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Equality Bill — Report

– in the House of Lords at 3:08 pm on 2nd March 2010.

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Votes in this debate

Clause 1 : Public sector duty regarding socio-economic inequalities

Amendment 1

Moved by Baroness Warsi

1: Clause 1, leave out Clause 1

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government 3:09 pm, 2nd March 2010

My Lords, I rise to move Amendment 1 and to speak to Amendments 2 and 3. It will come as little surprise that we on these Benches still feel very strongly that the public sector duty regarding socio-economic inequalities should be removed from the Equality Bill. As we made clear in Committee in your Lordships' House, it would be very difficult indeed to find anyone who did not think that there were socio-economic problems, and that immediate and effective action should be taken to address these issues.

The problem of socio-economic disadvantage is deeply entrenched, and so it is crucial that action is taken to confront these problems and to have a practical impact on the lives of individuals, families, communities and the country as a whole.

We are living at a time during which the number of children living in poverty has been increasing since 2004. It is expected that the Government will miss their 2010 target to reduce child poverty by 600,000 people. People on free school meals are over 180 times more likely not to get a single good GCSE than to get three "A"s at A-level. The rate of exclusion for violence against a pupil is three times higher for secondary schools in most deprived areas, compared with 10 per cent in the least deprived. There is a very serious problem of socio-economic disadvantage, and that is something which we can all agree upon.

The difference here is that we believe that real action should be taken in order to address the root causes of the problem, and we believe that these clauses are an empty gesture at a very serious problem. Worse still, we are not alone in these thoughts. This has been conceded by the Government in defending the Bill, saying: "What is the harm in it?" We also heard from the noble Lord, Lord Lester, who at Second Reading referred to the duty as,

"a vague and unworkable exercise in political window-dressing that attempts to suggest that Labour alone is concerned to reduce socio-economic inequalities".-[Hansard, 15/12/09; col. 1416.]

We share the noble Lord's disappointment. I see that by Committee, however, the noble Lord, Lord Lester-who does not appear to be in his place today-after spending time with his friends, I think he said, had been persuaded that he would no longer support us in opposition to this part of the Bill. This is despite a clear statement to the contrary at Second Reading and his continuing to refer to it as,

"the so-called duty, which is gesture politics, politically motivated, too vague, and unlikely to achieve its important aim".

He referred to it as,

"a duty 'writ in water'".

We read that in his letter to the Guardian on 23 January 2010.

I am therefore frankly confused that the noble Lord, Lord Lester, can now accept or even promote the argument against the duty, and yet is suddenly of the persuasion that it would be better not to remove it. I very much hope that political grandstanding is not becoming all the rage. We, on the other hand, stand by our opposition to the clause for the reasons which were presented to your Lordships in Committee. We are concerned that this duty has been inelegantly tagged on to the beginning of a Bill to make an empty gesture to the very serious socio-economic problems embedded in this country. We find it an unacceptable way to make legislation, particularly about a problem which merits and deserves important and real action.

In this House, it is not our duty to create press releases for the Government. We are here to scrutinise legislation and to pass considered and rational laws. I fail to see how Part 1 of the Bill represents these criteria.

I am disappointed that the Government have not acknowledged that there is a qualitative difference between socio-economic disadvantage and socio-economic inequality. I fear that these two categories have been conflated. The result is that we have three clauses at the beginning of the Equality Bill which may represent some cutting back of the weeds of socio-economic inequality, but will do nothing to address the root causes of underlying rot beneath.

The empty gesture is part of the reason why we cannot just sit back and accept the Government's claim that the provisions will hopefully "do no harm". That is not necessarily true. There is the harm of raising expectations about a duty which will, according to the Government's guide to the duty, "do almost nothing". It will not create a new equality strand; or a justiciable right for individuals; or address discrimination against individuals on account of socio-economic factors; or affect or determine operational decisions; or require public bodies to use their resources to remove unequal outcomes in every case that is identified. I am troubled by the fact that people may receive false hope from a clause which will do none of these things. Moreover, to pass legislation which purports to do no harm, as was referred to in another place, while no one can really pinpoint exactly what it does do, raises the concern that there may be unintended consequences.

The noble Lord, Lord Lester, was nervous about this in Committee when he stated that,

"its presence in the Bill could give rise to politically motivated attempts to use judicial review to challenge a wide range of decisions by already overburdened public authorities, diverting energy and attention from the serious problems of discrimination, victimisation and harassment that the Bill is designed to tackle".-[Hansard, 15/12/09; col. 1416.]

Will the Minister really still face noble Lords and say that there is no risk of harm in legislating in this way? She will doubtless inform us that the clause is there for strategic decision-making and to force authorities to take these factors into account. I fail to see exactly how this will be the case.

I have spoken at length on this issue and for that I ask for the patience of the House. I hope that your Lordships will understand that we on these Benches are keen to address the deeply entrenched problems of socio-economic disadvantage. We cannot however lend our support to an empty political gesture which will not address the problems that we are so keen to tackle. I beg to move.

Photo of Baroness Northover Baroness Northover Spokesperson for International Development, Liberal Democrat Lords Spokesperson (International Development) 3:15 pm, 2nd March 2010

My Lords, I oppose the noble Baroness's amendments on socio-economic duty. We fully accept the principle behind what the Government are proposing, although we have been critical of whether this measure will deliver it. My noble friend Lord Lester of Herne Hill, who is unfortunately not here today because he is at a long-arranged meeting, gave long thought, as noble Lords will imagine, to how this might be done differently. Indeed, he came up with a major improvement. However, the Government indicated that they would not support his changes. He therefore felt that in the interests of time and the far greater merits of the Bill as a whole that he should not press on with it.

