Sandra Gidley (Women & Older People, Non-Departmental & Cross Departmental Responsibilities; Romsey, Liberal Democrat)

I beg to move amendment No. 38, in clause 14, page 7, line 38, at end insert—

‘( )sections [Age discrimination: statutory duty of public authorities], [Age discrimination: specific duties of public authorities] and [Age discrimination: specific duties (Scotland)] of this Act,’.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following: amendment No. 39, in clause 14, page 8, line 40, after ‘76C’, insert

‘, [Age discrimination: statutory duty of public authorities], [Age discrimination: specific duties of public authorities] and [Aged¤discrimination: specific duties (Scotland)].’.

New clause 3—Age discrimination: statutory duty of public authorities—

‘(1)A public authority shall in carrying out its functions have due regard to the need to—

(a)eliminate unlawful discrimination and harrassment on grounds of age,

(b)promote equality of opportunity between persons of different ages, and

(c)promote good relations betwen persons of different ages.

(2)In subsection (1)—

(a)“public authority” includes any person who has functions of a public nature (subject to subsections (3) and (4)),

(b)“functions” means functions of a publice nature, and

(c)the reference to unlawful discrimination shall be treated as including a reference to contravention of terms of contracts having effect in accordance with Schedule 5 to the Employment Equality (Age) Regulations 2006.

(3)The duty in subsection (1) shall not apply to—

(a)the House of Commons,

(b)the House of Lords,

(c)the Scottish Parliament,

(d)the General Synod of the Church of England,

(e)the Security Service,

(f)the Secret Intelligence Service,

(g)the Government Communications Headquarters,

(h)a part of the armed forces of the Crown which is, ind¤accordance with a requirement of the Secretary of State,d¤assisting the Government Communications Headquarters, or

(i)a person specified for the purposes of this paragraph by order of the Secretary of State (and a person may be specified generally or only in respect of specified functions).

(4)The duty in subsection (1) shall not apply to the exercise of—

(a)a function in connection with proceedings in the House of Commons or the House of Lords,

(b)a function in conncection with proceedings in the Scottish Parliament (other than a function of the Scottish Parliamentary Corporate Body),

(c)a judicial function (whether in connection with a court or a tribunal),

(d)a function exercised on behalf of or on the intructions of a person exercising a judicial tribunal, (whether in connection with a court or a tribunal), or

(e)a function specified for the purposes of this paragraph by order of the Secretary of State.

(5)Subsection (1) (b) is without prejudice to the effect of any exception to or limitation of the law about age discrimination.

(6)A failure in respect of performance of the duty under subsection (1) does not confer a cause of action at private law.

(7)An order under subsection (3)(i) or subsection (4) (e) may not be made unless the Secretary of State has consulted the Commission.

(8)This section binds the Crown.’.

New clause 4—Age discrimination: specific duties of public authorities—

‘(1)The Secretary of State may by order impose on a person to whom the duty in section [Age discrimination: statutory duty of public authorities] (1) applies, or insofar as that duty applies to a person, a duty which he thinks will ensure better performance of the duty under that section.

(2)Before making an order under subsection (1) the Secretary of State shall consult the Commission.

(3)The Secretary of State—

(a)must consult the National Assembly for Wales before making an order under subsection (1) in respect of a person exercising functions in relation to Wales, and

(b)may not, without the consent of the National Assembly for Wales, make an order under subsection (1) in respect of a person all of whose functions are public functions in relation to Wales.

(4)A failure in respect of performance of duty imposed under subsection (1) does not confer a cause of action at private law.’.

New clause 5—Age discrimination: specific duties (Scotland)—

‘(1)Section [Age discrimination: statutory duty of public authorities] (1) shall not apply in relation to a person who is a relevant Scottish authority or a cross-border authority.

(2)The Secretaty of State may by order impose on a cross-border authority to whom the duty under section [Age discrimination: statutory duty of public authorities] (1) applies, or insofar as that duty applies to the cross-border authority, a duty which the Secretary of State thinks will ensure better performance of the duty under section [Age discrimination: statutory duty of public authorities] (1) to the extent that the cross-border authority’s functions are not Scottish functions.

