Orders of the Day — Equality Bill [Lords] – in the House of Commons at 3:32 pm on 16th January 2006.
'(1) The Secretary of State may by regulations make provision about discrimination or harassment on grounds of gender reassignment.
(2) In section (1) "gender reassignment" has the meaning given by subsection 36.
(3) The regulations may, in particular—
(a) make provision of a kind similar to Part 2 of this Act;
(b) define discrimination;
(c) define harassment;
(d) make provision for enforcement (which may, in particular, include provision—
(i) creating a criminal offence of a kind similar to, and with the same maximum penalties as, an offence created by an enactment relating to discrimination or equality,
(ii) about validity and revision of contracts,
(iii) about discriminatory advertisements, and
(iv) about instructing or causing discrimination or harassment;
(e) provide for exceptions (whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality);
(f) make provisions which apply generally or only in specified cases or circumstances;
(g) make different provisions or different cases or circumstances;
(h) include incidental or consequential provision (which may include provision for amending an enactment);
(i) include transitional provision.
(4) The regulations—
(a) shall be made by statutory instrument, and
(b) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.
(5) In subsection (3) (h) "enactment" includes an enactment in or under an Act of the Scottish Parliament.'. —[Lynne Jones.]
Brought up, and read the First time.
I beg to move, that the clause be read a Second time.
The new clause is intended to enable the protection of transsexual people from discrimination in the supply of goods and services by creating a power to introduce secondary legislation. It is a near copy of the provisions relating to the provisions on sexual orientation, which the Minister will be aware were not in the original Bill as introduced in the House of Lords, but were by the time it came to be considered by this House. That was partly as a result of the pressure applied by other hon. Members, including those, such as myself, who signed early-day motion 710 in the name of my hon. Friend Dr. Turner.
That was a very welcome move on the part of the Government and it is unfortunate that the Government have so far chosen to ignore the requests for a similar provision in the case of transgender people; for example, 88 hon. Members signed early-day motion 1083 in my name on the Equality Bill and the supply of goods and services to transsexual people.
There are three reasons for including the provision now: the need for protection, administrative efficiency and compliance with EU law. Society is much more accepting of transpeople today. The Gender Recognition Act 2002 was passed unopposed with all-party support, a far cry from 1994 when there was widespread discrimination against transsexual people, which led me to found the parliamentary forum on transsexualism.
At that time, Ministers tolerated blatant discrimination in employment against transpeople. Nevertheless, discrimination continues. It took five years to see the introduction of the Sex Discrimination (Gender Reassignment) Regulations 1999, which amended the Sex Discrimination Act to prohibit discrimination in employment and vocational training. However, those regulations do not extend to discrimination in the supply of goods and services.
The media have reported several cases involving transsexual people refused access to pubs. Press for Change, the lobby group on behalf of transpeople, is particularly concerned about young transsexual people who are forced to leave home when relationships with their families break down. Discrimination by private and institutional landlords means that these young and vulnerable transsexual people often encounter great difficulty in finding accommodation.
The more widespread problem is that without legal protection against prejudice, many transsexual people censor their lives by taking care to avoid situations where they feel discrimination, knowing that the law currently leaves them with no redress. In that regard, we have made little progress since the time shortly after I was elected in 1992, when I was approached by a transsexual woman who was absolutely terrified of her gender status becoming known by her employer. It was that kind of discrimination that led to legal challenge and to the regulations that I have mentioned.
In relation to the provision of goods and services, a few test cases have so far come to court, but most potential litigants stand down when advised that they have no case as the law currently stands. As I have said, the Sex Discrimination (Gender Reassignment) Regulations amended the Sex Discrimination Act in 1999 to prohibit discrimination in employment and vocational training. This was done to implement the 1996 ruling in the European Court of Justice in the case of P v S and Cornwall county council. That was the case of a transsexual woman who, having initially been promoted by the council, was then sacked by it when she informed it that she was going to undergo gender reassignment surgery.
The directive determined that discrimination on the ground of sex includes discrimination on the ground of gender reassignment. Because the 1999 regulations were introduced under the terms of the European Communities Act 1972, they could not exceed the scope of the equal treatment directive. They extend only to employment and vocational training, and not to the rest of part III of the Sex Discrimination Act 1975.