My noble friend has worked extremely hard to bring this legislation about in the first place, with his own Bill and with his extraordinary work throughout all the stages of this Bill. He strongly believes that the Bill will contribute to the reduction of inequality. Nothing should be allowed to deflect from that and there should be no delay. We do not think that the Conservatives are right simply to strike this provision from the Bill. It was extraordinary to hear the previous presentation about the prevalence of inequalities and then the proposal that we should strike this out. We look forward in due course to further discussions on how this provision, the substance of which we have always welcomed, will be delivered.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, these amendments revisit the debate on the need for the socio-economic duty. Since we have discussed the duty at some length at each stage of the Bill, I will be as brief as possible. The duty will create an overarching legal requirement on central government departments, local authorities and key public bodies to take account of the need to reduce socio-economic inequalities. This measure is necessary because without it we will never fully tackle the underlying causes of many of the inequalities addressed elsewhere in the Bill. Inequality and disadvantage are not only associated with issues to do with age, gender, disability or ethnicity; at the root of many of those inequalities is a much broader one; namely, persistent poverty.

This is not a matter of press releases or gesture politics. It is a reality for too many people in our country. As the noble Baroness says, I know that the Opposition and the Liberal Democrats share our desire to address this issue. At the Hugo Young lecture in November, David Cameron said that,

"we should focus on the causes of poverty ... we should focus on closing the gap between the bottom and the middle ... focusing on those who do not have the chance of a good life is the most important thing to do".

That is exactly what we are trying to do.

The comprehensive report from the National Equality Panel, published in January, showed how inequality rose very significantly during the 1980s. It also showed that the Government have successfully managed to stop that rise. In some areas, we have made good progress in reversing it. It is equally clear that real challenges remain. The report shows how inequalities of outcome related to socio-economic background embed themselves even before children enter school, and then are reinforced and accumulate throughout the life cycle, through the school years and entry into the labour market, right through to retirement.

Public bodies must tackle these inequalities in a concerted and sustained way. That is what this duty will require. They will need to think strategically about what more they can do to address socio-economic disadvantage individually and with their partner organisations when they decide their key priorities, set their targets and plan and commission their services. That goes directly to the heart of the matter.

There was much debate in Committee about whether the Government should be tackling the outcomes or causes of socio-economic disadvantage. To be clear, we are trying to break the cycle of deprivation, where the effects-the outcomes of past disadvantage such as childhood poverty, poor educational achievement, poor housing and health et cetera-become the causes of future disadvantage and inequality. This duty will help us to break that cycle. We have made clear in the wording of the duty that we want to see real change with tangible, measurable outcomes.

The Scottish and Welsh Governments want this too. Clause 2 will enable the duty to be extended to cover public bodies in Wales and Scotland. It is noticeable that the Scottish Government, having been initially sceptical about the duty, held a public consultation that overwhelmingly backed it and then asked to be included.

Clause 3 is necessary to ensure that the duty has its intended effect, influencing the key strategic decisions that public bodies make without giving rise to private rights which would divert resources away from benefitting the public as a whole. The noble Baroness, Lady Warsi, again made reference to the comment of my right honourable friend Vera Baird that there is no harm in this. As I made clear in Committee, the noble Baroness quotes the Solicitor-General selectively. She also said it is a strong measure and that,

"It will help us drive progress and promote better outcomes for people who need the most help".-[Official Report, Commons, Equality Bill Committee, 11/6/09; col. 159.]

This is overwhelmingly the right thing to do.

The duty is an essential part of the Bill. It underpins all the excellent work that we and others in the public sector are doing to tackle inequality and disadvantage. It will have a significant positive effect on the way that public services are planned and delivered. With minimum bureaucracy and maximum flexibility, the duty will make clear that tackling all inequalities-whether they arise from characteristics such as age, ethnicity or disability or are due to poverty more generally-is a core function of public services. It is the right thing to do. It is extremely important that we all demonstrate our commitment to tackling poverty and disadvantage. I ask the noble Baroness to withdraw her amendment.

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

My Lords, before the noble Baroness sits down, does she agree that the noble Baroness, Lady Warsi, should have been influenced by all the discussion that has taken place outside this House? As well as the Scottish and Welsh Governments, as the Minister said, the Equality and Human Rights Commission have forthrightly supported the original purpose of these clauses. My noble friend Lord Lester has wisely altered his opinion. It is a pity that Oppositions do not sometimes do that, as Governments do.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, I agree that there has been much debate from many organisations, such as the CABs, around these clauses. They are right to urge us to change our minds. I am glad that, when people listen to the arguments, from time to time they change their minds.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, I was interested to hear the comments from the Liberal Democrat Front Bench. The noble Lord, Lord Avebury, referred to the Equality and Human Rights Commission and outside bodies urging us to rethink and change our minds. I take on board those comments, but the noble Lord will also be aware that the noble Lord, Lord Lester, gave an explanation for his change of mind. If I recall, that change came from his having dinner over Christmas with some Irish, left-wing-leaning friends-not the Equality and Human Rights Commission. Clearly he is listening to other bodies and friends to change his mind.

