Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I beg to move amendment No. 116, in clause 51, page 32, line 12, leave out paragraph (d).

Janet Anderson (Rossendale & Darwen, Labour)

With this it will be convenient to discuss the following amendments:

No. 117, in clause 51, page 32, line 13, leave out paragraph (e).

No. 118, in clause 51, page 32, line 14, leave out paragraph (f).

No. 119, in clause 51, page 32, line 15, leave out paragraph (g).

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

We now come to a clause that is of considerable importance to the Bill. The Minister will tell me if I am wrong, but if I understand it correctly, the duties imposed on public authorities are very much wider than those imposed on other people. Perhaps we should expect that.

The duty spelled out in clause 51 is a duty on the public authority not to do any act that constitutes discrimination as previously defined in clause 44. Clause 51 is not just about the provision of goods and services; it appears to go further than that. The Minister may seek to enlighten the Committee about it.

We then come to the clause’s detail. The first thing that struck me was the exceptions provided in subsection (3). The prohibition on discrimination does not apply to the House of Commons, the House of Lords, the authorities of either Houses of Parliament,   the Security Service, the Secret Intelligence Service or GCHQ, nor to a part of the armed forces of the Crown that is assisting GCHQ.

One problem is the issue of what is a public authority. It would be useful if the Minister could clarify what the Government consider a public authority to be, because it appears that the term can be defined fairly loosely.

It is apparent from the Freedom of Information Act 2000, for example, that the special forces of the Crown and any unit assisting in the operation of GCHQ are already considered not to be a public authority, or are exempt from the status of public authority, which raises the question why that needs to be spelt out specifically in the clause. Equally, the House of Commons is considered to be a public authority under the Act, but not under this Bill.

There is a lack of clarity. The amendments seek to do two things. First, they ask the Minister to say what a public authority is—a question that will crop up over and over again as we discuss the other amendments that I have tabled to the clause. Secondly, they ask him to justify why the Secret Intelligence Service, the Security Service, GCHQ and the armed forces of the Crown that help GCHQ should be exempt.

An exemption may of course apply differently for different reasons. Under the Freedom of Information Act, one can see why certain bodies may be exempt, although it is noteworthy that the Security Service and the Secret Intelligence Service do not seem to be entirely exempt from an application under the Act.

We need to know why the Government believe that those bodies may be required to discriminate on the ground of religion. The same may apply to the House of Commons and the House of Lords, but I rather assumed that it could be said that we are sovereign bodies and therefore entitled to regulate ourselves, so I did not table amendments to that part of the clause.

As a first in our consideration of this rather complex and important clause, the Government need to justify why those bodies have been exempted. Notwithstanding the grandiloquent aims of the legislation, the cynic may say that the Government harbour secret anxieties about certain religions or religious groups, and believe that they should be able to discriminate simply on the ground of religion when considering the most secret matters. I should be grateful if the Minister would comment on that.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

The hon. Gentleman’s remarks fall into two broad groups. The first is the definition of “public authority”. That has already been debated extensively in another place and will, I am sure, be discussed further in Committee. I draw his attention—although I know that I do not need to—to subsection (2)(a), which defines a public authority as one that

“includes any person who has functions of a public nature”.

Organisations such as local authorities, which are established with a specific public remit, would clearly be regarded as public authorities.

The hon. Gentleman’s question begins to press when he asks whether other groups that may not naturally be regarded as public authorities may on certain occasions be public authorities for the purpose of the law and their responsibilities. That pertains particularly to the question of religious organisations. Would a faith group, for example, be regarded as a public authority? It would not be regarded as a public authority in itself, but a parish group or a faith group that had a contract with a local authority to provide a particular public service because it fitted the local authority’s aims and objectives and accorded with its social objectives, perhaps to provide support to young families or young children, would, in exercising its function as part of the contract, act as a public authority and have the obligations that a public authority would have.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I was aware of subsection (2) and the broad definition, but I am hoping that in the course of debate on an exceptionally important clause we will try to ascertain what the limits and the impact might be. Few would disagree that a religious organisation providing a public service to the wider public must not discriminate in the way in which it does that. A question then arises: to what extent might the fact that it is providing a public service impact on its internal structures, and on what it can and cannot do?

Another example, to which I will return later, is my own inn of court, the Middle Temple, which undoubtedly carries out public functions both as a local authority and in training and validating students for the Bar. Although not a religious organisation as such, it has some overtly religious manifestations to its existence. One of the things that I will be asking the Minister to consider as we progress through today’s debate is to what extent those might be restricted by the operation of clause 51.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I am not going to venture an answer to the hon. Gentleman’s specific question at this stage. We are having an important debate, which is a function of the reality that public services in our community are increasingly provided by a range of different organisations. Sometimes provision is by private or voluntary organisations, and at other times it is by the public authorities. That is a healthy state of affairs. Another responsibility that I hold as a Home Office Minister is to encourage the greater delivery of public services by voluntary and community organisations. There is a growing consensus that that is a good thing.

