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

I beg to move amendment No. 164, in clause 81, page 47, line 4, leave out sub-paragraph (c).

Janet Anderson (Rossendale & Darwen, Labour)

With this it will be convenient to discuss the following amendments: No. 165, in clause 81, page 47, line 5, leave out sub-paragraph (d).

No. 166, in clause 81, page 47, line 6, leave out sub-paragraph (e).

No. 167, in clause 81, page 47, line 7, leave out sub-paragraph (f).

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

We now consider public functions in relation to sex discrimination. The clause would make it unlawful for a public authority exercising a function to do any act that constitutes such discrimination.

Exactly the same issue—exemptions to the prohibition—applies to this clause as to the clause on religious discrimination. The grounds for exempting from the provisions the Security Service, the Secret Intelligence Service, GCHQ and the part of the armed forces of the Crown that assists GCHQ are, however, even weaker than the ones that may apply in the case of religious belief. I know that it has become almost standard practice in House of Commons and House of Lords legislation of this sort to include those bodies in the list, but I hope that the Minister will explain in detail why that is necessary.

After all, I should have thought that any issues of national security would apply identically to people of whatever orientation, whether gay or heterosexual, and it is difficult to understand why this particular exemption should be applied. Will the Minister say, as far as she can, what internal mechanism may operate in those organisations to allow complaints to be made administratively if the protection of the Bill is not extended to people working in those organisations?  

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

I thank the hon. Gentleman for creating the opportunity for the Committee to discuss the exemptions that apply to the intelligence agencies in the context of sex discrimination in the same way that we did when we discussed national security matters in the context of part 2 on Tuesday.

As the hon. Gentleman said, Amendments Nos. 164 to 167 would remove from clause 81 the exceptions provided in that clause for the Security Service, the Secret Intelligence Service, GCHQ and the parts of the armed forces that assist GCHQ in accordance with the requirement of the Secretary of State.

The amendments would make it unlawful for the intelligence agencies, as we may collectively call them, to commit any act in exercising their functions that would constitute discrimination or harassment. In the light of Tuesday's debate, and from what the hon. Gentleman has just said, I understand that he wants me to set out the rationale for exempting the intelligence agencies from the prohibition on discrimination, the reason why the Government believe that the exemption should remain, and why we cannot accept his amendments.

When we considered the policy on sex discrimination in public functions and any exceptions to it, we paid close attention to all the relevant issues when we developed the exceptions provided for in new section 21A of the Sex Discrimination Act 1975. We considered the specific circumstances of sex discrimination and the exceptions to the comparable provisions relating to discrimination in public functions in the Race Relations Act 1976 and the Disability Discrimination Act 1995. It is not surprising that many of the exceptions that we have provided mirror those in the race and disability prohibitions, as there are obvious reasons for consistency. That includes the exceptions for certain bodies exempted for constitutional or national security reasons, such as Parliament and the security services.

However, we did not simply slavishly roll forward the status quo into this legislation. Our view is that the exemption is justified. The intelligence agencies need to be as unfettered as possible in the discharge of their activities and responsibilities. We need to remove from them any uncertainty about whether they are falling foul of the discrimination requirements. There may be sound operational reasons for exercising their functions in respect of one sex or another. If they were not exempt, that might constitute unlawful discrimination, and that is simply not what we want to achieve. We do not want to apply such constraints to their operational autonomy, or cause uncertainty about whether they are breaching discrimination laws when conducting activities that have an overwhelming operational logic.

The hon. Gentleman made a fair point about an internal mechanism for dealing with the issue; I hope that he is content for me to write to him to reassure him and other Committee members about the processes. These days, we have to be especially vigilant about national security matters, as I am sure that all Committee members agree, and the   arrangements for exclusion of the intelligence agencies from the prohibition on discrimination are proportionate to the need. I invite the hon. Gentleman to withdraw the amendment.