An opportunity to legislate for goods and services protection arose with the Gender Recognition Act 2004. At that time, however, Ministers preferred to wait for the outcome of discussions on a new EU directive on gender discrimination in goods and services. In Committee, the then Minister with responsibility for such matters, my hon. Friend Mr. Lammy, responded to a query from me as follows:
"She is right in saying that there is nothing to prevent the Government from acting. However, as I indicated, we are in discussion with our partners in Europe. We have a draft directive as of three months ago, and it appears that there will be legislation on the matter. The Government welcome that and believe that it is right to have that dialogue with our European partners, come to a conclusion and then take the matter forward."—[Official Report, Standing Committee A,
That conclusion was reached later in 2004. European Council directive 2004/113/EC, of
One major concern that the Government expressed about introducing such protection through the Bill was that a substantial amount of work would be required in considering whether any exceptions were necessary. Given that the 1975 Act already contains exceptions to cope with single-sex facilities, it should not be considered problematic that new exceptions are required to permit continued discrimination against transpeople. However, there are likely to be rare and complex situations in which exceptions may be needed—probably those involving people in the process of changing gender. The new clause would address that by introducing a power for Ministers to issue regulations creating exceptions. It is intentionally constructed as a replica of clause 81, which creates a power to introduce goods and services protection on the ground of sexual orientation. The new clause can therefore be presumed to be acceptable to the Government as a workable framework.
However, the power to make regulations would allow Ministers to make any special provision that might be necessary, and it would ensure that Parliament does not have to satisfy itself at this stage that all possible exceptions have been considered. The provision allows more time and flexibility to ensure that the protection can be provided now, and in a way that works.
Ministers have argued that it is not the right time for such a step. In answer to my hon. Friend Kali Mountford, the Minister referred on Second Reading to the Government's equalities review and the discrimination law review, with a view to the inclusion of any changes in the promised single equality Act. However, as the Government are aware, waiting for a single equality Act would risk leaving the UK in breach of its obligations under EU law. The directive that I mentioned earlier, which implemented the principle of equal treatment in the access to and supply of goods and services, does not explicitly refer to transpeople or to gender reassignment. However, the minutes of the Council meeting include an explicit note that the directive should be determined in the light of the 1996 European Court of Justice ruling in the P v. S and Cornwall county council case, which I mentioned earlier also. In that case, the European Court of Justice held that the prohibition of discrimination on grounds of sex should be construed to include discrimination on grounds of gender reassignment.
Goods and services protection for transpeople will therefore be required no later than December 2007, when the directive enters into force. It is very unlikely that a single equality Act will be passed by Parliament and have entered into force in time to meet that obligation. It would, of course, be possible to implement earlier the directive to implement goods and services protection by making regulations under the European Communities Act, which I understand is the Government's intention. That appears, however, to be little different from using the Equality Bill now to create a power for regulation, and I am therefore confused about why the Government are not taking that opportunity, particularly as it would enable some areas not included in the European directive to be addressed. Some areas protected by the goods and services protection provided under the Sex Discrimination Act 1975 fall outside the scope of the EU directive. Education, as a reserved area, is one example, and media representation another. Clearly, in introducing regulations under the European Communities Act, the Government will not be able to extend protection in those areas.
I respect the hon. Lady's record in this field and strongly support her new clause. I put it to her that the Government's rationale for not acting now is no more compelling than the rationale that they offered in the other place in the first instance in respect of the similar problem of goods and services discrimination against lesbians and gay men. In fairness to Ministers, I may say that on that occasion, not least under pressure from the noble Lord Alli, the Government saw sense and conceded the need to act. Should they not do so in this case, too, on grounds both of equity and of efficient use of parliamentary time?
I was coming to the point about administrative efficiency and entirely agree with the hon. Gentleman. In fact, in many ways the issues concerning transpeople are perhaps a little easier for the Government to deal with than those concerning lesbians and gay men; we already have gender regulations in relation to employment, which cover many complex areas. I have with me, for example, a guide to the Sex Discrimination (Gender Reassignment) Regulations 1999, which covers employment where it is required for employees to share the same accommodation. A lot of issues that might require detailed scrutiny have already been dealt with in those regulations.
Work is already under way within the Government on regulations to implement the Equality Bill's provision for protection against discrimination in the supply of goods and services on grounds of sexual orientation. Many of the issues raised by discrimination against transpeople are similar to that. For example, religious bodies have similar concerns, and many organisations address the issues on the ground jointly through a lesbian and gay network and bisexual and trans framework.
