Equality Bill

Public Bill Committee, 2 July 2009.

Clause 157

Vera Baird (Labour, Redcar)

I beg to move amendment 286, in clause 157, page 116, line 33, leave out ‘Great Britain’ and insert ‘England and Wales’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss Government amendments 287 to 293

Vera Baird (Labour, Redcar)

The amendment relates to the application of the clause to Scotland. An error was made in the first place.

Mark Harper (Conservative, Forest of Dean)

I will not trouble the Committee for too long. I just think that now is a useful opportunity to ask the Solicitor-General to look again at the provision before we return to it on Report. She will be aware that in February the Department for Transport published a consultation paper on improving access to taxis. I think that all the responses are back, but I have not seen any information from the Department. I think it is in order to discuss the matter because one option in the consultation document requires primary legislation. Given that we are transferring measures from the Disability Discrimination Act 1995 to the Bill, a change is needed in the provision on which the Government were consulting.

Will the hon. and learned Lady touch on where the consultation process has got to, describe the responses and say what the Department for Transport is likely to do? If primary legislation is the option favoured by the Government, the measure will need to be amended. A specific option is to allow local authorities to enforce section 36 of the DDA on taxis to ensure that the policy takes place in actuality rather than just in name.

Without veering too far from the Bill, it might be helpful to explain the changes. The Government have been consulting on how to improve access to licensed taxis and equality of opportunity for disabled people. A number of local authorities have implemented an accessible-taxi policy, but a lot have not and only about half the licensed taxis in the country can be described as wheelchair-accessible. I assume from the words “can be described” as wheelchair-accessible that that is being generous.

In one third of licensing authorities, less than 10 per cent. of taxis are wheelchair-accessible and 16 authorities have no wheelchair-accessible taxis. Just copying across the DDA regulations to the Bill means that that state of affairs will continue, which is not satisfactory.

The Government have been consulting on a policy to improve access to taxi fleets in line with the objectives under the clause to improve access to jobs and enable people to have better access to services and other social networks. That is squarely within the goods and services measures in the Bill and their attempt to improve accessibility for people. Recent court cases have highlighted or challenged local authority policies that require a proportion of taxi fleets to be wheelchair-accessible. The Government were looking at using regulation-making powers under the DDA to require local authorities to have an accessibility standard for a taxi fleet in their area and ensure compliance. One policy option is primary legislation that would require changes under the Bill. Another is the introduction of an accessible-taxi standard by 2025. The third option is the introduction of a standard in line with the existing enhanced standard by 2025, or application of an interim standard in urban areas and areas with high levels of illness by 2020.

Those options clearly have different costs. The first, unsurprisingly, would be the most expensive, with a value of around £2.7 million, although the benefits have not been calculated. The benefits would be significant and, I suspect, would outweigh the costs. It would be helpful if the Solicitor-General set out where the DFT has got to. If changes are needed in primary legislation, they are clearly not here now. If there are to be such legislative changes, perhaps she will say whether we are likely to have them on Report and when that is likely to be, because it might be a good opportunity to introduce the amendments.

Tim Boswell (Conservative, Daventry)

As the Committee may know—my hon. Friend does—I preceded him some time ago in holding Conservative Front-Bench responsibilities on disability. It is obviously an area of great importance in terms of services. The important thing is that there is adequate supply of vehicles to get people with disabilities to where they wish to go, which should be the main objective. I am not for a moment suggesting that that objective is not shared between us—it is. However, there is a long history in a range of subjects, from the conduct of further education colleges, for which I had some responsibility at one stage, through accessible taxis to a variety of other cases on which the House legislates and local authorities do as little as possible until the last possible moment and are then forced and dragged into doing better. Intervening legislation since the DDA was designed to sharpen up their act, and I supported that.

At the same time, in the real world no one wants to create a situation in which we run out of taxis or wheels—putting it more bluntly and less technically—to get people around. I realise that the Government have to balance that consideration. Will the Solicitor-General, in responding to my hon. Friend’s specific questions, also say more about her general take on how that is to be done? In particular, how does the hackney carriage licence—I confess not to be an expert on how that is normally expressed—differ from the private hire licence? To what extent are private hire operators covered by other provisions in the Bill, and not, as it were, exempt? Will she explain how it should operate?

Mark Harper (Conservative, Forest of Dean)

My hon. Friend has highlighted an interesting issue about the difference between hackney carriages and taxis, which is what the regulations apply to, and private hire vehicles. The point of the clause is to allow for an exemption if the local authority thinks that, by insisting on some accessible taxis, all the taxis would flip over to being private hire vehicles. As well as thinking about what the consultation on improving access to taxis does, the Government ought to think about whether it makes sense for that regulation to apply for taxis but to have nothing similar for private hire vehicles. We could have all the taxis threatening to switch over to being private hire vehicles and the local authority saying, “Fine, okay then”, but we could then end up with no accessible taxis at all.

For disabled people, the important thing in the difference between taxis and private hire vehicles is that private hire vehicles have to be booked in advance. It would not be acceptable if disabled people were not able to get transport without having to plan ahead, just as everyone else can. If they could only book ahead, that would be a diminution of their freedom and ability to move. Will my hon. Friend comment on that?

Tim Boswell (Conservative, Daventry)

My hon. Friend has read my mind—that was to be the second part of my remarks. It is an early hour of a Thursday morning, so I cannot resist the temptation, because it reflects a great human spirit, to quote a Labour Foreign Secretary of many years ago and of great repute, Ernie Bevin, who once defined his wish for free movement as wanting to be able to

“go down to Victoria station... take a ticket and go where the hell I like”.

That is exactly the point about taxis: people do not want to feel that because they have a disability they have to tie themselves down to pre-purchase. They should be able to use taxis.

I want to respond to my hon. Friend’s point so, in parenthesis, my experience doing the Front-Bench job, when I was bringing a large number of people with disabilities into the House, was somewhat mixed. There were occasions—I appreciate that the clause does not refer to the metropolitan area—when we went to New Palace Yard and found some difficulty in getting the taxi to accommodate.

My first concern is a generic one about the extent to which the duties bite across the whole of the fleet, which may be available to disabled people, and how that will be balanced out. Secondly, I appreciate that we do not want to create another inspectorate at the centre, but I want from the Government a handle on the extent to which adequate provision is being made.

My third point concerns the criteria under which local authorities may bring this measure forward. As explained in the explanatory notes, it appears to be a fairly rigorous test: they would have to apply and make a case, which would have to be run past the Disabled Persons Transport Advisory Committee. I hope that would happen and that it will be a rigorous test.

Clearly, one could refer to islands where it might be more difficult to provide such a service. However, the normal presumption should be that the taxis will be accessible and there should be as few exemptions as possible. If there are to be exemptions, they should be properly evidenced and explained, not just nodded through.

Clause 157 sets up the framework, but it is important that we have an understanding that it will not be a fiction and used as a whitewash whereby local authorities walk away from their duties or find ways to avoid them, and that it will not lead to a diminution of service across the piece for disabled people, which is a common concern of the Committee. I think that all that can be achieved, but I would like the Solicitor-General’s assurance that it will be.

Vera Baird (Labour, Redcar)

We decided last year to take a fresh look at how we can achieve our objective of enhancing accessible-taxi provision, and there was a consultation that closed on 24 April. We asked members of the public, groups and organisations whether the regulations were the right way to deal with the issue. We are still analysing all that. Many of the issues raised by hon. Gentlemen have absolute reality and I accept that completely. The possibility of people migrating to become private hire only is an issue that we must countenance. The possibility that there could be an area in which there were no accessible taxis because of the provision is something we need to look at.

There are protections within the four corners of clause 154, which deals with the issue properly, whereas clause 157 deals with exemptions. There has to be a consultation—the hon. Gentleman referred to the Disabled Persons Transport Advisory Committee. The Secretary of State has to be satisfied that any exemption is appropriate, and he or she can put terms upon it. However, I readily accept that there is a need for us to come back and say to the House what we will do about the issue.

Tim Boswell (Conservative, Daventry)

I appreciate that the Solicitor-General is in some difficulty because she does not speak for the Department for Transport, but will she ensure that it at least takes seriously the continuing monitoring of the situation, as well as setting up the framework on day one, which I am sure it will do plausibly and sensibly? However, it is delivery that will matter.

Vera Baird (Labour, Redcar)

Yes, I will, and we will have the responses to the consultation analysed by September. The Bill will be discussed on Report at the other end of recess, so we will have an opportunity to discuss this again. On that clear undertaking, for the time being I invite the hon. Member for Forest of Dean to allow the clause to stand part of the Bill.

Mark Harper (Conservative, Forest of Dean)

That is helpful, and I am grateful for confirmation of when the Solicitor-General expects the Bill to be considered on Report. We will look at the Department for Transport response to the consultation. I note that private hire vehicle drivers and operators were asked to respond to it. It will be interesting to see what they say, as well as what taxi operators say.

Given the Solicitor-General’s clear assurance, we will wait for the consultation and then discuss on Report what should be done.

Clause 160

Clause 165

Clause 166

Tim Boswell (Conservative, Daventry)

I think that it would bore the Committee to tears to go into the detail of an interpretation clause. However, I would like the Solicitor-General’s assurance that the list of categories of assistance dog is sufficiently comprehensive. It begins with specific types and goes on to mention prescribed charities. I think that that will cover all types.

I have a constituency interest because a marvellous charity called Dogs for the Disabled, which does excellent work, is located at the edge of my constituency, near to Banbury in the neighbouring constituency. That charity provides dogs for people with wider disabilities than the conventional disabilities of deafness or blindness. Will the Solicitor-General assure me that she will nudge her colleagues in the relevant Department to ensure that the definition is sufficiently comprehensive, as I believe it is, so that any dog that is trained to help a person will be admitted?

Vera Baird (Labour, Redcar)

The category of assistance dog is widening all the time. The hon. Gentleman has put his finger on an important point, but the clause allows the Secretary of State to provide for further categories of assistance dog as it becomes necessary.

Clause 175

Vera Baird (Labour, Redcar)

I beg to move amendment 87, in clause 175, page 127, line 38, leave out ‘194(3)(a)’ and insert ‘194(4)(a)’.

Mark Harper (Conservative, Forest of Dean)

This, I hope, will not take too long. Again, it relates to our friends in the Department for Transport. Given what the Solicitor-General said about timing, the issue may well fall within that category as well. In April, the Department for Transport issued a consultation on rail services for disabled people under the Disability Discrimination Act 1995. Specifically, the consultation is about improving the accessibility of light rail vehicles—those used on metro, underground and tram systems and other prescribed modes of guided transport.

I ask about the matter again to see how it interacts with what is being proposed in the regulations under the clause. The Government are carrying out their consultation. There are European standards on heavy rail vehicles—what we commonly call trains—and the appropriate stations. To ensure that the new regulations do not impose a double regulatory burden, the Government are consulting on light rail vehicles and are also considering two draft regulations. I am sure that the Solicitor-General is not terribly familiar with them, because they are a bit convoluted. The Rail Vehicle Accessibility (Non-Interoperable Rail System) Regulations 2009 is not the most catchy and snappy of titles.

The regulations are quite technical. Ministers occasionally bring out rail vehicle accessibility regulations, both general and specific, and, anorak that I am, I faithfully get them from the Vote Office and read them to ensure that they are in order. Although they always have been, it is worth checking such things.

I want to check that the provisions that the Government mention here, which are to continue to have the right technical specifications in place but to have a less onerous regulatory system, are to be introduced on or before 31 December. Will the Solicitor-General update the Committee on how the consultation is proceeding? Moreover, will she tell us whether the proposed changes are purely regulatory and whether the way the DDA has been transferred into the Bill will have any impact on them? Will anything need to be done on Report or can these regulations be added to the existing powers and then transferred across into the Bill?

Tim Boswell (Conservative, Daventry)

Briefly, and rather in the spirit of my earlier intervention, I would like the Solicitor-General to have a word with her hon. Friends about the implications in practice. This is about rail accessibility, which will vary depending on whether the train is travelling or coming to rest at a station.

Let me sketch out a particular dilemma. As we improve the provision for disabled people on rail, which we should, there is bound to be pressure on space for fully abled passengers. It requires a sensitive design to make the spaces as flexible as possible to accommodate the needs of disabled persons with wheelchairs or for other passengers if that is appropriate.

One of the by-products of that is that if capacity is cut in the carriage by making provision for wheelchair access, another carriage might be needed in order to carry the same number of passengers or to meet the same demand. I promise that I will not go into a debate about the economics of the rail system, because that would take us into very unsatisfactory territory. Another carriage would be fine, although not without cost.

A concomitant effect at very small stations—I have two in my constituency—with short platforms is that if the configuration increases from six cars to seven, some may overshoot the platform. That may not be a problem for people who are fully abled and agile, but it would be more of a difficulty for wheelchair users or those who are not nimble in getting off trains, such as older people, because they may find themselves in the wrong place on the train. I suspect that many of us have had that experience on a crowded tube train—one suddenly finds that the door at the end of the carriage will not open and one has quickly to shimmy down to the next door, which is not always easy.

All I am suggesting—I am not proposing that this should be tied down in law—is that merely saying that carriages should be wheelchair accessible is not quite the same as saying that wheelchair users should be able to access the whole length of the train for safe egress and ingress to the platform. A little conversation, at least, with the Solicitor-General’s sister Department might be useful, because it is important in the general framework of what I know is intended to be an enabling and encouraging clause to get it as practically right as possible.

For example, when the accessibility issue is being cleared in relation to new rolling stock and if there are limited-access stations, which are better than closed stations—we had the same dilemma about hackney cab services—it may be sensible if they have to produce an operational plan to ensure that wheelchair users are notified, put in a suitable part of the train, escorted, provided with more time or whatever is appropriate. Those are largely operational matters for the Solicitor-General’s sister Department, and I leave those thoughts with her.

Vera Baird (Labour, Redcar)

The hon. Gentleman is right: it is hard to legislate for the practical problems he foresees. In the example he sketched out, I suppose that the train would have to move up a little. We hope that in the longer term the legislation will change attitudes and make people more aware of the need always to think about the possibility of disabled people being present. He makes a valid point, as ever. He is a devoted supporter of disabled people and I praise him, not for the first time, for that commitment.

The clause deals with the fairly technical rail vehicle accessibility regulations, and I am not such an anorak as the hon. Member for Forest of Dean that I check whether they are in order, so I must take that on trust. We are consulting, as he said, and that consultation closes on Friday, so if the hon. Member for Daventry or anyone else wants to add anything, time is short.

The clause replicates in the Bill the provisions of section 46 of the DDA, and any new regulations that emerge from the consultation will be enacted under this provision. We do not believe that anything more will be needed on Report. Having probed the issue, and with the assurance that a couple of days remain to contribute to the consultation, I hope that the hon. Member for Forest of Dean is content to allow the clause to stand part of the Bill.

Clause 176

Mark Harper (Conservative, Forest of Dean)

I have a brief question arising from our previous debate. If the Secretary of State is asked to make provision for an exemption order, after consulting the Disabled Persons Transport Advisory Committee and any other person whom he thinks appropriate, he has the options of making an exemption order, refusing to do so, or doing so with specific conditions and restrictions. In the past, would those conditions have included the sort of communication that the operator had to undertake to make people aware of particular rail networks or trains that were not accessible?

A criticism that is often raised with me by constituents is that they are not only annoyed when a particular rail network is not accessible; they are most annoyed when they do not know that it is accessible or they think, or are led to believe, that it is accessible. In such circumstances they may be surprised and may end up with a lot of problems once they are on the train, including finding that they have to go to another station that they did not expect to go to. If the Secretary of State is to make exemption orders and rail vehicles are not accessible, one useful condition could be included relating to what the operator has to do in terms of proper communication, so that disabled people using that service are aware not just that it is not accessible, but what other options are available that they might use to maximise their mobility.

Tim Boswell (Conservative, Daventry)

My hon. Friend’s comments on the clause have helped to satisfy me in relation to my previous point. It is terribly clear that we should not simply stamp that provision on the physical spec of the rolling stock; we should look at how the process will work in practice. We are establishing some understanding about that and, I hope, encouraging the Minister’s departmental colleagues.

I should like to return to a point that was in my mind when we were talking earlier about Hackney carriages: the basis on which orders can be made on exemptions or derogations from regulations. I remember, as a Minister, facing the dilemma of the extent to which a Secretary of State would specify the grounds for their decision to confirm, modify or refuse an exemption order. I suspect that disabled people and their organisations would want to build up a corpus of views about whether that was done reasonably and not simply as an economic cop-out. It would be interesting to know whether there will be something beyond the bald rubric that the Minister has decided on, so that people could begin to understand the rationale for a growing—one hopes it is not too fast growing—corpus of decisions for exemptions.