The central point in this matter is that socio-economic disadvantage is a severe issue. There is no doubt about that. I take issue with the Minister on socio-economic disadvantage. It has got worse under this Government. The gap between the richest and poorest has got wider. Social mobility has got worse. I quoted the statistics earlier.

I am extremely familiar with the Hugo Young lecture to which the Minister referred. The lecture, given by my right honourable friend the leader of the Opposition, was extremely good and I am grateful that she referred to it. It effectively pointed out that socio-economic inequalities are dealt with by following a certain policy direction and above all by having political will, which I would say the current Government do not appear to have. When you have policies and a benefit system that effectively keep families apart, of course you are going to have worse socio-economic disadvantage in those communities, but you cannot deal with socio-economic inequality by legislating it away in the 13th year at the end of a tired Government.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

If I might say so, I think that the noble Baroness's memory about what has been happening over the past 12 or 13 years is somewhat selective. We have made significant progress over the past 12 years in addressing inequalities and there have been notable reductions in child poverty and pensioner poverty, and significant improvements for poor children in school achievement. Yes, I recognise, like the noble Baroness, that there is a lot more to be done. That is why we have included these clauses in the Bill, because we believe that this is one of the ways forward.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, I do not doubt the sincerity of the Minister in her commitment to this cause, but we on these Benches do not feel that this is the right way to deal with it. At this stage, I would like to test the opinion of the House.

Division on Amendment 1

Contents 107; Not-Contents 197.

Amendment 1 disagreed.

Division number 1 Equality Bill — Report

Aye: 105 Members of the House of Lords

No: 195 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Clause 2 : Power to amend section 1

Amendment 2 not moved.

Clause 3 : Enforcement

Amendment 3 not moved.

Schedule 1 : Disability: supplementary provision

Amendment 4

Moved by Baroness Warsi

4: Schedule 1, page 134, line 16, at end insert-

"( ) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a person's ability to carry out normal day to day activities, shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which has had a substantial adverse effect on the person's ability to carry out normal day to day activities for a period of 6 months or more."

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government 3:40 pm, 2nd March 2010

My Lords, Amendment 4 is designed to address how long-term or fluctuating conditions fit into the provisions of the Bill.

As we stated in Committee, we welcome the fact that the Bill already contains some provisions to address fluctuating and recurring conditions. Paragraph 2(2) of Schedule 1 states:

"If an impairment ceases to have a substantial ... effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur".

From the example given in the Explanatory Notes, we can glean that "effect is likely to recur" means that the condition has been diagnosed as an underlying mental health condition.

Our concern is that many fluctuating and recurring conditions are very hard to diagnose, and this situation may be exacerbated by considerable debate in the medical profession. The end result, of which we are afraid, is that some people may not be covered by the protective provisions in the Bill purely because it is too difficult to forecast accurately whether the condition is likely to recur.

In her response, the noble Baroness, Lady Thornton, stated that this amendment would create a risk that those with depression are treated more favourably than others and that it could blur the line between those who have suffered a single period of depression and those who have a clear illness. Although I take those points on board, the noble Baroness did not address the key issue, which is that it is very difficult to draw the line between what might be a single period, or even several discrete episodes, of an illness such as depression, and an underlying long-term condition. Evidence shows that at least 50 per cent of people will have a recurrence following their first episode and that at least 70 per cent of people will have one following their second. However, this can often be confirmed only retrospectively.

I fear that legal wrangles will arise from this part of the Bill whereby the courts will have to make the final decision. That is far from ideal. Moreover, diagnostic manuals drawn from the National Institute for Health and Clinical Excellence guidelines say that moderate or severe depression is a time-limited disorder which will typically last up to six months. That is why we have included the period of six months. Therefore, it is not an arbitrary figure but comes from those guidelines. It often cannot be confirmed that specific periods will last for up to 12 months. If it also cannot necessarily be determined whether the depression should be classed as discrete episodes rather than as a long-term condition, it is likely that those with depression could be left out of the Bill's provisions.

The noble Baroness, Lady Thornton, was nervous that this amendment could afford greater protection to those with depression than to those who have other impairments. However, that is already the case for some other conditions which are rightly deemed to be covered by the protection of the provisions although the facts of those cases might not quite fit the definition given in the Bill; patients with cancer, HIV or multiple sclerosis, for example, are all deemed to come under the definition of disability. Is it therefore correct to say that the amendment could not be accepted because it would treat depression more favourably? Surely the Government have already accepted that this is necessary in some cases. They have already said that the position is difficult as there could be two periods of depression that were not connected and, therefore, did not represent an underlying problem. That might be true, but the situation illustrates the difficulty of diagnosis. Sometimes it could represent distinct episodes, but at others it could represent an underlying condition. A different trigger is not necessarily conclusive proof that they are distinct episodes.

The main difficulty is clarifying exactly when an underlying condition starts. We are looking to achieve certainty and clarity in the Bill and to ensure that protection is there for all who should have it. I am not at all sure that the provisions in this area achieve that.

Paragraph 1 of Schedule 1 gives a regulation-making power. Is this something that the Government would consider using to include a condition such as depression? Will the Minister give a commitment to investigate further whether there is a need to do so? Alternatively, how do the Government hope to use guidance in this respect? It would be very useful to know their exact intentions on demonstrating a commitment to the inclusion of everyone who should be entitled to protection.