Even if the Government introduce regulations, however, goods and services protection will not be comprehensive for transpeople. The means by which the Government propose to implement the EU directive will result in our missing the opportunity to introduce protection in these crucial areas. In addition, it will add unnecessary complexity to the law. It therefore makes administrative sense for the work on discrimination against transpeople to follow on quickly from the work on sexual orientation, rather than being left until the Equality Bill has passed through the House. For those reasons, I hope that the Government will accept new clause 9—I know that they are committed to introducing this protection for transpeople.
On a point of order, Mr. Speaker. I apologise for raising this point now, because it does not directly relate to the business at hand, but I wanted to give you notice of this point of order. I hope that this is an apposite moment. You will know that Mr. Galloway is not present and, indeed, is incommunicado. However, he managed to sign last Thursday 12 early-day motions, which appear on today's Order Paper. One of them, early-day motion 1297, is about abandoned animals at Christmas, but I do not know whether cats were included. Is it in order for an hon. Member who is not present and has no means of being in communication with this House to sign early-day motions? I suggest that it might be worth while investigating how he has managed to do so.
I do watch "Big Brother" and I saw the one about the cat and the one about the boxers. I know that some hon. Members give authority to another hon. Member to put their names on early-day motions, but I cannot think of any hon. Member who would do so in this instance. I will look into the matter, and that is the best that I can do. I will also continue watching "Big Brother" in my spare time.
Further to that point of order, Mr. Speaker. I acknowledge that this is an exceptionally important debate and I do not want to digress from it, but my hon. Friend Chris Bryant has raised an important point. In considering that point, Mr. Speaker, will you find out whether any of the early-day motions have been tabled during the incarceration of Mr. Galloway, because if so, it is difficult to see how he could provide authority for them to be signed?
As I said to Chris Bryant, I will look into the matter. It could be a question of authority to add a name being given to another hon. Member, so we will continue with the debate unless I get into serious difficulties for promoting a television programme—I use that term lightly.
New clause 9 should be an essential part of this Bill. As my hon. Friend John Bercow said most eloquently a few moments ago, there is no logical reason why protection from potential discrimination on the ground of transgender should be treated any differently from protection from potential discrimination on the ground of sexual orientation. The Opposition were pleased that the Government were flexible, far-seeing and honest enough to accept the amendments in the other place that have led to the addition to the Bill of protection from potential discrimination on the ground of sexual orientation. It is a matter of simple logic and reason to say that the same protection should be afforded to people who have chosen to change gender. We have already passed legislation to make formal the status of transgender and we all appreciate that there is no reason why people should not have that protection.
I understand why the Minister is likely to argue that the Government do not want to include the new clause at this time: they want to give the matter further consideration as it is part of an ongoing review. We discussed the matter at some length in Committee in a constructive debate. Nevertheless, Lynne Jones proposed the new clause in a thorough and meaningful way and she speaks for many, many Labour Members. She speaks for many Conservative Members, too, and she has the full support of the Opposition Front Bench.
I have little to add to the words of Lynne Jones, who put the case well. Although it is welcome that during the passage of the Bill the Government have extended goods, facilities and services protection on the ground of sexual orientation, there seems no reason not to extend the provision on the ground of transgender.
In Committee, the Minister was pressed repeatedly to give an assurance that the directive implementation date of December 2007 would be fully met, yet failed, unfortunately, to produce any such reassurance. I accept the need to get the measure right and iron out the fine details, but as the hon. Member for Birmingham, Selly Oak said, this will be the second missed opportunity to address that aspect of inequality. In 2004, the then Minister said that a review was ongoing and that something was expected within a year. However, almost 18 months later we are no further forward.
The simple reality is that if we wait for the Act to be passed, we will have missed an opportunity to implement the directive fully and to extend the provision, because, as has already been pointed out, education and the media are not covered. It would be helpful if the Minister could explain the process, give us assurances that the directive will be fully implemented and indicate where we go from here. Only a small group of people may be affected and it is important that we get the provision right, but the Government have had enough time.
I, too, signed the new clause moved so ably by Lynne Jones and, on the basis of our past association during the passage of the Gender Recognition Act 2004, I want to say how much I admired both her constructive approach to those macro-debates and the clear way in which she proposed the new clause. On both, more often than not, I agreed with her—and, indeed, with other Members. This is not fundamentally a party political issue. That is why the Government should catch the tide and eliminate discrimination in one of the few remaining areas that is as yet inadequately covered by our legislative arrangements, and should do so in the way that the hon. Lady put so clearly to the House. She invites us to accept a new clause that is framed to give the maximum possible flexibility of detailed implementation, if there are detailed or technical issues that need further thought and ultimate resolution—as there usually are, in my experience. I am with her on that.