Vera Baird (Labour, Redcar)

My answer to the hon. Gentleman is that I do not know whether the rationale will be put into communications following the granting of an exemption or the imposition of a condition, although it obviously should, for the reason that he mentioned. I am glad that such important practical points are being raised. Exemptions to such provisions that have been made under the DDA are usually time-limited, so it is usually about getting things in order in due course. I understand that conditions are often set on those provisions, and that would remain the case for exemptions granted under the Bill.

Committee members have made some practical points. Apparently, the extent of the availability of conditions to the Secretary of State would permit the kind of communication that the hon. Member for Forest of Dean mentioned. Such practical matters will be drawn to the attention of the appropriate Departments so that all the sensible points that have been mentioned are taken into account when exemptions are granted.

A limited range of events would cause exemption. For example, the Glasgow underground has different dimensions from other underground train services and it would be difficult for it to meet the precise regulations in relation to wheelchair accommodation, so it has an exemption for the time being, but such a provision is made available and used only in pretty exceptional situations like that, where bigger tunnels would have to be dug under the whole of Glasgow.

Schedule 22

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would be grateful if the Solicitor-General gave a further explanation of the implications of the amendment. It might be obvious, but given that we will be debating another part of the schedule, it would be useful.

Vera Baird (Labour, Redcar)

We missed out a bit about further education and higher education provision in Scotland, by failing to make reference to the appropriate statute. We have added that.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 255, in schedule 22, page 234, line 4, leave out sub-sub-paragraphs (a) and (b).

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: amendment 256, in schedule 22, page 234, line 10, at end insert ‘except in relation to academy schools’.

Amendment 257, in schedule 27, page 247, line 18, at end insert—

‘School Standards and Framework Act 1998

Section 58(6) and (7). Section 60(4) and (5).’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The amendments are all of a type. Amendment 257 is consequential to amendment 255, and amendment 256 is also consequential to make it clear that all maintained schools, including academy schools, should be dealt with in this way. The amendments seek to probe the Government’s understanding of the extent to which sections 58 to 60 of the School Standards and Framework Act 1998 comply with article 4(2) of the relevant Council framework directive, are an interpretation of it, or were designed to go further than it in some way. They seek clarification that article 4(2) is not the ultimate restriction on the extent of the powers available to schools, particularly faith schools, under those sections.

We are dealing with the potential for conflict between the rights secured under the directive—which I believe the Government must have regard to—and either what is available to schools under sections 58 to 60 of the School Standards and Framework Act, or what schools believe is available to them, which might go beyond what is actually available. I understand that there has been some correspondence.

Vera Baird (Labour, Redcar)

I am slightly troubled that the hon. Gentleman raises in this debate the question of compliance regarding a provision in the School Standards and Framework Act that has absolutely no connection with the Bill. Whatever the compliance of that Act with the directive, it will not be changed by this Bill. Where is the relevance?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I will go on to explain the relevance, but to briefly answer that question, in the Bill we are dealing with the rights of people to not be discriminated against on one of the protected grounds. Section 60 of the School Standards and Framework Act arguably gives state schools the right to dismiss someone on the basis of their belief, their attendance at worship or their conduct. It is alleged by faith schools that conduct that is not consistent with those tenets, including private conduct related to sexual orientation, comes within sections 58 to 60. The Solicitor-General will know that when hon. Members debated the 2003 employment regulations, which are reproduced in the Bill, there was a long debate about the paragraph in those regulations that said that, notwithstanding the regulations, sections 58 to 60 of the Schools Standards and Framework Act 1998 will apply. Therefore, this is very much a live issue; that is what the provisions say. I shall explain what I mean.

It is important to look at article 4(2) of the Council framework directive, because everything depends on whether it is legitimate for the schedule to say that sections 58 to 60 are acceptable and can stand even though the Bill is supposed to implement the directive. It is important to see what article 4(2) says, because it is critical to this debate. It states:

“Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where”,

and it goes on to explain where.

I will accept that voluntary aided schools certainly are

“public or private organisations the ethos of which is based on religion or belief”,

and I will accept that the religious discrimination that is permitted in those schools predated, by statute of 1998, the adoption of the directive, and that there were practices around at that time that predated it. Therefore, it is the relevant exemption, and I do not think that there should be any difference between us.

However, article 4(2) goes on to explain the basis of the conditions that must be met in order for sections 58 to 60 to be complied with. It states:

“where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles”.

The article then goes on to say, in a second paragraph:

“Provided that its provisions are otherwise complied with, this Directive shall thus”—

I draw attention to the word “thus”, which refers to the conditions laid down in the previous paragraph—

“not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”

My first question to the Solicitor-General—I would be grateful if she could answer this—is whether she believes that article 4(2) contains two separate exemptions: one that relates to a genuine, legitimate and justified occupational requirement, and a second one in the second paragraph that does not require that, despite the “thus” that says that the directive shall not

“prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”

I accept that any employer can have that as a term of employment. The question is, where that would involve discrimination on the grounds of religion or belief or, indeed, conduct related to sexual orientation, whether an exemption is provided for such a contract to be lawful when it otherwise would not be. Is it the Government’s opinion that those are separate, or is it one? If they accept, as I believe they do, that it is one, it does not mean that I am right and the Government are wrong, but it would be helpful in framing our discussion.

I would also be grateful if the Solicitor-General confirmed that article 4(2) is there only to

“maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive”.

In other words, brand new practice cannot rely on the dispensation.

My third question is whether ethos alone can constitute the genuine, legitimate and justified occupational requirement. Will the Minister comment on the words,

“by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos”?

In other words, could—if all other requirements are met—an employer with such an ethos say, “You are not in compliance with our ethos ab initio, regardless of the work that you do”? I have asked that question previously in discussions on the Bill.

The matter is important because I accept that there will be cases where someone’s job requires them to do something that they cannot do. If the organisation has an ethos and meeting those needs is an occupational requirement, that will fall within the exemption. I accept that, but I would like the Minister to clarify whether compliance with an ethos alone is sufficient, or whether some impact on the way in which the person carries out the job should also be part of the case. In addition, is it the case that that cannot just be assumed and that it has to be shown to be part of the case?

My fourth question is about what is meant in the School Standards and Framework Act 1998 by the reference to ethos. I am not an expert on this—perhaps the hon. Member for Glasgow, East is—but a religious school’s ethos might be that they want to encourage children to be brought up and learn in a Christian environment with regard to Christian standards of conduct. Such an ethos might relate to the way that a Christian society operates vis-Ă -vis charity to all and respect for everyone. I believe that that is separate from a school ethos that is based on the virgin birth, the resurrection and certain other tenets—in other words, the ethos of a school is not necessarily the same as the doctrine of the religion.

If I am right—and I believe that I am—is it the duty of the teacher to have regard to the ethos of the school or to have regard to the tenets of the religion? The tenets of some religions state that homosexuality is a sin. I do not expect that the ethos of a school would contain that. If the exemption is to essentially punish people in employment terms by preference or dismissal on the basis of their allegiance to the ethos, are we talking about the ethos of the school or the tenets of the religious organisation?

John Mason (Scottish National Party, Glasgow East)

I stand to be corrected by those who understand our dictionaries better than me—perhaps the Minister can help on this matter—but my understanding of ethos in, for example, a Catholic school is that it relates to the whole teaching of the Catholic Church, which would include things such as the virgin birth and so on. I would have thought that in a Muslim school, similarly, that would include the whole teaching, including the Prophet and so on.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is the question I am asking. I am interested in the hon. Gentleman’s view, and I am even more interested in the Government’s view. I am not keen to get into the issue of dictionaries at all.

I have raised the issue because section 60 of the School Standards and Framework Act 1998 does not talk about the ethos of the school. I shall set out section 60(5), because it is important to the point I am making and to a point that I am going to make:

“If the school is a voluntary aided school—

(a) preference may be given, in connection with the appointment, remuneration or promotion of teachers at the school, to persons—

(i) whose religious opinions are in accordance with the tenets of the religion or religious denomination specified in relation to the school under section 69(4)”.

My question is whether that relates to the ethos of the school or the tenets of the religion. I think that the hon. Gentleman would have to say that the tenets of some religions are that homosexuality is objectively disordered and a sin, and that practising homosexuals will, unless they repent, be punished in the after-life in some way. That is separate from what we would expect to see in the ethos of a school. I think even those who strongly support faith schools do not expect pupils and teachers to sign up to homophobia in the ethos, even if that is for historical and doctrinal reasons.

John Mason (Scottish National Party, Glasgow East)

I find that difficult to distinguish. Let us take a faith—the one that I am familiar with in Glasgow would be Catholic schools, which are the main type of faith school. The people would look on it as the whole teaching of their religion. For example, I am sure that the hon. Gentleman is familiar with something like the ten commandments, which is a whole package. To start taking one part of the package and not other parts, and to say that some part is ethos and some part is something else strikes me as a bit artificial.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am aware of the hon. Gentleman’s view. I am raising the question because I believe that there are many people who run faith schools who believe that the ethos equals all the tenets of the faith, including ones that I know are held sincerely and are not designed to create a humiliating or degrading atmosphere. But if someone’s parents are gay, and they are told in the ethos of the school that that is sinful, objectively wrong, and that they will be punished in the after-life, that raises an issue—the hon. Gentleman must accept that that is the case. I am interested in the Government’s view. Is the ethos to which teachers must have regard under section 60 the tenets of the religion, or are the two different? Are they required to be different in order to avoid some of the problems that I have identified, such as the ones related to homosexuality?

Mark Harper (Conservative, Forest of Dean)

I return to the hon. Gentleman’s specific example. Fortunately, the Committee will be pleased to know that I am not going to get into debating the virgin birth and any other biblical matters.

Vera Baird (Labour, Redcar)

Or the resurrection.

Mark Harper (Conservative, Forest of Dean)

As the Minister said, certainly not the resurrection. Let us take the hon. Gentleman’s specific example where two parents are gay—presumably they have adopted a child. If that child went to a school where they were taught that homosexuality is sinful, it would be difficult for the child. Why on earth would parents in that position have chosen to send their child to a faith school where that was the belief of that religion? That would be completely crackers. Why would parents do that? With his example, given that the point of legislation is to deal with real harm—I am thinking back to the evidence that we had from Ben Summerskill from Stonewall—it cannot be drawn into the matter. I do not think it is realistic.

Joe Benton (Labour, Bootle)

Order. There is no objection to hon. Members making comparisons, but the debate has gone a little wide of the margin, to be quite honest. Please come back to the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Gay people can be Catholic. There may only be one primary school in their village—there are all sorts of reasons why the example might occur. Teachers may want to teach in a school where they live; should they have to go elsewhere? To that extent, I believe that the intervention by the hon. Member for Forest of Dean was in order, as I think there is a real problem—it has an impact on the choices made. Why should someone have to choose to do something they would not otherwise do for fear of something happening like the example I have described?

I think it is perfectly legitimate for a Catholic school to teach children that Catholics believe that practising homosexuality is sinful—I have no problem with that. The school should teach that in those terms—not “it is”, but “Catholics believe that it is”. That is information and knowledge, but that is different from having it in the ethos.

I will return to what I was saying. My question was whether there is a distinction between a school ethos in practice and tenets of religion. The second part of the provision, section 60, states that

“preference may be given...to persons”—

in terms of teachers—

“who attend religious worship in accordance with those tenets”.

I am interested to know whether the Government believe that that simply means “attendance at”, or whether it means “participation”. Does attendance imply joining in the prayers, or does it simply mean a need to turn up and essentially not be disruptive? If it is merely a question of attendance and does not require participation, that would be less objectionable. It is important that we understand on what basis the Government intend to allow people to be discriminated against. That was my fifth question.

My sixth question relates to section 60(5)(a)(iii) of the 1998 Act, which states that preference can be given to people

“who give, or are willing to give, religious education at the school in accordance with those tenets”.

Does the Minister think that only practising and believing Catholics can teach religious education in a Catholic school? Is such religious education so doctrinal and instructional that it would be difficult for someone who is not a Catholic to teach it? I accept that it would be difficult for such people to teach pupils with sincerity that certain things are wrong, that certain things happened and what they should believe. People who are not Catholic can be competent. For example, some professors of theology at Oxford are Catholic and are canons of Christchurch cathedral. However, they teach Anglican theology at professorial level in higher education. Is religious education in voluntary-aided schools so instructional that it cannot be taught successfully by people who are not sincere believers in the faith, even though they may know the curriculum and be good teachers?

Finally, section 60(5)(b) of the 1998 Act states that

“regard may be had, in connection with the termination of the employment”—

sacking—

“of any teacher at the school, to any conduct on his part which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination so specified.”

First, is that supposed to mean conduct that is incompatible with the stated ethos of the school or can it mean conduct that is incompatible with the tenets of the religion? That is a key question if we are to understand the scope of that exemption under the 1998 Act and whether it is compatible with the Bill.

Secondly, can such conduct include private sexual conduct stemming from sexual orientation? I seek the Minister’s reassurance that she will be consistent with her earlier support for Justice Richards’s clear statement in the Amicus judgment, which he stated twice, that it is impossible to separate discrimination on the grounds of sexual orientation from discrimination on the grounds of conduct that stems directly from that sexual orientation under the directive. That statement stands because the judgment has not been overturned on appeal. It is therefore not possible for schools to say that they are not discriminating against somebody on the basis that they are gay, but because they are in a civil partnership, are living with someone of the same gender or are felt to be having lawful sexual relations with someone of the same gender. Justice Richards’s judgment did not even get into whether such discrimination would be permitted under the rights of privacy and non-discrimination in the Human Rights Act 1998 because it relied on the directive.

Hon. Members may correct me if I am wrong, but I believe it is the assumption of many schools that they will be entitled to consider sex outside marriage—which is the only kind of sex a gay person can have in this country—as conduct that is

“incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination so specified.”

My view is that paragraph 2 of article 4 of the directive requires a justified and legitimate occupational requirement that relates to the job, not a free-standing requirement that relates to the beliefs of the employer. Does the Minister think that a school can sack somebody, or not prefer them in some way, on the basis of their private conduct outside the school?

Schools ask how someone can deliver religious education according to the tenets of a religion that talks about sex within faithful marriage when that person’s private life is not consistent with that. One can see where schools are coming from, but the Minister has said previously, I believe, that discrimination based essentially on sexual orientation is discrimination based on sexual orientation. Even if the discriminator’s intention is that the discrimination should be based on religious belief because the person’s conduct is not consistent with the religious beliefs required, it is still discrimination on the grounds of sexual orientation. My final question, therefore, is whether she agrees that that is the case.

I hope that I have been able to explain why it is important, given the number of teachers who fall subject to sections 60 and 58 of the School Standards and Framework Act, that we do not require teachers to claim unfair dismissal in relation to their private lives when that would be a burden on them. We should not expect teachers to live in fear of being discovered to be gay by schools or to have difficulties finding employment in areas where most schools are faith schools. When we pass such legislation, we therefore need to be clear about its boundaries. In introducing the amendments, I look to the Minister to give us some reassurance on the issue. I am grateful for the patience of the Committee.

Vera Baird (Labour, Redcar)

The UK negotiated the inclusion of article 4(2) of the framework directive with the intention of preserving the provisions in the School Standards and Framework Act, and we are satisfied that they are compliant. That provides for future legislation to allow differential treatment on religious grounds, where that reflects national practices and where there is a genuine, legitimate and justified occupational requirement. Nothing in the Act can be used to discriminate against someone because of their sexual orientation, which would be unlawful in employment law.

Let me add—this is all that I intend to add—that we do not intend to override substantive education legislation in the Bill. There is no problem whatever, and we will not mend something that is not broken.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is extremely disappointing that the Minister will not engage with eight straightforward questions that are within the scope of the Bill. If they were out of order, I would have been called out of order by you, Mr. Benton. What we have is a Committee in which the Minister simply will not answer questions that have been legitimately raised. It is the Committee’s job properly to scrutinise the implications of employment discrimination legislation, which affect hundreds or thousands of people, but she has said practically nothing. I look to you for advice on what we can do raise questions that are in order and to have them answered.

Joe Benton (Labour, Bootle)

Let us get one thing absolutely straight. If the hon. Gentleman had been out of order, I would have ruled him out of order. I have to ask at this point whether the Minister has replied.

Vera Baird (Labour, Redcar)

Yes.

Joe Benton (Labour, Bootle)

The Minister has replied. It is not my position to give advice on the matter. It is up to the hon. Gentleman what he wants to do. He has the choice of withdrawing the amendment or pressing it to a vote. I invite him to comment on that.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am still extremely surprised by the Minister’s unwillingness to answer questions that are in order as part of the scrutiny of the Bill in Committee. The amendments have been on the amendment paper—

Joe Benton (Labour, Bootle)

Order. I am sorry, but we cannot pursue that. The Minister has indicated that she has replied. As far as I am concerned, that is her response. It is now up to the hon. Gentleman to press the amendment or withdraw it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am responding to what the Minister did—or did not—say. It is difficult to know what to do at this point. Normally, one has a debate, and one’s questions are at least addressed and preferably answered. That enables one to determine—[Interruption.] I am not asking a question. I am just reflecting on the response.