The obligations that go with the provision of a public service are important, and we make it explicit in the Bill that in relation to discrimination on the grounds of religion or belief it carries significant and serious responsibilities. No doubt there will be further opportunity to tease the issue out in Committee and elsewhere, because it is an important one.

It is, however, a leap too far to say that because a faith group or some other voluntary organisation provides a specific service at a particular time, that means that in all circumstances it operates as a public authority. I hope that we will be able to clarify   precisely where the cut-off points are. That is a general issue that pertains to a number of groups of amendments that we will discuss.

Amendments Nos. 116 to 119 would remove from clause 51 the exceptions provided in the clause for the Security Service, the Secret Intelligence Service and GCHQ, and for parts of the armed forces assisting GCHQ in accordance with a requirement of the Secretary of State. All those organisations may be called upon to consider whether individuals of particular religions or people who hold philosophical beliefs may be involved in activities that threaten national security.

The security services would, of course, then be bound to act to protect national security from any threat that they perceive. Inevitably such activity would involve treating people differently, and religion or belief might well be a part of the reason for that differential treatment.

We think that the potential for harm to those services’ operations that could arise from dealing with challenges under part 2, were such challenges to arise, outweighs the potential for harm caused by the discrimination allowed by these exceptions. Where there are two competing harms, one must make a judgment about which is the greater. The possibility of some form of discrimination is outweighed by a consideration of national security, where lives and whole communities might be at risk.

In this day and age, we must be especially vigilant about national security matters. I know that all members of the Committee will agree with that. The arrangements for exclusion of the security services, and of actions that are justified by the need to safeguard national security, from the prohibition of discrimination are proportionate to the need.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I understand the Minister’s point, but if we go further into this part of the Bill we reach clause 62, which states:

“Nothing in this Part shall make unlawful anything which is done for, and justified by, the purpose of safeguarding national security”,

so why does there have to be an additional exemption for specific security organisations? I infer from that that even without national security implications, the Government take the view that those bodies might have to discriminate on the grounds of religion. It might be uncomfortable to probe such matters, but they are there. One of my reasons for probing is that the Government say, “You shall not discriminate—it is wrong to prevent somebody from coming into your hotel because you do not like his faith or the cut of his jib—but we can do it when it comes to the operation of the security services.” That is a rather odd way of proceeding.

We in this House are supposed to be subject to scrutiny so, inconvenient as it may be—we often tend to let such things through on the nod—I have to tell the Minister that I do not think that he has made his case.   He has the national security defence in clause 62, which is very reasonable, but the subsections before us seek to go further and say that discrimination can take place within certain organisations for reasons that the Government have not specified.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I see no contradiction in having specific exceptions as well as a general one. Let me explain: it will give staff in the organisations specified in clause 51 clear confidence about how to proceed. We are talking about balancing two potential harms. We do not say that some discrimination is a good thing. It is a bad thing, but weighed in the balance against the potential of a threat to national security, the need to protect the community outweighs the harm done by the discrimination. The specific exemptions are there so that it is absolutely clear that those institutions and organisations are exempt.

However, we need the general power, too, for private security organisations that are not specifically listed as being exempt because they are not public authorities; only organisations that have a public remit are exempted under clause 51(3). Those organisations—which might have to balance discrimination against national security as part of the overall effort to ensure that we remain a safe society—can be protected by the powers in clause 62, even though they cannot claim exemption under clause 51. The two clauses complement each other; organisations that cannot claim exemption under clause 51 are covered elsewhere. We are balancing two difficult things, not saying that discrimination is all right—it is not; it is a serious matter but it has to be weighed against the greater need to ensure that our society is properly protected.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I hear what the Minister says. There may be a certain inevitability to it, and I do not intend to press the amendment to the vote. However, there is something slightly odd about this. When we introduced employment protection, we made special provision for the security services, enabling people to bring complaints about unfair dismissal and discrimination within their organisations. I think that that has worked well. I appreciate that this is a difficult matter, but the extent of discrimination in the field to which this measure could apply seems very wide. Is that necessary, when it could be dealt with on a national security basis? Notwithstanding what the Minister said, subsection (3) extends beyond that consideration, otherwise it would have spelled it out explicitly.

The matter having been ventilated, I shall go away and think about it. I beg to ask leave to withdraw the amendment.