—again, such people tend to want to be in their own gender company. Other such services are: health care treatments that affect one sex, such as treatments for ovarian cancer or prostate cancer; the probation service; women offender reduction plans; and projects that provide support for fathers. Since services funded for parents of both sexes are taken up significantly more by mothers than fathers, specific services for fathers could be provided to meet that need.

The exemptions in part 6 of schedule 3, about separate and single-sex services, set out circumstances in which either separate services for the sexes, or single-sex services, can be lawfully provided. In every case, the limited provision of such a service must be a proportionate means of achieving a legitimate aim. Therefore, such services should meet a legitimate need, and they could be open to challenge if they do not.

Finally, the restriction could be aimed at enabling those of a particular sex to overcome a particular disadvantage, or to rectify their disproportionately low involvement in a particular activity. We will discuss that later when we come to part 11 of the Bill, but I refer to the positive action provisions. An adult education class about car maintenance that was limited to women—I do not think up these examples—might be lawful, although I would not go on it. Furthermore—this is the weaker example, I think—it would be entirely lawful under positive action provisions to launch a cookery class limited to men, perhaps because there is a disproportionate presence of women in cookery. I am not sure that that is a good example, but I think the hon. Member for Forest of Dean can see the point. I guess that the car maintenance example is the best.

If participation in an activity is disproportionately low, a provider can target a specific group to raise its participation. We will consider that in more detail under part 11 of the Bill, but it is appropriate to mention now as one of a list of ways in which single-sex and single-strand services can be supplied. One can make similar points about restricting services on the basis of other characteristics. For example, a local sports club that did not have many disabled members might want to have an open day aimed exclusively at disabled people.

The other strands have specific exceptions as well. The consultation about age is important in crystallising as best we can—consensually, we hope, among service providers and age campaigners—all the possible exceptions that are likely to be necessary regarding the prohibition of age discrimination in the provision of goods and services under clause 190.

John Penrose (Conservative, Weston-Super-Mare)

The Solicitor-General is being very helpful. In her closing remarks, will she make some comment about the Government’s expected timetable for developing the principles for the age-related discrimination exceptions? She has elaborated an impressive, carefully-thought-through and fairly sophisticated set of exceptions for many of the other strands of discrimination—those that have been around for some time—but we are much further back in the process on age, as I think she was saying. It is important that companies making hitherto legitimate business-based decisions and distinctions based on age know that they will not have to reconstruct their business models completely at an early point. It would be to the advantage of everyone, particularly the companies and their customers, if the Government clarified those principles at an early stage, ideally before Report or, in any event, soon thereafter. That would reduce the level of commercial uncertainty and uncertainty for the staff and customers of those firms.

Vera Baird (Labour, Redcar)

I understand the hon. Gentleman’s point and we will be consulting on that. Let me find the timetable so that I can explain as clearly as possible. The consultation document is almost complete, so it will be published soon—this week or next week, I hope. The consultation will continue until the end of September. We are looking to bring regulations to this House in 2010 and are aiming to enact the law in 2012. The consultation process will iron out those problems because many business suppliers and the age charities will be involved.

John Penrose (Conservative, Weston-Super-Mare)

I thank the Solicitor-General for that clarification. For the record, may I make sure that I heard her correctly—that regulations to define the exceptions required to continue trading will be brought in before Royal Assent, so that companies trading on the basis of age do not subsequently discover that their practices are technically illegal?

Vera Baird (Labour, Redcar)

We do not have to bring everything in on Royal Assent or immediately afterwards. We could make sure that the timing is correct so that we do not put anyone at a disadvantage. We will be consulting on regulations in 2010, so the consultation as a whole—what is in, what is out, what is a legitimate example and what is not—starts now and continues until September. We will consult on regulations when we have crystallised where they should be. This is a new area—the hon. Gentleman has made that point clearly—and it is a complex area. It is easy to get things wrong and to disadvantage the people we mean to help. We will consult on the regulations again in 2010 and aim to bring in the law in 2012. We will have it all complete before anybody can be put at a disadvantage by being, as the hon. Gentleman put it, technically unlawful.

We are discussing everything other than health and social care. The NHS and the social care sector have their own process in place; a pilot is already under way in the south-west to see how the NHS will cope, how much the proposal will cost, and how it will work with age discrimination law. That is running parallel to the passage of the Bill and we hope to have a report on that by October this year. It should point the way forward for the NHS. That is not what the hon. Gentleman refers to, but I should make it clear that there is a different process in place.

We will definitely consult on whether the holidays targeted at a particular age group by Saga should be allowed to continue under an exception. The provisions in part 3 are intended to ensure that, as the hon. Gentleman said, people receive fair and unbiased treatment when they buy goods and services.

I am sorry for giving such a lengthy response. Age discrimination, children and the question of how the provisions relate to the supply of goods and services are key areas. I hope that Conservative Members are satisfied, and that the amendment will be withdrawn.

Mark Harper (Conservative, Forest of Dean)

I am grateful for the explanations given by the Solicitor-General. Amendment 10, which I spoke to, was essentially a probing amendment. She has clearly laid out the Government’s thinking, which is broadly similar to our own, but it is good to get on record why the provisions in part 3 exclude those under the age of 18. She gave a comprehensive reply to the amendments to which my hon. Friend the Member for Weston-super-Mare spoke, making clear the details of the consultation and the fact that the relevant part of the Bill will not be brought into force before the regulations making clear the exceptions are in place. Given those assurances, I beg to ask leave to withdraw the amendment.

Clause 27

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 232, in clause 27, page 20, line 12, at end insert—

‘(8A) Subsection 8 applies only where the provision of the service is not—

(a) carried out by a public authority;

(b) carried out on behalf of a public authority;

(c) carried out under contract to a public authority, or

(d) otherwise carried out in the exercise of a public function.’.

Mark Harper (Conservative, Forest of Dean)

I have one question for the Minister, to clarify something, which I hope will save us some time later. I want to check that education and provision of schools are included in the provision of services. Given that clause 27 states:

“A duty to make reasonable adjustments applies to...a service-provider”,

will the duty apply to schools? Will the duty in clause 19(5), relating to the need to provide auxiliary aid also apply to schools? I ask that rather convoluted question because there is a concern about schedule 13. An organisation has asked us to table an amendment to that schedule because it says that the requirement for a school to provide auxiliary aid does not currently apply. From reading clauses 19 and 27, it seems that schools would have to do so. If that is the case, we will not need to trouble ourselves with an amendment to schedule 13, which will save us some time later on. I would be most grateful if the Minister could answer my question.

Vera Baird (Labour, Redcar)

The hon. Member for Oxford, West and Abingdon said this morning that he would not pursue the matter because he thought it was tied up in the earlier discussion about harassment. He has managed to have a debate about an amendment that would add harassment to the Bill, and not at all about public authority and its definition. There is a time in the Bill when we will talk about how we define public authority and public functions, but it is not now. I will deal with the issues when the time is right. It is up to the hon. Gentleman either to withdraw the amendment or press it to a vote.

We have not made the distinction between public and private services in the primary legislation on race relations and sex discrimination. Both are covered in the same way in the Bill.

On schools, I hope that the hon. Member for Forest of Dean finds it a satisfactory answer when I say we need to go to part 6, where education is completely covered. If he does not, I will write to him about the actual point he raises.

Mark Harper (Conservative, Forest of Dean)

I checked part 6, but it did not seem to exclude earlier parts of the Bill. It will be helpful if the Minister can clarify whether clauses 19 and 27 apply to schools. If they do not, and she then writes to us, we can have a discussion when we get to part 6. I wanted to check, because if the clauses do apply to schools, it will be helpful when we are thinking about tabling amendments. I think the Minister may now be in a position to answer.

Vera Baird (Labour, Redcar)

Clause 26(2) states:

“This Part does not apply to discrimination, harassment or victimisation...that is prohibited by Part 4 (premises), 5 (work) or 6 (education)”.

We need to travel on to part 6 to look at issues around education.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I plead partly guilty to the charges laid down by the Minister. I said that I thought that amendment 232 could have been grouped with the other amendments to clause 24. I think that you and your colleagues, Lady Winterton, chose to group it separately because it raised separate issues, such as the distinction between private and public services—the Minister has made no comment on that—and the definition of a public authority. In respect of the last of those, I am happy to have the debate whenever the Minister feels it is appropriate. I would be grateful if she or one of her team could indicate when she feels it is appropriate for the Opposition to raise that issue. I would like to do that when she wants—I have no desperate desire to do it now or out of order. I understand that point.

I regret the Minister stating that the Government are not making a distinction in the Bill between the provision of services privately and the delivery of services of a public nature. That is something that we shall have to debate when we deal with the exceptions, where I believe that there is cause for that distinction to be made. Although feeling half guilty, I make no apology for raising the point—given that the amendment was separately grouped in order that I could do so—that there ought to be that distinction. At some point we need to cover the definition of a public authority. The question that comes to mind is if not now, when? We shall work to find out when that might be.

I beg to ask leave to withdraw the amendment.

Clause 29

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I note that subsection (4) states:

“A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998.”

I may not have caught up with what is going on, but if that is not an opportunity to probe the question of the definition of

“a function of a public nature for the purposes of the Human Rights Act 1998”,

I do not know what is. It seems to be an open invitation.

I shall not repeat most of what I have already said. Let me give the Committee time to find page 21—the explanatory note does not go into the matter in great detail, but it is a real issue. When is

“a function of a public nature for the purposes of the Human Rights Act”

is a question that has tied up our courts, to an extent the Government and certainly the Joint Committee on Human Rights for a long time. There is a solution in respect of health care, which has been recognised and accepted after a great deal of struggle—not least on the part of the hon. Member for Hendon (Mr. Dismore), who struggled long and hard to find a vehicle to solve that. The matter should be clarified in other areas as well.

For example, there is the question of academies, a delivery of education that their sponsors have argued is not covered by the definition of a public authority, or is differentially covered, depending on what the academies are doing. That is but one example, given the variety of ways in which public services are now delivered—in fact, through private and voluntary organisations in ways that were probably not even considered when the Human Rights Act 1998 was drafted. The issue is substantive and it would be of real benefit for the Government to set out whether they think that where we are with the YL case is where we want to be in equality legislation—at least in so far as they are willing to make the distinction between public and non-public functions in equality law, which I accept is not as great as the number of occasions on which I should like to make that distinction.

I have made my point and I look forward to the response. I hope it will be now, but if elsewhere, I am happy to be directed to another part of the building.

Vera Baird (Labour, Redcar)

I am sorry, Lady Winterton, if I have been chattering too much.