Joe Benton (Labour, Bootle)

Order. I am sorry to do this, but my ruling is quite clear. I advise the hon. Gentleman to press his amendment or withdraw it. What he is doing now is pursuing what he interprets to be a lack of response from the Minister. The Minister has indicated clearly that she has responded as far as she is going to. Frankly, this is becoming a little bit negative in terms of Committee procedure and the sake of good order. I advise the hon. Gentleman either to press his amendment or withdraw.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Given that we have not been able to have a debate or proper scrutiny, I do not see how I can press the amendment, because Committee members will not know on what terms they are voting. On that basis alone, in bitter disappointment at the Government’s failure to respond, I beg to ask leave to withdraw the amendment.

Joe Benton (Labour, Bootle)

Is it the Committee’s wish that the amendment be withdrawn? [Interruption.] I ask again. Is it the Committee’s wish that the amendment be withdrawn?

Clause 186

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 252, in clause 186, page 133, line 24, leave out subsections (5) and (6).

An amendment to protect an individual from discrimination from a charity because of their atheism.

This is a probing amendment to ask whether it is justified to have an exemption in respect of the Scout Association, as that is what the clause relates to. The Scout Association is an excellent organisation that does brilliant work. It is, in many cases, supported by public authorities and given accommodation by schools and public authorities. Many young people want to join if they can because their friends belong, and it is often the only or the main extracurricular activity in the community.

A provision was written into the Equality Act 2006 saying that although charities could not discriminate against people on the basis of their religion unless it was written into their charitable instrument and otherwise justified, organisations that had had such requirements, now considered inappropriate, before 18 May 2005 would be allowed to continue to do so. The impact is that children who cannot sincerely say that they believe in God cannot join the Scouts and people who wish to help promote or work within the Scouts as scout leaders—the enormous bulk of whom are not religious, as the Scouts are not a religious organisation; they just have a joining oath—are not allowed to do so. Many scout groups are short of leaders, so what they do when a qualified person in the community wants to work with young people is to say, “Well, just cross your fingers when you say the oath.”

Tim Boswell (Conservative, Daventry)

I rise simply to seek elucidation. Did I hear the hon. Gentleman aright when he said that he thought the amendment extended only to the Scouts—in other words, that no other bodies have pre-existing vested rights, whether they are atheistic and exclude believers or nominally include believers? I think that he is nodding on that point. Secondly, if he considers that the Scout Association is indeed the only organisation affected—this is, perhaps, an indirect question to the Minister—will issues of hybridity arise?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I cannot answer the hon. Gentleman’s last point, because I have limited knowledge, and people might say that my knowledge, even in those limited areas, is limited and it does not extend to issues of hybrid Bills and so on.

I do not know of any organisation that is not otherwise covered by the exemption that is allowed for charities with a religious object, but which has a joining oath that is not otherwise pursued, as is so in respect of scouting activities. It is well known that the Scouts are anxious not to exclude people, but it is sad that their solution is to ask people to be insincere when signing up to the oath. I am not saying that that is the Scouts’ official policy and I am not saying that I approve or disapprove of that.

David Drew (Labour, Stroud)

Can the hon. Gentleman give me one example of the Scouts actually saying that in writing, as a definitive statement?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I can give the hon. Gentleman that. I will send him examples of people who have written to me, and examples from other organisations, complaining that they were not allowed to join unless they took this oath and saying that they were told—I do not see why they should lie because they want to join the Scouts—that the solution would be to make the statement insincerely. I can understand that, because the Scouts do not want to lose people from the community who happen not to be of the same religion or are not God-fearing, as it were. So there is an unfortunate situation, although the Scouts would be none the worse if they dropped the oath, which discriminates against both children and leaders. Continuing with the oath deprives people of access to scouting activities and deprives the Scouts of people who would be good leaders working in that organisation as volunteers.

Diane Abbott (Labour, Hackney North and Stoke Newington)

The hon. Gentleman will wish to know that there is an excellent alternative to the Scouts that was set up precisely because of this sort of God-fearing and monarchy-fearing nonsense—the Woodcraft Folk.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am not here to big-up the Woodcraft Folk or to big-down the Scouts. People will make their own decisions. However, in many communities the Scouts is the only game in town and therefore there is no choice. I do not think that such organisations, which are not religious, should have religious tests or not-religious tests. I am grateful for Committee members’ advice. Everyone reading these proceedings will now be encouraged to go down that path. I want to stress that I am not hostile to the Scouts—they do a great job—but they would be aided in their work if they were not allowed certain—

Mark Harper (Conservative, Forest of Dean)

I am sympathetic to what the hon. Member for Stroud said. There is an active scout movement, and a guide movement, in my constituency. Those youth organisations are popular but they are not the only ones. Young people can join an extraordinary range of organisations. The problem is usually not a shortage of young people, but of adults willing to put the time in to run them.

The hon. Gentleman is in danger of creating non-real examples. In my time as a Member of Parliament, I have never had a single complaint from anybody who has been turned away from the Scouts or told that they have to fib about whether they believe in God. The hon. Gentleman is creating fictional problems that do not exist in the real world and is asking us to deal with them. That is unnecessary. Having started with a paean to how great the Scouts were, he spent the next five minutes saying what a dreadful organisation it is and what a dreadful way they go about doing things, including telling people to be hypocrites before they are able to join. That is not my experience of the Scout Association as it operates in my constituency and, looking around at Committee members, it does not seem that they have experienced that either.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

There is a real world outside the hon. Gentleman’s constituency surgery and his own experiences, just as I accept that there is a real world outside my direct experience. I will send him the examples that I have received, as well as sending them to the hon. Member for Stroud.

David Drew (Labour, Stroud)

Send them to all members.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I will send them to all Committee members, then the hon. Member for Forest of Dean will see that he is wrong in saying that the problem does not exist. It is no surprise that people who are concerned about this matter might not feel willing to come to him if he is not sympathetic to them. However, that is their choice and his choice. At no point did I say that the Scout Association was a dreadful organisation. As the hon. Gentleman reports, some scout groups are short of leaders and one reason for that is their unnecessary religious test. In many places, Scouts are the only or main youth activity. Not every constituency is blessed with the youth organisations that the hon. Member for Forest of Dean talks about in his constituency. Where we have non-religious youth organisations, they should be inclusive, and that is all that I am asking for.

John Howell (Conservative, Henley)

I wonder whether the hon. Gentleman, like me and my hon. Friend the Member for Daventry, went to Thame in my constituency to see all the Oxfordshire scouts gathered together. An enormous number of scouts spent an entire weekend there. The message that came across was that they had huge numbers of people waiting to join. Many parents, who volunteer on a regular basis, were also there. There was no shortage of volunteers and no overt religion. All I saw was scouts having an extremely good time in very good weather and really living up to the expectations that we would have insisted that young people have these days.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am sure that it was a jolly weekend. I have been to scout jamborees in my own constituency, and the hon. Gentleman is right; they are not an overtly religious organisation. So why impose a religious test that prevents scout groups, on some occasions, from getting the leaders that they need? It may be very viable in Thame, but there are scout groups of which I am aware that are struggling because of a lack of leaders. We know that the Criminal Records Bureau test is one cause of their recruiting difficulties.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Just to even this out a bit, my local scout groups are crying out for volunteers to come and lead them. I do not know whether the inhibition is to do with the religion test, but there is an issue about getting volunteers. This is therefore an important debate, and I am shocked that hon. Members are so dismissive of something that might remove a barrier to people’s taking part.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

In conclusion—

Mr. Harperrose—

John Masonrose—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I give way to the hon. Member for Forest of Dean.

Mark Harper (Conservative, Forest of Dean)

Before the hon. Gentleman concludes, there is a shortage of scout leaders, and a number of things have been adduced to that. He mentioned the CRB checks, but there is the issue of the busy lives that people lead now. Employers expect people to be more flexible and available, and do not always allow them to commit the time. I have had lots of those discussions with scout groups in my constituency and with those who are considering making the commitment. I have to say that people have never not got involved because of the concern that the hon. Gentleman raises. It is simply not an example that I, or other hon. Members across the United Kingdom, have come across, apart from the hon. Gentleman in Oxford, West and Abingdon.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

There are very clear rules about using mobile communications in Committee, but I notice that my phone has three text messages. Were I to open them, which I will not, I suspect that they will say, “Here is an example”, or “I will send you an example.” The hon. Gentleman represents one 646th of the country. I hope he will accept that if I send him examples, they exist. If I do not send him examples, then he can have a field day next Tuesday.

Joe Benton (Labour, Bootle)

Order. I have been very tolerant. By nature, this Bill has to have a wide scope. I see people shaking their heads in disappointment. As I said, the Bill must be granted a wide scope of debate and discussion. On this particular point, however, we have gone as far as we can. I, as Chair of the Committee, will accept the hon. Gentleman’s experiences in good faith. We all know what our own individual experiences are, so can we just accept them? Moreover, the shortage of scout leaders is not relevant to this Committee. Let us get back to the amendment, please.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was merely taking interventions. I agree 100 per cent. with what you have just said, Mr. Benton. Does the hon. Gentleman still want to intervene?

John Masonindicated dissent.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Good. I have concluded, therefore, that we would be better off without the exemption—regardless of whether or not the Scouts feel it is important—because without it, society will be better for it, young people will be better treated, and the Scouts will be an even more effective and prosperous organisation.

Vera Baird (Labour, Redcar)

You have only to say God and God will do. You can be an associate member if you do not say it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Again, I am not sure whether that was more expansive or less expansive than the Minister’s reply in the previous debate. I think that it was more expansive. I think that she was talking to you, Mr. Benton, so perhaps you are considering joining the Scouts. I think she said that someone only has to say “God” to join, and if they do not they can be an associate member. There are examples in discrimination law of such situations not being acceptable, for example women being admitted to private members’ clubs on different terms from men. It should be an either/or.

The analogy with discrimination against women is apposite because the Bill seems to argue that if clubs admit women, they should be admitted on full terms. I think that the Minister was defending, by implication, admitting atheists but not on full terms. I do not know whether she is able or willing to justify differential treatment according to religion, but it amounts to the same thing. Someone is discriminated against on the basis of their religion if they are not allowed to join, or if they are not allowed to lead because they are only an associate member. I shall first send Members those examples, and then seek them out in the corridors of this place before the next stage of the Bill to see whether they are convinced. In the meantime, I beg to ask leave to withdraw the amendment.

Clause 187

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 308, in clause 187, page 134, leave out line 6.

Vera Baird (Labour, Redcar)

Amendment 308 would remove section 187(2), which prevents charities that provide benefits only to people of particular colour from relying on the exemption in subsections (1) and (2) of clause 186. The effect of the amendment would be that such a charity could seek to show that the restriction of benefits was proportionate in achieving a legitimate aim. There is never any justification for discriminating between people who have different colours, and subsection 186(4) replicates that effect. The law has not changed since 1976, and it is a pity if it has not been understood during all that time. When a charitable instrument defines beneficiaries by reference to colour, the provision takes effect as if the reference to colour were completely disregarded. Therefore, there is no problem here.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I think that perhaps I understand the provision now. When the Minister is in the mood, she is good at explaining a situation, and I am grateful to her. I beg to ask leave to withdraw the amendment.

Clause 188

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 309, in clause 188, page 134, line 24, at end insert—

‘(1A) For the avoidance of doubt, subsection (1) allows a person to provide gender-affected activities separately, but does not allow such activities to be provided to people of one gender but not to the other, unless it is unreasonable or disproportionate to seek to provide them for both.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment 304, in clause 188, page 135, line 6, at end insert—

‘(7) Bodies responsible for the organisation of international and national-level sports competitions shall not discriminate on the grounds of gender in the provision of competition and team membership unless they are able to demonstrate that it is a proportionate means of achieving a legitimate aim.’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I apologise for a rather breathless arrival. The Committee that is considering how the House scrutinises Government business was meeting in another part of the House and the hon. Member for Reading, West (Martin Salter), who was due in another Committee Room, and I had a race over here—he won.

We are now on sporting issues, and the point of the amendment is to probe the extent to which the Bill places a duty on sporting bodies, particularly those in receipt of public money—many are—to ensure that there is not a historical bias towards male sport. We frequently see that taking place in respect not just of participation and organisation, but television and other broadcast coverage of sport. It is most unfair and regrettable that many participants who enjoy their sport and would like to watch it find it hard to access it on television, particularly in relation to women and girls’ sport.

Tim Boswell (Conservative, Daventry)

As the proud father of three daughters, perhaps I could remind the Committee that there is, indeed, often a negative bias in relation to output and achievement? I cite the example of the successful England women’s cricket team as exactly a case in point. There is nothing wrong with female participation in sports that have been seen, wrongly, as traditionally male.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Indeed. I think that the hon. Gentleman won the race to mention that before other hon. Members. Given his athleticism in Committee, it is not a surprise that he was able to win that race. He has mentioned just one example—I shall not list all the examples. My purpose in tabling the amendment is to probe the extent to which the Minister believes that the Bill will require or strongly encourage sporting bodies, including those in receipt of public funds, to do their utmost to promote participation on an equal basis, where no provision or aspect of the sport prevents it being obviously less popular or less possible to do so. That seems to be a reasonable basis on which to go forward.

The new subsection can clearly only be probing because it states

“for the avoidance of doubt”.

That wording should not be put in Bills because they are not supposed to contain any doubt and where there is doubt, it is deliberate. The amendment states,

“subsection (1) allows a person to provide gender-affected activities separately, but does not allow such activities to be provided to people of one gender but not to the other, unless it is unreasonable or disproportionate to seek to provide them for both.”

The measure is about ensuring that the presumption is for providing sporting facilities for both genders, rather than simply providing them for one gender on the basis of history or laziness.

Amendment 304 is similar, but slightly different. Again, it has been tabled to probe whether the Government have a view on the subject and whether legislation has any hold on the unfairness that exists in relation to sports where there is full participation by men and women, but where international events are organised only for one gender. I shall use the example of cycling in the Olympic games because it is something that I and other people feel strongly about. How can it be that the Olympic games—I know that we do not have direct jurisdiction over the International Olympic Committee, but we must have some influence over the 2012 games—has a sport, in which Britain excels, where there is no way that a woman participant can get as many medals as a male participant? They have less chance of getting their particular type of race into the games than a male participant because there are simply more events for men.

That means that our superb women athletes such as Victoria Pendleton and Rebecca Romero can never achieve the status that some of our excellent male athletes have, because the male athletes are automatically liable to win more gold medals in events, even though there seems to me to be no discernible difference between the superb performances of both. I think that some of the women cyclists could have the accolade of being triple gold medal winning if they were given an equal chance. Does the Solicitor-General see any way in which we can in Parliament, by recognising that it is, to an extent, historical gender-based discrimination, ensure that at the Olympic games that we host there is no simple discrimination in that way on the basis of history or custom and practice?

Mark Harper (Conservative, Forest of Dean)

On the particular issue of cycling, I seem to remember—I am sure that the Solicitor-General will be able to furnish us with the facts—that the Minister for the Olympics updated the House on progress towards 2012 in relation to that very subject. The hon. Gentleman is right to say that some of the imbalance is historical. The International Olympic Committee is wrestling with the question of how to balance the events from a gender perspective while managing the overall size of the competition. I think that I am right in saying that some progress has been or is being made on that subject. I seem to remember that the Minister for the Olympics updated the House some time ago, but I am sure that the Solicitor-General will be able to state the exact position.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman may be right. I certainly raised the issue in a question that was not reached but was answered about six weeks ago. It may have been one and the same answer or a different one.

John Mason (Scottish National Party, Glasgow East)

I agree with what the hon. Gentleman is saying, although I realise that there are forces who would argue against it. Some of their arguments are along these lines: more people want to watch such-and-such a sport, or more people want to watch men performing a particular sport than women. How does the hon. Gentleman answer those opponents?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

In the end, that is a question for broadcasters. We have already argued, I think, that broadcast decisions are broadcast decisions and should not be subject even to the positive duty, but you’ve got to be in it to win it and it is a chicken-and-egg situation, if I may use two clichĂ(c)s—I apologise for doing so. Unless there are women’s events to televise, there is no opportunity for people to say that they want to watch them. I do not think that there was any evidence that in relation to the performance of our cyclists in particular—although that is just one example—there was any distinction between the astonishing achievements of the women athletes and those of the male athletes.

Legislation is not the best way, the only way or even necessarily an appropriate way to deal with the issue, but given that we are hosting the Olympic games in this country and there is that blatant unevenness—which may be based on custom and practice or history but which is not based on watchability, participation or any of the physical differences, because the athletes are doing the same thing in each case—I just wonder whether we can use this opportunity, along with the efforts of the Minister for the Olympics, who I know is engaged on this matter, to make further progress.