I turn to Amendment 14. As I said in Committee, the Bill should be about achieving real change. The noble Lord, Lord Low, made a compelling case that access to information for disabled people remains an area where inequality is still rife and that real change is needed. Fifteen years after this party took the original Disability Discrimination Act through Parliament, we support this amendment to help disabled people share in the information age. However, we must not assume that improvement will necessarily follow. This seems to be an opportunity for the Equality and Human Rights Commission to distinguish itself. These Benches certainly want to know what plans it has to take advantage of this new provision to drive real changes for disabled people. In Committee, we tabled amendments similar to Amendments 20A and 44A to probe the Minister on the extent and cost of reasonable adjustments. I look forward to the Minister's response.

I look forward to the Minister's response to these amendments and to Amendment 60 in the name of the noble Lord, Lord Low. I have some sympathy with it but will wait to hear whether the Minister thinks that it is necessary. I beg to move.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health 3:45 pm, 2nd March 2010

My Lords, I shall speak briefly to Amendment 14 in the name of my noble friend Lady Royall. This amendment makes it explicit that to satisfy the first and third requirements of the reasonable adjustment duty, covering changes to provisions, criteria and practices and the provision of auxiliary aids, those bound by the duty must take reasonable steps to provide information in an accessible format where disabled people would otherwise be at a substantial disadvantage in the way that information is being disseminated.

When the noble Lord, Lord Low, spoke in Committee on 13 January, he told us that removing the barriers created by providing inaccessible information is as important to the inclusion of those with print disabilities as the removal of the barriers created by physical features is to those with physical disabilities. We were left in no doubt about the prevailing strength of feeling on this issue during the very good debate that followed. I agreed that we would take the matter away and return to it on Report.

We share the same objectives as the noble Lord, Lord Low, here. We want a duty that is set out in clear and unmistakable terms so that both those with rights and those with responsibilities understand what they are. We want to see a significant increase in the reported levels of compliance with the duty where it concerns the provision of information in accessible formats. It is important that all kinds of organisations consider the information they provide to their audiences and what steps they may need to take to bring themselves into line with the duty. As we said in Committee, we consider that the duty as drafted works. That said, however, and on further reflection, we have decided to act to move the matter beyond doubt.

This amendment reinforces what already appears in the Bill and provides greater transparency. It should enable the Equality and Human Rights Commission to exemplify with authority in its statutory codes and guidance how the duty should be delivered for those disabled people who experience information disadvantage. These debates may well cause the EHRC to consider whether an inquiry into the provision of accessible information would be a timely and worthwhile intervention for it to make.

We are proud of this amendment. We believe that if it is properly built on, it could be a turning point for people with information disabilities. I therefore commend it to the House. I am also very grateful to the noble Baroness for her support. At the end of this debate, I shall give the Government's view on the other amendments in this group, including that of the noble Baroness.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

I see some difficulty with Amendment 4 as drafted. One has to wonder why depression is singled out. There is also a difficulty with assuming that depression is likely to recur. However, the definition of disability is something which presents the greatest obstacle for disabled people wishing to make claims of discrimination. A particular difficulty surrounds the application of the term "long-term". Although we may not be able to achieve a final solution this afternoon, this is an issue to which Parliament will need to return at some stage.

I want to speak mainly to government Amendment 14, which has just been spoken to by the noble Baroness, Lady Thornton, and also to Amendments 20A, 44A and 60, which are in my name. Before I do, however, let me make two general points. First, those representing disabled people are very appreciative of the extent to which the Government have taken their concerns on board during the passage of the Bill, particularly as it has passed through your Lordships' House. They are also particularly appreciative of the efforts of the Bill team and departmental lawyers to find solutions to sometimes quite intractable problems and to incorporate them in the Bill. This testifies to the good outcome that can be achieved when you have a listening Government and a House of Lords which knows its onions subjecting legislation to careful scrutiny.

Secondly, I hope it will be seen as a helpful move in expediting Report stage to have grouped together all these amendments which relate to disability. This entails some sacrifices in terms of presentation and getting things on the record, but I hope that it will nevertheless be win-win and that we will all be net gainers.

The amendment on which I want to focus, however, is government Amendment 14. In Committee, as the noble Baroness has reminded us, I moved an amendment to add an additional reasonable adjustment requirement, to avoid the disadvantage caused by the provision of information in an inaccessible form. I pointed out that we had lost all reference to accessible information in the Bill. I was very gratified by the strong support that noble Lords gave my amendment both in Committee and privately afterwards. I place on record my appreciation of that support. The noble Lord, Lord Elton, put his finger on it when he said:

"The Committee needs to know how adding the same obligation to this statute will remedy the failure of similar provisions in earlier statutes. Is not some stronger measure or different approach needed to relieve this intolerable situation?".-[Hansard, 13/1/10; col. 558.]

The Government agreed to take the matter away and return to it today and this is the result. I believe that this is a case where the Government can genuinely claim to have listened and responded appropriately and I welcome the amendment wholeheartedly. I believe that this is the stronger measure that the noble Lord, Lord Elton, was calling for. It is not in exactly the form that I moved in Committee, but I believe that, to all intents and purposes, it gives us the requirement that I was seeking.