The clause is interpretative and supplementary to clause 27, setting out meanings of public functions—provision of a service—largely replicating the position under existing law but bringing various diverse points together in one place for ease of reference. We have expressly linked the definition of “public functions” in the Bill to the Human Rights Act to provide, in so far as legislation can, clarity and consistency across the two pieces of legislation. We have also made it clear that the reference to providing a service covers services provided by both public and private organisations. That is important because we do not want to apply different requirements to organisations that are providing essentially the same service, simply because one is publicly funded and the other is not.

We have also used the clause—this does have some relevance—to make clear that the liability is therefore limited to that under part 5, when people are simply arranging for services to be provided by a third party to their employees. They should not then be regarded as a service provider. The employees would be regarded as a section of the public in relation to the third-party provider. The relationship between them and the third-party provider would be governed by this part, but that is not actually central to the point the hon. Member for Oxford, West and Abingdon raised.

Schedule 2 sets out reasonable adjustments and how they apply in relation to providing services and exercising public functions, and schedule 3 sets out exceptions to the prohibitions in the clause. I think at the core of the hon. Gentleman’s concerns are public functions in the Human Rights Act, rather than some of the other bits I have referred to. I can tell the hon. Gentleman that concern is not confined to my hon. Friend the Member for Hendon, nor is there a struggle over the issue. I was on the Joint Committee for Human Rights long before he was and we produced a report trying to probe how best to define public functions. I do not think it is putting it too bluntly to say we were slightly taken aback by the way the court defined what a public function was, first of all in the case of Heather v. Leonard Cheshire Foundation and again in the case of YL.

Public functions are not specifically defined in the act, which instead speaks of functions of a public nature. Things that would be considered to be public are law enforcement, immigration and local authority revenue raising and collections. Public authorities provide public services such as leisure and day care centres, as well as carrying out non-service public functions such as law enforcement and revenue collection. If the activity falls into the category of providing a service to the public it will be covered by the provisions making it unlawful to discriminate in the provision of goods, facilities and services. If the activity is not caught under those provisions, it will be captured by the public functions provisions. What is important is that all the activities of public authorities are subject to the prohibition on discrimination unless there is a specific exception. That is helpful as I can be.

Dr. Harrisrose—

Vera Baird (Labour, Redcar)

The hon. Gentleman is probably going to ask me a question I was just about to answer, but please carry on.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would be pleased if I did because I accept that I am sometimes wide of the mark.

In the list the Solicitor-General gave, I am particularly interested in the provision of welfare services for vulnerable people such as the poor, hungry and homeless. Would they be covered even if they were delivered by a private or voluntary organisation, or as part of welfare services but funded privately through charity as part of a public authority’s organisation, in which case, a safety net would apply and the Government would say “no it is okay, that exists to look after them”? Although the hon. and learned Lady may not always wish to make the same distinction as I do, if certain organisations are delivering those services there is a greater need to protect vulnerable service users than when purely commercial services are provided to paying customers who have more of a choice. That is the area I am seeking to probe.

Vera Baird (Labour, Redcar)

Of course, we do not have control over the courts. However, we are of the opinion that private bodies exercising functions of a public nature that are not covered by the service provisions will be subject to the public function provision set out in the Bill. An example would be Group 4 running a prison; it is carrying out a function of a public nature that is not considered to constitute the provision of a service. Accordingly, under the Bill, that activity would be subject to the requirements of non-discrimination in the exercise of a public function which is not a service. That is the broad definition and I hope it is helpful. It is better than it might be.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I know we should not have this debate now. However, it may help the Minister know my concern: what if a prison service was being run by a religious organisation? There is no injunction, and there is a big exception in schedule 23 for a religious organisation to harass through unwanted proselytisation. I accept that it is not their intention to harass; I do not want to be misunderstood—I am using the term in its legal sense. A religious organisation might want to provide that welfare service only to people of its own religion so, because of the entitlement to discriminate, the issue does bite.

I do not expect the hon. and learned Lady to deal with such matters now because we can deal with them under schedule 23. However, I want her to acknowledge that without the distinction carried through to schedule 23 about what is a service in the exercise of a public function—about which we are in agreement—there will be the worry that vulnerable people, captive people or those who rely on a service may suffer because of the nature of the organisation that is delivering it. We must bear it in mind that that is not in the control of Parliament at any given stage. It is a point for later, but I wanted to flag it up now.

Vera Baird (Labour, Redcar)

On the hon. Gentleman’s specific point, I wish to make it clear that welfare provision is considered to be a service. The same protection applies whether the service is provided by a public or a private organisation, but the public body that commissions the service will have to ensure that it is provided to all. That is by way of an addendum. I am sure that we shall examine the relationship between public bodies and contracted-out services later. I hope that the hon. Gentleman is satisfied that it is wider than he probably thought that it was. That being the case, I propose that clause stands part of the Bill.

Schedule 3

John Mason (Scottish National Party, Glasgow East)

I beg to move amendment 39, in schedule 3, page 150, line 6, leave out paragraph 1.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following: amendment 40, in schedule 3, page 150, line 14, leave out paragraph 2.

John Mason (Scottish National Party, Glasgow East)

The amendments are broadly probing provisions. I want to hear the Government’s explanation of some of the exemptions under the Bill. Clearly, we all accept that there are areas where it would be inappropriate to apply discrimination law—or to apply it fully—because it could have harmful side effects. I know that people will sometimes say things like, “Equality is an absolute and there can be no exemptions,” but the reality is that we can and should apply equality and discrimination law pragmatically and flexibly because different considerations apply in different cases. If we do not, the Bill would be very short indeed and would simply say, “Discrimination on these grounds is prohibited,” and we would let the courts work it out.

Of course, even the act of selecting which grounds are protected places limits on equality, and clearly people could be discriminated against on a number of issues that are not included. There are limits on exemptions in equality law. Paragraph 1 of schedule 3 exempts Parliament. Paragraph 2 exempts legislation. The functions of Parliament, including the Committee and the process of preparing, making or considering a Bill, whether of this Parliament, the Scottish Parliament or the National Assembly for Wales, are not bound by the strictures of equality law.

The exemptions may make perfect sense, but I wait to hear from the Minister what they protect against and their purpose. If their purpose is to stop people making mischief, bringing endless legal claims and tying up Parliament in endless litigation, that would be a bad thing. However, I note that the exemptions are total, broad and unrestricted. They do not contain the sort of hoops through which people have to leap if they want to obtain the benefit of other exemptions for any of the other strands.

New clause 15 would have a similar effect, and I must admit that I have some sympathy for it. However, we seem to be inconsistent in allowing continuing discrimination by some organisations, but not others. Paragraphs 2 and 3 of schedule 6 exempt political appointments, honours and peerages. Again, I understand why the Government want to maintain the freedom to make important appointments without being tied up in litigation over allegations of discrimination. The Prime Minister may not be able to get rid of a Cabinet Minister simply because he had clever lawyers who claimed that his dismissal was related to a protected ground. Furthermore, I observe that religious groups and others feel the same way about appointing youth workers and pastoral workers.

Amendments 39 to 41 draw attention to the exemptions. Amendment 50 would exempt the two Parliaments and the Welsh Assembly from the public sector equality duty. It is a broad exemption. I shall not say anything more about it, but I think that I have made my point. I could have tabled probing amendments to paragraphs 21 and 22 of the schedule, which exempt insurance, but we accept that the insurance industry needs some protection. The exemptions are pretty comprehensive. I understand the need for that, although like other exemptions, the details and the limits might be subject to debate. I hope that the Minister will give us a full explanation and justification for each of the exemptions, because the subject of exemptions is an important one.

There are a lot of exemptions, and some of them are very broad. Therefore, we must not say to the Churches—as the Solicitor-General appeared to suggest when we heard evidence from them—that there is something unusual or shocking about wanting exemptions, or something wrong with wanting to ensure that those exemptions are wide enough. We go into great detail in protecting the insurance industry, sport and so on, so surely we can give our attention to protecting everybody’s freedom.

The danger the Government face is that by allowing broad exemptions for their own activities, but insisting that exemptions for religious groups, and others, should be as narrow as possible, people will conclude that there is one rule for the Government and another rule for everybody else.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman raises a fair point that these are very wide exemptions and he seeks, by probing their elimination, to question the justification for the Whip. I think that he is right to do that. The critique is that the exemptions are too wide, not that the restrictions on them that apply to other organisations, such as religious organisations, are too narrow. When Liberty urged the Committee to probe the Government on those points, I do not think that it had in mind that the religious exemption for discrimination should be widened. I think it had in mind my interpretation, which is that the exemptions are too wide.

I look first at the application of paragraph 1 of schedule 3, which is about section 27 and regards discrimination where services apply and the provision of those services to “a function of Parliament” and

“a function exercisable in connection with proceedings in Parliament.”

It goes on to explain:

“Sub-paragraph (1) does not permit anything to be done in contravention of that section to or in relation to an individual unless it is done by or in pursuance of a resolution or other deliberation of either House or of a Committee of either House.”

The amendment would omit the whole of paragraph 1 and that could be quite tricky.

What examples do the Government seek to reserve other than the right of Parliament to legislate? Of course we recognise that we cannot have legislation in normal statute that prevents Parliament from legislating as it wishes. However, in terms of the way that the House functions, is it right for there to be unjustified discrimination? Surely if something happens in the House in order to make it run efficiently, it would be possible to justify that discrimination.

For example, if it was felt necessary to make people who wanted to secure a seat in the Chamber for the rest of the day attend prayers, even if they did not wish to participate in them, that could be objectively justified. Excluding the way that Parliament works from the law, prevents anyone from challenging that provision and requiring an objective justification for the fact that in order to retain a seat—unless they can fill in a pink card to demonstrate that they have been on a Select Committee or another Committee, and could not be there for prayers—they must attend prayers. At least people are not forced to go along with the prayers if they are not of that religion, but I do not think that there are many places where adults are expected to sit through prayers against their will in order to secure a service. It is not a big deal, and I have not sought to highlight it as such, but it is an example of where if such a measure can be justified, it should be justified.

The issue goes even wider. There are some local councils that seek to introduce prayers, for example, as part of their proceedings. A parish councillor in Devon, Councillor Boughton, was referred by his council for disciplinary procedures for refusing to participate in prayers, even though he was not religious. He preferred to listen to his iPod during prayers and the other councillors felt that was a breach of his conduct. People might feel that that was wrong, but if people elected to public office are expected to do something and do not want to because they do not share that religious—or any other—view, they should not, then, encounter barriers that prevent their full participation.