I regret that owing to other duties, which we sometimes have, I have been a country member of the debates on the Equality Bill. That does not signify any lack of support for it; it merely means that I have not been able to participate in the Committee and listen to the detailed discussions that have taken place. One by-product of that is that coming to the new clause fresh, as it were, without having been a direct participant in the debates in Committee, it seems odd that nothing has been done in this area.
I have three points to put to the House. First, I disagree slightly with the hon. Member for Birmingham, Selly Oak, who rightly said—I do not disagree about this—that there have been great advances in our approach to transgendered people. Nevertheless, my experience of people in such a situation is that there is still a real sensitivity and scope, to put it no less strongly, for wide misunderstanding among the general public of the position of transgendered people, not least because they are such a small minority.
Frankly, I would have known little about it, and might have had less sympathy than I have, if one of my constituents, who is very articulate, had not been able to brief me extensively during the passage of the Gender Recognition Act 2004. My constituent has gone through a marriage annulment and, I think, the first civil partnership in the country under the accelerated procedure. I was delighted to congratulate her on that relationship, which I hope will last. She is an excellent person who shows some measure of the quality of people who are transgendered and who are being disregarded and sometimes demeaned by society.
There was some unpleasant press comment last week about somebody who had sought a reversal operation after an initial operation. That was the old Adam coming out, at least in the press, in people who are still unsympathetic to transgendered people. It seems offensive to have a situation in which the small number of transgendered people—probably a handful in each constituency—feel that they are being singled out at a time when other people's inequalities are being addressed.
Secondly, I should like the Minister to comment on another issue in her response. I remember well from our exchanges in Committee, when considering the 2004 Act, the hon. Member for Birmingham, Selly Oak bringing forward some interesting legal opinion and comments—on which we did not have a wholly satisfactory answer from the Government—in the relation to The Hague convention on the operation of private international law.
Increasingly, there will be situations—I notice the Minister looking a little quizzical—where persons who find themselves translated to the UK, either as temporary visitors or permanent residents, may have private rights attaching to them through their membership of other member states of the European Union. That creates a further anomaly that Ministers may need to consider, quite apart from non-compliance with the European directive in time, which I would have thought they would take seriously, but instead they seem to be taking a casual attitude.
Thirdly, on discrimination, it seems daft that under the legislation shopkeepers, for example, will no longer be able to refuse services or the supply of goods on the grounds of people's sexual orientation or their religion, or for any other reason, but that the one area where they could continue to refuse would be in relation to transgendered issues. That seems grossly unfair and sends exactly the kind of signal on persecution, or demeaning people, that we should not be sending.
Having not participated in the debates in Committee, I thought for an awful moment that the Government might, in some strange way—perhaps as the index of the ignorance that is still widely attached to such sensitive issues—have thought to themselves that the provisions on sexual orientation that they were making would, in some sense, cover gender reassignation. Of course, the provisions will not do that because gender reassignation has nothing whatever to do with sexual practices or orientation, nor does it imply anything for them. In that sense, if we are to rake around in moral concerns, it is much less "reprehensible"—I emphasise the inverted commas—to have undergone gender reassignment than to have a particular sexual orientation. I have no objection to the law dealing with those issues either, but I do not understand why the Government are so diffident about this issue.
Finally, I shall emphasise a point that the hon. Member for Birmingham, Selly Oak made so eloquently. Her new clause is an entirely facilitative new clause. It provides for an order-making power and not for a precise set of criteria. Therefore, if there is a problem it is possible for Governments to accommodate that. However, to accommodate it by doing nothing at this stage will facilitate the condoning and permission of discrimination in this very narrow area for an indefinite period of a year or two, when that has no justification or merit and should be stopped.
My hon. Friend rightly refers to the fact that we are debating provision for an order-making power. As part of a belt-and-braces approach for the Government, does he agree that if Ministers are anxious in some way that pressing ahead now risks error or a lack of satisfaction, the order-making power can be designed in such a way as to minimise that threat? Ministers can say that they will issue draft regulations that will be subject to wide-ranging consultation and that they will then subject the regulations to the affirmative procedure of the House.
I entirely endorse my hon. Friend's comments. Ministers have the maximum flexibility and the lowest level of commitment, but the House should not turn its back on the interests of transgendered people by rejecting the clause and saying that they alone should not be able to avail themselves of the equality agenda of which the Government are so proud and on which, as matter of record, I have supported them.