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

I am grateful to the Minister for her response. I certainly look forward to her letter setting out the internal administrative procedures. I believe that there are some in place; indeed, at one level there is a system involving a senior High Court judge, to whom complaints about various kinds of impropriety by the security services can be brought internally. I rather assume, therefore, that there is also a complaints procedure for those who think that they are being unfairly discriminated against on any basis. It would be helpful for the Committee to know exactly how that works. Subject to that, I accept that there is some merit in what the Minister says, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Vera Baird (PPS (Rt Hon Charles Clarke, Secretary of State), Home Office; Redcar, Labour)

I beg to move amendment No. 139, in clause 81, page 48, leave out lines 30 and 31 and insert—

'The provision of separate services exclusively or primarily to members of one sex where justified by a legitimate aim and where the means of achieving that aim are appropriate and necessary.'.

Janet Anderson (Rossendale & Darwen, Labour)

With this it will be convenient to discuss the following: Amendment No. 140, in clause 81, page 48, leave out lines 32 to 37 and insert—

'The maintenance or adoption of specific measures to prevent or compensate for disadvantages linked to sex, where justified by the aim of ensuring full equality in practice between men and women and where the means of achieving that aim are appropriate and necessary.'.

Amendment No. 141, in clause 81, page 49, leave out lines 1 to 16.

New clause 14—Sex discrimination exceptions for public authorities—

In the Sex Discrimination Act 1975 (c. 65) the following shall be inserted after section 34—

''35 Exceptions for Public Authorities

(1) Sections 29 (1) and 30 shall not be construed as rendering unlawful—

(a) the provision by public authority of the goods, facilities and services exclusively or primarily to members of one sex where justified by a legitimate aim and where the means of achieving that aim are appropriate and necessary; or

(b) the maintenance or adoption by a public authority of specific measures to prevent or compensate for disadvantages linked to sex, where justified by the aim of ensuring full equality in practice between men and women and where the means of achieving that aim are appropriate and necessary.

(2) In subsection (1), a 'public authority' includes any person certain of whose functions are functions of a public nature.''.'.

Vera Baird (PPS (Rt Hon Charles Clarke, Secretary of State), Home Office; Redcar, Labour)

The amendments and the new clause are an attempt to point to a solution to a problem in the clause. The amendments have a techie aspect to them, although the issues that they address are deep, so it will take me a moment to set out my point.

As my hon. Friend the Minister says, clause 81 puts new section 21A into the Sex Discrimination Act 1975. The new section outlaws sex discrimination in the discharge of public functions by a public authority or a private body. In effect, it reverses a House of Lords case, and it is new and very welcome.  

There are exceptions to the new duty not to discriminate, which are set out in subsection (9) of new section 21A. The ones that I am concerned about allow for the provision of single-sex services where they are appropriate; I am thinking of domestic violence refuges for men or women, single-sex swimming lessons, and that kind of thing. Of course, in parts 3 and 5 of the Sex Discrimination Act 1975 there is already a duty not to discriminate on the basis of sex in the delivery of public services such as education and health. There are exceptions to that older duty, too—again, to permit the delivery of single-sex services where they are appropriate. However, although new section 21A will outlaw sex discrimination in the delivery of public functions, and parts 3 and 5 of the Sex Discrimination Act 1975 outlaw sex discrimination in the delivery of public services, the exceptions in the two pieces of law are quite different in ways that will cause problems. Those in the old Act are much narrower than those in new section 21A. I share the view of the Equal Opportunities Commission, to which I am indebted, that the exceptions in new section 21A are too wide and could easily be abused to evade its legislative purpose.

Amendments Nos. 139 to 141 would therefore narrow those exceptions and make deletions as appropriate. They do that by substituting a much more stringent test for the justification of single-sex provision. They refer to the definition in the 2004 European directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services. The directive does not include the wide exceptions in new section 21A, but takes a principled approach to exceptions to the duty against sex discrimination. It bases those exceptions on the very good principle of proportionality, under which separate services are

''justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.''