The amendment to schedule 6 is also quite apposite because the exemption is extremely wide and it is not clear why. I hope the Minister will explain the justification for such a wide exemption. To say that life peerages and honours do not have to be objectively justified when they might appear to be discriminatory seems peculiar given that that is a route in this country to status, access to power and—arguably—to some special privileges. It is reasonable, then, to ask for them to be subject to the need for justification if questioned, rather than having a carte blanche exemption. The hon. Gentleman has done a service on behalf of Liberty in identifying how wide these exemptions are.

Vera Baird (Labour, Redcar)

Amendment 39 would remove the exception for parliamentary functions from the prohibition on discriminating against harassing and victimising a person when exercising a public function—it would make Parliament liable for all of that.

The exception is designed to protect Parliament’s historic privilege to regulate its own internal affairs. Both Houses of Parliament are exempt in their entirety—totally—from the prohibitions on discriminating in the exercise of a public function. The exclusion from coverage here is much more tightly drawn than the hon. Gentleman has been perfectly happy to live with until now. The exclusion will effectively apply only where the action in question has been the subject of some form of deliberation of either House. It is about parliamentary functions and is not a blanket exception. It does not, for instance, allow the parliamentary restaurant or shop to discriminate on the basis of race, religion, belief, and so on. Nor can someone be refused access to the House of Parliament on the basis of any protected strand; it is limited and applies only where needed. I can see no valid reason for removing it. We have all lived happily until now with a far wider exception.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister has been helpful in clarifying that this is a narrowing and that is welcome. However, she is happy, but it is not necessarily the life of the third party ever to be happy in this place. [Hon. Members: “Ah!”] Thank you. I am grateful for voice of sympathy, which Hansard will record.

When it came to the parliamentary pension scheme, which is otherwise over-generous, it retained—as with other public sector pension schemes—discrimination in survivors’ benefits for same-sex couples. It was a struggle for me, and others, some years ago, to get that to change. I do not see why things like that—which were, I fear, the subject of a resolution—should not have even had to have regard to discrimination thinking. It pre-dated rules on civil partnerships, and so on. However, had we had those rules, it would not have had to abide by them and that would have been a loss. I hope the Minister recognises that it has some relevance, even where it is the subject of deliberation.

Vera Baird (Labour, Redcar)

The position, however, is much better under the Bill than it has been historically and I have said all I can about that.

Amendment 40 would remove the exception about preparing, making, approving or considering primary legislation and some forms of secondary legislation. The exception goes hand in hand with parliamentary functions, as it is about protecting the constitutional principle of sovereignty. It is in current legislation, and it is important because it allows legislation to be debated and made, which, for entirely legitimate reasons, may have a differential impact on people with particular protected characteristics. If it was not there, we would have difficulty legislating to introduce new maternity benefits, for example. However, that does not mean that public bodies do not have to consider the differential impact on various groups before legislation is introduced. But I am sure that that point is pretty plain.

Amendment 41 would bring within the meaning of personal or public office holders, political office holders and persons who are either being considered for, or have already been awarded honours or dignities by the Crown, giving them protection under clauses 46 to 48 of the Bill.

Schedule 6 defines what constitutes a personal or public office under the Bill, largely replicating existing law and provides that political office holders and recipients of dignities and honours conferred by the Crown are not personal or public office holders under the Bill. The kinds of posts listed, such as offices of the House held by Members of it, are not the kinds for which discrimination law would be an appropriate remedy. They are political matters, which are subject to political concerns and can be raised in a political setting if there is any unfairness, rather than in an employment tribunal, which would be an odd place to raise them.

People considered for, or awarded honours or dignities may be protected from discrimination, victimisation and harassment through the provisions applicable to the performance of public functions under part 3 of the Bill. But the conferral of honours and dignities does not amount to employment, and any claim in respect of that is properly addressed by the county courts, as is already the case under the majority of existing discrimination legislation. We think that it is right to maintain—but we have also tried to harmonise—the existing approach, and I hope that we have succeeded.

Amendment 50 would remove the exception for the House of Commons, the House of Lords, the Scottish Parliament and the National Assembly for Wales from the requirements of the equality duty. It is the same point—it is important, in constitutional terms, for our legislative bodies to be free to debate matters and pass laws without being obliged to give due regard to the need to advance equality and foster good relations every minute of the process. I think the General Synod is also a legislative body, but the amendment stops short of removing the exception for that.

I also point out that the House of Commons has not only an equality scheme, but an equality and diversity scheme—since that is a major interest of the hon. Member for Glasgow, East—on which we will be consulting shortly. This establishment and the House of Lords take equality and diversity seriously, but their constitutional function needs to be protected in the way that I have I said.

John Mason (Scottish National Party, Glasgow East)

I thank the Minister for explaining her position in some detail, and I appreciate the logic for the different exemptions. Some of the public think that Parliament has got a little bit out of touch with reality in recent months, and that is something that we will probably have to come back to at some stage. Parliament has a constitutional role, but the idea that we might move, at some stage, towards a written constitution, and Parliament might be slightly constrained in what it can do, might not altogether be a bad thing. None the less, with the reassurances, I beg to ask leave to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 162, in schedule 3, page 151, line 14, at end insert

‘to the extent that the discrimination is a proportionate means of achieving a legitimate aim.’.

Mark Harper (Conservative, Forest of Dean)

I can see what the hon. Lady is saying. There are two things that I would say to that. First, I do not think it is right to assume that just because clause 27(6) would not apply to the armed forces that that automatically means they are going to discriminate. The reason for the exemption reflects who we want to make the decisions, whether it is the chiefs of staff or the Secretary of State for Defence or whether it is a judge.

With the recent case of applying human rights legislation to the battlefield we have seen the great difficulties that may be caused to commanders on the front line when their very difficult decisions are second-guessed by a judge. That really is the argument; it is not about whether the armed forces discriminate or not, it is about the decisions they make and who ultimately makes them. This is not about the armed forces wanting to discriminate, but about how they make judgements on combat effectiveness.

The schedule does not cover all strands of discrimination, only the four that can reasonably be seen to have some bearing on whether an individual would affect combat effectiveness. It is about whether we want those decisions ultimately to be taken by Ministers, who are accountable to this House, or judges. That is the question.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I understand the point the hon. Gentleman is making, but those four strands—age, disability, gender reassignment and sex—might be the basis for discrimination. If the commander in the battlefield were to make those decisions, they might be based on such discrimination and not totally on combat effectiveness. That is the reason the EHRC wants to introduce a legitimate aim test to this schedule. Were there to be a commander in the field who was biased in any way, for example on gender reassignment—a woman who has become a man totally—how would it be determined whether that decision was genuinely taken on combat effectiveness or a longstanding bias? Not necessarily at that moment, but later in the court.

Mark Harper (Conservative, Forest of Dean)

The problem is that as soon as the exemption is removed, all commanders in the field making decisions, whether they are making them for good reasons or bad, are potentially subject to being dragged into a court and being second-guessed by a judge sitting in London, even though those decisions might be made in very difficult conditions. That is the problem; it is not about whether those decisions are right or wrong. I am simply arguing that the armed forces have policies to encourage, for example, those with disability—the area I know best—to the extent possible, but those decision are ultimately best taken by the Secretary of State for Defence, who is accountable to this House, rather than giving them to a judge.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I understand the point, but I think we have to disagree on it. Those decisions should be subject to a higher order than that moment on the battlefield. Ultimately, it may be a right decision, but in terms of law and protection it is totally in order to expect there to be a legitimate aim if discrimination is to be justified. That is what this amendment seeks to do.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The argument put by the hon. Member for Forest of Dean is one that was used a lot by the armed forces when resisting the end of the ban on gay and lesbian soldiers serving in the forces. They said it was a matter for commanders or that it was about combat effectiveness, but they never provided evidence of that. The argument was used that this should not be dealt with in the courts—that it must be a matter for the Army itself. I think they were wrong and they recognised they were wrong on that ground, and in the end the European Court forced Parliament to act. The point my hon. Friend is making is analogous to that—it may not ever not be justified, but a justification ought to be given at some point.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I want to ask the Minister whether she feels the commission has a very good point in introducing a legitimate aim test, because, as my hon. Friend helpfully said, this is where we were not that long ago in relation to gay men and lesbians in the armed forces, and that now seems like something from the distant past. Perhaps this move forward—the introduction of the legitimate aim test—will also take its place in the advancement of discrimination law.

Mark Harper (Conservative, Forest of Dean)

I just want to respond to the intervention of the hon. Member for Oxford, West and Abingdon on the hon. Member for Hornsey and Wood Green. The hon. Gentleman is quite right: that issue was in my mind when I looked at this exemption, and in particular at the four protected characteristics that are allowed to be used. I asked myself, “Could any of those, to my mind, legitimately affect the combat effectiveness of the armed forces?” I was thinking of the protected characteristics of sexual orientation when I read that, thinking back to that case.

I would not be so open as just to say, “Oh, we should leave this up to the Army or one of the other branches.” I absolutely think that Ministers should probe and take responsibility for such questions, and they should challenge military commanders on whether something genuinely does affect combat effectiveness. It is one of the benefits of this place—it has schemes such as the armed forces parliamentary scheme, in which a number of Members take part—that we get the opportunity to visit operational theatres to talk not just to senior Army, Navy and Air Force officers, but to the men and women in the front line, as well as those back at home.

Such things keep us well informed and enable us to challenge existing practice and question whether something is justified. However, when it comes to the defence of our country, for which the Government have to take responsibility, such things should probably be left to those responsible for that task in Parliament. If they fail to do that or do it badly—as we can perhaps agree they did in the case of sexual orientation—they should be held to account politically. I am just always very nervous about allowing judges to make decisions that may damage our armed forces’ operational effectiveness.

I know the Government have great concerns about the recent ruling on human rights law applying to the battlefield, and they are thinking about whether to appeal that case. This is simply what I say. It is not that I support the armed forces discriminating; it is about who the decision makers should be on these particular grounds. There are other exemptions in this schedule—for example, the security services, the Secret Intelligence Service, GCHQ and parts of the armed forces. They are exempted from clause 27 completely for that very reason: not because they should be able to go on discriminating, but because we think it proper that those decisions should be made by Ministers, who are responsible to this House for the security of our nation. That is the proper place for those decisions to be made as far as the armed forces are concerned.

Vera Baird (Labour, Redcar)

If I may say so, the hon. Gentleman has made some good points about who should take the decisions, and about not mixing the need for a limited exception for this purpose with its abuse, as exemplified by the cases that subsequently secured equality for people with different sexual orientations and enabled them to be fully involved in the military.