As I think the Minister recognises, this is potentially a major step forward for anyone with a print disability of any kind. Of course, as she said, a change in the law does not of itself change anything. However, the change that this amendment signals and potentially delivers will afford a much more solid basis for robust enforcement action by regulators, advocacy organisations and disabled people themselves. I believe that this is a positive outcome for which the Government can take real credit and I welcome it unreservedly. Businesses and public sector bodies now need to think carefully about what they need to do to comply with this duty and promptly take action, as I expect this duty to be vigorously enforced.

I turn briefly to the remaining amendments in the group. I tabled Amendment 60 for Committee, but, under pressure of time, I did not move it on the understanding that the Government would take it away and see if they could accommodate it. I am pleased to say that we have had constructive discussions and, as a result, I have now retabled the amendment. The intention is simply to put the universal understanding of the present law beyond doubt in statute.

As regards Amendments 20A and 44A, first, I need to point out that there are a couple of errors on the Marshalled List. Amendment 20A relates to line 25, not 35, on page 137, and Amendment 44A relates to line 14, not line 4, on page 193.

Secondly, I must apologise for the fact that they are late amendments. This reflects the fact that discussions are still ongoing. The amendments reflect the stage that I believe the discussions have reached. I have accepted the Government's formulation-"avoid the disadvantage"-in Schedule 2 but believe that it is necessary to spell out exactly what that means, because if we do not there is a risk that the intention to reproduce the current law, which everyone shares, is put in doubt. The issue is quite complex but I believe that the Government are now seized of the fact that there may be a problem and also that there may be a need to make changes to Schedule 15, on associations, to reflect those in Schedule 2. I wish to give the Government's continued reflection all possible encouragement in the hope that they will be able to return with the solution at Third Reading.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, Amendment 4 in the names of the noble Baronesses, Lady Warsi and Lady Morris, is a recurring amendment, which we debated in Committee on 11 January. It would make an addition to the provisions in Schedule 1 for some people who experience depression. It would apply only to a person who in the past five years has had a period of depression that has had a substantial adverse effect on their ability to carry out normal day-to-day activities for a period of six months or more. It would enable them always to be treated as though that substantial adverse effect was likely to recur and thus meet the long-term element of the definition of disability.

The Government's position, which I set out on 11 January, has not changed. I am happy to set it out again today and to try to provide such further reassurance as I am able. We recognise, of course, that depression can have a profound effect on a person's life, but we do not consider that extending the Equality Bill in this way is an appropriate way forward to deal with that issue.

Paragraph 2(2) of Schedule 1 already provides for people whose impairment has fluctuating or recurrent adverse effects. That provision can, of course, help people with recurring periods of depression to benefit from the Bill's protection. If a person has experienced a six-month period of depression that has had a substantial adverse effect on their normal day-to-day activities and that effect is likely to recur, the Bill enables that effect to be treated as continuing. It would apply regardless of whether the previous period was within the past five years.

The relevant test of whether something is likely to recur has been held by the House of Lords to mean only that something "could well happen", rather than that it had to be "probable" or "more likely than not". This test is relatively easy to satisfy and so anyone whose depression could well recur would be covered by the provision as it stands.

If we accepted the amendment, it would result in some people with depression being treated differently from others who experience periods of ill health or impairment, which can also have substantial adverse effects. I think that we were right to suggest then-and I repeat it now-that any such different treatment might well have a stigmatising effect on people with depression, which would be a wholly unwelcome outcome.

The noble Baroness is right that it is often not possible to say whether someone has an underlying mental condition. I remind the House that we amended the definition in the 2005 Act, which we are carrying forward into this Bill, to remove the requirement for mental health impairments to be well recognised clinically and so increase protection for people with mental health problems. Of course, in this Bill we have extended protection to perception, so a person with a depressive condition who did not satisfy the Bill's definition of a disabled person would be protected if, for example, their employer discriminated against them because he considered mistakenly that the impairment was likely to recur. This would also cover situations where an employer acted as a result of a prejudice against the mental illness that he thought his employee had. Therefore, given the provision already in Schedule 1, we believe that it is unnecessary to make the addition proposed in this amendment.

Amendments 20A and 44A in the names of the noble Lord, Lord Low, and the noble Baroness, Lady Campbell, address how the reasonable adjustment duty works in the context of services and functions where a physical feature puts a disabled person at a substantial disadvantage and seek to import some of the familiar language from the Disability Discrimination Act. One of the benefits of this Bill is that it simplifies and harmonises discrimination legislation. These amendments, which apply only to services and public functions, do not achieve that result. Might they be taken to imply that similar considerations should not feature in the world of work? I am sure that the sponsors of the amendments would be horrified at that suggestion. We are wary of unintended consequences. However, as the noble Lord, Lord Low, has implied in his remarks, this is what you might call work in progress, so we would like to give further consideration to this pair of amendments. On that basis, I ask the noble Lord, Lord Low, not to press his amendments.

Finally, in Clause 210, Amendment 60, tabled by the noble Lord, Lord Low, would define "substantial" for the purposes of the Bill. We use the word on a number of occasions in relation to disability provisions-for example, where we refer to people being at a "substantial disadvantage" for the purposes of the reasonable adjustment duty. The definition proposed by the noble Lord, Lord Low-

"more than minor or trivial"- is the one that appears in guidance on matters to be taken into account in determining questions relating to the definition of disability and in the DRC's code of practice for employment and occupation. Both of these support people working with the Disability Discrimination Act and we would expect identical references to appear in the statutory guidance that will support the Bill's introduction. We consider the case law to be settled and clear.