That is language with which lawyers who contend in human rights and equal rights areas are very familiar. That proportionality test is clear and is one of principle.

In any event, the equal treatment directive, which provides the test in my amendments, comes into force in the UK in December 2007. If the wide tests in new section 21A remain, they will, at the very least, have to be interpreted in the light of the new directive from December 2007. One will have the wide tests in the new section for six months and then the narrower tests controlled by the directive. That does not seem to be the right way to go about setting up a new duty against discrimination and recording exceptions to it.

If amendments Nos. 139 to 141 were accepted, they would narrow the extent of the exceptions to the new public duty in new clause 21A. However, they would leave untouched the exceptions to the duty in the 1975 Act not to discriminate, which are very different from the exceptions in the new section and the equal treatment directive. Consequently, new clause 14 would also include in the 1975 Act the tests for exceptions from the directive. As a result, the exceptions to the duty in new section 21A and in   parts 3 and 5 of the Sex Discrimination Act would be narrower and the same as each other. Again, that is linked to the principle of proportionality—I did warn the Committee that this issue had its techier aspects. However, the import of the amendments is to narrow the exceptions to the new duty not to discriminate and to make them the same as the old duty not to discriminate. That is what this is all about.

Why do that? If we are introducing duties not to discriminate, it is rational to ensure that the exceptions are the same. The accident that the policy has changed in the 25 years between the first Act and the second—so there are different exceptions—does not help when trying to set down the law, which needs to be clear.

There is no reason why there should be different tests. The duty not to discriminate on the grounds of sex in the 1975 Act applies to the delivery of public service across the board, including education and health, which is a wide area. The duty not to discriminate in the performance of a public function, which would be included by the new section, is a much narrower provision in terms of reach, but there is no reason why the exceptions should be different.

Although I said that one is a narrow area of activity and the other is a broad area of public activity, it is not clear which duties placed on public authorities will fall within which provision. For instance, if we consider a typical argument for an exception to the duty not to discriminate on the basis of gender, such as the provision of a domestic violence refuge, there is widespread agreement from a policy perspective that such places should be single sex, but individuals have attempted to challenge public authorities for not providing refuges for men when they provide refuges for women.

If the local authority provided a refuge, it would be delivering a public service, which would fall under the duty in the old Act and the exceptions would be those under that Act. If the local authority funded another organisation to set up a domestic violence refuge, it would not be acting under the old Act and relying on its exceptions, but would be acting under the new section and relying on the wider exceptions contained in it. So, if there were two identical domestic violence refuges funded in different ways, one might be a lawful exception and the other might not, because the exceptions are different.

I hope that the example I have given makes the point that the two duties are alike, but they are not easy to separate. There is no rational reason why the exemptions should be different. The amendment attempts to narrow the exemptions, compatible with achieving the purpose of an end to discrimination on the basis of sex and bringing the two bits of legislation close together. I hope that I have managed to explain that, without sending everybody to sleep or confusing them hopelessly. Obviously, there is a techie aspect, but I am sure that the Minister can grasp that that is important when one is introducing new duties. The gender duty, which goes way beyond stopping discrimination and into the promotion of gender equality, will also be impacted on by the incompatibility of exceptions. That is the wrong way to introduce a new duty. The new duty has to be clear   and everybody has to understand what is outside it, but with the current mismatch between the 1975 Act and the new proposal, that will not happen.

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

I have considerable sympathy with the amendments tabled by the hon. and learned Lady and I look forward to hearing the Minister's response. The amendment reflects the equal treatment directive and therefore that is likely to be the test that will be applied in any event and will, ultimately, be the interpretation through which the provision Government has drafted will be looked at.

The amendments have the merit of a slightly greater degree of simplicity, rather than the series of repetitive statements in the Bill. Having said that, however, perhaps the Minister can provide a compelling reason why the current wording should remain. The hon. and learned Lady makes her most powerful case in saying that if that interpretation test is to be applied within 12 months in any event—and I believe that that is the case—it seems slightly strange that it should not be in the Bill, especially as my impression is that it will achieve exactly the same result as the Government's own wording.