This measure is not intended to be a licence to discriminate. I do not know if this factor will help, but we are bound by European Community law to reassess periodically occupations from which women are excluded, for instance, to decide whether there is any justification, in the light of social development, for maintaining the exclusion, and we must notify the EC of such reassessments. The Ministry of Defence is assessing its policy governing women serving in close combat roles; on 26 May it announced that it would be examining whether it is still appropriate to exclude women from such roles.

The position is therefore not static, and it is not a repetition of something that has, I accept, appeared on the face of it to give rise to discrimination in the past. It is a fairly narrowly framed exception that exists, as the hon. Member for Forest of Dean said, to enable generals to take decisions when they need to, rather than being second-guessed by judges. None the less, the test is set in terms of the necessity to ensure the armed forces’ combat effectiveness. We cannot exclude the possibility that at some point, a woman or a person who has had gender reassignment may well bring a case to court, so that they can secure their entitlement more quickly than the reviews allow for in terms of combat effectiveness.

Let us not muddle something that appears at the moment still to be necessary to guard the efficacy of our armed forces with any licence to discriminate, nor impute to the armed forces any intention to do so. I back that up by saying that the issues are kept under review. For the time being, we invite the hon. Member for Hornsey and Wood Green to withdraw her amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I have listened carefully to the Minister, and I am reassured inasmuch as the situation is not static. Things do move on and change. Women may bring cases if they want to serve on the front line. It will be interesting to see whether a general who makes such a decision does so on the right grounds or the wrong ones. That will eventually be tested, but for the time being, I beg to ask leave to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 159, in schedule 3, page 153, line 9, at end insert—

‘(1A) In assessing risk in sub-paragraph (1)(a) a blood service cannot make an assumption of risk that relies on all people of a protected characteristic sharing the same risk.’.

Vera Baird (Labour, Redcar)

Essentially, the amendment is not necessary, because the Bill prohibits blood services from excluding people who share a characteristic, unless there is evidence

“from a source on which it is reasonable to rely”

that donation presents a risk to the public or to the individual donor. The Bill also requires that refusal, even if grounded on that evidence, to be “reasonable”.

The issue is not just about gay people. Blood services sometimes need to exclude all people who share a protected characteristic from giving blood. For example, the EU requires blood services to refuse donations from people who are HIV-positive, and HIV-positive is a disability in the Bill. Therefore, it is not just about gay men. However, an issue about them has been raised. Let me see if I can deal with it as well as possible.

In the explanatory statement for the amendment, the hon. Lady suggests that sexual orientation is an example of a protected characteristic that would be covered by the amendment. However, I am told that blood services do not ask questions about sexual orientation—there has never been a blanket ban on people who share a protected characteristic, either of homosexuality or bisexuality. Lesbian and bisexual women, who share the characteristic, are not banned from donating on the grounds of their sexual orientation, nor are gay or bisexual men who, as she put it, are virgins, who have not had sex with another man. Excluding everyone who identifies as gay would be unnecessary, and it would be unlawful, so it is not a blanket ban in that sense. There is no evidence of people presenting a risk just because they are gay.

The hon. Lady raised the issue in a bit of detail, so let me deal with it in detail, in all fairness to her. The policy, which is to exclude men who have had sex with men from donating, is in place because the blood services have an ethical duty of care towards recipients for the sole purpose of protecting public health by minimising the risk of transmission of HIV in particular. My information is that men who have had sex with men are at higher risk of carrying such viruses. A review of the evidence on risk-based sexual behaviour will begin in July.

Men having safer sex with men was touched on by the hon. Lady. While safer sex through the use of condoms reduces the transmission of infection, it does not eliminate the risk. Men who have sex with men are found to be disproportionately represented among the small number of HIV-positive donations identified. Epidemiological evidence in the UK also shows that there has been a significant increase in other sexually transmitted infections that can be blood-borne, such as hepatitis B and syphilis, among men who have sex with men.

The hon. Lady’s answer to that—I understand why—would be to assess each donor’s risk individually. However, blood services advise that there would be a large number of practical problems. For example, it would not be feasible in a blood donation session to take a detailed sexual history from an individual—apparently 7,000 people per day, which is excellent, give blood, so that would be impractical. The blood services need to use broad categorisation for donor selection.

The hon. Lady referred to other countries having reversed their policies.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I understand the practical difficulties, but they are not that difficult. I do not see why they cannot apply to anyone’s behaviour, in terms of how many partners one has had in the past year and whether one uses protection. I do not understand why that would be such an impossibility, given that one has to fill out a form anyway and it is simply a matter of which questions are on the form.

Vera Baird (Labour, Redcar)

That is what the blood services say and I accept what they say. To take a detailed sexual history to decide the risk of 7,000 people a day, one could not simply ask one sector; one would have to ask everyone, to be clear. That seems to be pretty well a definition of impossibility.

The hon. Lady talked about other countries, so let me nod in the direction of that as well. A review of our policy of refusing donations on the ground of sexual behaviour is planned to start in July. The scientific advisory committee that advises the UK Health Departments on blood safety will begin a review of the risks associated with sexual behaviour. The fact that the review exists shows that there is already a rigorous process in place to make sure that donation criteria are based on current and reliable evidence. It will welcome engagement with the public, with stakeholders and Members of Parliament. In October, there will be a public meeting about the review, and that would be a more appropriate forum for hon. Members to raise their concerns.

In particular, the amendment will not do. The need for it is perhaps usurped by the presence of that review and, as I described, the issue is wider. It is necessary, for instance, to be able to refuse donations from people who are HIV-positive because of the obvious risk, and they are disabled, so we cannot allow the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I have listened to the Minister, and of course there are other categories and groups that pose a risk, and HIV is one of those. Much of the HIV in the haemophilia community, and the risk posed by the blood supply, which has been huge, was actually caused by the Government’s unwillingness to move fast enough to protect them. That is very unfortunate. We can all balance risk in this area. I will withdraw my amendment and contribute to the review, but the issue needs to go further.

I do not totally accept what the National Blood Service says about how difficult it is to take a detailed sexual history. People lie, as I described in respect of the gentleman I was talking to yesterday, because of the situation that they are in. Regardless of background, a form is filled in. It does not take long to fill in a form with one’s sexual history. It is not too detailed; it is not a list of the names of everyone a person has slept with over a lifetime. But it considers the risk posed by the number of people and whether they have practised safe sex.

As the hon. Member for Glasgow, East reminds me, having given blood the first time and qualified as a blood donor, most donors are repeat donors and therefore it would not be a case of completing a form every single time, other than updating the sexual history. It is not a long process and donors have to do it, anyway. I simply say that it is an issue that needs much further debate. I am not wholly persuaded by the Minister, but I beg to ask leave to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 160, in schedule 3, page 154, line 10, leave out from ‘following’ to end of line 11.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following:

Amendment 101, in schedule 3, page 154, line 11, leave out ‘for the public good’ and insert ‘to protect public health’.

Amendment 102, in schedule 3, page 154, line 13, leave out ‘or remain in’.

Amendment 103, in schedule 3, page 154, line 14, leave out ‘or remain in’.

Amendment 104, in schedule 3, page 154, line 15, leave out ‘or remain in’.

Amendment 105, in schedule 3, page 154, line 16, leave out ‘or remain in’.

Amendment 161, in schedule 3, page 154, line 22, at end insert—

‘(5) Section 27 does not apply in relation to sub-paragraphs (2) to (4) only to the extent that any treatment, or a failure to comply with a duty, are a proportionate means of achieving a legitimate aim.

(6) Regulations may make provision for purposes of sub-paragraph (5) as to circumstances in which treatment, or a failure to comply with a duty, is to be taken to be justified, to the extent that those regulations are a proportionate means of achieving a legitimate aim’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I rise to speak to the two amendments tabled in my name and that of my hon. Friend the Member for Hornsey and Wood Green. Amendments 160 and 161 need to be considered together. I also support the amendments tabled by the hon. Member for Glasgow, East and will speak briefly to them. I want to take the opportunity, if I may, to deal with something in paragraph 17 of the schedule, which comes under the same part—immigration—to avoid having to return to it in the stand part debate, because it generally covers the same ground.

This is an important issue because it has been raised not only in the context of the Bill but, as the Solicitor-General will know, in the context of the UN convention on the rights of persons with disabilities and the Government’s proposed reservation in that area, which was subject to two reports by the Joint Committee on Human Rights, of which I am a member and to which I will briefly refer.

Paragraph 16 states that the bar on discrimination in relation to the provision of services does not apply to disability discrimination when that relates to matters of immigration, and the justification is that the ground for so doing—doing one of the things listed in sub-paragraph (3)—is necessary for the public good. It is questionable whether that is a stricter provision than originally existed, and certainly the briefing from the EHRC confirms our belief that it goes further than the previous provision. It is important to observe that the explanatory notes state that the measure “provides an” exemption

“from the prohibition on discriminating against a person when providing a service or exercising a public function because they have a disability, in relation to certain immigration decisions, including making a decision not to allow someone to enter the country”

and so on. However, the explanatory notes go on to argue:

“An express exception was not previously needed since the Disability Discrimination Act 1995 did not prohibit direct discrimination in the provision of service or exercise of a public function, and because disability related discrimination, which did apply to the provision of services or exercise of a public function, could be justified if it was necessary not to endanger the health or safety of any person.”

First, that in itself is a different justification from the one provided in the schedule, which is

“necessary for the public good”

rather than

“necessary not to endanger the health or safety of another person”.

Secondly, the contention in the explanatory notes is controversial—the EHRC certainly questions it. The EHRC’s position, as we know—I am not the only one with this briefing—is that all exceptions must be fully compliant with EU law and should be subject to the requirement of being a

“proportionate means of achieving a legitimate aim”.

That would be better if further qualified by adding “appropriate and necessary means of achieving a legitimate aim.” The EHRC rightly argues that it is essential that discrimination is reasonable only as far as it permits public authorities and the private sector to discriminate where it is justified.

The EHRC takes issue with the explanation in the explanatory notes that the measure is not more restrictive. As the notes acknowledge, disability-related discrimination, as opposed to direct discrimination, was always covered by the DDA 1995 in the context of exercising public functions, including immigration functions, as can be see by section 21D of the DDA.

If we look at section 21D, we find that there was not the same sort of blanket exclusion that essentially exists now. Subsection (3) gives the criteria under which treatment or a failure to comply with a duty are justified and relates to conditions in subsection (4), which are

“that the treatment, or non-compliance with the duty, is necessary in order not to endanger the health or safety of any person...that the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment, or non-compliance with the duty, is reasonable in the particular case...that, in the case of treatment mentioned in subsection (1), treating the disabled person equally favourably would in the particular case involve substantial extra costs and, having regard to resources, the extra costs in that particular case would be too great”

and one other. Subsection (5) states:

“Treatment, or a failure to comply with a duty, is justified under this subsection if the acts of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim.”