I thank my hon. Friend Lynne Jones for raising the issue and I pay tribute to the long-standing work that she has done. Like Mr. Boswell, I, too, have two constituents who have come to me with issues surrounding transsexuality and transgender. One of them mentioned on many occasions the work that my hon. Friend had done, and for which we are all very grateful.
As I said in Committee, I want to stress that the Government support the intention underpinning the new clause, and to make it absolutely clear that we are committed to ensuring that transsexual people are protected against discrimination in the areas of goods, facilities and services. Work is already under way, within the context of the discrimination law review, to ensure that transsexual people gain the legal protection that we all agree should be available. That builds on the rights that the Government have already ensured for transsexual people through the Gender Recognition Act 2004, which several hon. Members have already mentioned.
It has been argued that because the Bill contains an order-making power to extend protection against discrimination on the ground of sexual orientation, we should bring forward regulations to protect transsexual people. Indeed, as my hon. Friend said, her new clause mirrors the provisions in clause 81. We are not persuaded, however, that legislating now to bring in a power to introduce the regulations that my hon. Friend is seeking is the right approach. The circumstances are far from identical. In many cases, discrimination issues facing transsexual people are not the same as those facing gay men and lesbians. We need to understand them properly before we legislate.
I was very pleased to hear today—as I always am—the commitment of many Members to issues of equality, but I must reiterate to them, as I did on Second Reading, that the Bill was never designed to cover all equality issues. I fully understand the frustration felt by hon. Members because it takes time to achieve what we are setting out to do, but the discrimination law review is the mechanism that we have put in place to ensure that we have a proper approach. That will lead to a single equality Bill in the lifetime of this Parliament, which is our manifesto commitment.
I am trying to gather some understanding of my hon. Friend's position, especially as she says that we must learn about the experience of such discrimination and the way in which that is qualitatively different from other people's experience of discrimination, because I do not understand precisely what she is trying to get at. There is also a question of time. We are constrained not only by expectations—not least those of the community—but by the strictures on us due to the need to comply quickly with European legislation. Will she indicate how quickly she might reach that position of understanding?
If my hon. Friend will bear with me on the question of timing, I shall come to it shortly. I will respond specifically to the matter because it was raised in Committee.
Will the hon. Gentleman contain himself until I have responded to the point made by my hon. Friend Kali Mountford?
On the experiences of transsexual people, there are specific difficult questions that we must resolve. I am not saying that there are not answers to those questions—I fully expect that there will be—but we must examine the provision of single-sex hospital wards and the situation in prisons. We must consider services that are provided to people that are based on their gender. I fully expect that we will find ways through that, but we must have a proper look at the matter. We also need to consider terminology and the way in which we define terms that are used in different ways, such as transsexual and transgender.
The hon. Lady is deploying arguments that, as far as I know, are precisely those that were advanced by Ministers in the other place against the inclusion of sexual orientation as a criterion—the position was reversed as a result of the wisdom of the other place. Why is she persisting in making those arguments, and what is the difference between the two criteria?
The hon. Gentleman wishes to establish why such an order-making power has not been added to the Bill. It is interesting to note that the Government are often criticised for making order-making powers, precisely because it is difficult to amend regulations after they are drafted, although John Bercow rightly pointed out that the affirmative procedure would be used. I am not 100 per cent. sure about this, but Mr. Grieve might well have made that point before—he is smiling, so I think that I might be right. We would want to go down that route rarely.
I will make some progress because hon. Members might find that I refer to the points that they wish to raise. I am happy to ensure that I give way before the end of my speech if I have not answered their questions.
Let me explain why and how we will move forward to provide protection for transsexual people. The work that we are already doing in the discrimination law review has highlighted the importance of making sure that the law takes proper account of the specific issues that transpeople face. We need to consult fully with them and the organisations that represent them, as well as those who will have responsibilities under law to ensure that we achieve well-focused and workable law. We will publish a consultation paper before the summer that will include our initial proposals and options for extending, beyond employment protection, protection against discrimination for transsexual people.
The purpose of the discrimination law review is to produce proposals for a single equality Act, which we are committed to bringing forward in the life of this Parliament. It is precisely because there are differences between protection for different groups and anomalies in the existing framework that we have made the commitment to overhaul and simplify the statutory equality framework.