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

The hon. and learned Member for Redcar (Vera Baird) has explained the situation well and I do not propose to repeat all that she said.

I strongly support her amendment, because it seems to me that the provision will cause great confusion, not least for local authorities. They have to implement the goods and services directive by April 2007, but eight months later the goalposts will be moved. Not only does that seem unhelpful to local authorities but it widens the scope for potential mischief makers. There are always people who try to challenge things that they do not like, particularly as far as the provision of single-sex services is concerned, and the scope for such people to bring cases will, it seems, be widened. The issue will ultimately be settled only when there is firmer case law, although I am sure that that is not the Government's intention.

To go back to the domestic violence refuge example, the provision of a refuge will fall under either of the Acts in question, depending on who provides the funding. However, ancillary services are also provided to those refuges and it is not clear which piece of legislation they will fall under, although it seems to me that many such services will fall under the auspices of the Sex Discrimination Act 1975. It is generally unhelpful to have that disparity in a similar area of policy—to have to look to different pieces of legislation according to who provides the services. It would be much simpler to align the two in the way outlined by the hon. and learned Lady. I am not wholly familiar with all the details, but I gather that there have been similar problems as a result of differences between the Race Relations Act 1976 and statutory instruments with a slightly different flavour that have been introduced later.  

If the Minister assured us that all would be brought into line, we would probably all be reassured. It would be helpful to know whether she is aware of the potential problem that has been mentioned and is happy to live with it, or whether something is going to be done to eliminate that potential problem.

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

Clause 81 amends the Sex Discrimination Act by inserting new section 21A, which extends the Act to prohibit sex discrimination in the exercise of public functions, subject to certain exceptions. The clause includes a table of exceptions that sets out circumstances in which the prohibition of discrimination does not apply. A number of those exceptions are for the provision of separate services for men and women when that is a more effective way to provide the services, or when they are needed to overcome disadvantages affecting only one sex.

Amendments Nos. 139, 140 and 141 would remove those exceptions completely and replace them with the drafting in the amendments. They are designed to create single-sex exceptions compatible with the gender directive. New clause 14 would introduce a new or replacement section into sections 29 to 30 of the 1975 Act, which deal with goods, facilities and services and premises, setting out comparable exceptions for public authorities to provide separate services for men and women. It aims to achieve consistency in the exceptions between section 21A and sections 29 and 30—my hon. and learned Friend the Member for Redcar was right to say that it all gets a bit technical. The new clause also introduces a new definition of public authorities that differs from the one used in other parts of the Bill.

I am aware of the concerns expressed by the Equal Opportunities Commission about the exceptions to the new provisions that the clause introduces into the Sex Discrimination Act. New section 21A prohibits discrimination on grounds of sex in the exercise of public functions. I understand that although the EOC welcomes the aim of providing exceptions for gender specific needs, it has a number of concerns—first, that the exceptions are too wide and may, if not qualified, allow discrimination intended to be prohibited by the new section 21A; secondly, that the exemptions may not be compatible with the gender directive; and thirdly, that there is inconsistency between the new exceptions and those in sections 29 and 30 of the Sex Discrimination Act dealing with goods, facilities and services and premises.

We have given all those points careful thought and I shall deal with each in turn. First, however, I will explain why the new prohibition is an essential part of the Bill. It is needed to provide comprehensive protection against sex discrimination in the delivery of public functions, thus bringing public sector activities such as policy making, decision making, administrative functions and, where not already covered, service delivery within the Sex Discrimination Act. It is also essential to underpin the gender duty. There has been a general welcome for the new provision. When drafting it, we took care to ensure that the provision would not lead to banning public functions that take the form of services that are best delivered on a single-sex basis. That type of   service must be allowed to continue and must not be stopped by this extension of the law. The main purpose of the exceptions is to permit that.