Vera Baird (Labour, Redcar)

Welcome back to the Chair, Mr. Benton. I can pray in aid my own very considerable sporting prowess as a member of the Olympics Minister’s five-a-side football team for women. We played the women’s national five-a-side football team in our first match. Their average age was about 30 years younger than ours, and that was about the number of goals that they scored in the first half as well, but then they realised that we were not that serious about it, so they started to let us win and we scored about 10 goals—football is a very good sport.

I know exactly what hon. Gentlemen were saying about discrimination in sport. It is very real. I myself had to get one of the sponsors of the Redcar half-marathon to threaten to withdraw the sponsorship money because the prize money was less for women than it was for men, even though it was the same race. That was, I am sorry to say, when the Liberal Democrat-led coalition was organising it; I am pleased to say that it is now back in safe Labour hands.

I appreciate that these are only probing amendments. The hon. Member for Oxford, West and Abingdon is really just seizing the opportunity to debate the issue, which is, I suppose, fair enough. The clause is about allowing separate sporting competitions where physical strength, stamina or physique are factors in determining success or failure. It is to allow for separate competitions where there is a point to that. Amendment 309 would require any organiser of a single-sex sporting competition, including, for example, a local pub, to demonstrate, if challenged, that it was unreasonable or disproportionate for them to provide an equivalent sporting competition for the opposite sex only. Amendment 304 is about sport governing bodies.

The gender directive prohibits discrimination based on sex in the access to and the supply of goods and services. Article 4(5) provides that this directive

“shall not preclude differences in treatment, if the provision of the goods and services exclusively or primarily to members of one sex is justified by a legitimate aim”.

That includes

“the organisation of sporting activities (for example single-sex sports events).”

Where men and women are both taking part in the same sport, game or other competitive activity, clause 188 allows them to compete separately. I do not think that the hon. Gentleman is really quibbling about the way in which the clause will work. He is just seeking some assurance that the Government are doing all they can to ensure that the undoubted imbalance in availability of sporting opportunities is being combated.

Let me turn now to the Olympics, which is probably the hon. Gentleman’s real point. The Minister for the Olympics was also the captain of the women’s five-a-side football team. She was a master of tactics. At one point she shouted, “Vera, you are big; go to the back and stop them scoring.” She made herself centre forward—or whatever the right term is—and I said to the other teams, “You do know that she is Secretary of State and is responsible for grants to sporting organisations?” So she scored a few goals.

About a third of the 34 events across the 26 sports in the Olympics reflect some gender discrepancy. In the Paralympic sports, the figure is nearer to 50 per cent. However, over the past 30 years the IOC has made considerable strides. In 1980 in Moscow, women represented only 18 per cent. of athletes, whereas in Beijing it was 42 per cent. Change to Olympic sports is in the sole gift of the IOC, but the Minister for the Olympics is lobbying for change. She has asked UK Sport to work with the British Olympic Association and with national governing bodies to identify those sports in which gender imbalance exists.

Tim Boswell (Conservative, Daventry)

In the example that the Solicitor-General cited about the Redcar half-marathon, is it not the case that as there was no differentiation in the competition itself—it was one race—the concern, quite rightly, was about the differentiation in the prize money between the genders? Will the Minister clarify whether such activity would be, and should be, precluded by the Bill? To add to that, I shall make the general comment, which I may advert to again in relation to age, that the more we can break down particular patterns of services or situations, the more activities we may find to make gender-neutral, or other condition-neutral, thereby confining those that are condition-specific to a minimum.

Vera Baird (Labour, Redcar)

I agree. I am not sure whether the Redcar half-marathon position would have been unlawful under the current law, but happily it did not come to that. If a sponsor says they will not pay unless the terms are changed, the terms are usually changed, and that is what happened. I agree that we should make what progress we can and encourage the availability of sport to children and adults of both sexes. We should break down barriers and make it clear that things that were thought to be an impediment to sport in the past may not be so now.

For example, we used to say that girls should not play rugby. Redcar rugby club has a thriving young girls’ rugby team now. We also used to say that women should not do fencing because of the dangers. All that happens now is that a woman wears some sort of padded chest protector and they can fence just as well as the guys. In fact, sometimes women are better because fencing is a bit like ballet, which is about being dextrous and nimble on one’s feet. We need to look at each sport where there is a gender imbalance and knock away the props of bigotry that support the distinction.

I hope that I have satisfied the hon. Member for Oxford, West and Abingdon that the Minister for the Olympics is doing her best. As I started to say, she has been asking for support from the British Olympic Association and the national sport governing bodies to identify and try to bring on those sports where a major gender imbalance exists, and where we could realistically achieve changes by 2012. The IOC acknowledges that it is in transition and that there is a job to do to move itself further toward equality. The hon. Gentleman has rightly raised the issue, but I invite him to accept that it is being dealt with in another area and that it would not fit into the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Solicitor-General. I restrain myself from speaking about my own sporting prowess, which extended only to playing the Minister of State, Government Equalities Office, in a chess match 20 years ago when I played with a team in Liverpool and she played for Formby Ladies. She was better than me, but I was fortunate enough to win through a swindle. But that makes the point that there are some sports, of which chess is one, where there is no reason why women should not play. It should be promoted more as a sport, but that is a different issue.

In brief, I am grateful for the Solicitor-General’s response, particularly her acceptance that there is a need for the Government to do what they can to put pressure on and work with the British Olympic Association, Sport England and other national sport governing bodies to make the IOC recognise that there is a difference between having a medal event that is only for men because generally only men do it, and having more medals for men than women in a sport where there is no basis for that any more because the levels of achievement and athleticism are identical. I hope that we will be able to take this forward on a cross-party basis outside this Committee with the Department for Culture, Media and Sport. With that, I beg to ask leave to withdraw the amendment.

Mark Harper (Conservative, Forest of Dean)

I wanted to raise a constituency issue that relates to subsections (5) and (6) about selection criteria for sport based on nationality or residence. I wanted to check whether what is happening in this case is lawful. If it is lawful, it is still quite mad, but we should establish whether it is actually lawful. This is a cross-border issue. I ask the Committee to forgive me for troubling it with this matter, but it goes directly to subsections (5) and (6).

The Gwent Football Association is trying to enact a new ruling that will prevent players—when I say “players”, I am referring to young children, those eight years old and above—who live in England from continuing to play in the East Gwent league, which they are currently able to do. I have 53 children in my constituency who are currently able to play junior football in the East Gwent league, but it is proposed by the Gwent FA that they will not be able to do so come the autumn. They will be able to start playing at under six, but when they get to eight they will not be able to play for one of those Welsh clubs if they live in England. The particular club I refer to is Chepstow Garden City junior football club.

That matter was raised with me by the chairman of Tidenham parish council, and as the Solicitor-General would expect, I raised it today with the Gwent FA and have also written to the Minister in the Welsh Assembly Government who deals with sport, but I just noticed that the clause states that the subsection applies only when

“selecting one or more persons to represent a country, place or area or a related association, in a sport or game”.

What does “represent” mean in such cases? The football club is Chepstow Garden City. Chepstow is a town in Wales, but the area that it covers—its environs—stretches to both sides of the Welsh border. People who live in my constituency in Sedbury, Beachley and Tutshill very much look to Chepstow as their nearest town. It is the place where they shop and work. It seems perfectly sensible that children who live in the areas where Chepstow is the closest town would look to it, and to that particular football club, to play football.

Tim Boswell (Conservative, Daventry)

My hon. Friend’s argument is very cogent—it is not as if the East Gwent Association was required to select people to play for Wales or even for the local community when they came from across the border. The issue is simply whether they can participate in the sport.

Mark Harper (Conservative, Forest of Dean)

That is exactly my point. If someone is representing their country—Wales, for example—it is sensible to require a connection with it and that someone is born or lives there. But it strikes me that this rule is completely mad. [Interruption.] Children would be able to play in Welsh schools football and could play in Cardiff, their parents could play for senior football clubs in Gwent, but a rather silly rule has been picked for junior clubs.

Joe Benton (Labour, Bootle)

Order. I am sorry to interrupt, but there is too much background noise.

Mark Harper (Conservative, Forest of Dean)

I am grateful, Mr. Benton.

May I ask the Minister what “represent” means? Based on the admittedly limited facts that I have been able to furnish, is what Gwent FA is doing lawful? If she confirms that it is, I contend that it is not sensible. In a letter that I have written to the club I have urged it to allow some common sense to prevail, so that the 53 children already registered with that football club and their brothers, sisters and friends who want to play for it can continue to do so. Given that we coincidentally happen to be considering clause 188 at more or less the time I was alerted to the problem, I would be grateful to explore what the law says on the subject.

Vera Baird (Labour, Redcar)

Of course, my legal advice is usually incredibly pricey, even when I do not know the answer, which is the situation now. I am really not sure. I have not looked at it in sufficient depth to venture a view. The hon. Gentleman will have to contend that it does not represent the area. The difficulty might be whether it is a related association. The discrimination, as it were, which is licensed in the clause, allows for the selection of someone to represent either a place or a related association in a sport or game of a competitive nature. My first instinct was that it was lawful—if mean—to do what the club had done, but it is probably a question of fact whether the club represents the place where it is, which it might, or is a related association. So I think the hon. Gentleman needs to contend that it is not lawful because it does not represent the area, and see what comes back.

Mark Harper (Conservative, Forest of Dean)

I am grateful to the Minister for that advice. I will prevail upon Gwent FA to see sense. If it fails to do so, I might pursue my line of argument and persuade the club that its actions are unlawful, or that it does not wish to risk the issue turning into a battle. I am grateful for the Minister’s advice—provided to the Committee for free.

Schedule 23

John Mason (Scottish National Party, Glasgow East)

I beg to move amendment 58, in schedule 23, page 235, line 20, leave out sub-paragraph (2).

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: Amendment 295, in schedule 23, page 235, line 20, leave out ‘sole or main’.

John Mason (Scottish National Party, Glasgow East)

I thank you, Mr. Benton, for the opportunity to be a part of the Committee under your chairmanship. I will be speaking to my final amendments in the area of religion, so hopefully we will not have many more debates.

Schedule 23 deals with exceptions from the ban on discrimination in the provision of goods, facilities and services. There are exceptions for acts of the Executive in paragraph 1; organisations relating to religion or belief in paragraph 2; single-sex accommodation in paragraph 3; and training for people from outside the European economic area in paragraph 4. There is no dispute over the need for exceptions; the question is how far they should go.

My amendments 58 and 59 aim to widen the scope of the exceptions in paragraph 2 to include some religious organisations that would otherwise be excluded. Like other exceptions, paragraph 2 is hedged about with conditions that religious bodies must fulfil before they can benefit from the exception. According to paragraph 2(1), they must exist to

“practise... advance... teach... a religion or belief... or... foster... good relations between... religions”,

or to enable people to receive services “within the framework” of that belief. Limitations on religious grounds can be imposed, under paragraph 2(6), only if it is

“because of the purpose of the organisation”

or to avoid religious offence. Limitations on sexual orientation grounds can be imposed, under paragraph 2(7), only if

“it is necessary to comply with... doctrine... or... avoid conflict with strongly held religious convictions”.

That is a lot of hoops to jump through, but is probably wide enough.

My amendment 58 deals with a further restriction that paragraph 2 of schedule 23 imposes. Under sub-paragraph (2), a religious organisation that passes all the other tests needs only to be deemed mainly “commercial” by a court to be deprived of all the other exemptions available within the confines of paragraph 2. The UK is home to many such organisations; for example, Christian books, music and DVDs supply a vigorous market, and Christian bookshops, publishers, holiday camps and conference centres have been around for decades and fulfil a religious mission, but at the same time could be considered to be commercial to a greater or lesser extent.

Amendment 59 deals with a similar restriction, deleting sub-paragraph (3), which allows a religious organisation that provides services on behalf of a public authority to be sued for sexual orientation discrimination. Just as many religious bodies engage in commerce, many faith bodies provide public services. Often they supply buildings, staff or volunteers at no expense whatever to the public purse, although the services may be publicly funded. They find themselves in the odd situation that they can continue to make decisions about service provision based on religion—sub-paragraph (3) does not affect that—but if they take account of sexual orientation they can be sued. I find it hard to see why sexual orientation is singled out in that way. That reaches further into the internal affairs of religious organisations than religious discrimination law. I see that amendment 251 seeks to resolve that inconsistency in a way that is even more detrimental to religious organisations, depriving them of the ability to discriminate on either ground.

For most people, the existence of the religious exemptions is not controversial. Beyond those two areas, the Government accept that to apply discrimination law as an unqualified absolute would lead to injustice for religion or belief organisations, because such organisations operate according to a particular set of beliefs that constitutes their whole reason for existing. However, I would be the first to accept that exemptions can also be too wide, and society needs to draw a line somewhere, within which all religions are allowed to operate.

The whole point of the paragraph 2 exemptions is to grant religious organisations freedom to operate according to a particular ethos by limiting the membership, the use of their buildings or the terms of their service provision. If any organisation has funded its building largely itself, it should have control over it and not be expected to hire it out to another organisation opposing its belief. Obviously, if public money has been taken to fund the building, strings would clearly be attached.

My contention is that existing exemptions for religious organisations are inadequate in the two areas of commerce and public service, because sub-paragraphs (2) and (10) completely deprive certain religious organisations of such protection against being forced to compromise the very beliefs that constitute their reason for being. Yet that requirement for protection of an ethos is particularly engaged in those fields of service provision. The principle of a commercial organisation or publicly funded service provider having freedom to resist endorsing views that conflict with its own ethos seems perfectly reasonable.

Ironically, the law has little issue with strongly held points of view that do not happen to fall within a protected characteristic. For example, an eco-friendly printer, run on green principles, is quite at liberty to reject a request to print a prospectus for a multinational oil company. Similarly, the management of a community centre not wishing its facilities to provide a platform for the British National party can refuse a BNP booking, because political belief is not a protected ground. The same principle underlies the exemptions in paragraph 2. To require a religious organisation by law to provide a platform for views fundamentally opposed to its own seems very strange.

Obviously some commercial or publicly funded activities of religious organisations would not by their nature involve any danger of contravening their religious beliefs. For example, I am sure that a Muslim restaurant that adhered to halal principles would gladly serve any customer and that a church that receives public funding to run soup kitchens would distribute the soup to absolutely anyone. In such cases, the client’s religion or sexual orientation will be of no consequence.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Does the hon. Gentleman accept that, if a religious organisation chose to create a soup kitchen specifically for followers of its religion, it would be permitted to do so under the current exemption even though it is a public service or funded by a public authority? I accept that many would not want to do so, but would not many organisations have that option as the schedule now stands?

John Mason (Scottish National Party, Glasgow East)

I am not a lawyer and nor am I am expert on everything that is permitted or not permitted, but I come back to the point of reality against academic theory that was touched on this morning. The religious organisations that I know that run soup kitchens, including Christian ones, do so for the good of people who are suffering and struggling. They just want to help everyone. I cannot imagine an organisation—religious or otherwise—handing out soup in George square or wherever and being selective about it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Using the same language, what about if the organisation was running a school?

John Mason (Scottish National Party, Glasgow East)

A school is a somewhat separate area. We have probably covered that ground, but all pupils are welcome to attend the schools in Glasgow with which I am familiar. The schools are both non-denominational and denominational and are, in effect, Catholic and secular. The school is the choice of the parents combined with that of the children. They always have the choice of two schools to which they are entitled to attend.

The position becomes more complex when the service provision implies endorsement. For example, in printing, an Orthodox Jewish publishing house with no religious exemption because its main activity is commercial has no right to refuse tracts denouncing Judaism. What about a Muslim printer asked to print material critical of the Prophet? Reference has already been made to Roman Catholic adoption agencies. They receive public funding but, in the light of Catholic moral teaching, wish to place children only with married heterosexual couples. Under paragraph 2(10), they will have no right to do so.

In effect, those organisations are being forced by law to comply with a different set of moral values or pull out of providing services completely. When the law forces religious organisations into that sort of dilemma, it is hardly promoting diversity. It excludes people of faith and their faith distinctions from service provision.

David Drew (Labour, Stroud)

Does the hon. Gentleman accept that, since the issue arose of the Catholic adoption agencies, many of them have either closed or have had to change the basis on which they operate? As he rightly said, there has been a collapse in diversity rather than an expansion.

John Mason (Scottish National Party, Glasgow East)

The hon. Gentleman makes an excellent point. The danger is that we end up with a reduction in the total number of services available for children. We need to balance having the widest possible opportunity for a child to be adopted, which many children long for, with the equality that society is seeking.

Real diversity in the delivery of services to the public surely means that faith-based organisations can offer their services according to the values of the religious belief that defines them. After all, that belief often inspired the civic spirit of such organisations in the first place. Likewise, members of the public should be able to access services provided by organisations that share their faith convictions. Other protected discrimination grounds enjoy the benefit of diversity of delivery—a phrase to which reference has already been made. There are numerous examples of organisations that receive public funding, but which address their services to specific constituencies such as ethnic minorities, the elderly and people with disabilities.