The motive behind the amendment-to ensure legal certainty and to ensure that "substantial" can continue to be read in the widest possible terms-is understandable. We have been told that the consequences would be catastrophic for disability discrimination law if the courts were to interpret the word differently from the way in which they have hitherto and thus raise the threshold before the protection is assured.

While we do not anticipate the potential future difficulties that the noble Lord, Lord Low, and his legal advisers fear, for the reasons that I have set out briefly, we are minded to move to address the considerable concern that they have expressed and to put the matter beyond doubt. On that basis, the Government will accept the noble Lord's amendment.

A

Yor Lordships, I wish to point out that in speaking of mental illness depression is the only one mentioned.
Long-term and probably life long mental illnesses include bi-polar and schizophrenia, the name of which which I believe, as the result of campaigning, has now been changed to psychosis. This does not mean that the condition has changed, and the condition varies from patient to patient. There has however been a very sad lack of rehabilitation for these severely ill patients. By the nature of the illness many of them have no insight into the fact that they are ill, and thus at times brings them into the penal system. This is one of the fluctuating illnesses which can be in most cases controlled by medication, but this itself brings side effects which some patients are unable to accept,
With regard to their employment some may be able to work, although this is difficult in the present state of employment, some may not be able to work but do need some occupation to the best of their ability. Schizophrenia does not mean that sufferers are criminals and the worst place for them to be is prison. It is an illnes which affects not only the patient but also the family and requires family support, and also information about the illness.
There is a great deal of research being undertaken inthe U.S. which is demonstrating abnormalities in brain structure, and the effect of body fluids on the neurones. Added to the medical condition it is necessary to consider the social conditions in which these unfortunates live. They need protction as they are very vulnerable. It is more probable that they will be subject to harm than harm others,although a few may become violent. For this small minority it is necessary for them to be in secure accommodation where they can be cared for, medicated, and rehabilitated as in the old mental hospitals which included sheltered work.

Submitted by Alix Cull

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government 4:00 pm, 2nd March 2010

My Lords, I thank the Minister for her detailed response. I also listened to the detailed response given to my amendment by the noble Lord, Lord Low. In those circumstances, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 8: Marriage and civil partnership

Amendment 5

Moved by Baroness Coussins

5: Clause 8, page 5, line 27, leave out "marriage" and insert "marital status"

Photo of Baroness Coussins Baroness Coussins Crossbench

My Lords, the amendments in this group all seek to achieve the same, specific objective: to give the same protection from discrimination in employment on grounds of being married or in a civil partnership to all people who might suffer discrimination on the ground of their marital status. In other words, anyone who is unfairly discriminated against by an employer or prospective employer simply because they are unmarried, widowed or divorced should have a legitimate complaint of unlawful discrimination in the same way as a married person currently does.

These are the same amendments that I brought forward in Committee but which I withdrew because the Government argued that the evidence was not strong enough to justify their acceptance. I should like to try again to convince the Government that these amendments are important and should be incorporated into the Bill.

There are three main reasons for this. First, the purpose of the Bill is meant to be to harmonise protection and to strengthen and extend protection in certain circumstances. For example, the provisions on age discrimination are being extended and new provisions on gender reassignment are being introduced. The marital status gap is an obvious loophole, which has needed plugging since 1975 when the Sex Discrimination Act first came into force. Employment practices and social norms and expectations have changed since then and discrimination against married women in the workforce is much less of an issue than it was, but the Government, rightly in my view, have decided to retain and not abandon protection from marriage discrimination in case its removal should have the unintended consequence of triggering the revival of unacceptable behaviour. The Government should also take the opportunity to extend similar precautionary protection from marital status discrimination across the board. That would be in line with the overall strategy of the Bill, which I do not think was ever meant to be just a tidying-up exercise to consolidate the dozens of different pieces of disparate equality law.

Secondly, I am concerned that in an economic climate for employers of serious cost-cutting and cutbacks it is quite possible that certain work-related benefits might be targeted and subject to just this sort of discriminatory revision. New and often subtle ways of discriminating might well creep back or emerge. No one, of course, would be able to get away with refusing, let us say, relocation expenses to a married employee, but an employer might lawfully decide, if the Bill remains as it is, to save a bit of money by saying that single employees were no longer eligible for relocation costs. Other ways in which single people could face marital status discrimination might include through not being entitled to the same terms of compassionate leave as married employees, being required to work shifts or unsocial hours or being required to work on days, such as Christmas Day, from which married people were first in line to be excused. These examples would not be money-saving for an employer but they are examples of the type of practice that used to be common and might easily be revived if the message of a piece of flagship new legislation from the Government is that only married employees continue to deserve marital status protection at work.

Thirdly-I hope that this part of my argument might persuade the Government to think carefully about accepting my amendments-marital status protection is already the accepted norm or status quo for very large numbers of people. It might not be enshrined in the Sex Discrimination Act but it is what most people assume already exists. Hundreds of thousands of employees in this country work for companies or organisations with their own equal opportunities policies, where marital status is included in the list of criteria and where discrimination is prohibited. It is always the case that marital status protection applies to all employees, not just the married ones.

