Clause 27
Equality Bill
2:00 pm
This amendment extends protection against harassment on grounds of sexual orientation and religion or belief in relation to part 3 (where exercising a public function). Harassment is defined in a more limited way.
I discussed the amendment earlier, so I will not repeat the justification in respect of harassment. It was important to separate out public services from other services, because that is what I wanted the harassment provisions to cover. But it is useful to take the opportunity to raise a slightly separate point raised by the amendment: why do the Government not propose a separation between public services and non-public services, and a definition of public services? I will explain what I mean by that.
The justification for proposed new paragraph (a) was dealt with under the harassment clause, so I will not repeat that. But the argument that there should be a specific definition of public services and that they should be separated out from other services—commercially delivered services—is an important point that the amendment probes.
There is a long-running issue about what exactly a public service is. When it is delivered by a commercial organisation under contract to a public authority, or where its nature is public but it is privately purchased, or where its nature might be private or public but it is publicly purchased, as in care homes, there is a long-running controversy about how we can get our courts to understand that the intention in the Human Rights Act 1998 was to ensure wider coverage.
The worry is that simply referring to services and the exercise of a public function will not cover everything that we need to cover. Although the Government might not see the need to make such a distinction between public services and others generally, when it comes to schedule 23 some of us will argue that, for example, the exemptions provided for religious organisations to discriminate in the delivery of services ought not to exist to the same extent when delivering public services. I will not talk about those now, because we will debate them later. But there is an argument for a separation between public services and non-public services.
Even if the Solicitor-General does not see the need for the amendment, and does not see the need to have the demarcation where I might wish to see it, I would be grateful if she said whether her understanding is that services carried out in the exercise of a public function should also extend to categories under proposed new paragraphs (a), (b) and (c) in my amendment. We are grateful for the Government’s efforts in tackling the problem of the YL case in health care. However, does the Solicitor-General believe that the same should apply by extension in discrimination law? In many instances, article 14 cases will be brought in relation to the meeting of other rights under the Human Rights Act 1998. It will be useful for equality law to recognise the same reach of the public services obligation as human rights law.
The amendment is purely probing at this point, given that half of its justification is gone. I hope it gives the Government the opportunity to set out their thinking, as it is—I speak as a member of the Joint Committee on Human Rights—a particular interest, or obsession, as some might say, of that Committee, to ensure that public services are covered where they need to be.