The work to develop proposals on extending protection for transsexual people is being taken forward in the context of the discrimination law review for two reasons. First, we want to ensure that the new legal framework that will be set out in a single equality Bill can take account of the issues that transsexual people face. Working within the review means that can take a broad view of the protection from discrimination afforded to transsexual people. Secondly, we want the provisions that cover transsexual people—
I said to the hon. Gentleman that I wanted to proceed with my speech and that he might find that he did not need to intervene. If he still wishes to intervene, I shall happily give way before I sit down.
Secondly, we want the provisions that cover transsexual people to benefit from the development, simplification and harmonisation that will be the outcome of the review.
As hon. Members pointed out, the Government made sure that the EU gender directive on goods and services covered gender reassignment. That directive is due to be implemented by December 2007, and we have the option to use existing powers under the European Communities Act 1972 to make regulations to do so. We therefore already have two legislative vehicles to extend protection against discrimination to transsexual people, so further regulation-making powers are unnecessary.
The problem with having to save up points is that one does not have time to make them all in an intervention, so I shall ask only one question. If the Minister is to meet the deadline for implementing the European directive through regulations, she will have to deal with the issues relating to hospital wards, prisons and so on within that time scale, so what stops her putting in the Bill regulation-making powers to enable her to deal with issues that she will have to deal with anyway under the European Communities Act mechanism?
As I just said, that is unnecessary.
I want to comment on the two examples that my hon. Friend gave—single-sex hospital wards and prisons. The Prison Service has been working on guidelines on the treatment of transsexual prisoners for at least two years. I have tabled several parliamentary questions, and the last I heard was that those guidelines are almost ready or imminent. As for single-sex wards, the issues they raise are similar to those relating to joint accommodation in employment. I do not see that those issues are so problematic that the Government are prevented from accepting the amendment.
As I said, I do not regard the issues as being without solutions. However, they need to be resolved and the solutions must be workable. I gave only two examples; there are others, of course.
I hope that I have been able to make it clear that the Government are unequivocally committed to tackling discrimination against transsexual people.
I think that the Minister is giving way to me rather than to her right hon. Friend, and I am grateful to her for doing so. As she knows, I hold her in the highest esteem, so I do not say this with any personal malice or resentment—but having listened very carefully to what she has said in the past 10 minutes, I am none the wiser. It may be that I am a slow learner. Does she accept that, to me, her answer is thoroughly impenetrable? I cannot fathom a single good reason why the Government can act in a year or so's time when no great issue of minutiae or detail is involved, but are somehow incapable of acting now, as the House would prefer.
What I have said is that because the EU directive sets out the matter, we are in a position to work through regulations to meet that time scale. We want to consider issues that go wider than the EU gender directive as part of the discrimination law review. I sincerely believe that there is a great deal to be gained from simplifying our legislation and having all discrimination law in one Act that sets out everyone's human rights, because equality affects us all. That is what I am trying to achieve through the discrimination law review.
The issues are being worked on—they have not been put on the back burner. Discussion is ongoing and we are moving ahead. On that basis, I hope that my hon. Friend the Member for Birmingham, Selly Oak will feel able to withdraw the new clause.
I was not proposing initially to add further to the wise words of my hon. Friend Sandra Gidley, but I wish to return to what the Minister said. It was difficult to engage as fully as we might have wanted, given that she wanted to make her position clear before taking interventions. I wish to make two points, but I do not speak for the mover of the new clause who, I am sure, will present her own view. We do not doubt the Minister's personal commitment to the issue that is before us, nor, indeed, the Government's overall objectives in creating a climate and a statute requiring non-discrimination. In those terms, her answer was particularly disappointing, as it was when I raised the matter in Committee.
The Government have decided, I am pleased to say, to take order-making powers in respect of sexual orientation. John Bercow has already recognised that there is a moral imperative to do that because of the problems that are people have to face. There are two imperatives. First, there is the moral imperative, which is no less than the imperative that has already been conceded in respect of action following the enactment of the Bill in respect of sexual orientation discrimination. Therefore, it is hard to understand why the Minister does not take the opportunity of ensuring that she has regulation-making powers that will enable holistic regulations and laws to be made that cover also education and media portrayal, which are exempted from the European Communities Act 1972.
The second imperative is the time scale that is placed upon us by the implementation date of the European directive. As I understand it, that does not apply in respect of sexual orientation. I think that the Minister said that she will definitely meet the deadline through the use of the European Communities Act regulations. If that is so, why not do the whole thing properly and have one consultation approach in time for the deadline and use the same mechanisms as have been proposed, which we are delighted to see, for dealing with sexual orientation discrimination?