(3)The Scottish Ministers may by order impose on a relevant Scottish authority to whom the duty under section [Age discrimination: statutory duty of public authorities] (1) applies, or insofar as that duty applies to the relevant Scottish authority, a duty which the Scottish Ministers think will ensure better perfomance of the duty under section [Age discrimination: statutory duty of public authorities] (1).

(4)The Scottish Ministers may by order imposer cross-border authority to whom the duty under section [Age discrimination: statutory duty of public authorities] (1) applies, or insofar as that duty applies to the cross-border authority, a duty which the Scottish Ministers think will ensure better performance of the duty under section [Age discrimination: statutory duty of public authorities] (1), to the extent that the cross-border authority’s functions are Scottish functions.

(5)Before making an order under any of subsections (2) to (4) the person making the the order shall consult the Commission.

(6)Before making an order under subsection (2) the Secretary of State shall consult the Scottish Ministers.

(7)Before making an order under subsection (4) the Scottish Ministers shall consult the Secretary of State.

(8)A failure in respect of performance of a duty imposed under this section does not confer a cause of action at private law.

(9)In this section “relevant Scottish authority” has the meaning—

(a)a member of the Scottish Executive or a junior Scottish Minister,

(b)the Registrar General of Births, Deaths and Marriages for Scotland, the Keeper of the Registers of Scotland or the Keeper of the Records of Scotland,

(c)an office of a description specified in an Order in Council under section 126(8) (b) of the Scotland Act 1998 (c.46) (other non-ministerial offices in the Scottish Aministration), or

(d)a public body, public office or holder of a public office—

(i)which is not a cross-border authority or the Scottish Parliamentary Corporate Body,

(ii)whose function are exercisable only in or as regards Scotland, and

(iii)some at least of whose functions do not relate to reserved matters (within the meaning of the Scotland Act 1998).

(10)In this section—

“cross-border authority” has the meaning a cross-border public authority within the meaning given by section 88(5) of the Scotland Act 1998.

“Scottish functions” has the meaning functions which are exercisable in or as regards Scotland and which do not relate to reserved matters (within the meaning of the Scotland Act 1998).

(11)An order under subsection (3) or (4) is subject to annulment in pursuance of a resolution of the Scottish Parliament.’.

New clause 6—Age discrimination: enforcement—

‘(1)This section applies where the Commission thinks that a person has failed to comply with a duty imposed under section [Age discrimination: specific duties of public authorities] or [Age discrimination: specific duties (Scotland)].

(2)The Commission may give the person a notice requiring him—

(a)to comply with the duty, and

(b)to give the Commission, within the period of 28 days beginning with the date on which he receives the notice, written information of the steps being taken for the purpose of complying with the duty.

(3)A notice under this section may require a person to give the Commission information required by the Commission for thed¤purposes of assessing compliance with the duty; in which case the notice shall specifiy—

(a)the period within which the information is to be given (which shall begin with the date on which the notice is received and shall not exceed three months), and

(b)the manner and form in which the information is to be given.

(4)A person who receives a notice under this section shall comply with it.

(5)A notice under this section shall not oblige a person to give information that he could not be compelled to give in proceedings before the High Court or the Court of Session.

(6)If the Commission thinks that a person, to whom a notice under this section has been given, has failed to comply with a requirement of the notice, the Commission may apply to a count court (in England and Wales) or to the sheriff (in Scotland) for an order requiring the person to comply.’.

New clause 7—Age discrimination: codes of practice—

‘(1)The Commission may issue a code of practice about the performance of—

(a)the duty under section [Age discrimination: statutory duty of public authorities] (1), or

(b)a duty imposed under section [Age discrimination: specific duties of public authorities] or [Age discrimination: specific duties (Scotland)].

(2)Section 14 and 15 shall apply to a code under this section,

(3)The Secretary of State shall consult the Scottish Ministers and the National Assembly for Wales before—

(a)approving a draft under section 14 as applied by subsection (2) above, or

(b)making an order under section 14 as applied by subsection (2) above.’.

Sandra Gidley (Women & Older People, Non-Departmental & Cross Departmental Responsibilities; Romsey, Liberal Democrat)

The amendments and new clauses are an attempt to place a duty on public bodies to promote age equality, which would be enforceable by the commission. The provisions should be workable because they have been transposed from the Government’s drafting regarding the similar duty in relation to gender. All we have to decide is whether we have a commitment to end age discrimination in public services.