Most of us would agree that the selective provision of services carried out on behalf of a public authority is acceptable, and intrinsic to the nature of the organisation’s work and ethos. Compare that with a situation faced by equivalent religious organisations. Lacking exemptions, they can no longer provide religious service instinctively. Either they comply with the law and operate according to values that contradict their own religious convictions, and basically become non-religious—the point has already been made—or they refuse to compromise and close down altogether. Either way, their clients are deprived of a service they wish to receive precisely because of its religious nature. Again, the Catholic adoption agencies provide a case in point. The issue was foreseen, but the agencies’ fears were ignored, and sexual orientation regulations were passed in the form that schedule 23 replicates. I understand that just two weeks ago, the Catholic Children’s Society here in Westminster announced it was closing down because, as its spokesperson said,

“it would be totally unacceptable for our Catholic agency to act in a way that is at odds with the teaching of the Church.”

Before the current law, we had genuine diversity of delivery in UK adoption services. Those who shared Catholic religious convictions about families could access adoption services that specifically endorsed such beliefs and tailored their services accordingly. Those who disagreed with that conviction could access adoption services provided by non-religious agencies. That diversity seems to be being reduced. My point is that the existing lack of exemptions on the ground of sexual orientation for commercial or publicly funded religious organisations creates problems, for both the organisations and the clients their services are intended to benefit.

There has been a fair bit of debate in this Committee as to where religion fits within discrimination law. I hope that as a result, it is obvious that certain features of the current law relating to religion are felt in some quarters to be unsatisfactory. Rather than replicating those elements in the Bill, amendments 58 and 59 would ensure a much fairer and more flexible legal framework that could accommodate the convictions of religious people involved in service provision, while ensuring that exemptions remain open only to those organisations that need them and whose clients stand to benefit from them.

Tim Boswell (Conservative, Daventry)

I have to declare that I am a genuine sceptic regarding what we should do about the matter. I speak as someone who shares the Christian faith with the hon. Gentleman, and I have great respect for his argument. I have not decided, and I would like to listen carefully to what the Minister says on the merits of the amendments. As the hon. Gentleman said himself—this is a substantive issue, but not the one on which I will spend the most time—there is a balance to be found. Neither he nor I wish to reinsert or smuggle in some kind of discriminatory practice that would rightly distress people, and which might be felt, not just by secular people, to be unacceptable. On the other hand, we want to enable those who are acting within the tenets of their religion—we need to respect their good faith in doing so—to have as much flexibility as they can. I would probably strike the balance in a slightly different place from the hon. Gentleman on the issue of adoption agencies, but I do not want to dwell on that. I think we all hope to listen to the Minister carefully on the way in which she defines the grounds.

I rose because I wanted the hon. Gentleman to tell me about amendment 58 in relation to organisations. I think there is an implicit ambiguity in the schedule that may give rise to difficulty, and which is, at least on its own merits, worth exploring, although it is the less obviously politically or religiously sane of the two issues. The question is: what is an organisation? The hon. Gentleman mentioned, for example, a Catholic book shop that clearly is trading commercially or is required to do that. It could trade on one of two potential business models: it could either be “seeking to make a profit”, which would then be ploughed back into faith practice or into extending its activities in terms of the shop itself; or it could provide a service, possibly at a discount, to disseminate its faith without making a profit. Whether those are different in conception, I am not sure. Whether that would differentiate those two models—this would be a matter of religious test—in terms of whether the sole or main purpose is commercial, I am not sure either.

There is also the question of control, which we have touched on in relation to going beyond merely being a priest, officiant or representative, into other activities conducted in the name of religion. Is that particular activity under the control of the Church or religious body—is it, as company lawyers would say, a subsidiary?—or is it a free-standing body that happens to have a faith tag and is largely populated, led by or brought into existence by people of faith?

I would not be at all surprised if the Minister said, “Well, that will be a matter for determination in each particular case.” The difficulty with that, of course, is that if we do not have some handle on this issue—if it is not covered under Pepper v. Hart, for example—we do not really know how we are approaching it. I have not tabled an amendment to this schedule, but I wonder whether we should be probing a little further into whether the term “an organisation” should be extended to bodies for which it is primarily responsible, or for whose direction it is answerable.

I do not have the right words but I think it right to expose the issue, which might be overlooked, because it is apparently less important than the more politically salient issue of whether we should have religious adoption agencies where that is felt to be outwith the tenets of the faith. Both issues are important, and on this occasion—perhaps not for the first time—I shall hang on the Minister’s words.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am pleased to be able to catch your eye, Mr. Benton, as I have four amendments in this group. The hon. Member for Glasgow, East raised an important issue. Although a rerun of the sexual orientation regulations debate is not appropriate here, two things need to be said with regard to Catholic adoption agencies.

First, the Government were absolutely right to do what they did, and the consequences have not been bad, in the sense that the sky has not fallen in. The vast majority of organisations have been able to make arrangements to ensure that they do not discriminate on the ground of sexual orientation against the people with whom they place children. I think that everyone would recognise that those organisations do a good job and that their main aim is to look after the welfare of children. The case was made and voted for in this House—many Conservative Members voted for it—that gay parents are decent parents and can be good parents, and there is no basis for discrimination against them by people placing children, which is a public function.

Emily Thornberry (Labour, Islington South and Finsbury)

As we are making that point, the largest group of MPs who voted for that consisted of Labour MPs.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Yes. I think there were rebels in all parties, but there was cross-party consensus. My point is that there was a big majority in the end. I suspect that the hon. Member for Daventry voted along those lines, as well, as his record is good and on such issues, he was always associated with the views of the hon. Member who is now the Speaker.

Catholic adoption agencies have not turned out to be a problem. The problem is that if one says that organisations should be allowed to discriminate on the ground of sexual orientation because of their doctrine, one gets into difficult territory. Gay people might feel that they should not be discriminated against simply on the basis of doctrine, because historically, some Churches—fortunately none of them exist in this country—have had doctrines against mixed marriages, for instance; the Dutch Reformed Church of South Africa is a good example. That is just as offensive to people on the receiving end as discrimination in the public sphere or the commercial world, and they should be protected against it.

However, having said that, I have some sympathy with the problem that the hon. Member for Glasgow, East identified—he might want to listen carefully to this—of printers seeming to endorse something that they do not. That issue was not raised specifically during the passage of the sexual orientation regulations and the Equality Bill in 2006, but en passant; however, it was not dealt with in these terms. The hon. Gentleman makes an important point. I have much more sympathy for commercial organisations having the right to discriminate—such as Muslim organisations that do not want to print something hostile to the Prophet; or, indeed, Christian organisations that find that because they are commercial, they must print something satanic—than I do for organisations delivering a public service having such a right. If the Government were in the mood to negotiate—I suspect they are not—perhaps a quid pro quo could be arranged to provide more scope for commercial organisations, particularly in the field of printing, not having to seem to endorse something, and to provide some scope on public functions. I shall reflect on what the hon. Gentleman said about that example.

David Drew (Labour, Stroud)

One problem is that some of us believe there should be a distinction between public and private bodies, but in these days of outsourcing and externalisation of contracts, where does one draw the line? It is impossible to know.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman makes a good point, but it is possible to draw a line, and the Bill does so in other areas. I drew attention to the positive duty in clause 143, and the Government rightly drew the line at a public authority or someone under contract to a public authority or otherwise performing a public function. I hope he will consider further that there may be scope for recognising that when an organisation is delivering a public function, it often does so to a vulnerable and captive group of people who should not be discriminated against. Many religious organisations do not discriminate. I accept 100 per cent. that many do not, but some do and we believe that a line should be drawn around delivery of public functions, even when that is outsourced. I have made the point before, so I will not make it again.

Amendment 295 explores commercial activity. It raises a genuine issue that arose in our evidence sessions. Paragraph 2(2) states that

“an organisation whose sole or main purpose is commercial”

cannot make use of the exemptions. That is fairly wide, because it covers Christian and Muslim printers. Unfortunately, it does not cover public functions that are not solely or mainly commercial. The purpose of the amendment is to probe the Government on whether an organisation that is just bidding or tendering to carry out public functions on behalf of a public authority is in the commercial world. Adoptions R Us Ltd might have a religious basis, but it would be solely or mainly commercial. If the Solicitor-General agrees, perhaps there is less of an area that is not appropriately covered.

The other way of looking at the matter is to consider the activity, which is what amendment 296 explores. It would add to sub-paragraph (7)(c): where this

“is not a commercial activity.”

It is not duplication because sub-paragraph (2) refers to an organisation that is commercial. The church hall example is a good one. There was a clear disagreement in the oral submissions that we heard from Stonewall, which had a clear view on the Government’s example in their explanatory notes—I hope that they will put their opinion on the record, which the Solicitor-General attempted to do in the oral evidence part of our proceedings—

“A church refuses to let out its hall for a Gay Pride celebration as it considers that it would conflict with the strongly held religious convictions of a significant number of its followers. This would not be unlawful sexual orientation discrimination.”

Is that an organisation that is solely or mainly commercial? If the letting out were done by a sub-organisation that existed to let out or manage the church hall, it would be solely and mainly commercial, but if the church let it out without the involvement of the sub-organisation, it could not be said that its sole or main purpose was commercial. Even before considering the role of mammon, that would not be its main operation. Is it right that it should be acceptable in one setting and not in another to discriminate against, for example, the lesbian and gay Christian movement solely on the basis of how the church letting operation is organised? That seems to create arbitrariness, rather than dealing consistently with a mischief, if there is a mischief.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman makes some reasonable points, but does he not agree that there is danger in this regard? Although there may be good, sensible organisational reasons that reflect management theory, if one dares put it that way, for a separate organisation to be set up to focus on the specific subsidiary activity of letting the church hall, allowing the parish priests to get on with their pastoral duty, it would be bizarre if something that was sensible in administrative terms created a difficulty in terms of potential liability under the clause. My point possibly reinforces the one that the hon. Gentleman is making.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman’s point is the corollary to mine, which is that, if I am right, there would be a disincentive for the church to delegate the renting operation. We should come to first principles. Is it right that a hall can be let to all sorts of organisations, except gay organisations? That is wrong. Therefore this provision ought to be tightened up to make that clear, because we are considering the ends; it should not be about organisational matters.

John Mason (Scottish National Party, Glasgow East)

Again, I wonder about the practical implications of what the hon. Gentleman suggests. If a church cannot control who it lets its hall to, I suspect that a lot of churches will not let them at all. People would suffer as a result of our becoming strict on this point, including the single mothers who are taught how to cook by a community group in my church’s hall.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The same argument was used in respect of gay adoption, when people said, “If we’re not allowed to discriminate, we won’t play and we’ll take our ball home.” Those terms were used in the debate about Catholic adoption—not by me, but by Labour and some Conservative hon. Members when describing that attitude. It is blackmail, essentially—I do not mean that in a particularly nasty way. Essentially, people are proposing to withdraw their service if they are not allowed to discriminate. Of course, they will lose money as well, so it is their decision to make.

I am asking the Government what they think the situation is with regard to a church in the two positions that I have mentioned.

My final question on the amendment is as follows. If someone wanted to rent a church premises to put on a lawful play—perhaps “Jerry Springer: The Opera”—that some people do not like, and if those premises were not used for religion any more but were owned by an organisation that existed to look after and rent out those premises, would it be okay for such a commercial organisation to say, “Because this is sacred ground, we’re not going to allow you, as an organisation, because your activity is non-theistic or atheist, to rent our hall”? It would be interesting to know whether that would be religious discrimination or whether it would just be picking and choosing what activities are allowed in a church hall.

I have already dealt with my proposed amendment to sub-paragraph (10), in the sense that amendment 251, which would insert the words, “or religion”, asks the Government to say that those organisations delivering a public service should not be allowed to discriminate on the basis of religion. I have explained previously, so I will not do so again, that without the amendment, when combined with the public sector duty to promote equality of opportunity, the current provision may lead to other religions seeking their own specific service as soon as public services are delivered to one religion only. I do not think we want to go down that path.

Amendment 305 was tabled so that I can ask why the restriction that currently only relates to sexual orientation, but which we believe should apply to religion as well, only relates to section 27, which deals with services, and not to other parts of the Bill dealing with premises and associations, for example, which, by analogy, might be regarded as being related. I may not have understood the architecture of the Bill.

This has been a good debate that was appropriately short, given that we have debated these things before.

Vera Baird (Labour, Redcar)

The Government sought to obtain a difficult balance as long ago as the passage of the Equality Act 2006, and reasserted that balance in the Equality Act (Sexual Orientation) Regulations 2007, so there is nothing new under the sun, and not terribly much in this debate, I am afraid, compared with previous ones. We think that we have found the right balance, and the amendments would change it in one way or the other.

Amendment 58, for instance, would extend the exemption for religious and belief organisations to cover even primary commercial organisations, so an entirely commercial enterprise such as a Catholic bookshop could presumably refuse to serve someone because they were Jewish.

Amendments 295 and 296 were tabled, I think, to enable the Committee to consider where the line should be drawn. Much would depend on the specific details of any case about what is or is not a separate organisation.

The hon. Member for Daventry raised the question of when something would have a solely or mainly commercial purpose, and when it would not. He predicted the only answer that I can give, which is that we put the best definition we could come up with into the clause. It will be a matter not of mathematical percentages but of a court, if it comes to that, making an assessment on the basis of the facts in each case.

Certainly, if a church kept a commercial activity to itself it would have more scope for discriminating than it would if it subcontracted to a separate company, even though the activity would take place under its auspices; the subcontractor would be likely to be a different organisation from the church or other organisation. So although I can see that, at the edges, the provision might look faintly odd, it is none the less as good a way as can be thought of to set out what is intended.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Has the Minister considered referring to an activity that is commercial? That would give much more certainty, given the problem, which she quite fairly recognises, about when an organisation is a religious organisation, and the degree to which the management is contracted out. Thinking about it as an activity would clearly take away any of the liturgical stuff, and the stuff that the church does as its main activity, and would just leave the commercial activity that a church might be involved with free from discrimination.

Vera Baird (Labour, Redcar)

The definition is posited on what I think is the sensible thing: the purpose of the activity, rather than the activity itself. The question is whether it is solely or mainly commercial. That must be the right approach.

Amendment 295 could potentially mean that any organisation that could not be considered solely commercial could take advantage of the exemption, even if it was predominantly commercial. The effect of amendment 296 would be that if a particular service provided by a religious or belief organisation was commercial, it would fall outside the exemption, where the issue was sexual orientation discrimination, but not where it was religion or belief.

The church hall example stands. Under the amendment, if there were, for instance, a nominal fee for use of a church hall, to contribute towards its maintenance costs, it would be possible to refuse to let the hall to people whose religious beliefs were offensive to the followers; but that would not apply in the case of a gay or lesbian group, even if letting to that group would—and it is hard to understand why it would—outrage some particular members of particular religious communities. The question is really one of trying to achieve balance and proportion. The test seems to us to be the right one.

Amendment 305 would operate in different ways, specifically with respect to the performance of functions by a religious or belief organisation, if it was under contract to a public authority. Paragraph 2 of schedule 23 does not allow discrimination on grounds of sexual orientation in the provision of publicly contracted services. However, it does in theory allow such discrimination in relation to disposal of premises, and management of premises in which the organisation retains an interest, if the other requirements in the paragraph are met. It is hard to see how a contract with a local authority would affect that. I cannot see the point of the amendment, but the hon. Member for Oxford, West and Abingdon makes it clear that his amendments are probing anyway.

A small group of people from the local Anglican church getting together and organising Christmas lunch for the needy in their religious community is one thing, but the Church House bookshop is quite another. Bookshops, hostels and the like could have a religious or other ethos, but they are essentially commercial. The Government’s position in that regard is clear: commercial organisations should provide goods, facilities and services without prejudice. However, not-for-profit organisations, which may engage in some level of commercial activity to support their wider activities, should not automatically be excluded from the benefit of the exemption in paragraph 2.

Amendment 59 also covers familiar ground. The amendment would allow a religious or belief organisation to discriminate on grounds of sexual orientation, even when acting on behalf of a public authority. That brings us back to the much-discussed issue of Catholic adoption agencies. The Government made it clear when the regulations were introduced that there would be no specific exemption for faith-based agencies offering publicly funded services, and that remains our position. However, we did not, as the hon. Member for Glasgow, East asserted, disregard the concerns of faith bodies at all. Significant funding was made available to help all of them to understand the regulations, which they said was extremely helpful—£500,000 was given to voluntary adoption agencies to help them to understand and tailor their services so that the regulations were complied with. Most agencies have moved to an open policy: assessing same-sex couples as prospective adopters too. There has not been any impact on services. I am in the rare but happy position of agreeing totally with the hon. Member for Oxford, West and Abingdon that the change has done no harm and was right.