Does the hon. Gentleman agree that this is not a matter only of principle, although the principle is itself extremely important? It is also a matter of practicality. Does he accept that unless the change is made sooner rather than later, it logically follows that the number of instances of discrimination will be that much more numerous? For transgendered people, discrimination and denial is not an occasional exception, it is a regular occurrence.
That is right. It will not surprise the hon. Gentleman to know, given that my party introduced a single equality Bill proposal in another place through Lord Lester some years ago, that we believe that every year and every month that is wasted in not initiating quicker action in these areas will lead to more discrimination. However, we welcome the fact that the Government have made significant advances.
The Minister gave two examples that came after she said that work had to be done to understand the sort of discrimination that was faced. I am sure that she did not mean this, but to the outside world that might seem as though the Government and those who helped to draft the law do not understand the sort of discrimination that is faced by transgender people. However, through the work of hon. Members such as Lynne Jones, there are many in this place, as has been demonstrated by Mr. Boswell, who understand—and we believe that the Government similarly understand and recognise—what the problems are.
Given that the Government will have to deal with the issue of hospital wards and prisons to implement the European directive deadline by the end of 2007, using regulations under the European Communities Act, it is not a convincing or logical argument to say that it is not possible to proceed through regulation-making powers in the Bill to provide a complete approach. Those matters will have to be dealt with in any event.
If the Minister were to say that there were real difficulties in terms of education or media portrayal, which would take longer than the available time scale, I would not accept that but it would be logical. In choosing the hon. Lady's examples from areas that fall within the deadline with which she must abide if she is not to fall foul of the European directive, she is not using either the logical or the strongest of arguments. Regardless of the intentions of the hon. Member for Birmingham, Selly Oak, who will decide these issues for herself, I think that my hon. Friends will be keen to see the House divided on the issue, given that we have not had the undertakings or understandings that we deserve.
The Government have rightly accumulated a good deal of credit on this issue in previous legislation. I pay tribute to Christine Burns, who received an MBE for her work on gender issues and was among the constituents who drew my attention to the new clause. Given that the Government have accumulated a good deal of credit on the issue, I urge my hon. Friend the Minister to reconsider her response in the light of the provision, which does not bind the Government or put them into a straitjacket. If it did so, I could accept her argument that time was needed to consider specific issues relating to transgendered people as distinct from people suffering from discrimination as a result of their sexual orientation.
My hon. Friend says that the Government will undertake a consultation, but they would not be constricted in any way if the new clause were accepted, as proposed subsection (1) says:
"The Secretary of State may by regulations make provision".
It does not say that the Secretary of State shall by regulations make provision. Proposed subsection (3) says that the "regulations may . . . make provision". It does not say that they shall make provision.
The inclusion of the new clause in the Bill would not put the Government in a straitjacket, but if they did not accept it they would be in a straitjacket. We all know that legislative opportunities are constricted. The fact is that there is a Bill before the House that provides a vehicle to introduce the new clause. My hon. Friend—no one doubts her good faith—said that the Government wish to consider the issue as part of the consultation. Several of us in the House would be a little more relaxed if we could be sure that within a reasonable period a legislative vehicle would be introduced so that changes could be made.
I am happy to confirm that that is precisely our intention. We wish to ensure that the consultation is completed very quickly, and we will publish a Green Paper that deals with this and other issues very soon. We will then be in a position to introduce an appropriate legislative framework. We are therefore committed to deal with the issue. EU regulations, too, have been introduced, so I can give my right hon. Friend that assurance.
I am not questioning in any way the good faith of my hon. Friend or the Government. It is a fact of parliamentary life, however, that whatever the Government's conclusions, and even if the Green Paper that they promise to introduce includes precisely what is wanted, the constrictions of the legislative timetable mean that it is not possible to know when or, indeed, if legislation can be introduced in this Parliament to enact what my hon. Friend has promised in good faith. By contrast, the new clause gives the Government time and scope to deal with the issue, given its inclusion of the word "may", which I have cited twice. Acceptance would therefore not bind the Government or lead them into a cul-de-sac.
Perhaps you could advise me, Mr. Speaker, on a procedural, not a policy, matter. If the Bill is amended today, I understand that it must return to the House of Lords because it is a Lords Bill. If that is so, I am sure that hon. Members on both sides of the House will be satisfied by an assurance that the Government will reconsider the matter before the Bill's return to the House of Lords. I hope that my hon. Friend the Minister responds positively, because nobody wants division in the House on this issue.
