Second Reading (Continued)

Part of Equality Bill – in the House of Lords at 10:03 pm on 15th December 2009.

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Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat 10:03 pm, 15th December 2009

My Lords, it is a great privilege to take part in this debate, a debate which has shown the rich diversity of the House in experience and background, all of which are of such importance and relevance to the issues that we have debated today.

The Liberal Democrats support the Bill; it is a good Bill. Our political creed has at its core the importance, freedom and dignity of the individual. We believe that the right to equality without discrimination is an individual right. It is not a right for communities, although it goes hand in hand with the responsibility to respect the rights of others. Discrimination offends that fundamental dignity and, while inequality is invariably a barrier on the road to individual fulfilment and freedom to fulfil one's potential, we believe that fulfilling one's potential is something that is done in society and the community. That is why we support the Bill. It brings together in one piece of legislation a plethora of Acts and orders, or, as the noble Lord, Lord Low, more graphically said, "an overgrown and impenetrable jungle". It gives a coherence and consistency that ought to make its application more effective, although I echo the concerns expressed by the noble Baronesses, Lady Campbell of Surbiton and Lady Wilkins, and the noble Lord, Lord Low, that there should be no regression, especially with regard to disability.

Nor should we be starry-eyed about the capacity of legislation to right the wrongs of the world. In his book, Strength to Love, published in 1963, Martin Luther King said:

"Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless".

Arguably, over many years, perhaps a culture can be changed. It is undoubtedly the case that today language and attitudes that were all too common at the time of the original Race Relations Act are simply not acceptable.

In supporting the Bill, we on these Benches do not accept that it cannot be improved. We will challenge what we believe to be misguided or unnecessary and we shall seek to correct omissions through constructive amendment. Already we have been engaging positively with Ministers and officials, and I hope that across the House we can improve the Bill as it makes it way through your Lordships' House and secures a successful passage.

One immediate improvement would be to drop Part 1. Tackling socio-economic inequality is important and desirable, but it is wholly questionable whether the three clauses can achieve that end. I join the noble Lord, Lord Warner, in the sceptical pragmatist camp. The noble Baroness, Lady Young of Hornsey, analysed the vagueness of the wording and referred to "desirability". The noble Lord, Lord Ouseley, said that "due regard" was the ultimate cop-out for organisations that wanted to do nothing. I do not think that they will assist in achieving the objectives that no doubt underlie the insertion of that provision.

Poverty and inequality are so often different sides of the same coin. I do not question the good faith of Labour Ministers who came to power in 1997 desiring to tackle poverty, but Britain has become a less equal and less fair society under their tenure of office. Today, a person born into a poor family is more likely to remain poor throughout their adult life than a person born 30 years ago. One gets the feeling that as their period of office possibly comes to an end, Ministers wish to atone and are trying to salve their consciences by inserting well intentioned but practically limited provision in this legacy legislation. It is abundantly clear that as a result of Clause 3 it would never be put to the legal test, except perhaps through a costly judicial review, which those at greatest socio-economic disadvantage could never afford.

There is a legal maxim: ubi ius ibi remedium-where there is law, there is a remedy. But this part of the Bill seems to turn that on its head: ibi ius ubi remedium-here is the law, where is the remedy? I do not believe that that is what we should be doing. Aspirational legislation which, as the Solicitor-General was quoted as saying, "might do no harm" is not a suitable substitute for substantive policies with regard to education, health and taxation to tackle inequality.

My noble friends Lord Lester of Herne Hill and Lady Northover indicated areas on which we would wish to concentrate. I shall go over them very briefly. Equal pay was mentioned by the noble Baronesses, Lady Gould and Lady Howe of Idlicote. There is the comparison with predecessors, discussion of pay with colleagues and the scope of the employer's defence. We will be looking at ways of strengthening that to try to ensure that the objectives of equal pay are more likely to become a reality sooner rather than later. The noble Baroness, Lady Howells of St Davids, mentioned representative actions in equal pay claims. While it was important to do that ahead of the civil justice review, perhaps the Minister can indicate whether that can be done under existing tribunals legislation by bringing forward procedural rules rather than by means of an amendment. If it can, we would need to debate one amendment fewer in Committee.