The provision in section 21D of the DDA is not present in this provision.

The EHRC points out that the exception in paragraph 16(3) extends beyond justified discrimination and excludes all immigration decisions. That is also a cause for concern, because it could allow unjustified and negative stereotyping of conditions such as HIV. There is no requirement of proportionality, so it is not clear what would fall under the provision of

“necessary in the public good”.

The National AIDS Trust has contacted us and the commission to express that concern, and other countries have such unjustified, stigmatising and caricaturing bans on people with HIV, which they say are necessary in the public good but which clearly, from research and study, cannot be justified.

I should like to deal briefly with the relationship between the measure and the Government’s proposed reservation from the UN convention on the rights of persons with disabilities. Paragraphs 58 to 71 of the 12th report of Session 2008-09 of the Joint Committee on Human Rights, which is its second report on the matter, deal with that relationship. Essentially, the reservation is described in the same terms as in the Equality Bill, so at least the Government are consistent on the two measures regarding that reservation.

The Joint Committee on Human Rights does not believe that the proposed reservation is appropriate and thinks that the Government have not provided an adequate explanation of why they believe it to be necessary. The Committee’s view is that there is nothing in the convention or in domestic law that justifies a reservation of the breadth proposed and it stated:

“this reservation could disapply the Convention in its entirety in so far as its protection might relate to people subject to immigration control.”

These provisions are no less narrow.

Why cannot the Government use a different formulation for the test to be met, such as that set out in amendment 161? I do not claim that the drafting is absolutely right, but it gives a flavour of what we are looking for, stating:

“Section 27 does not apply in relation to sub-paragraphs (2) to (4) only to the extent that any treatment, or a failure to comply with a duty, are a proportionate means of achieving a legitimate aim.”

I think that “proportionate means” is possibly the wrong way of describing appropriate and necessary means, but we will leave that aside. The amendment contains a regulation-making power that would make provision for the purposes of sub-paragraph (5) to set out the

“circumstances in which treatment, or a failure to comply with a duty, is to be taken to be justified”

and explain why those are necessary and proportionate means.

Finally, I want to deal with the example given in the explanatory notes relating to TB. Paragraph 668 of the explanatory notes gives an example:

“A person who arrived at a British airport with TB could be refused entry if this was considered necessary to protect the health of the general public.”

As I understand it, the Government have a scheme that operates when visas are sought in some countries—not all countries; it is not uniform—that means that a visa might not be provided to someone unless they have passed screening for TB. I have seen no evidence to suggest that that is scientifically justified, which, I suspect, would be a requirement even under the Government’s provision.

The Minister might not be equipped with this information now, but I would be grateful if she agreed to ask her officials to check with the Department of Health about the evidence base for that example. It would be illuminating for us to know whether the Government feel that their test requires scientific or research-based support for an intervention, particularly one as significant as requiring a specific screening test or treatment for a condition. Although it may appear strange, I have seen no evidence to suggest that screening people for TB before entry would affect TB in this country. TB in this country is generally due to re-emergence in people who have been here for many years rather than new immigrants. That is certainly the case regarding transmission to close family members. This is a significant issue and I hope that the Government can provide an explanation or justification.

I support the amendment tabled by the hon. Member for Glasgow, East to paragraph 18 of the schedule. It seems wrong to have an absolute right to directly discriminate on the basis of religion or belief in matters of immigration. A person may have views—jihadist views, for example—that might mean that the Government are right not to allow them to enter this country. However, that is a manifestation of someone’s religion, and such action can be justified under indirect discrimination legislation. I would argue, as would some mainstream religions, that it is not a defining cause of religion or belief. Everything that the Government seek to achieve in paragraph 18 could be done without having such a broad exemption for religion or belief. Such measures can be justified, and the Government are right to do that where necessary.

Paragraph 17 deals with a long-standing provision that covers an exemption in respect of race discrimination and immigration matters in relation to nationality and ethnic or national origins, not colour.

I want to remind the Minister of what happened at Prague airport when UK immigration officials were engaged in a practice that was found eventually to be unlawful. It is a pity that the matter took so long that it had to go to the law courts. People who looked like Gypsies were being stopped deliberately and not allowed to travel to this country. They were subjected to questioning and testing by Government directive. Such action should give us cause to consider whether such a broad exemption is appropriate or should be qualified in order to prevent what may have been well-meaning directives given to immigration officials, but which were in effect found to be unlawful, even though the measure is an extension of a current exemption. I hope that the Committee will look kindly on all the amendments in the group because they have much merit.

Diane Abbott (Labour, Hackney North and Stoke Newington)

The afternoon wears on, but I want to say a few words on the exemption—long standing, I know—of immigration services from the requirements on nationality and ethnic origin under the Bill. It may be long standing, but that does not necessarily mean that it is correct. When I first came to the House 22 years ago, I made a speech on immigration and I am regularly among the top 10 MPs who write to the immigration and nationality directorate on such matters. Over that time, I have dealt with literally thousands of immigration and nationality cases on behalf of my constituents and sometimes on behalf of others when their MP would not help them. I have observed that one problem with immigration and nationality legislation is not so much that it is consciously racist, but that it is consciously chaotic and consciously reacts to media panic. Twenty-odd years ago, East African Asians from Kenya who came here were to bring about the end of civilisation as we know it. More recently, it has been Romanian ladies in headscarves and Polish plumbers.

The random nature of immigration legislation could be properly mitigated if it did not have such blanket exemptions. Nothing brings our immigration process into such disrepute as the notion that it bears more heavily on people because of skin colour than otherwise, whether it is true or not. Nothing causes more pain to my constituents than the very real state of affairs whereby people from the Commonwealth, who may have all sorts of cultural links, are often treated less favourably in immigration matters than people of a different skin colour who are not from the Commonwealth. I am not saying that there might not be grounds for some sort of exemption, but such a broad exemption helps our immigration legislation to be more chaotic and unfair than it might be otherwise. I hope that, during our proceedings in Committee or even on Report, we can return to the subject and deal with it at slightly greater length.

John Mason (Scottish National Party, Glasgow East)

I wish to speak first to amendments 101 to 105. Other Committee members have expressed concern about the wide scope of paragraph 16 of the schedule on immigration. It means effectively that discrimination is allowed against a person by refusing entry into the UK if the person has a disability. Similarly, a person could be discriminated against by being required to leave the UK because of a disability. There could be an exemption for public health reasons, which many of us would accept. I am grateful to Liberty for making that point. The hon. Member for Oxford, West and Abingdon referred to the example whereby a person arriving at an airport with TB could be refused entry. A lot of us would say that that was fair enough, but an exemption for public good is much wider than is needed to prevent such a case. The fact that it could be abused is already causing worry.

Similarly, a non-citizen developing cancer could be expelled from the UK “for the public good”, no matter how long that person had been resident here, to avoid giving NHS treatment and save money. A family with a child with a disability could be refused entry on the basis that the child, over time, might cost the public health system. The amendments should meet the Government’s objectives of allowing entry to be refused to protect the health of the general public, while limiting it so that people with non-contagious disabilities are not unfairly refused entry. It would also mean that a person who is already resident in the UK would not be forced to leave on developing a disability.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would not want the hon. Gentleman to put the wrong impression about tuberculosis on the record. TB is not contagious as people would understand it in that it is easily spread. It is wrong to think of people, even those with active TB, as being a real danger to people in the same way that someone with severe acute respiratory syndrome or some form of flu is. There is little evidence that people who come into this country create a health hazard to the general public in spreading TB. It is a problem, and a far greater problem in the countries of origin than it is for us. I know that that is not his intention, and I do not think that that is a good example in the explanatory notes or for anyone to refer to.

John Mason (Scottish National Party, Glasgow East)

I completely accept that point because it is extremely valid, but I was quoting it because it was the example in the explanatory notes, although I do not think it is particularly good. However, I expect that, if we are talking about contagious diseases such as smallpox or swine flu, of which Scotland seems to have its fair share, the case would apply.

Emily Thornberry (Labour, Islington South and Finsbury)

I want to enlighten the Committee with my personal experience. My brother returned from Africa with TB. He was not diagnosed for some time, until part of his throat disappeared and he had large holes in his lungs. I assure hon. Members that the medical teams around us were very concerned that our entire family might have it. We, and those who have been close to him, all had to go off to a TB clinic to be checked out. The medical profession take it seriously, and therefore, my impression is that TB is, or seems to be contagious. People can catch it quite easily, so there must be some form of control.

John Mason (Scottish National Party, Glasgow East)

We will leave other people to decide the exact position of TB; I think all the points are valid. The question is whether we need a complete exemption for the public good, or whether it would be enough to have an exemption for public health. That is my key point in amendments 101 to 105.

Amendment 106, which mentions religion and belief—I am glad to say that this time, I can speak on behalf of the party—seems to be too wide an exemption. The point has already been touched on by the hon. Member for Oxford, West and Abingdon: it would allow unfair discrimination. Paragraph 18(2) and (3) would allow discrimination in immigration cases, in that a person can be refused entry to or be expelled from the UK on the basis of religion or belief if that is considered conducive to the public good.

We all accept that there will be occasions when a person is excluded from the UK on the basis of public good—for example, if there is evidence that the person may incite people to commit violence. That would not be discriminatory because the exclusion is due to the person’s actual or suspected behaviour. Surely it is sufficient to know that a person is suspected of holding such extreme and violent views, and their religion is largely irrelevant. I do not understand why religion or belief is included here.

Vera Baird (Labour, Redcar)

I will start with the race exception, which my hon. Friend the Member for Hackney, North and Stoke Newington referred to. Indeed, it replicates an existing exception introduced in 2000. Many immigration laws and policies require differential treatment on grounds of nationality. It goes to the heart of the UK immigration system. Different visa requirements need to apply to people from different countries, depending on a variety of historical, political and diplomatic reasons. Immigration officers may want to give extra scrutiny to entrants from particular nationalities if there has been evidence of immigration abuse by people of those nationalities. The first one, I think, makes the point. Different visa requirements would not be possible if there was no exemption—that is the key. I do not accept that it is broadly set out and I will say why not in a minute.