The amendments would require organisations in the public to have due regard to equality in all aspects of their work, including employment and the provision of services. Evidence from those parts of the public services that have experimented with voluntary commitments have shown that they simply do not work. The Department of Health introduced a non-statutory standard to root out age discrimination that had some impact, but the Healthcare Commission has concluded that it has not addressed unequal outcomes or ageist attitudes in practice. Clearly, therefore, there should be a legal requirement on public bodies to do that.

In Northern Ireland, a general equality duty has been introduced, which has prompted the involvement of older people in services and has led to a range of improvements in those public services as far as they are concerned. This matter was discussed at some length in the other place, but the disappointing outcome was a proposal that it should form part of the discrimination law review. We believe that it needs to be dealt with sooner. Some legislation is planned for 2006, but that will cover only employment and adult education, so there is a big gap within which the rights of older people are not protected.

The Government must be given some credit for the fact that when the Bill was being drafted, great effort was put into keeping people happy in relation to the existing strands of equality and to ensuring that as many of the current responsibilities as possible were covered in the Bill. Disappointingly, the same does not seem to have happened for the new strands. There are some concerns that age in particular could rapidly become a forgotten strand.

This issue is particularly important because older people are no longer a minority. In the rapidly ageing population, there is a greater duty to take their needs into account. Currently, they are treated almost as a token group. There might be an older people’s forum in most councils, but, usually, no effort is made to involve that forum when developing wider services.

Our proposals would have a number of benefits. For a start, they would allow the involvement of older people and put a duty on public bodies to assess the impact of their policies on older people and monitor their impact. They would ensure that more information was available to older people to make them more fully aware of their rights. Another important factor is that although the public authority may have a duty, in the current climate the private   sector is increasingly used, and funded, by the public sector, so we need an assurance that those services will eventually be subject to the same constraints.

We are all aware of direct discrimination against older people in insurance, employment and access to specialist health treatment. To an extent, those are easy to deal with, but the indirect effects are more insidious. For example, transport providers frequently forget to give special consideration to areas with a high population of older people, but such people are less likely to have cars and will probably need slightly different transport provision.

The closure of community hospitals is thought to have a disproportionate impact on the lives of older people. For example, the Learning and Skills Council has recently started targeting most of its funding at vocational qualification. That has had a huge impact on older people; they are not able to gain access to courses that may be regarded as recreational but which are often the only thing to which they look forward during the week. Courses get them out, meeting people and learning new skills, and that probably has consequent savings for the health service because they do not get depressed.

If another strand of disability is added to the picture, the problems increase. Yesterday, we highlighted pension problems for women and the difficulties of gaining access to disability benefits. I will not rehearse that now; we are all aware that those who develop a disability after the age of 65 are treated much less favourably. I struggle to find a reason why that should not be considered to be discrimination, and if the Government are committed to tackling the problem, we surely need to get on with it rather than kicking it into the long grass once again.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I thank the hon. Lady for raising the important question of age discrimination. She will be aware that the topic was raised by several Members on Second Reading. The Under-Secretary of State for Work and Pensions, my hon. Friend the Member ford¤Stirling (Mrs. McGuire), made it clear that thed¤Government unequivocally condemn age discrimination targeted towards people at the younger or older ends of the age spectrum. I emphasise that aged¤discrimination legislation must deal with discrimination at all ages, and not just older people.

Next December, the age equality employment regulations will come into force; they will prohibit age discrimination in employment and vocational training. More widely, the discrimination law review—it should not be described as being the long grass—is considering the case for extending the scope of the law in that area. The review is being undertaken because, as we are all aware, the current anti-discrimination framework is not perfect. A strong case can be made for moving to a simpler, fairer, more consistent and more effective anti-discrimination framework.

The Bill was never intended to cover all aspects of discrimination. We clearly needed to roll forward the current commissions’ powers and duties. It was not a matter of paying greater attention to existing bodies and the so-called equality strands that they deal with;   we had to ensure that there was no regression in their powers and duties while we brought into being a commission that could deal with the much wider range of discrimination and equality issues that society faces. Age discrimination is a priority for the review, and we are currently examining the case for providing new protection in relation to age.