In Committee I cited a few examples of prominent employers from the public, private and voluntary sectors where this is the case. I have investigated a bit further and have found many dozens of employers who include marital status in their equality policies. I cannot find a single one that has a policy to protect only married people in the way in which the Sex Discrimination Act does and this Bill now proposes to continue. In particular, I hope that the Government will pause to ask why a policy of across-the-board marital status protection is good enough for the 524,000 people who work in the Civil Service and the more than 2,000 people who work in both Houses of Parliament but for some reason is not appropriate to include in the legislation for everybody else.

It has been suggested to me that there may well be situations where an employer legitimately and fairly needs to discriminate against a person on the ground of their marital status to preserve standards of good governance or ethics-for example, to avoid having a cohabiting couple being co-signatories to a bank account. That is a fair point, but it would apply equally to a married couple and I cannot accept that it is a barrier to doing the decent and logical thing in this Bill. After all, if employers such as Marks & Spencer, BP, Britvic, Oxfam and a plethora of local authorities and police forces, not to mention the entire Civil Service, have managed to find ways of dealing with such situations within the context of a fully inclusive marital status policy, these kinds of problems are clearly not insurmountable. Appropriate management procedures would be able to deal with them and this should not be an obstacle to taking a principled stance on discrimination in the legislation.

Without my amendments, the Bill would send a negative message to employers and there might be a risk of retrenchment within existing equality policies at the expense of people who are not married but who should in my view be equally protected against discrimination on grounds of marital status.

If the Government are reluctant to accept my amendments on the ground that they take the existing law further than the status quo, I respectfully suggest that the status quo against which they should be looking to measure is the status quo of existing good practice. Our equality law should surely reflect and encourage that, not undermine or undercut it. Could it really be right in the 21st century that an employer should be able to refuse promotion to a widower with dependent children because of an assumption that he has too much on his plate and cannot take on any extra responsibility? Could it be right in the 21st century that a backward-looking employer could lawfully refuse to employ a divorcee simply because he or she is divorced?

I was talking only last week to somebody who said that it had crossed her mind when she applied for a head teacher's post that being divorced might just count against her. If it had, she would not have been able to put her finger on the discriminatory point or process, because this is exactly the kind of discrimination that takes place and operates under the radar. That is one reason why there is such a lack of evidence in terms of case studies. If this were in the law, at least it would get a mention on training courses in recruitment and selection procedures, so that people would see that a marker had been put down and know that they had to avoid such discrimination, which would be unlawful. I really do not believe that it is right for the Government to pass up what has been described as a once in a generation opportunity to put equality law in order.

Finally, I reassure noble Lords that my amendments are not in any way anti-marriage. They simply seek to apply the same standard of protection consistently to all people, irrespective of marital status. I beg to move.

Photo of Baroness Afshar Baroness Afshar Crossbench

I speak in support of this amendment, because, in many cases, particularly among minority groups, there is a strong tendency to discriminate against women on grounds of marital status. Very often, in a misplaced understanding of honour, single women are not accepted to front-desk jobs, because it is thought that that would be dishonourable. Divorced women are seen as inappropriate in their marital status and are therefore likely not to be accepted. Widowed women are sometimes seen as bringing bad luck. It seems to me that, unless and until we make marital status one of the grounds that should not be a barrier to employment, all kinds of misunderstood ideas of good luck, honour or respectability could bar the way to women who are often desperate for work, particularly if they have lost their husbands. It is very important that we protect them.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I spoke to this amendment in Committee. Having listened to the extremely detailed and eloquent speeches of the noble Baronesses, Lady Coussins and Lady Afshar, who I think originally proposed the amendment, I really cannot see why there should be any difficulty in accepting this amendment. I hope that the Minister will be able to give us some hope that it can be accepted, because when one looks at the situation in different countries as well as in this one-and we have a range of different nationalities now in this country-one realises all too well just how much marital status does matter as far as jobs and opportunities are concerned.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I would like to comment on this amendment, to which I have added my name. Both my noble friends Lady Coussins and Lady Afshar have spoken about women and the reasons behind this amendment, but I remind the House that men, too, could benefit from this amendment, particularly widowers. Widowers can find it hard in society, particularly if they have young children. Value judgments are often made about them or against them. A man may be competent and ready for promotion or to apply for another job, yet subtle value judgments are made if he is also caring for bereaved children. The situation is worse if there are issues around the nature of the bereavement. Bereavement is a stigmatising experience in some parts of our society. It can be difficult for the children, but it can also be difficult for the man who is left caring. It is for those men, as well as for the women whom we have been addressing in this amendment, that I ask the Government to make sure that everybody, irrespective of marital status, is on an equal footing in law.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 4:15 pm, 2nd March 2010

My Lords, I had not intended to speak, but I was impressed by the speeches we have just heard, particular that of my noble friend Lady Afshar. I have some knowledge of the problems that have occurred for Muslim women. The thought that they could be disadvantaged in English working surroundings, as they are disadvantaged in other parts of the world, leads me to believe that the Equality Bill is not covering an important minority group in this country. I also agree with the point made by my noble friend Lady Finlay of Llandaff because men have particular problems when they are widowed with children. The Muslim minority group deserves to be helped in this way.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

These amendments to Clause 8 replace marriage with marital status so that people who are unmarried, widowed or divorced would be protected by the Equality Bill. The amendments to Clauses 13, 19 and 25 are consequential to the amended Clause 8.