Going through some of the specific problems that other members of the Committee have raised, let us look at disability. The hon. Member for Oxford, West and Abingdon asked about TB. The policy on TB, which is encapsulated by reference to that disease as an example in the explanatory notes, is that it is a serious public health threat, as my hon. Friend the Member for Islington, South and Finsbury said. Of the 8,500 TB cases reported in the UK in 2007, 72 per cent. were in people who were born outside the UK and 7.5 per cent. of people with TB were resistant to at least one first-line drug, with that being far more common in people born outside the UK. That is the kind of evidence that will inform future consideration.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Now is not necessarily the time to have this discussion, but I have heard those points made before, and they disguise my point. Those people may have been born outside the UK, but the figures show that they do not get the exacerbation of the disease in the first year that they enter. The figures show that it is far more common for TB to arise in people who were born outside the UK but who have been here for years. It may be reactivated by a trip—as a UK citizen, so they are not subject to immigration control—to the subcontinent. That is why there has been confusion over the policy justification for this.

Vera Baird (Labour, Redcar)

I cannot comment on that, but there is obvious justification for a policy on TB, bearing in mind the figures that I have just given, when we consider people coming into the country with TB. I think that the hon. Gentleman is talking about people who have been in the country and are going to be removed because of that disease.

Let me deal with HIV and then I will come to the principles behind this issue. I suppose that the hon. Gentleman was saying that we would use the measure to refuse permission to people with HIV/AIDS, but prospective migrants are not asked whether they have HIV or asked to undergo HIV testing. The Government’s policy is that HIV testing is available in the UK voluntarily, and that nobody who comes here is compelled to have a test, so it will not work in that way.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Let me say that there was no implication that the Government had a policy of requiring HIV tests, and that I strongly support the UK Government’s approach to this issue. However, some Governments who are close allies of the UK do that, and who knows what a future Government may do? The Government should make it clear in this legislation, and Parliament should make it clear, that that would not be acceptable. This is not a fantasy, because we know that other countries, including our allies, do it. That was the basis on which I made the point, and I did not seek to criticise the Government’s existing policy.

Vera Baird (Labour, Redcar)

I am relieved to hear that, because that was how it sounded. There is no such policy, and we legislate for what will be lawful from now on, whoever is in government. I seek to persuade the Committee that the exemption is vital if we are properly to police our borders. It is not, as the hon. Gentleman said, a blanket ban, or even a wide ban.

The hon. Gentleman mentioned the DDA and quoted extensively from it or from the notes. Until now, a specific disability exception for immigration functions has not been necessary, because the DDA has justifications, some of which he quoted, by which public authorities can treat a disabled person less favourably, for a reason relating to their disability, without that amounting to discrimination. One example would be if that different treatment were considered necessary so as not to endanger the health and safety of anyone else. However, those justifications have now gone, because they were in the DDA, but are not in this Bill. Consequently, we have included the exception to retain the status quo.

Let me go through the amendments in turn. Amendments 101 to 105, 160 and 161 all attempt to change the scope of the disability exception, which allows an immigration authority to refuse someone entry to the UK, or permission to remain, on the basis that it is

“necessary for the public good”.

Amendment 106 would remove one part of the “Religion or belief” exceptions.

Amendment 101 would replace the

“necessary for the public good”

justification in the Bill with the justification that the action in question is necessary “to protect public health”. It is important to ensure the proper protection of public health, but it is not exclusively about that. For instance, the immigration authorities might need to exclude someone who has a particular mental or other condition who represents a risk to public safety, rather than to public health specifically. Immigration authorities need to be able to take account of other factors than public health when making decisions about whether to give leave to enter or remain. The test is realistic and narrowly based, but it appropriately allows broader conditions than a one-dimensional test of public health.

Amendments 160 and 161 go together. Amendment 160 would remove the current justification for using the exception, namely when it is “necessary for the public good”, and amendment 161 would replace that with a standard, objective justification test that would mean that the exception could be used only when it was a proportionate means of achieving a legitimate aim. However it is couched—whether in European or English language—that is the test, is it not?

We do not think that the amendments are necessary and I hope that the hon. Gentleman is reassured. Under current drafting, action can be taken only if it is necessary for the public good. When a court, for instance, considers whether it is necessary, it will obviously have to consider whether it is a proportionate means of achieving a legitimate aim. All actions taken by immigration officials are in accordance with regulations and guidance issued by the Secretary of State, who is accountable to Parliament, and all policies and decisions taken in accordance with them are subject to the Human Rights Act.

Although that route appears somewhat circuitous, the hon. Gentleman can none the less be assured that the question of proportionality to achieving a legitimate end is integral to the test that the court would apply. In addition, guidance and instructions will of course be issued to immigration staff. They are already in the public domain, so the amendment would not provide additional transparency, if that was a consideration. We have limited the exception to what is “necessary for the public good” so that differential treatment of disabled people cannot be applied unless it can be justified in those terms.

Amendments 102 to 105 would mean that immigration authorities could not rely on the exception in relation to decisions taken about people if they are already in the country. The basis for exclusion would be available only to prevent a person from entering the country, not to exclude them. That is obviously unworkable and would limit severely the Border Agency’s ability to deliver its immigration and public protection duty to protect public health and public safety.

John Mason (Scottish National Party, Glasgow East)

I appreciate that the Solicitor-General has mentioned public health and public safety before. Would she be more open to using those two terms rather than the wider “public good”?

Vera Baird (Labour, Redcar)

No. It is a mistake in legislation. The definition is very narrow. In discussing guidance and the application of the Human Rights Act, I have made it plain that further tests apply to that narrow definition through the process of the court, which is well known. It is a narrow definition in itself, and it is even narrower because those who implement it know that the courts will deal with it with regard to the Human Rights Act and the EU.

It is better, in our submission, to put it in those terms, narrow as they are, because legislating for the future, as the hon. Gentleman said in a different context, is difficult. One must include sufficient flexibility for some unforeseen event that would not involve public health or public safety but would involve the public good.

We would not want to create a potential conflict between the Equality Bill and immigration legislation, which is why we have the exceptions, but I emphasise again that all immigration decisions will have to be taken in accordance with the Human Rights Act in any event.

Amendment 106 would remove one part of the religion or belief exception for the immigration authorities, removing their power to decide not to allow someone to enter or remain, despite the fact that it was conducive to the public good, where religion or belief is a factor. Some individuals’ religious beliefs are so extreme that it would not be desirable for them to enter or remain, as they could cause or incite harm to others. It is therefore necessary to allow the immigration authorities to exclude what are sometimes called preachers of hate where that is considered to be in the interests of community cohesion, which is in the public good, and to exclude others who could operate against the system.

The exception is not new. The hon. Gentleman has talked about the DDA in a different context, but the exception has been in existence since the Equality Act 2006. In the three years since it has been introduced, we have not seen any evidence to suggest that the immigration authorities have used the exception incorrectly. The exception is not a blank cheque. It is very specific and requires behaviour to be justified.

In addition, the Border Agency’s use of the exceptions is subject to monitoring by the chief inspector. In our earlier discussions, the hon. Gentleman set great store on having inspectorates check that the Bill’s obligations were being followed and that the exceptions were not too wide. The chief inspector of the Border Agency has a statutory duty to monitor and report on the efficiency and effectiveness of UKBA, which specifically includes considering and making recommendations about the agency’s compliance with discrimination law in the exercise of its functions.

I hope that I have persuaded the hon. Members for Hornsey and Wood Green and for Glasgow, East to not press their amendments.

Diane Abbott (Labour, Hackney North and Stoke Newington)

On exemptions from immigration and nationality legislation, the Minister said, with something of a flourish which belies her history as one of our top advocates, that without the exemptions, differential visa arrangements between different countries would not be possible. But that is partly my point. The problem with differential visa regimes is that they do not necessarily target the people that they try to target. Jamaica’s visa regime is designed to keep out Jamaica’s criminals and undesirables, but those criminals and undesirables continue to travel between London, New York and Kingston unimpeded, while Jamaican academics and so on who come here on holiday get caught up in the visa regime.

If the exemptions were not so wide, we would have to think harder about what the visa regimes are supposed to achieve and whether that could be done by other methods. The exemptions often seem arbitrary. I travelled to Bolivia with a parliamentary delegation earlier this year, and they were upset that they are now subject to a visa regime while Brazil, which sends more people to this country and has more issues surrounding criminality, is not. If the exemptions were not so wide, we would have to think harder about what we are trying to do with some aspects of immigration and nationality legislation.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

There are three things to respond to. First, on TB, I congratulate the Minister’s team on having the figures ready, but they do not prove the point. They do not address the point that people who come here and are subject to immigration control are generally not the same people who may have been born abroad and who develop TB. There is also no evidence from any research to suggest that applying immigration control in this way would have any impact on the number of people contracting TB in this country. The example is flawed and the policy is flawed. If I am wrong and receive a letter citing some peer-reviewed research from anywhere in the world that is similar to this country that shows that the policy works, I will place a retraction of my view in the public domain. I have not yet seen such evidence as yet. The point about using TB as an example is that anything that is more contagious would probably not count as a disability according to the 12-month rule, but I understand why people cast around for chronic diseases.

I accept the Minister’s comments that we may need to look more widely than public health—people with a mental health condition, for example—on public safety. In so far as the amendment seems to focus only on public health, I accept her point. However, she did not explain to my satisfaction why the legislation does not specify the normal language of the directive in respect of an objective reasonableness test, which is a proportionate means of achieving a legitimate aim. Instead, she said that people need to rely on the Human Rights Act, but in a sense people could ultimately rely on that Act for much of what this legislation is intended to address. It is not quite so useful, as I understand it, with regard to the scope of the powers of people assisting those seeking help, such as the Equality and Human Rights Commission, on whether they can take human rights cases to the same extent as they can take equality cases, but I am not an expert in the area. In addition, the whole point of equality legislation is not to have to rely on the fallback position of human rights.

The Minister maintained that the courts, when interpreting “necessary”, would include a proportionality test, but as we discussed earlier the language of proportionality itself includes the term “appropriate and necessary”, so for something to be necessary, the courts would have to demonstrate that it was necessary in part, and that is not entirely satisfactory. I see no good reason why the Government cannot use the language they have used elsewhere to ensure that, if they want the exemption, people can challenge it with the same language they challenge other exemptions in the rest of the Bill. There seems to be one rule for the Government and another for everyone else. My amendment is not focused enough to deal with that point. Otherwise, I would be tempted to press it to a division, but it is something we will come back to.