To clarify, a Catholic or other religious adoption agency that did not accept public funding would be able to benefit from the exemption in paragraph 2, because it would only be prevented from discriminating on the ground of sexual orientation if it was acting on behalf of a public authority. I hope that clarifies the matter for the hon. Member for Glasgow, East.

Amendments 59 and 251 address the same topic from opposite directions. The difference in approach between religion and belief and sexual orientation is justified. There could be a legitimate reason why a local authority chooses to contract a number of organisations to provide a particular service, including a religious organisation that only provides that service to those of a particular religion. The provisions are not new. It is entirely legitimate for a council to contract a Jewish organisation to provide kosher meals on wheels, but we cannot envisage any circumstances in which a religious organisation providing a public service should legitimately be allowed to provide it only to those of a particular sexual orientation.

There must be a balance. The issue has been debated many times—not least in the Committee—and whether the balance is right is a thorny question. However, there were debates before the Equality Act in 2006 and the regulations in 2007, all of which have informed where the line is drawn, and we think that we have the balance right. The fact that two completely conflicting amendments have been tabled also cheers me into thinking that we have the right balance.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I want to respond on two points. First, there is nothing wrong with asking a Jewish organisation to deliver kosher meals—we cannot prevent such an organisation being a provider when a secular one is allowed. However, is it necessary to restrict the delivery of kosher meals to Jewish people and prevent delivery to Muslims, if they are happy to take the food? Even if the function is a public one, funded by public money, that is unnecessary.

Secondly, will the Minister consider further the interesting example that she gave? In her response she recognised the point—perhaps I recognised her point—that if a Christian bookshop is a commercial bookshop, it cannot refuse to serve Jewish customers. In the analogy with the church hall, however, if the church runs the bookshop, the organisation is not mainly or solely commercial. Therefore, if that bookshop is not, in fact, delegated to an organisation whose purpose is solely or mainly commercial, we could have a situation where a bookshop of one religion would be able to discriminate. I do not mean to use the example of Christians discriminating against Jews as I do not believe that would ever happen, but there might be examples in other cases. Therefore, there is a problem,

Interestingly, in her response the Minister talked about the activity being commercial.

Vera Baird (Labour, Redcar)

The purpose.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister is right, and I am glad that she has corrected me. She said that the purpose needs to be commercial, but that means the purpose of the organisation. My case is that it might more satisfactorily meet the problem of a bookshop that is not delegated, if the language referred to “The activity, the purpose of which was solely or mainly commercial”. I think that covers all bases, and I hope that, even if she does not rise to respond again, the Minister will consider that. That might solve the problem of the fact that churches and religious organisations can now see how to get round the solely or mainly commercial aspect, by not having a subordinate organisation running that activity.

Vera Baird (Labour, Redcar)

We think that the way we have done it now is better. It is up to organisations to manage themselves as they see fit. I am prompted to say that a bookshop is not likely to meet the other criteria anyway, so how it is organised probably would not make all that much difference in the example given by the hon. Gentleman. That is where we are; we think that we have the balance right, and I invite the hon. Member for Glasgow, East to withdraw his amendment.

John Mason (Scottish National Party, Glasgow East)

I have listened to what is being said. I am encouraged by the Solicitor-General when she uses words such as “difficult balance” and “proportionate”, which to be fair she has done throughout the sittings of the Committee. That is what we are all looking for.

I am a little disappointed by some of the other comments. I wonder whether the evidence supports the idea that there has been no problem or loss of service, when adoption agencies are closing down. The examples of a bookshop or publisher not serving somebody were definitely not what I was aiming at. I have no problem with legislation saying that a bookshop or a printer must serve anybody who comes in. The problem is about the material. Is the bookshop being forced to sell or publish material that it is not happy with? Is the printer or the website designer being forced to produce material that they are extremely uncomfortable with? That would require some negotiation, as was suggested by the hon. Member for Oxford, West and Abingdon, and I agree with him about that. Perhaps somebody could look at that point later.

The issue of religious organisations being provided with funds to understand and tailor their practices is, I think, a draconian method whatever it applies to. It implies, “We will not discuss it, we will just give you money to understand us.” On the basis that all those matters have been discussed, I beg to ask leave to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 306, in schedule 23, page 237, line 8, at end insert—

‘(4) Sub-paragraph (1), insofar as it relates to gender reassignment discrimination, does not apply in the case of a person who holds a gender recognition certificate’.

Tim Boswell (Conservative, Daventry)

This may further complicate the matter, but there are two types of gender recognition certificates—an interim certificate and a definitive one. The Minister will need to respond to that point, because the situation will depend on whether someone has entered the final stage.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman is correct. I am happy for the Solicitor-General to consider both cases. Like me, he is a veteran—a very young one of course—of the Gender Recognition Bill, which was enacted in 2004, and we remember debating such issues in detail then.

A man has transitioned to a woman and, for the sake of my example, has a final gender recognition certificate. The question is, if an organisation does not permit that woman to access services that are for women on the basis that they used to be a man, is it discrimination on the basis of gender reassignment? Given that everyone else who is using those services is a woman, how could that person argue that they were being discriminated against as a woman in not being allowed to access those services? Will the Solicitor-General educate me as to how that could be seen as gender discrimination? I am getting out of my comfort zone here. To say, “Yes, women can come, but you can’t come even though you are a woman” would be gender discrimination. It is intended as gender reassignment discrimination, it is received as that, but the question is whether it is covered in law.

My fear is that without something like the amendment, which is probing in this part, that doubt—or even legal loophole—remains on behalf of the provider and the recipient, and it perhaps applies in the other place where we came across this.

I should like to make a stand part point, because we do not have the opportunity to have a stand part debate. The Government have been right to recognise that the schedule does not permit, for example, Catholic adoption agencies to discriminate against people on the basis of sexual orientation. The Bill, quite rightly, closes down the loophole whereby charities might try to change their instrument. The proportionate and legitimate test, which is welcome, will stop charities from wasting their time trying to get around the provisions of schedule 23 by approaching the Charity Commission.

I rest my case and just say that we would like clarification on the point that I have made.

Vera Baird (Labour, Redcar)

The amendment would reduce the scope of the exemption that applies in the provision of communal accommodation, so that a provider could not justify discriminating against a transsexual person with a gender recognition certificate. The Gender Recognition Act 2004 is intended to provide transsexual people with legal recognition of their acquired gender. That is what it is for. It is not something that people will carry about as a sort of identity card. It has its own purpose. The hon. Gentleman’s amendments may suggest that gender reassignment might be obvious or that it might be that that is how someone deals with a certificate, which we do not think is awfully likely. In limited circumstances, it might be reasonable to permit different treatment of someone with a gender recognition certificate in the provision of communal accommodation, for practical reasons of privacy. That is the point of the availability of the provision.

The example would be a female-to-male transsexual, who may not have had any surgery but remains physically female and may not want to be accommodated in all-male accommodation. We do not want to discriminate against transsexual people, especially those who have gone through the rigours of getting a gender recognition certificate. We want to allow for the provision of sensitivity in that narrow area. The clause is carried over from the sex discrimination legislation, and in 15 months of operation we have not been aware of any incidents of discrimination arising from it. It is there for purposes of availing parties of sensitivity if necessary; we do not expect it to be used much.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I shall reflect on what the Minister has said. I thought that the example that she was going to use was that of a provider of communal accommodation not wanting to allow someone who retained the physical characteristics, or some of them, of their original or birth gender into accommodation; therefore, whether or not they had a certificate, they would be entitled to do that. Her example was framed in the way of protecting the individual at the request of the individual, which I need to get my head around. I assume that both could apply. I accept that that gives us an example to work with and to go away and think about.

If there are people who have a certificate who have not had surgery, it might be a problem for other users of facilities—for example, changing rooms—if there was someone there who looked remarkably like someone of the other gender, even though they had a certificate. I accept the Minister’s point, therefore, and I shall need to take it back to organisations that represent the transgender community. It may well be that there is a stronger argument to provide that here than there is for the exemption to be allowed for employment. I invite her at least to consider whether we can legitimately transfer the Sex Discrimination Act 1975 provisions, post-Gender Recognition Act 2004, in the case of employment, as she makes the case for doing in the case of services. Given that she has provided me with an example to go away and think about, it is not my intention to seek to divide the Committee. If she has no intention of saying anything further, I beg to ask leave to withdraw the amendment.

Clause 190

John Penrose (Conservative, Weston-Super-Mare)

I beg to move amendment 30, in clause 190, page 135, line 23, at end insert—

‘(5) An order under subsection (1) may only be made if the Minister can demonstrate that persons of a specified age are being discriminated against for no legitimate reason.’.

It is a pleasure to see you in the Chair this afternoon, Mr. Benton.

This is my first opportunity to speak in Committee on this particular issue, and I start by making it clear that the intention behind the amendment has changed since it was tabled. When my hon. Friend the Member for Forest of Dean and I first tabled amendment 30, it was intended to be the first in a series of substantive amendments to explore what then looked like a rather knotty and thorny problem posed by clause 190, whereby the Government seemed potentially to make many hitherto legitimate business models illegal, but say, “We’ll come back later and work out which ones are okay in due course.” There was a great deal of concern—about which I know that the Minister is aware because she commented on it in Committee—in the House and outside that that was not the right way to proceed. People were very nervous about the potential chilling and destabilising effect on some hitherto entirely legitimate businesses.

However, since we tabled the first amendment—we are preparing to table the rest of our slew of substantive amendments, helped by organisations such as Saga—two important things have happened. First, the Minister has already put some comments on the record in Committee, in an earlier debate on age discrimination. She was kind and clear enough to say to the Committee and the world outside that the Government did not intend to make that part of the Bill operative and put it into law unless and until they had completed a proper consultation process, and that they had worked out what the resulting secondary legislation might be. She said that it would all be clear in advance and that everyone whose businesses are potentially at risk would have a chance to make a case and explain why they thought that their particular versions of age differentiation were legitimate and should be allowed to continue without fear or favour from the law. That was tremendously reassuring.

The second reassuring thing was that, hard on the heels of the Minister’s comment, the Government published—the Minister also made this clear to the Committee—the consultation document. I have a copy here. In the introduction, it has the happy face of the other Minister on the Committee, the Parliamentary Secretary, Government Equalities Office, smiling out from the start of the ministerial foreword. That further reassures not just Members of my own party, but hopefully several people outside, that the Government are very serious, not only in their commitment on the timing—they restate that commitment in the document—but in the questions that they are asking. They are clearly trying to ensure that they give due weight to hitherto legitimate sources of business.

As a result, instead of being the first of a series of substantive amendments, we have decided to make amendment 30 a solitary probing amendment. Quite a lot of the questions and issues that we wanted to raise have already been, if not answered, asked in the Government’s consultation document. Therefore, it is appropriate that we have a chance to put on record our support and approval for much of the Government’s approach in the consultation.

The Minister, I am sure, would not expect us to give a blank cheque to the Government on the proposals that they make when they have the results of the consultation. However, the way that the matter has been phrased so far, the approach that has been taken and the assumptions that have been made are, in many cases, reassuring to many people outside. As I said, we will have to wait and see what the final version is and how the Government respond to the submissions that they receive during the consultation, but that is the reason for the change of intention behind amendment 30.

I would like briefly to pick out several matters from the Government’s consultation, which I think go to the heart of the points that we were seeking to raise as part of the amendment. Most reassuring, I think, is the first part of the executive summary on page 5, where the Government say:

“Age is a valid criterion in the provision of many services and interfering unnecessarily would not be in the general public interest.”

It will be tremendously reassuring to many businesses that differentiate on the basis of age that the Government accept that in theory. I appreciate that there may be those that do not qualify, but it is a pretty good starting place. Speaking for my party, the second half of that sentence, which annunciates a clear conservative—with a small “c”—principle that interfering unnecessarily would not be in the general public interest is particularly good. It implies that businesses that already have well-established business models and are well-used by many members of the public should have little or nothing to fear—we hope.

There are several examples of, in the phrase that my hon. Friend the Member for Forest of Dean used, good age discrimination—I shall call it age differentiation—as opposed to genuinely bad age discrimination. The Government devoted an entire chapter in the consultation document to health and social care, on which they had commissioned a special report. I congratulate them on getting a heavyweight couple of people to lead the report, one of whom is Sir Ian Carruthers, the leader of the South West strategic health authority, which covers my the constituency of Weston-super-Mare. He is an extremely able individual of high calibre, so the Government clearly put in place high-class leadership. We await the results of the report.

The consultation began on Monday and is due to finish during September. I think that Sir Ian’s team is due to report in October, so perhaps the Solicitor-General can confirm the details of the Government’s expected timetable thereafter because clearly they will need time to examine and digest the recommendations and evidence that are submitted. Given the Bill’s passage through the House, Conservative Members would be grateful if the hon. and learned Lady considered whether it would be possible to include the provisions that might otherwise be expressed in secondary legislation in a separate schedule. I am conscious that the Government have already done that for other issues, such as in part 6 of schedule 3 relating to sex discrimination.

If time allowed, and it were possible to put the Government’s analysis of the consultation into a similar schedule, that would reassure many people outside because they would know that they would be less likely to be hit with other stuff coming in later under secondary legislation. Will the hon. and learned Lady let us know whether the Government’s envisaged timetable would allow that to be done? I appreciate that time might be tight and that it would depend on decisions made by the usual channels about when the Bill will come back in the autumn.

I have already mentioned health and social care, but other areas will also be affected. Although obviously related, financial services and insurance are different and will be especially affected by the provision. Many organisations are involved in insurance for people of different age groups, the classic example being car and travel insurance. It is clear that age is an important factor in assessing risk. Both the Government and others have already said that the risk incurred by drivers is pretty high for those who are under 24. It drops dramatically after that and, after the ages of 65 or 70, starts to do two different things. The risk per mile travelled might start to rise, as age inevitably starts to take its toll, and the number of miles travelled frequently drops so the aggregate level of risk that has to be reflected in the premium price might have unexpected results. Not all insurers are comfortable with that, and they do not necessarily understand all the details when, clearly, accurate pricing is crucial.

It is vital that such matters are understood and that the Government accept that it is possible for risk to vary, as I have described. The Minister is nodding and, to be fair, the Government mentioned that in the consultation document, which is welcome. Equally, in other financial services, such as savings products, it is legitimate for different types of financial advice to be given to savers depending on their time of life. The type of financial instrument that a person might legitimately be sold or offered, and which may be in the person’s best interests, would be different if that person was approaching retirement age, for example, compared with someone at the start of their working career.

Tim Boswell (Conservative, Daventry)

To embellish my hon. Friend’s point, would it not be a dereliction of duty by a financial adviser if he or she were not to differentiate the advice according to the age and circumstances of the client?

John Penrose (Conservative, Weston-Super-Mare)

My hon. Friend is absolutely right and there are a number of factors that a reputable and professional financial adviser would take into account.

Other sectors are heavily affected. I have already mentioned travel insurance but holiday provision as a whole is important. The two examples most often cited are Club 18-30 and Saga, both of which the Government expressly mentioned in the consultation document. Their starting point for the consultation—the “ingoing” assumption—was that those business models are entirely legitimate and sensible and should be allowed to continue in future.

Interestingly, the Government are less happy with organisations that have a blanket ban on, for example, people under 21. I would be interested to see if I have divined the underlying purpose of the Government’s thinking and would like the Minister to address that. The Government seem to be saying that they are minded to accept things that are of positive benefit to a minority—a particular band of the age range—such as cheaper discounts on food for people over 60, and I am trying to divine a common thread here, but something that is in some way derogatory or negative about a minority group, such as “We don’t like people under 21”, is an example with which the Government are generally much less happy. I would be interested to see whether that is the underlying thread and logic of the Government’s thinking, or whether they are trying to introduce a different kind of principle. It would be helpful to understand that.

I have one additional question, which is to do with enforcement. The range of different areas that have to be covered in the consultation document, which the Government will have to enact in a schedule or secondary legislation, means that the enforcement of the duties might have to take a different form. I expect the Government to say that their approach to enforcement and to preventing age discrimination, once they have defined what is and is not allowable, in the health service is likely to be different from their expectations of financial services firms, which will be different again from their expectations of insurance firms—financial services firms and insurance firms are regulated, but not public sector.

The way in which the Government expect to regulate the hospitality and catering or holiday trade will again be different. I would be interested to know whether the Government envisage this being done, for example, through the tribunal system, which we have already addressed when considering other aspects of the Bill—I suspect that that will not be satisfactory for the matters that I have just described—or whether some of it will be done via the existing regulators. I am not sure that that is a sensible approach, but it would be interesting to understand what the Government are planning, and how they expect to deal with the services provided entirely or primarily through the public sector, such as health and social care.