We recognise the beneficial effect that positive duties on the public sector can have in tackling discrimination and reaching wider equality goals. We therefore share the hon. Lady’s view that we should consider the case for building on the existing duties by extending the frameworks in place for race and being put in place for disability and gender to cover age and other equality issues. Before we can make definitive reform proposals, however, we need to do further work to explore the detailed issues that arise, and that will involve consultation with those who would be affected by changes to the current framework of equality duties.

We are already working with age stakeholders and others to take that work forward, and we made a manifesto commitment to introduce a single equality Bill before the end of this Parliament. We plan to publish a Green Paper in late spring 2006 to set out our initial conclusions on what should be included, and we are very positive about including age provisions where that appears to be the right solution.

It is essential, however, that the necessary work should be done before we make any proposals so that we can ensure that the new measures are appropriately targeted and effective. As we go forward, we need to work through some particularly detailed issues, such as the implications of the wide use of age limits in service provision, to ensure that we prevent new legislation from having unintended consequences. I repeat that age is often an issue in relation to a range of services, at both the younger and older age levels.

While the discrimination law review is being taken forward, we will continue to take action on a number of fronts to ensure that public services are improved and delivered in a way that is sensitive to older people’s needs. The Department is currently working to ensure that human rights considerations are mainstreamed into service delivery and we are improving our awareness of how and where discrimination on multiple grounds impacts on particular groups of older people. The Commission for Equality and Human Rights will also have an important role to play in those issues.

I hope that my comments reassure hon. Members and particularly the hon. Member for Romsey (Sandra Gidley) that the Government are absolutely committed to tackling age discrimination and to making age issues central to the commission’s work. However, I have also made the case for why we need more time to assess whether an age equality duty is the right way forward. I hope that the hon. Lady agrees with me and will withdraw the amendment.

Sandra Gidley (Women & Older People, Non-Departmental & Cross Departmental Responsibilities; Romsey, Liberal Democrat)

I am reassured to some extent, but introducing age discrimination provisions is either the right thing or the wrong thing to do. Clearly, we have to be aware of all the impacts, but such measures   appear to have been introduced with some success in other places. It is disappointing that age discrimination provisions seem to be lagging behind provisions on other issues, and I hope that that does not continue to be the case.

Obviously, I look forward to the publication of the Green Paper. However, we might wish to return to this issue later. I beg to ask leave to withdraw the amendment.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I beg to move amendment No. 91, in clause 14, page 8, line 20, leave out subsection (4).

Subsection (4) provides for the Secretary of State to direct the commission and for the commission to comply. Like me, the Minister will be aware that amendments were tabled in the House of Lords to remove the Secretary of State’s power of compulsion and the commission’s duty to comply with the Secretary of State’s directions in respect of the issuing of codes of practice. As we have heard, the clause enables the commission to issue a code of practice when it feels that that is appropriate, and I have no doubt that it will do so in many cases.

I am aware that clause 15(5) might well have been a late addition. It states:

“The Secretary of State may be order amend section 14 so as to vary the range of matters that codes of practice under that section may address.”

Clause 14(4) refers only to those matters that have been added by the Secretary of State. The explanatory notes are clear in that regard:

“Subsection (4) provides a power for the Secretary of State to direct the CEHR to prepare a code of practice in respect of a matter not currently covered by the clause but which the Secretary   of State expects to add by means of the order-making power provided in clause 15(5) to vary the range of matters on which the CEHR may prepare a code of practice.”

It is not consistent to withdraw the requirement that the commission should comply with the direction of the Secretary of State in respect of everything else and to leave it in just in this area. Clearly, if the Secretary of State feels it necessary to add to this part of the Bill, the commission will take that into account and will decide whether to issue a code of practice, just as it does in respect of other parts of the clause. It should not have to comply with a direction in just one respect. I ask the Minister to accept the amendment in order to ensure that the Bill is consistent.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I thank the hon. Gentleman for explaining the effect of the amendment. As he said, the Bill previously included a requirement for the CEHR to comply with a direction of the Secretary of State to issue a code in connection with a specified matter. That was amended substantially on Report in the other place in response to calls in that House for the CEHR to have greater independence from Government. All powers for the Secretary of State to direct the commission to exercise its powers were removed. We considered removing altogether a requirement for the CEHR to comply with a direction of the Secretary of State in respect of codes of practice but concluded that that would not be the right thing to do. Instead, we proposed an amendment, which became the subsection that amendment 91 seeks to remove.