The Minister’s response to the amendment tabled by the hon. Member for Glasgow, East, which I strongly support, also did not deal with the point. He set out clearly how a bar on someone with unacceptable views could be based on those views—incitement to violence, for example—but if the worry was that it would then be argued that those views were a consequence of religious belief, which I can understand, given the number of religious extremists with unacceptable view sand behaviour in many religions, that would be indirect discrimination and the Government could justify it. It is wrong that there should be a complete exemption on the basis of religion or belief, which goes to the heart of article 9 of the European convention on human rights, which sets out the freedom to hold a religion or belief, regardless of its manifestations. I note that the hon. Gentleman does not intend to press the amendment, but if that subject is dealt with later in our considerations, I hope that he will swing behind an attempt to appropriately narrow that. Having made those points, I beg to ask leave to withdraw the amendment.

Clause 30

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 11, in clause 30, page 22, line 6, leave out paragraph (a).

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss new clause 7—Reasonable adjustments for babies and infants—

‘(1) The Secretary of State may by regulations make provision as to a duty on providers of public services, where a physical feature puts a baby or infant aged under 5 at a substantial disadvantage in relation to a relevant matter in comparison with persons of other ages, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(2) A reference in this section to a physical feature is a reference to—

(a) a feature arising from the design or construction of a building;

(b) a feature of an approach to, exit from or access to a building;

(c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises or a vehicle;

(d) a feature arising from the design of a vehicle;

(e) a feature of an exit from or access to a vehicle;

(f) any other physical element or quality.

(3) Any reference in this section to chattels is to be read, in relation to Scotland, as a reference to moveable property.’.

Mark Harper (Conservative, Forest of Dean)

It is always good to start promptly—it has all sorts of advantages. This simple amendment would leave out paragraph (a) and is nothing more than a probing amendment tabled because, having read the section and realised that the part on premises does not apply to the protected characteristics of age and marriage and civil partnership, I could not think of good reasons why we would want to exclude age. I have therefore tabled an amendment to leave out that paragraph simply to provoke a discussion and give the Minister the opportunity to set out the Government’s thinking about why age should be excluded from the section. That is the purpose of the amendment. I look forward to what the Minister has to say.

John Mason (Scottish National Party, Glasgow East)

The purpose of new clause 7 is to require public service providers to make reasonable adjustments to physical features to make their services and facilities accessible to babies and young children. The DDA introduced the concept of reasonable adjustments into UK legislation. The duty to make reasonable adjustments means that providers of services are required to make changes called reasonable adjustments, so that disabled people can use the services more easily. The duty has led to improvements in relation to accessibility for disabled people and others, so it might now be a good time to extend the protection specifically for the benefit of babies and young children.

The new clause suggests reasonable adjustments for under-fives in relation to the physical features of public transport and public premises. For public service providers, that would simply be an extension of the existing duty relating to disability. Older people with accessibility needs may well qualify as disabled under the DDA and enjoy reasonable adjustment rights under that legislation. Babies and young children, and their families or carers, are clearly not disabled, but they suffer similar limitations on their access to many services.

There is currently a lack of safe and available seating for infants and young children and inadequate space for pushchairs on public transport. Constituents frequently come to me and complain that, because there was already a pram on a bus, a second pram was unable to be taken on. Adults travelling with young children often experience problems getting on and off public transport and feel that they and their child are frequently treated less favourably than others.

A survey found that parents in the UK are put off using public transport by poor access, sometimes inconsiderate staff and a lack of suitable facilities. Some 72 per cent. of the 500 mothers who were surveyed thought that public transport was difficult for mothers and babies to use, 60 per cent. found that bus drivers were unhelpful, and only 12 per cent. had a fully buggy-accessible train or underground station near them.

Research by the then Equal Opportunities Commission, which was conducted in 2006, concluded that the designs of buses

“take insufficient consideration of the difficulties experienced by women who are encumbered by accompanying children.”

I assume that that could relate to men as well. The research recommended that a balance should be sought between providing adequate seating capacity and providing enough space for shopping bags, pushchairs, wheelchairs and mobility scooters. The new clause, for which I am grateful to Young Equals, would allow the Secretary of State, by regulation, to require transport providers to make reasonable adjustments to ensure the safety and comfort of very young passengers.

Moving on to public buildings and spaces, babies and young children experience similar difficulties when trying to access and use public buildings with their parents and carers. Cardiff county council carried out a detailed inquiry into how family friendly its city is. The conclusion was that people experienced

“considerable problems in finding stores or buildings with baby changing facilities...buggy access into and around shops, restaurants and other buildings was also very difficult and in some places impossible.”

The new clause would allow for a reasonable adjustments duty in respect of public buildings to be placed on public service providers to ensure access for families with babies and children under the age of five. I believe that a similar duty exists in some regions of Germany; for example, Baden-WĂ1/4rttemberg requires a barrier-free environment for facilities used by small children, people with disabilities and the elderly.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I strongly support new clause 7. When I was on the London assembly, I was for four years the chairman of transport and for one year the deputy chairman. One of the key issues was the design of buses and their inaccessibility, particularly for mothers with buggies. It is difficult enough to get out the door with a young baby, let alone find oneself at a bus stop when a bus driver drives up and refuses access. I have seen mothers with a double-buggy or, if there is already a buggy on the bus, with a single buggy refused access. A reasonable adjustment should be made, so I support the new clause.

Vera Baird (Labour, Redcar)

Amendment 11 and new clause 7 both raise the issue of age in relation to premises. Let me put on the record, in response to the hon. Member for Forest of Dean, that our reason for excluding premises from the ban on age discrimination is that we want to tackle harmful discrimination only, as I have been saying throughout. During preparation for the Bill and in the consultation, we looked for evidence of discrimination because of age in the field of housing but did not find sufficient evidence to justify applying the provisions on premises to age.

On the other hand, there are many examples of housing provision exclusively for people in a particular age range, which we would probably regard as desirable and would want to preserve. Age limits may be imposed to meet the needs of disadvantaged groups or to cater for the preferences of individuals who simply wish to live exclusively with people of a similar age. If we included age in the ban, those age limits would have to be objectively justified. Since we did not find evidence of harm from the exclusion, we did not think that that was necessary. We simply do not want to interfere unnecessarily with the private arrangements that people make. In a nutshell, that is why we have not included that strand in the clause.

If that is satisfactory, I shall turn to new clause 7, which is about making premises and public transport accessible and safe for babies and young children by means of a reasonable adjustment, which is a concept that was introduced in the Disability Discrimination Act 1995 to ensure that disabled people get increased access to services, among other things. It necessarily entails a measure of positive discrimination for that protected group. It is not permissible in relation to the other protected groups because it is unjustifiable and unduly burdensome, but it is absolutely necessary to ensure that disabled people have access to all that they are entitled to.

I recognise that parents are keen that buildings and transport should be child-friendly, but we are probably stretching equality legislation beyond what is appropriate. Instead, such things should be approached in a more targeted way. A substantial disadvantage test does not really fit babies and children. Obviously, they are disadvantaged by their size and the fact that they are babies, but, by and large, they will be with parents or carers. Comparing them with persons of other ages does not work and would not achieve the aim underlying the new clause.

In addition, by way of reassurance, legislation already exists to deal with some of the issues that the new clause seeks to address: for example, part M of schedule 1 of the Building Regulations 2000 ensures that people, regardless of age, sex or disability, should be able to gain access to and within buildings, and use their facilities. The approved guidance document to the regulations sets out considerations such as ensuring entrances are wide enough to allow unrestricted access to parents with pushchairs; incorporating separate facilities for baby changing, or including changing tables in toilets; and providing lower handrails on stairs and lower urinals for children in male washrooms.

On public transport, in particular buses and trains, an extensive regulatory framework currently addresses comfort, safety and access for disabled passengers. Many of the adjustments made for them—for example, ramp access and widening of doorways—will also benefit passengers who have young children in prams.

On rail services where wheelchair-accessible toilets are fitted, baby-changing facilities are also required and EU regulations protect the rights of people with reduced mobility. That would include pregnant women and people travelling by air with children and babies. Similarly, EC proposals, although that is all they are at the moment, about travelling by sea and on buses and coaches have been published. There is also, yet to come, a public sector equality duty, which encourages public bodies to take account of the particular needs of people of different ages when planning, designing and delivering services. The needs of women in relation to pregnancy and maternity are particularly covered, as is breastfeeding. Therefore, parents will also see improvements as a consequence of the Bill.

On reasonable adjustments, we think that it is not an appropriate means of tackling this problem. It is being tackled in a number of specific ways and it is far better to do it in that targeted fashion than incorporate it into discrimination law. We therefore respectfully ask the hon. Member for Glasgow, East not to press new clause 7, and I hope that I have answered the points that the hon. Member for Forest of Dean raised in tabling his amendment.

Mark Harper (Conservative, Forest of Dean)

The amendment was probing the Government’s thinking about why the age provisions had been excluded. The Minister outlined that very well and reiterated that there was no harm being done that needed to be fixed. Indeed, there were lots of positive things about premises, to do with age, that we would want to protect. In view of her assurances, I beg to ask leave to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 163, in clause 30, page 22, line 7, leave out paragraph (b).

Vera Baird (Labour, Redcar)

Put simply, there just is not any evidence.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That is hard to believe, but I am encouraged to hear that there is not any evidence. If there is not any discrimination, the Government, rightly, do not need those protected characteristics in the Bill. On that basis, I beg to ask leave to withdraw the amendment.

Clause 34

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 164, in clause 34, page 25, line 27, leave out subsection (8).

Vera Baird (Labour, Redcar)

I assure the hon. Lady that we have no sinister reason to exclude any particular premises. Property and housing legislation is complex and the provisions in the clause are novel. They will take a bit of time to bed in and we will monitor how they work in practice. In time, there may be aspects of common parts, for instance, that mean that we have to exclude certain things from the provisions, so we have given ourselves the power to do so. There is nothing sinister at all in this. Of course, I cannot predict whether future Governments will have sinister motives, but it seems to us an important power to have in reserve.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister. She alluded to my concern in her last sentence. Given that the future is unknown, I beg to ask leave to withdraw the amendment.

Schedule 4

Clause 36

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 165, in clause 36, page 26, line 22, at end insert—

‘(1A) An employer (A) discriminates against a person (B) in the arrangements in subsection (1)(a) if A fails to take reasonable steps to ensure that—

(a) the selection for interview is carried out on an anonymous basis, or

(b) the person selecting for interview does not know the gender, race, sexual orientation, age or marital status of B or whether B has a disability.’.

Vera Baird (Labour, Redcar)

This proposal was raised on Second reading by the hon. Lady and we promised to consider it. She obviously wants to make employers take reasonable steps not to acquire information in the early part of recruitment exercises that would identify applicants as having specified protected characteristics. The purpose of that would be to avert subliminal discrimination. Many small and medium-sized businesses might struggle to put the necessary provisions in place, as they do not have dedicated HR staff and it might be difficult.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I ran this as an experiment in my own office, as we are effectively small businesses. It really put no strain whatever on us.