With those points, I hope that the Minister will accept the different intention behind amendment 30 and the fact that we are trying only to probe the Government’s intentions, which have already been outlined in the consultation document. I hope that she will also accept that we are broadly supportive of much of the approach in that document. Clearly, we will have to wait and see what the results of it are, and perhaps the Minister can answer the questions that I have raised.

John Howell (Conservative, Henley)

I want to pick up on a point that stems from a remark that my hon. Friend made about interfering unnecessarily. I want to probe where the boundaries lie and try to get a feel for the extent to which the Government are prepared to consider what one might call an additional granularity. I suppose it becomes apparent in the financial services sector, particularly in the insurance part.

I am conscious of the discussion that we had in the fourth sitting of the Committee, particularly the discussion that the Minister and I had, when we looked at the current business model for the insurance industry, which tends to have broad bands. She made the valid point that if we had a band between 65 and 75, the risk lay at the 75 end rather than at 65 plus one day. I would like to get a feel for how “interfering”—if I may use that word; I do not mean it pejoratively—the Government are prepared to be as a result of that, and whether they would look for a different risk model that was more finely tuned.

I know that that prejudges the consultation to a certain extent, but the Government have already prejudged some aspects of it. Page 11 of the consultation report gives an indication of the changes that might come out of such a measure, one of which is that it will be easier to find travel and car insurance. There is be much to be welcomed in that, but there is also a question about whether travel and car insurance will be easier to find at a better and more differentiated cost. In that context, it would be nice to know where the Government see the boundaries—and the boundaries of their actions—starting and stopping.

Tim Boswell (Conservative, Daventry)

I suppose that, in a sense, we all have an age, and therefore any of us could potentially benefit from relief from discrimination under the clause. It is probably appropriate for me formally to declare my interest as a pensioner before we start. I welcome what the Government have done so far, as well as the endorsement of my hon. Friend the Member for Weston-super-Mare. We are edging towards something that looks like a sensible conclusion and, not for the first time, I think that the consultation document is good and workmanlike. It exposes the issues and provides a chance to take us further forward.

Beyond that, two things are welcome. First—a subject touched on by my hon. Friend—is that there is a clear wish to avoid issues of age differentiation that are seen as beneficial to the service user. That seems entirely sensible and to encapsulate it, we could call it the Saga Holidays problem. That is now on the way to being sorted, although I might come back to it in a moment.

Within the rubric of the Bill, or at least in the practice of Ministers when looking for exemptions after the consultation process, perhaps we should say that anything that is of positive benefit to the service user is all right. The concerns are about avoiding actions that are discriminatory or derogatory to anyone else who is not able to avail themselves of something, or is excluded from the service. A paradox of the situation is that it has tended to focus on the non-availability of Saga Holidays to the over 50s, rather than the fact that there might be other services that are more appropriate for other people.

John Howell (Conservative, Henley)

In the spirit of making an open statement, my hon. Friend pointed towards me when referring to the under 50s. I must tell him that regrettably I am eligible for a Saga holiday.

Tim Boswell (Conservative, Daventry)

We must not turn this into a commercial and we shall not do so. I will not ask the Committee collectively to declare eligibility, as that could even amount to harassment. Let us say that if something helps people and widens the market or the range of choice, that is fine.

Speaking as an older person for the purposes of the argument, there will be occasions on which people hear something that may be a little disturbing, such as when someone at the age of 65 has to ring up their insurer and say, “I’m going to Tuscany next week. Am I still covered or is there a loading?” I have had no difficulty with that yet, but I realise that it could become a problem. The consultation paper touches on some of those issues.

John Penrose (Conservative, Weston-Super-Mare)

To encourage my hon. Friend, if he finds that his existing insurer ramps up the price to what he suspects is too much, research shows that there are other providers out there. The range is narrower, but in most cases people can find themselves insurance in most sectors, although not all, if they look further and provided they refer to other providers in due course.

Tim Boswell (Conservative, Daventry)

I will use that opportunity to alter the order of my remarks. A few years ago, the Government introduced a rather good concept, which, like some of their other initiatives, seems to have petered out. It is the concept of no wrong door, which is usually considered in the context of public service. It says, “If we are not the people to deal with the issue, we know someone who is.”

In the same way, one of the areas that is touched on in the consultation paper that is quite important is where individuals find that their particular insurer is getting pricey, maybe just because they do not have particular experience of the market for older people, for instance. The insurer might have some obligation—perhaps built in through the great financial regulation system—to say, “We are no longer economic in this area, but you ought to go and see the following six people.” A fit, older person who wishes to travel does not want to have a row about the particular underwriter. They want the insurance, and they want to get it reasonably simply, without a great deal of hassle.

We are genuinely feeling in the right direction on this. However, I sense a tension and I do not wish to contribute on the next amendment. I feel that there is a genuine concern here, because I have obviously read what I take to be the import of the next amendment. Among those on the Liberal Democrat Benches, there is a wish not to sit back and let the whole thing take a huge amount of time. The benefit of a proper consultation, whether or not the Solicitor-General can bring it to the House before we conclude the consideration of the Bill, or perhaps even after its consideration by another place, I will not debate now, but we need to take our time.

There is one specific that the Minister needs to do concomitantly now, which is to make it clear that the consultation is happening. I have reason to think that Saga will be aware of it. Having reread its earlier briefing, one realises, as it said, “If something is not done, or we do not get clear assurances, we will be illegal and be in potential difficulties.” I am using shorthand here, but it is important that the word go out that there is reinsurance.

People do not have to rewrite their, in my view, reasonable business models now. They must first, of course, contribute to the consultation exercise. They will then have a perfectly reasonable time to restructure their activities. I notice that the Parliamentary Secretary, Government Equalities Office, is nodding. The point is understood: if we are to do this properly, which clearly we are setting out to do, we need to do it in good faith and get it right.

Moving on, I want to make two points, which, in a way, are designed to inform my view of the consultation exercise. The first is something I touched on in earlier exchanges with the Solicitor-General. If one is looking at the negative side of discrimination, one should keep that to the minimum by trying wherever possible—I do not mean in an artificial way—to unbundle and segment the particular sets of business decision being taken.

The case that I was most struck by in the consultation document was that of vehicle rentals. It is well-known that young people have a difficult insurance experience. The question is, should the cost be tailored according to the age at which they take hire of a vehicle? Should it be for service providers to seek objectively to justify age-based pricing or to provide a specific exemption? That is the sort of issue that was set out in the document.

My view is that it is a lot easier to deal with those issues if the particular services are broken down—the car rental and the insurance accompanying a car rental. It may be that people will want to bundle those off. However, if we are concerned to deal with the discrimination, we should look at whether, for example, it is possible to say, “Renting a car has the same kinds of cost per kilometre whether someone is 21, 71 or 51, and that should be a flat rate, although of course we take into account your insurance and driving experience, which might affect the total net you have to pay.” That may sound like a slightly logic-chopping argument in terms of how we get there, but it is designed to expose the fact that there could be covert discrimination, which may or may not be justified in getting to the process.

We come to the final point, and I would value the Solicitor-General’s comment on the merits. I continue to have an interest in people of the younger generation, too. Let us consider rentals for persons under the age of 21. Having been a Minister with responsibility for students, I know that occasionally young people are not the best of tenants and that things happen. I can understand why landlords might need to be fairly cautious in their lettings. If that is objectively justified in respect of a particular age group, there is justification for reflecting it in the law.

It is also possible that people will go from the significant age signature to a proxy, such as students. They are not a protected characteristic in the context that we are discussing. “No students here” or “I don’t let to students” might be an undesirable statement. I personally think that it is, but it might be an understandable variant, although it might amount to indirect discrimination in which case it would not be covered. The Solicitor-General will remind us about that.

If age-related discrimination is helpful to the individual services, we should as far as possible accommodate it. In fairness, the Government are trying to do that. If the age signature can be used as a vehicle for covert discrimination to reduce the choices for an individual, we need to be cautious about it. One of the ways to deal with that is maximum transparency and the pricing structure, so that people know what is going on, as well as the wider issue of what can be caught under other discrimination law if it is taken on the specific age signature.

Given that it would have been great to have got the consultation document out earlier and into the debate before Second Reading, some of the hares have started. That is understandable because people have to be responsible in drawing up their business models and looking at the potential downside of the Bill. It is important that Ministers should now explain to people what is going on and invite them to take an active part in the consultation process. We should not allow ourselves to be unduly rushed or railroaded by disinformation about what will be a constructive process.

Vera Baird (Labour, Redcar)

On the face of it, the amendment would restrict the circumstances in which a Minister should allow specific exemptions from the ban on age discrimination under the Bill. I am sure that that is not at all what the hon. Member for Weston-super-Mare intended because we want to be free to make distinctions on the basis of age and to allow good age discrimination—if I can put it that way. The purpose of the amendment has almost moved away from the amendment itself, but let me reassure him about matters that remain his concern. Perhaps in final reference to the wording of the amendment, we would not want to legislate for problems that do not exist. That is not how we propose to use the power.

I reiterate that we shall exercise the power so that exemptions from age discrimination are in place from the moment that the ban is in place, and the things that are good can carry on happening without interruption. We therefore need to get all the provisions right and frame the exemptions as precisely as we can. That is why we are consulting and providing, in particular, service providers with details of the emerging policy. They can then have the opportunity to consider their own business and help us to get the impact correct and frame the exemptions correctly.

About 750 representations with evidence of harmful age discrimination were presented to us in the original representation, so we had to move on the issue. We hope that on the one hand those representations coming largely from age lobbies—the representors—will be satisfied with the way in which we have started the consultation and how we have set out how we see it. We hope, too, that business will also feel that we have approached it in a satisfactory way.

I take the point made by the hon. Member for Daventry that because the consultation document did not come out early, as it could have done, as the policy change was announced, it has probably already caused some false hares to start running. That is very difficult and a shame. I hope we can all work now to correct those false hares from being incorrect false hares—mixing my metaphors here. If we can stop the idea that political correctness gone mad is somehow going to stamp out the entire insurance industry, it would be a good thing.

Some specifics were raised. I will come to the timetable in a minute, in the perhaps forlorn hope that it might help with the next amendment. The hon. Member for Weston-super-Mare asked how the age discrimination provisions would be enforced. Since it is about goods, facilities and services, it would be through the county court, not the tribunal system. That was one specific question that he raised. He talked about the timetable and I will come to that in a minute.

The hon. Member for Henley talked about age bands and the width, as it were. On pages 135 to 137 of the consultation document we specifically ask for representations about age bands. We do not at this stage see great advantage in prohibiting them for simple things such as travel insurance, but we need to see what comes out of the consultation. In different ways, Conservative Members have made the same point, which is that we want to ensure that, while there is no unjustified age discrimination, we do not make the provisions so complex that insurance companies leave the sector altogether. We do not think that that is likely to follow. We are also interested in the proposal, which I think features in the consultation document and has come from the industry itself, that where a provider might not economically be able to cover a particular risk, it would seek to signpost on to someone who can, so that we have the advantage of choice being available and adequate coverage as well.

The hon. Member for Daventry gave examples—the unbundling one and the one about young renters. He makes the salient point that we have to be careful and go into the whole issue in as detailed a way as we can, so that we do not allow discrimination in any disguised way, and that is what we will seek to do. The hon. Gentleman put his finger on the reason why we should not rush, because, unlike discrimination under the other strands, sometimes discrimination for age is good and sometimes it is bad. It is potentially a vast area and it is a new area, so we need to take our time to ensure that we get it right.

The hon. Member for Weston-super-Mare referred to the national health service inquiry, run by Sir Ian Carruthers. It has started and will report in October. The Government will then have to respond. Prior to that, in actual chronology, the age consultation will finish in September. In October is the Department of Health review, followed by the Government response. In 2010 is consultation on the draft secondary legislation, which will be laid before Parliament in 2011, and in 2012 the ban will be in force in respect of financial and other services. However, for health and social care, we cannot really pre-empt the Department of Health review, because part of the purpose of doing a pilot in one authority—how, at what expense, at what rate and where age discrimination exists—is to give us an idea of how long it will take to drive age discrimination out of the health service as a whole. Without getting the results of that review, it is hard to estimate when we can do things across the health service.

Tim Boswell (Conservative, Daventry)

The Solicitor-General has just used an interesting phrase, which I think makes the point that I am going to make. She was talking about discrimination being driven out of the health service. I did not want to interrupt her on account of the timetable, and I accept her explanation of why it will take some time. However, it is worth remarking to the Committee that whereas, as she has rightly said, age discrimination is good in certain contexts and bad in others, in my dealings with Age Concern and Help the Aged and with the interests of older people, it would be seen almost universally as a negative in the health service. In that area, although the issues are complex and sometimes expensive, it is very important that public policy moves on.

Vera Baird (Labour, Redcar)

I agree that it is very important that policy moves on. Just because I cannot give a definite date by which we can say, “It’s gone” does not mean that we are not starting now. Obviously the inquiry in the south-west is intended to be painstaking and careful and is designed to look at where the problems are, with a view to being able to drive them out more systematically. Even though the date for the ban coming into force is 2012, that does not mean that we are not starting. Public authorities are concerned to drive age discrimination right out from now. We hope that in business, too, the consultation process can throw light where light needs to be thrown. It may be that there is discrimination going on now that no one intends and that has no real purpose. We would hope that, even before the legislation comes into force, merely throwing light on its presence might help to persuade business to drive it out, again on the ethical model of how consumerism works these days, rather as I cited when we were talking about gender pay—they would want to look better for discriminating purchasers.

The discussion was interesting. I hope that I have been able to give the hon. Gentleman the answer to his new questions, which were slightly different from the ones posited in the amendment. If I have not, I am sure that he will tell me.

John Penrose (Conservative, Weston-Super-Mare)

I am happy to say that the Minister has, and on that basis I beg to ask leave to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 206, in clause 190, page 135, line 23, at end add—

‘(5) All orders under this section shall be made within six months of Royal Assent.’.

Vera Baird (Labour, Redcar)

With great respect to the hon. Lady, we will not be relying on her to reassure people at all. We regularly meet Age Concern and the age lobby. I think that they are on our stakeholder body for this matter and have been closely involved. I have met them at least twice during my involvement with the Bill.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I know how closely the Government have been working with all the older groups. They have listened carefully to those groups and have taken the brave and bold step of bringing age into the anti-discrimination law. Nevertheless, I would be remiss if I did not raise the sort of concerns that remain outstanding among that body.

Vera Baird (Labour, Redcar)

I am not being in the slightest bit critical. The hon. Lady was saying that she would reassure those people, and I wanted to make the point that they are in pretty permanent communication with us already, and we will seek to reassure them. She makes the all-conquering point that what she calls a “brave and bold step” has been taken. There is the political will to stamp out age discrimination, but we must not do haste at the cost of accuracy. It would not suit Age Concern either if we did that. Therefore, I have set out the timetable.

The hon. Lady’s timetable is, frankly, unrealistic, and I invite her to consider that since we have made this step and declared our political will to ensure that the measure is passed, age bodies can be reassured. If it was said that we could only ever regulate once within six months of Royal Assent—we may need to amend things later anyway—that would be a foolish amendment for me to accept. She will have to be satisfied—the age bodies probably are—with our clear declaration that we will make this happen as quickly as we can.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister. The intention and political will are there, but we fear that the same political will may not always be driving the measure. That is what lies behind my amendment.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend the Member for Weston-super-Mare made it clear that we support the principle of eliminating age discrimination. We welcome the approach that the Government have taken in the consultation document. The timetable that the Minister has laid out is sensible. The important thing is that she has made it clear that the commencement of the outlawing of the discrimination is tied with the exemption, so that both of those come into force at the same time. That is reassuring, not only to businesses but to those who will benefit from those exceptions. I see nothing that would stop any other Government from following a similar programme.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It is heartening if a member of the Conservative party is saying that there will be no resiling from anything, and that they will support the measure regardless of whether there is a change of Government. Is that what the hon. Gentleman is saying?

Mark Harper (Conservative, Forest of Dean)

Yes. The Minister’s timetable is sensible: it allows proper consultation. The danger with the hon. Lady’s amendment is that it is rather tied and does not allow for that proper consultation to take place. The timetable outlined is a workable, sensible one, and will give us a proper chance—both outside this place and within it—to consult and debate the detail, which is eminently achievable.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

My anxiety was that such a proposal might never come to fruition, but both sides of the House have reassured me about that. I am therefore happy to take the Minister’s reassurance, and I beg to ask leave to withdraw the amendment.

Clause 191

Mark Harper (Conservative, Forest of Dean)

Briefly, I hope—[Interruption.]

Joe Benton (Labour, Bootle)

Order.

Mark Harper (Conservative, Forest of Dean)

Thank you, Mr. Benton. I hope that all members of the Committee can remember what the amendment is about—it seems so long since we debated it. I listened carefully to the Minister’s response when we were debating the matter—she characterised it as thinking in a public law kind of way, I think. I still thought that it was worth pressing the matter to a vote, but given that we now have the clause as it is, I shall cogitate on some further amendments to table on Report to put some controls on how the Minister uses the power. On that basis, I am comfortable to leave the clause as it is.