Subsection (4) enables the Secretary of State to direct the commission to prepare a code only in respect of matters likely to be the subject of forthcoming legislation which he or she expects to add to the list of legislation on which the commission will be able to prepare a code. The purpose of the direction-making power is to enable the Secretary of State to confer on the commission the power to prepare a code in respect of legislation, which it would not otherwise be able to do until that legislation was complete and had been included in the list at clause 14, by means of an order.

For example, if the Government were to bring forward a public sector duty in respect of one or more of the new strands—as the hon. Member for Romsey proposed—the commission would be able to start the work to prepare a code of practice while the public duty legislation was still undergoing its Parliamentary passage. Subsection (4) does not enable the Secretary of State to direct the CEHR to exercise its powers. It allows the Secretary of State to direct the CEHR to start work in anticipation of the power being conferred by order, enabling it to begin early preparation of a code for forthcoming legislation that can be in place when that legislation comes into force. We consider that business, employers and everybody else required to comply with the legislation will welcome the early production of codes for new legislation.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I am listening carefully to the Minister, and I note the distinction that she makes. However, the nub of the matter is not necessarily whether subsection (4) should exist—I take her point that one needs to ensure that work can be done before the matter is listed in subsection (1)—but whether “shall comply” is   appropriate, because it is inconsistent. Perhaps “The commission shall have a power to issue a code of practice following a direction from the Secretary of State” might be an alternative way of achieving that. Would she consider that approach?

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I have explained why we believe that ours is the right approach. Hon. Members often ask for issues to be brought forward urgently and addressed quickly, and not kicked into the long grass, as the hon. Member for Romsey said. We understand that when we want people to do new things in new areas, we need to move as quickly as possible. The processes of introducing legislation, writing codes of practice and setting dates of enactment can be lengthy and often not understandable to people outside Parliament who think that when Parliament has made a decision for something to happen, it should happen right away. The subsection enables us to ensure that that happens and that, for example, when we bring in a new public sector duty on age that work can begin. At the moment, we are consulting on the public sector gender duty, which is not yet part of our legislation. We have been able to work with the Equal Opportunities Commission to move that forward.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I am not sure that the hon. Lady is addressing my point. She said that the subsection enables us to ensure that this practice can begin, not that it definitely will. The wording of the subsection implies compulsion in that area but there is no compulsion for the rest. Clearly, if the Minister is keen that the commission should not be held back, it does not necessarily require the need to comply, just the ability. That is the distinction.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

The hon. Gentleman is not, I believe, a lawyer, and indeed neither am I. My guidance is that if the subsection said “may comply” it would not be a direction-making power. It would be a request by the Secretary of State and would therefore not confer the power. I hope that the hon. Gentleman can agree that the requirement for the commission to comply with the direction of the Secretary of State to prepare a code on a matter on which it does not have powers but will in the future is a sensible one. It will be used sensibly to ensure that codes of practice are in place with the coming into effect of new equality legislation. I hope that he will agree to withdraw his amendment.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I listened carefully to what the Minister said, and will deal with her last point, if I may. We are going in a circle, because the wording that I am not happy with talks about a direction rather than a request and she argues that the words “shall comply” are required in order for the direction to be a direction and not a request. I am arguing that the rest of the ability of the commission to issue a code of practice is on the basis of requests or its own initiative and not on the basis of having to comply. The two questions are therefore the same. Maybe subsection (4) should state “may comply with a request from the Secretary of State.” To argue the need for “shall comply” on the basis of the word direction is a case of chicken and egg, to a certain extent.

I do not intend to press the amendment to a vote. However, I do not feel that the Minister has fully answered the why a direction is necessary here, when issuing codes of practice under subsection (1) is not subject to direction. I understand that the commission needs to be given that power and that my amendment is not appropriate because it deletes the whole subsection. However, there is a question of whether we can return to the subject with a narrower amendment on Report. With that in mind, I beg to ask leave to withdraw the amendment.