The noble Lord, Lord Macdonald of Tradeston, referred to employment and religion. The noble Lord, Lord Warner, commented on Schedule 9, feeling that the exemptions are too widely drawn, whereas the noble Baroness, Lady Cumberlege, would probably suggest that they are too narrowly drawn. That links to the issue that was also raised by the noble Lord, Lord Warner, about discrimination on grounds of sexual orientation in the provision of public services. Many people are concerned that when public money is spent on public services, discrimination that in other circumstances would not be acceptable somehow seems to get in under the shield of religion.

We understand that the European Commission has recently given two opinions on UK equality legislation with regard to areas of discrimination and whether it gives insufficient protection against certain forms of it. I think it would be helpful if the Minister could indicate whether the Government have received these opinions and, if so, whether it is possible to put them in the public domain because they will properly inform our debates at subsequent stages of this Bill.

My noble friend Lord Lester of Herne Hill reflected on the public sector duty in Clause 148 and these points were picked up by other contributors, not least the noble Baroness, Lady Murphy, the noble Lord, Lord Warner, and the most reverend Primate the Archbishop of York. In its present form, there is a possibility of reaching the stage where different services could be provided for different groups by different people, which would not be a sensible outcome. There are clearly issues which still need to be addressed. This also raises the tension which inevitably exists between free speech and equality, particularly when we deal with issues of religion or faith. If people have to declare interests, I am certainly not the president of the Humanist Association, being an elder of the Church of Scotland. We will do service if we concentrate on these important issues in Committee.

I want to raise again another point in terms of the balance between equality and free speech, which was referred to by my noble friend Lord Lester. Broadcasters are concerned that the Bill could lower the bar for complaints to be made, making it easier for complaints via the EHRC, when there is already an established route through Ofcom and the BBC Trust agreement. We should be concerned if, by implementing the provisions as they stand, we somehow dilute creativity. This is not a fanciful situation; there has already been a complaint to Ofcom that Channel 4's "Undercover Mosque" might have included material that was likely to cause an incitement to racial hatred. The Government have already indicated that they do not intend to interfere with editorial independence and, with regard to the positive duty to promote equality, they have indicated a willingness to meet that. There is concern, however, on the other side of the coin, that they have not yet made their position clear on the non-discrimination duty. I hope that the Minister can address that tonight or give some indication ahead of the Committee stage that that point is understood and acknowledged.

Another point at which we will want to look is the issue of homophobic and transgender bullying. There are provisions with regard to harassment in schools, but why do they not apply on grounds of gender reassignment and sexual orientation, or indeed of religion and belief? In her opening address, the Leader of the House referred to tackling homophobic bullying at work. The Government seem to be in denial about homophobic or transgender bullying in schools. The briefing which noble Lords will have received from Barnardo's makes it clear that there is an issue here. Sixty-five per cent of young lesbian, gay and bisexual pupils have experienced direct bullying. Less than a quarter of young gay people have been told that homophobic bullying is wrong. Significantly, where they were told that it was wrong, young gay people were 60 per cent more likely not to have been bullied. If the issue was sufficiently important for the Department for Children, Schools and Families to have issued guidance last week on tackling this bullying, one would wish to ask the Government what steps they intend to take to extend the provisions to tackle the issue of homophobic bullying at school.

In conclusion, we wish to ensure that this Bill is properly delivered. We do not want it to be dealt with in the wash-up and we certainly do not want it to be washed up. I wish to pay tribute to my colleagues in the other place, particularly Lynne Featherstone and Evan Harris, who have raised a variety of issues by way of amendments-for example, that there should be anonymous applications; the issue of discrimination against gay men in the collection of blood; the issue of Scottish Gypsy Travellers, as mentioned by my noble friend Lady Northover; and, as raised by my noble friend Lady Northover, the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Flather, the issue of discrimination by caste, in which my noble friend Lord Avebury has certainly taken an interest. As I think my noble friend Lord Lester indicated, if the definition of race in Clause 9 could include descent, then possibly the Convention on the Elimination of All Forms of Racial Discrimination might cover the question of discrimination by caste. I ask the Minister to look into that.

The Bill is up against a tight timetable, although that is not an excuse for not giving it proper scrutiny. I think we should ensure that the best does not become the enemy of the good, but I think that with some work we can make it better.