Vera Baird (Labour, Redcar)

I would find it difficult in my office to firewall myself off so that I did not know anything at all about the details of a person who had presumably been offered an interview by my personal assistant. I do not think it would be so straightforward for small businesses to do it.

Some HR managers have responded to the hon. Lady raising the matter on Second Reading, with most being against. They oppose the amendment on grounds including—probably not justifiably—that it presupposes that recruitment processes are inherently discriminatory. However, they also say that the proposal is unworkable in relation to the obligations on reasonable adjustment. The Chartered Institute of Personnel and Development appears to support the amendment, but has said that it would rather see it promoted as good practice, not legislation.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

There was no inference that personnel or human resources are discriminatory. This is all about unconscious barriers. I am aware that the chartered institute thinks it should be voluntary—that is a fall-back position, because it would promote best practice—but I was hoping for a stronger recommendation, just because I genuinely think it is a good idea.

Vera Baird (Labour, Redcar)

I had no notion of thinking that the hon. Lady intended to allege discrimination, which is why I said that it is perhaps not the objection from human resources managers, of which there have been manifold, that we ought to take most seriously. However, they do talk about the proposal being simply unworkable, and it is important not to suggest that an organisation supports legislative proposals when in fact it is saying that this may be a good idea, although it thinks it should be not in legislation, but only good-practice guidance.

John Mason (Scottish National Party, Glasgow East)

The Solicitor-General used the word “unworkable”. I want to raise the practicalities of this. My gut feeling is that I like the idea, and it might rule out some problems, but I am thinking, too, of some jobs where the number of people who apply is quite limited. For example, all the applicants might be known because they are well-known in the industry or whatever. I wonder how the practicalities would work out.

Vera Baird (Labour, Redcar)

That is a valid point and perhaps what we ought to do is experiment, which is what we are seeking to do in that the Department for Work and Pensions has carried out a CV research exercise. Two carefully matched applications or CVs with names recognised as having different ethnicities have been submitted in response to the same advertised vacancies to see whether employers make different decisions depending on the names in the CVs. That research will be reported in the summer—I am sorry that I do not have an answer now, having tantalisingly mentioned the subject.

The initial indications are that there is significant discrimination, so more work needs to be done to find an appropriate solution. I imagine that members of the Committee know that an early-day motion on discrimination against people suffering from HIV or mental illness has been tabled, calling for the Bill to restrict the use of pre-employment questionnaires.

I think we will return to this issue, but if the hon. Lady is reassured that we are looking at it in the careful way that I set out and is happy that we should wait for the results, I encourage her to withdraw the amendment. Although she has talked about anonymity only, does not her amendment also suggest that the person selecting for interview should not

“know the gender, race, sexual orientation, age or marital status”

at all? That would be a tall order. There would be no name or gender, so who could the interviewee be? If the hon. Lady is thinking about names, she has a point, which we should look at when we have the research.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Yes, the amendment is essentially about names. I am heartened by what the Minister has said. The issue needs investigation. If the work being done by the DWP demonstrates significant discrimination at the application stage, she will want to introduce either recommendations for best practice or guidance.

Following the Minister’s reassurance, I am more than happy to beg to ask leave to withdraw the amendment.

John Penrose (Conservative, Weston-Super-Mare)

I beg to move amendment 207, in clause 36, page 26, line 22, at end insert—

‘(1A) An employer must not ask for details of an applicant’s health or disabilities before an offer of employment to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the recruitment process.’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following: amendment 208, in clause 36, page 26, line 34, at end insert—

‘(3A) An employer must not ask for details of an applicant’s health or disabilities before an offer to which subsection (3) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Amendment 209, in clause 52, page 40, line 27, at end insert—

‘(1A) An employment service-provider must not ask for details of an applicant’s health or disabilities before an offer to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Amendment 210, in clause 52, page 41, line 5, at end insert—

‘(4A) An employment service-provider must not ask for details of an applicant’s health or disabilities before an offer to which subsection (4) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Amendment 211, in clause 54, page 42, line 20, at end insert—

‘(1A) A trade organisation must not ask for details of an applicant’s health or disabilities before an offer of membership to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Amendment 212, in clause 54, page 42, line 34, at end insert—

‘(4A) A trade organisation must not ask for details of an applicant’s health or disabilities before an offer of membership to which subsection (4) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

John Penrose (Conservative, Weston-Super-Mare)

The amendments are similar to but more narrow than the previous group. They would limit an employer’s ability to produce a pre-offer questionnaire—in other words, to get information from job applicants about their health or disabilities in advance of the interview or of making a decision. That particularly involves illnesses or disabilities that would not be visible during the interview, such as mental illness, HIV and so forth, the aim being to ensure that such issues are not a factor in a decision on a job offer.

The details of any illness or disability would not be revealed until after an offer was made. At that point, it would become much harder for a potential employer to back out having made the offer. The discussion would be more likely to be framed in such terms as, “Okay, what reasonable adjustments will you require and how can we ensure that we are making them?” Therefore, the application and job selection process would be more likely to be fair and equitable.

Some of the amendments acknowledge that it may sometimes be necessary to ask in advance of an interview whether a job applicant has special requirements to gain access to the interview. Such information may be required on that basis, but that is a much narrower point and a practical requirement rather than anything else.

The provisions have support from a wide range of external organisations. The submission from the Royal College of Psychiatrists says:

“Evidence tells us that people with mental health problems face serious discrimination in the employment process, notably through the attitude of employers”.

The Disability Charities Consortium says:

“A snapshot poll by Mind conducted in October 2008 found that 1 in 4 people had job offers withdrawn after disclosing a mental health problem, despite this being illegal under the Disability Discrimination Act. There is also evidence that disability and sickness-related information do not predict a person’s level of absence in work.”

As a final example, Rethink says:

“Fewer than four in 10 employers would consider employing someone with a history of mental health problems, compared to more than six in 10 for candidates with physical disability.”

The important thing is to ensure that a structure is in place that encourages employers not to make decisions based on inadequate information or fear, which are often what underlie discrimination, rather than malice. Where malice exists, that must clearly be dealt with as well, but the important thing is to ensure that employers are given every opportunity to do the right thing, and the amendments aim to create that kind of environment. I hope, therefore, that the Minister will be able to offer us some reassurance that the Government are favourably disposed to them, or at least willing to consider them, given the breadth of support outside this place for such measures.

Vera Baird (Labour, Redcar)

I am glad that the amendments have been tabled. Like amendment 165, which we have dealt with, they arise from concerns about the potential use of information gathered during recruitment to sift out candidates, in this case because of disability. I understand those concerns. The amendments would restrict the disability-related information that employers, service providers, employment service providers and trade organisations could gather before a job, service or membership decision. They would be allowed to gather only what information they needed to enable reasonable adjustments to be made.

We have general worries about imposing mandatory restrictions by legislation in that way. There are also specific worries about the practicalities of the proposals, such as what sorts of inquiry the employer could make without receiving information that could be used to discriminate and how the employer would know where the boundary lies. Of course, if a person believes that information that they have given about their disability at an interview has been used to discriminate against them, they can already take action. There is no difficulty about doing so. I wonder slightly what the amendments would add, but I see that the hon. Gentleman is about to tell me.

John Penrose (Conservative, Weston-Super-Mare)

I am sure that the Minister will be far more aware than the rest of us that the number of successful applications to courts to bring the kind of action that she is describing is tremendously low. It is much more difficult to deal with pre-employment discrimination than discrimination after getting a job. I am sure that she is aware of the figures showing that it is much rarer for someone to do so successfully at the moment. Anyway, surely we ought to be trying to create an environment that raises the chances of success by allowing employers to do the right thing as well as threatening to beat them with a big stick, particularly because the provisions that she described that allow potential cases to be brought have been in place for a long time, and most of the available evidence shows that they are not having the effect that I am sure we would all want.

Vera Baird (Labour, Redcar)

I agree completely that it is a cumbersome, difficult and personally trying process to take an action in respect of disability discrimination, and that it is not easy to prove that it was the disability that played either a partial or an exclusive role in the lack of recruitment. The position is not straightforward, so it is all the better if we can devise some mechanism to ensure that discrimination cannot take place because there is no information on which it can be based.

Although I know less about it than about the strand of work that I referred to, I understand that the DWP is considering the matter as well. There is, of course, nothing to prevent firms from making their own efforts to reduce the chance of such discrimination. We are worried about putting it in legislation rather than putting good guidance in place when we have more evidence. Although we invite the hon. Gentleman to withdraw the amendment—we would resist it—we will consider it, because it is a difficult issue, and I am glad that it has been raised.

Mark Harper (Conservative, Forest of Dean)

There is broad support for the proposal. In our private discussions with business organisations, whether representing small or large businesses, and in the evidence that they gave during our evidence sessions, they were all relaxed about that approach. No issues were raised at all. Also, it works very well in the United States.

Given what the Minister said about the extensive research that the DWP is doing to see whether names give rise to discrimination, will she, at a suitable opportunity—perhaps she can write to us—answer this question? If the DWP is either currently doing or would commit to doing similar research, and if as a result there were some clear evidence that satisfies the Department—although the representations that we have had have been fairly unanimous—will the Minister be willing to consider tabling amendments on Report or in the other place? If that is the case, we will be suitably reassured.

Vera Baird (Labour, Redcar)

Another point that I should make—in fact, there seem to be two—is that we would delay the time in which the question of reasonable adjustments needs to be addressed. That might make difficulties for an employer. The hon. Gentleman is right—there are outlawing provisions for pre-employment inquiries in the US—but we do not know whether that element of protection is used. Nor do we know whether it has had any effect on the recruitment of disabled people.

That is the crux of the issue. If we ban the introduction of such information at that early stage, will we encourage more recruitment of disabled people? We do not know that. However, I am engaged with the issue and am impressed by the arguments. Therefore, I urge the hon. Member for Weston-super-Mare to withdraw his amendment and to let us consider the issue. I will either write or speak directly to him about the matter in Committee.

John Penrose (Conservative, Weston-Super-Mare)

I cannot pretend that we are overwhelmed by the Minister’s response, but we recognise the good will with which she is trying to approach the issue. We will wait and see what is in any letter or communication that she writes to us. We are concerned that there may not be enough in that, and we will look to press the issue at a later stage if necessary. However, on the basis that she has promised to write to us and to consider the matter further, I beg to ask leave to withdraw the amendment.