The Minister has given certain assurances. Does my right hon. Friend agree that the minimum requirement for the withdrawal of the new clause is an assurance that new legislation will be enacted within this Parliament? The problem with leaving the matter to the House of Lords is that if the Bill is not amended, it will not return to the House of Lords.
My hon. Friend is right, but I am trying to find a new way. It is possible, but far from certain, that the Bill will be amended today, and if it is amended the House of Lords will be able to reconsider the matter. The House of Lords can do anything when it reconsiders a Bill—it is not bound by the rules of procedure of this House—so it could bring the Bill back. Alternatively, the Government could provide an assurance in response to my hon. Friend's request, which is generous on her part, for a guarantee on the introduction of legislation within this Parliament. If that happens, I would support my hon. Friend in withdrawing her new clause, because nobody wants to divide on the issue—we want to unite.
As ever, my right hon. Friend Sir Gerald Kaufman said much of what I wanted to say, but I shall briefly repeat some points. I agree about the permissive word "may", which appears twice in the new clause.
On whether the Government can reconsider the Bill in the House of Lords if it is amended in the House of Commons, my hon. Friend the Minister referred to two other avenues by which such legislative protection could be introduced within the lifetime of this Parliament. It would help if she were to repeat her assurance that the issue will be addressed within the lifetime of this Parliament and that there will be legislative provisions rather than simply a Green Paper.
The Minister discussed the simplification and codification of anti-discrimination legislation and I share her objective, because the complicated layers of anti-discrimination measures that have built up over the past 40 years bedevil people in enforcing their rights. However, the wording of clause 81, which contains the power to make regulations on discrimination on the grounds of sexual orientation and which I support, is, with one or two key changes, almost exactly the same as that of new clause 9. If it is too complicated to accept new clause 9 and introduce another layer of anti-discrimination legislation, then that argument can also be used in relation to the provisions on discrimination on the grounds of sexual orientation in clause 81.
Does my hon. Friend agree that new clause 9 does not mean that action will be taken, because it only says "may"? I have made the precise commitment asked for by my hon. Friend Lynne Jones. The discrimination law review will lead to a single equality Bill that will be passed in the lifetime of this Parliament. That is a manifesto commitment on which all Government Members stood before the election. As much as it is within my power to do so, I will ensure that that manifesto commitment is advanced, which meets the points raised by my hon. Friend the Member for Birmingham, Selly Oak.
I am not at all convinced by the Government's reasons for not accepting the new clause, but, in view of the points made by my right hon. Friend Sir Gerald Kaufman—
Does the hon. Lady agree that although the whole House trusts this particular Minister, who has given us her assurance from the Dispatch Box, Conservative Members do not trust the rest of her Government to follow through what she has said? She cannot necessarily bring about what she says that she wants to bring about, so the time for action on the issue is not in the future but now.
I do not entirely agree that the Government are not trustworthy in this matter. I am prepared to accept the Minister's assurance—
On the point made by Mrs. Laing, in 2001 I went with two of my constituents to meet the Minister's predecessor in the Home Office, who then dealt with these matters and who gave us an assurance that the Government would introduce a gender Act. From that day forward, we saw the Government take action, irrespective of who the Minister might be. With that precedent in mind, we can accept with confidence the assurance that she has given, even though she may not be in the post—I hope that she is—when the Bill is enacted.
Of course, everyone welcomes the Minister's assurances as far as they go, but they do not go further than the assurances that she gave in Committee that there would be a single Equality Bill, which, presumably, if there is not an early election, will lead to a single Equality Act. The point of the new clause is to say that transgender rights in respect of non-discrimination in goods and services should be put through at the same time as those given to people discriminated against on the grounds of religion or sexual orientation. This excellent new clause gives the House that opportunity. That is why the Minister's promise of tomorrow is not good enough for many of us.
As I said, I am prepared to accept the Minister's assurances, although I ask her to look at the clause again. If the Government intend to legislate in this area and to introduce the EU directive, I still argue that a sensible way forward would be to accept the new clause. I accept that it is not possible for the Minister to agree to it today, but my right hon. Friend the Member for Manchester, Gorton suggested an alternative way forward, and either would be acceptable to me.
I would prefer the matter to be dealt with in this Bill, because that is the most sensible way forward. However, in view of the assurance that legislation will be introduced in this Parliament, I beg to ask leave to withdraw the motion.