Clause 192

Tim Boswell (Conservative, Daventry)

Briefly, the clause relates to Crown immunity. I simply wanted to invite the Solicitor-General to take note of certain concerns. While there has been a welcome practice in recent years under different Governments of gradually extending the range of the application of the law and minimising the amount of Crown immunity or exceptions, some areas remain. In the Bill, they include bits that were in the clauses debated, such as security services. I think there are good reasons for doing that.

All I would like is for Ministers, individually and collectively, not to stand pat on what is excepted for ever, if it ceased to be appropriate to except it. Moreover, I would like them to encourage their colleagues who administer those services with necessary exceptions, to, wherever possible, act in a way that is consistent and congruent with the Bill, notwithstanding their exceptional status. That should apply to, for example, the employment rights of people in the security services, as the Minister knows. I would comment on its—possibly negatively, in relation to the Conservative Government of the day—being a matter of great controversy in relation to GCHQ. I am just saying that as far as possible—that is for Ministers to judge, and we must leave some judgments for them—we should have things in the open. Where we cannot, and there are good reasons for that, the Government, as the employer and otherwise, should, if humanly possible, act within the spirit of the legislation, even if they are exempted by statute.

Vera Baird (Labour, Redcar)

The hon. Gentleman makes a fine point. In so far as I am concerned, that is how the Government will proceed, and I hope that the rest of the Government will agree.

Clause 195

Vera Baird (Labour, Redcar)

I beg to move amendment 294, in clause 195, page 138, line 34, at end insert—

‘( ) an order under section [Combined discrimination: dual characteristics](8) (combined discrimination: circumstances where proceedings may not be brought);’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss Government new clause 26—Combined discrimination: dual characteristics.

Vera Baird (Labour, Redcar)

New clause 26 will provide protection from discrimination due to a combination of two protected characteristics—I will call that dual discrimination. It will enable someone who has been treated less favourably because of a combination of two protected characteristics to bring a claim and secure a remedy.

We know that some people may experience discrimination because of a combination of protected characteristics over which they have no control, and that they have no protection in that situation. For example, a black woman or man of a particular religion may face discrimination because of stereotyped attitudes to that combination. It is difficult, complicated and sometimes impossible to get a legal remedy in those cases, because the law requires them to separate out their different characteristics and bring separate claims. That means, for example, a black woman who is discriminated against having to pick what she thinks is the likelier reason. Should she bring a claim for race discrimination and then one for sex discrimination? She might not succeed in either if the employer can show that black men and white women are not treated the same and so on.

The problems of not having the measure have been reasonably well aired. One of the consequences of the diversification of British society and the advances in equality that we have made is that discrimination is becoming subtler. Vulnerable people with a combination of protected characteristics are, in particular, still experiencing discrimination for which there is no remedy. We raised that issue in the consultation document “Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain”, back in 2007.

We asked for evidence of the problem. Many replies highlighted the issue and argued that the law needed to be changed to reflect the fact that people’s identities are multifaceted. We then committed to exploring further the extent to which we could allow multiple discrimination claims to be brought without making the law overly complex or placing an undue burden on those with responsibilities under the law.

The document “Equality Bill: Assessing the Impact of a Multiple Discrimination Provision” presented a potential remedy for dual discrimination. That has been looked at during the past six weeks by interested parties. We also consulted on the specific clause, which is a good thing to have done because it clarified what we were intending to do, particularly for businesses and organisations. The overwhelming response was that businesses and organisations recognised that there was a gap in the law. However, they also expressed concerned that there should not be a disproportionate burden placed on them.

Most businesses recognise that if they comply with existing discrimination legislation and make rational decisions for non-discriminatory reasons, they will not fall foul of the new provision. We know that the majority of businesses will do exactly that.

Costs were an issue for some businesses. They said that they were concerned that risk-averse businesses might spend money unnecessarily to over-comply with the law. Managing perception and minimising unnecessary over-compliance will be key and the availability of clear, practical guidance at an early stage will be important to ensure that that happens.

We will work with the commission and other relevant organisations, such as Business Link, to prepare and disseminate the guidance in good time. We think it is probably a good idea to make the change to call this dual discrimination, so that we turn a new page and make it clear that the provision is limited to combinations of two. Again, there have been some false hares set running on the extent of the measure, so we are calling it dual discrimination now.

Some Opposition Members have suggested that there should be a provision enabling claims combining an indefinite number of characteristics and that indirect discrimination and harassment should also be included. Let me reiterate what I said in earlier debates, so that we have the whole case about our position present as we debate the new clause and the amendment. We have evidence of people experiencing discrimination because of a combination of two protected characteristics, but there is insufficient evidence of cases involving more than two for us to feel that further regulation is warranted.

The evidence does not suggest that claims of harassment are failing under the existing law where more than one protected characteristic is involved. The harmonisation of the definition of harassment as being unwanted conduct “related to” instead of “on the grounds of” a protected characteristic widens the provision and makes it even more likely that intersectional harassment would be remedied by means of a single-strand claim.

We are also not convinced of the need to include indirect discrimination. There is limited evidence that victims of indirect discrimination are failing to get the protection they deserve. Indirect discrimination involving more than one characteristic—for example, dress codes preventing Muslim women from wearing veils or Sikh men from wearing turbans—is likely to be remedied under current law.

We think that including indirect discrimination within the provision would mean businesses and employers having to consider the impacts of their policies and procedures on every possible combination of protected characteristic, which is not proportionate given the lack of evidence of need.

The new clause is also limited to the relevant protected characteristics listed in subsection (2). That excludes maternity, pregnancy, marriage and civil partnership simply because we are not aware of any evidence of a need. Moreover, in respect of pregnancy and maternity, it would unnecessarily complicate the law to combine that protected characteristic with another for which a comparator is required. There is no need for a comparator, of course, for pregnancy and maternity. Overwhelmingly, there does not appear to be any need.

Increasing the number of protected characteristics that could be combined, including harassment and indirect discrimination, would impose a significant burden on businesses that are simply doing their best to comply with the law. We think that would be disproportionate. We hope that we have an appropriate balance in place. Hon. Members are welcome to debate the matter again now. There is an amendment on how regulation-making power should be used and I will answer that when opportunity arises.

Mark Harper (Conservative, Forest of Dean)

I will not take up too much of the Committee’s time because we had a reasonable debate on this on clause 13. I will reiterate what I said then, which is that the Government were sensible to consult on the draft clause and make it clear that they would respond where there was evidence of a problem.

When introducing the amendment and the new clause, the Minister said a little about responses from consultees. I am not sure whether she already has, but will she confirm whether the Government have published the responses yet? I could not find them on the website, but that might be down to my inability. If they have not been published, it would be helpful if they were.

In the responses sent directly to members of the Committee, there was some evidence to back up what the Minister is now calling dual discrimination. I did not see evidence of any cases involving more than two grounds. On clause 13, we debated whether we should have two or more. At that point, the Minister said that having more than two made for a ridiculous number of possible combinations and was therefore disproportionate. I agree.

The Government have gone about this sensibly. The new clause is exactly as it was consulted upon and the Government have had responses on that as well. That seems a very reasonable approach.

The responses to the consultation sent to members of the Committee show that some business organisations are not entirely happy with the proposal and think there will be an increase, but looking at the impact assessment and the likely number of cases, it does not seem that there is going to be a significant problem.

The bigger problem, which was brought out in the British Chambers of Commerce response and has been touched on already by the Minister, is of employers gold-plating their practices. It might be not a real problem, but a matter of how people respond to it. The Minister is right that that can probably be offset by the quality of the guidance received from the Equality and Human Rights Commission, making it clear to employers what they do and do not have to do to comply with the dual discrimination part of the law. If that is made crystal clear to businesses and they act proportionately, the costs and burdens will be as in the impact assessment and therefore themselves proportionate. The Minister said that very clearly and I think the EHRC will take it on board. If it does, this should be relatively trouble-free.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I welcome new clause 26. It is helpful that we have moved on to dual discrimination. In a sense, bringing together the different bodies as the EHRC mirrors the fact that we want to bring together all these issues. People suffer not necessarily because they have one protected characteristic, but because they have many. I am surprised that there was no or little evidence of more than two types of discrimination taking place. If there was none, I shall follow the lesson the Minister has given me, which is that I must not think up things that do not exist, but deal with real harm. However, I would like to keep this point open in the minds of members of the Committee because if there are examples when the legislation comes into force of it not working on the basis of dual discrimination, we will have to look at it again. For now, this is a great step forward and I am very happy with it.

Tim Boswell (Conservative, Daventry)

I, too, welcome the measure and the way the Solicitor-General explained it. There is no attempt in the Committee to subvert it, nor any belief that there is no problem. There is a problem, which I often think can be encapsulated by the term “Bangladeshi women”, although it would be demeaning to suggest that that is the only problem. As the Solicitor-General said, there are many such cases because we live in a complex society that has overlapping discriminations.

Perhaps I did not pay enough attention, but I would like it to be made clearer what the evidence base must be for such a claim. I think that it is right to confine the measure to dual discrimination—that is, two protected characteristics that co-exist and lead to discrimination. In building up a case that such discrimination has taken place, it is not clear whether the two characteristics should be looked at together, cumulatively or alongside each other. That might become clear when we receive EHRC advice.

There is a sense in which one does not want a “speak your weight” machine, which says that there was 15 per cent. discrimination in relation to race and 7 per cent. in relation to gender, and that that is not sufficient to make a critical case.

The lacuna that existed in the law was that it was impossible to look at the two factors together and they had to be treated separately, even though they were clearly not separate. There are still some difficulties with looking at them together and I would like the Solicitor-General to reflect on that for the Committee.

When trying to establish the reasonableness and credibility of an organisation’s employment practices, the organisation might produce targeted audits. I am talking about larger employers that have human resources departments and so on. It might have done a gender pay audit and at a different time, using a different reference frame, it might have done a study of its recruitment practices in relation to ethnic minority representation. When it is trying to build up a defence, which companies will do in some cases, it might adduce those two pieces of evidence even though they do not fit together exactly.

Just as the problem reflects a frame that is too narrow, many of the practices undertaken by companies are themselves traditionally expressed by one protected characteristic or another. They are dealt with sequentially, rather than together. Perhaps that is the only way to express them coherently. Clearly, if an employer picked on somebody because of two protected characteristics, nobody in the Committee would have any time for that. However, I am concerned that in trying to meet this problem we might have difficulty in establishing a plausible and successful case at tribunal.

Vera Baird (Labour, Redcar)

I have just four things to add. First, the hon. Member for Forest of Dean asked about publishing the responses. In the summer, we will publish a summary of the responses and an updated impact assessment based on the consultation. He will get that information pretty soon. We will monitor how the measure operates after it comes into effect to see whether any evidence of further need emerges; I think that is the point the hon. Member for Hornsey and Wood Green made. However, we have not seen any such evidence yet, as I have said.

I am not entirely sure that I followed the point made by the hon. Member for Daventry about proportions. Perhaps the classic situation would be a black woman being treated less favourably than a white woman and also less favourably than a black man. With that kind of combination, we would not really need to allocate which was which; indeed, it might not be possible.

I should add one point finally and I do so with an apology. I have muddled amendment 299, which is yet to be debated and is a Liberal Democrat amendment, with amendment 294, which is a Government amendment. I should address amendment 294 briefly, if I may, Mr. Benton. I am sure that, if anyone had a point to make about amendment 294 in further debate, you would show the discretion to allow it. However, I cannot imagine that there will be such a point.

Under subsections (6) and (7) of the clause, we have provided that, where the discrimination is subject to the exclusive jurisdiction of a particular court, that jurisdiction is limited to one of the protected characteristics in the combination. Then the claim cannot be brought under the clause. For instance, that would relate to claims of disability discrimination in education, which would go exclusively to a specialist tribunal.

Under subsection (8) of the clause, there is a power to specify other circumstances in which claims are excluded. That is to allow us to exclude classes of claim or to specify the evidential standard further, if it is necessary. For instance, that could be invoked if it is found that courts or tribunals reach unintended conclusions or have any difficulty with practical implementation. Therefore, amendment 294 amends clause 195 to ensure that the affirmative procedure will apply to any exercise of the power to which I have just alluded.

I cannot imagine that amendment 294 will give rise to any further debate, but I apologise for missing it out in the first place.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 299, in clause 195, page 138, line 39, at end insert—

‘(ee) regulations under Clause 145 (power to specify public authorities) if they do anything other than add bodies to the list under Schedule 19’.

Tim Boswell (Conservative, Daventry)

I simply add that it would seem likely that such an organisation would be being removed in circumstances of some heat or controversy. Otherwise, how would the Government have got round to thinking of removing them? I think that that reinforces the point that the hon. Gentleman is making.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Indeed. On that basis, I look forward to hearing the Minister’s response.

Vera Baird (Labour, Redcar)

Actually, we envisage using that power only when an organisation or authority does not exist. For instance, we had to replace the entry for the London Fire and Emergency Planning Authority with an entry for the Greater London Fire and Emergency Planning Authority. That is really all that we envisage the power being used for. It would clog up parliamentary time in a fairly unhelpful way to require affirmative procedure for that type of change.

Should a future Government seek to emasculate the public sector duty, by removing wholesale lots of bodies from schedule 19, people would then pray against the relevant regulations to prevent that from happening and expose the issue. Given the overall ambience in the Committee, it does not seem as if anybody will do that anyway.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I admire the Minister’s faith in future Governments. She said that the amendment is clearly not intended to apply to organisations that no longer exist. If that point needs to be pursued, their lordships are good at that, so when the Joint Committee on Statutory Instruments gets going, it might wish to consider whether there is room for a narrower amendment to deal with the mischief—although it might never occur—of the wholesale removal of an existing authority. Clearly, the negative procedure exists and one could pray against, but that is not the same as draft regulations having to be affirmed—otherwise, we would not have that procedure. However, given what she has said, I beg to ask leave to withdraw the amendment.

Clause 199

Clause 203

Mark Harper (Conservative, Forest of Dean)

I shall be brief and not trouble the Committee too much. We have already had some debate on commencement and on when various provisions will come into force, but I thought that it might be helpful if the Minister gave the Committee a little more information. We have already discussed the age provisions, and she has made it clear that those will not come into force until the regulations with the exceptions are in place. What is the Government’s current thinking on the rest of the Bill, and is there an indicative timetable for that?

With regard to tying things together, we have just discussed clause 95, and new clause 26, which looked at the importance of guidance. It was clear in that discussion that much of the business concern will be assuaged if there is clear guidance. I seek the Minister’s understanding on when the EHRC will start its work on producing guidance, how long that process is likely to take and whether the commencement of various provisions in the Bill will effectively be tied to that guidance. It will not be helpful if clear guidance is not available when some of the provisions come into force, particularly where there are changes or extensions. I just wonder what the Government’s thinking is on that, as that would give the Committee an idea about those plans.

Vera Baird (Labour, Redcar)

We expect most of the Bill to come into force in autumn 2010. That is the earliest realistic commencement date after it is given Royal Assent. The socio-economic duty on public bodies and the public sector equality duty are likely to come into force in 2011. We have already dealt with the age discrimination provisions.

We certainly hope and expect, and will probably have to demand, that the appropriate guidance is delivered by the commission in time for people to be guided on the impact of the Bill, particularly its new aspects. A lot of the law on equalities has, of course, not changed. I am told that the aim is to publish the guidance three months before commencement. That would be excellent; there is a lot of guidance to be put together. That is the aim, and let us encourage it.

Mark Harper (Conservative, Forest of Dean)

I just wish to pick up on one thing. Part of the benefit is to enable businesses and other organisations to have that clear guidance. Given, therefore, that one of the objectives of the Bill was to simplify matters and make them more straightforward, I suggest that where provisions are effectively just being carried across and there is no change in the law, getting the guidance in place first would help. It is the ability to produce more straightforward and clear guidance across the whole range of protected characteristics that will deliver the real benefit of the Bill, both to those protected by it and those organisations that have to implement it.

Vera Baird (Labour, Redcar)

I can see that that is right, and we will encourage the EHRC’s aim to publish the guidance three months before commencement.

I do not know whether I need to mention that there is an oddity about schedule 20, which concerns the enthralling topic of rail vehicle accessibility that we discussed this morning. In fact, on Royal Assent, clause 179(2) will enable schedule 20 on that topic to be repealed at the end of 2010, if it is not brought into force before that date. That sunset clause is there because of the Department for Transport’s ongoing public consultation on the reappraisal of the unimplemented compliance provisions of the DDA 2005, from which schedule 20 comes. Following consideration of the consultation responses, it might be decided not to implement schedule 20, any more than the DDA provisions of relevance here have been implemented. That is just an extra complexity, but I thought that I would mention it because someone might spot it later.