I shall deal together with the breadth of the exceptions and compatibility with the gender directive. Amendments Nos. 139 to 141 address those issues. When drafting the exceptions, we considered whether there was a need to qualify them along the lines proposed by the EOC and sought the advice of parliamentary counsel. He advised that the current drafting was fully satisfactory, but agreed that it was advisable to ensure that there could be no conflict with provisions of the gender directive. As a result we made an amendment to the clause on Third Reading in the other place to amend new section 21A(4) of the Sex Discrimination Act to make it clear that the provisions of community law, which include the gender directive, have primacy. No further action is needed on that score.

New clause 14 addresses the EOC's third point, on the need for consistency between the new exceptions and those in sections 29 and 30 of the Sex Discrimination Act dealing with goods, facilities and services and premises. That arises because many services provided by public authorities fall under the provisions of that Act applying to goods, facilities and services, where narrower exceptions apply. The fact that the boundary between a public authority's activities that would be regarded as a service and those that would be classed as public functions is not always clear makes for some uncertainty about which exceptions may apply in a particular case.

I appreciate that that is not ideal. For a period prior to the introduction of the single equality legislation, different sets of exceptions will apply to the two areas. However, the question of definitions and exemptions in discrimination legislation, both in the Sex Discrimination Act and in other statutes, needs to be looked at across the board, and the discrimination law review is the right place to do that. Making ad hoc changes in the Bill, which would soon be superseded by the single equality Bill, is not the right approach. The discrimination law review will allow debate and discussion, and lead to effective solutions for the longer term.

I appreciate the need to provide maximum clarity to public authorities—a point that has been raised by hon. Members. We will do all we can to make sure that public authorities are well informed about changes ahead. Providing clear, timely guidance will be the best way to manage any practical difficulties arising from the introduction of new section 21A.

I understand that the new definition of public authorities proposed in the amendment reflects concerns that the wording used in the Bill to define them may prompt questions about whether different definitions are intended from those in the Human Rights Act 1998 and the Disability Discrimination Act 2005, which establishes the duty on public authorities to promote equality in respect of disabled people. That is not the case. Although the wording used may be slightly different, the policy intention and, in our view, the legal effect is the same. The very small differences in wording reflect the parliamentary draftsmen's   approach to drafting. There is no difference of substance between the definition in the Bill and those used in earlier measures. We intend them to have identical breadth and are confident that a court would not interpret the definitions differently.

On the gender duty, the Equal Opportunities Commission expressed concern that a public authority's employment functions might be excluded from the gender duty because of the definition used in clause 81. I assure the Committee that the gender duty covers the breadth of a public authority's activities, including its employment functions. Those are covered by both limbs of the duty. The first limb contains the requirement to have due regard to the need to eliminate all sex discrimination that is made unlawful by the Sex Discrimination Act, including the prohibition on discrimination in employment in part II. The second limb contains the obligation to have due regard to the need to promote equality of opportunity between women and men. That obligation covers everything that a public authority does, including its employment functions, its services and its public functions, such as its policy, regulatory and enforcement work, to the extent that they are relevant to gender equality.

I am not persuaded that the amendments are necessary. It is important that we introduce a new prohibition on sex discrimination in the provision of public functions now, and provide the necessary exceptions, recognising that further consideration will be given in the discrimination law review. I hope that my hon. and learned Friend will consider withdrawing her amendment.

Vera Baird (PPS (Rt Hon Charles Clarke, Secretary of State), Home Office; Redcar, Labour)

Of course I shall. The important thing is not to push the amendments into the Bill but to be satisfied that the Government are well apprised of the complex nature of the problem and its potential impact. It is clear from the Minister's reply that they are.

I wonder about my hon. Friend's comments on the definition of a public authority. I do not think that that was part of my proposals. It may be in amendment No. 47, which was not selected. However, the answer was very interesting all the same. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 ordered to stand part of the Bill.