I regret to say that I am probably about to disappoint some of my favourite Baronesses. I apologise for that, but I hope I can convince them that we do not think this is necessary. I listened closely to the arguments when we debated these amendments in Committee. Since then, I have had the opportunity to consider these arguments. I know that my noble friend Lady Royall has listened to further representations from the noble Baronesses, Lady Coussins and Lady Finlay. It is clear that all the noble Baronesses who have spoken are committed to the cause of equality and want to ensure that people are not treated unfairly. We understand their concerns, and that is why we introduced the Equality Bill.

However, in the previous debates and the discussion today, I have seen nothing to convince me that discrimination by employers against unmarried people, widows, widowers or divorced people is a real issue occurring in Britain today that needs to be addressed by the Bill. We consider that the potential scenarios presented as a justification for these amendments are covered by existing provisions in the Bill relating to gender and, possibly, age discrimination.

The noble Baroness, Lady Coussins, spoke about companies and, as ever, she has researched the points she put to your Lordships' House. Some companies cover marital status in their equal opportunities policy. The law bans discrimination because of marriage or civil partnership, but there is no evidence that people are being discriminated against because they are single, widowed or divorced. Some businesses may choose to present their policies as being inclusive of all their staff, and we think that is good practice that we do not want to discourage. However, we do not believe that that is an argument for a need to change the law to protect against discrimination. We do not believe that discrimination by employers against people because they are married is a significant problem either, as demonstrated by the evenly balanced response to the Discrimination Law Review consultation and by the lack of representations since then on this issue by the public or organisations. However, we decided to retain the existing protection not just to ensure that the type of conduct it was introduced to outlaw in 1975 does not reoccur, but because we know that this protection has been used in cases as recently as 2007.

Several noble Baronesses raised the issue of widows and widowers. Widowers and widows have the same level of protection from discrimination employment. Under the Sex Discrimination Act 1975, widowers should not be treated less favourably on the grounds of sex than women, whether or not they are widows, or vice versa. It is unlawful for an employer to treat a widower any less favourably than they would treat a widow. We do not believe that this Bill will in any way send a negative message to employers.

I thank the noble Baroness, Lady Coussins, and others for raising those concerns. I know that she will be disappointed with our decision on this matter. We have considered her arguments closely but we believe, on the balance of evidence, that the Equality Bill should continue to provide protection only for civil and married partners under this part and will provide protection for others under other parts.

The noble Baroness, Lady Afshar, raised concerns about the treatment of single and divorced women, particularly from minority groups. The examples the noble Baroness gave will be covered by the Sex Discrimination Act since it is very unlikely a single or divorced man would be treated in the same way under those circumstances. I ask the noble Baroness, Lady Coussins, to withdraw her amendment.

Photo of Lord Ouseley Lord Ouseley Crossbench

Before the Minister sits down, what evidence does she have that employers will get a negative message as a consequence of these amendments? What evidence is there that employers will resist this or that there is a single employer in this country who would find that this would add pressure on them?

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

I suggest to the noble Lord that that is not a reason for accepting the amendment. The point I was making was that not including these amendments would not send a negative message to employers. The message that the Bill sends to employers is that we are determined that they should follow the best possible equalities practice. There is no reason to accept amendments for which we do not feel there is an evidence base.

Photo of Baroness Coussins Baroness Coussins Crossbench

My Lords, I am grateful for the Minister's response. As she expected, I am disappointed at the Government's decision not to accept the amendment. I hope I am wrong, but I fear for unintended consequences without amendments to the Bill along these lines. However, I reluctantly beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendments 6 to 9 not moved.

Clause 9 : Race

Amendment 10

Moved by Lord Avebury

10: Clause 9, page 6, line 7, at end insert-

"(5) A Minister of the Crown may by order-

(a) amend this section so as to provide for caste to be an aspect of race;

(b) amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to caste in specified circumstances.

(6) The power under section 205(4)(b), in its application to subsection (5), includes power to amend this Act."

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

My Lords, I am not going to repeat the arguments for recognising the existence of caste discrimination here in Britain that were so thoroughly canvassed in Committee. I simply remind your Lordships that the Committee on the Elimination of All Forms of Racial Discrimination found in 2002 that descent includes caste and called on member states of the parent convention, including the UK, to enact domestic legislation to combat such discrimination. When we discussed in Committee a number of different ways of bringing caste into the protected characteristics, my noble friend Lord Lester asked whether the Government were of the opinion that discrimination on the grounds of caste was capable of falling within the concept of race under the law as it stands. He said that if there were to be litigation, the courts would have regard to the fact that caste comes into the definition of racial discrimination under Article 1 of the convention.

We understand that the Equality and Human Rights Commission took that view and therefore concluded initially that the legislation we proposed was unnecessary. But since there is no specific mention of caste in our law, it would be a chancy and expensive business for anybody to try this out in the courts. The EHRC has, I am pleased to say, now agreed to back a suitable case with legal advice and funding, and the Anti Caste Discrimination Alliance and others are actively trawling for an example which fits within the parameters of employment, education, and the provision of goods and services. The EHRC welcomes the amendment as enabling steps to be taken to prevent caste discrimination if the evidence demonstrates a necessity to do so.

Meanwhile, the Government have commissioned further research building on the scoping study published by the ACDA last November to establish the extent of discrimination by caste here in Britain. We are convinced that it will put beyond doubt the necessity for exercising the power in the amendment. That makes sense, and we look forward to hearing from the Minister details as to who is being given the job of conducting the research and what its terms of reference and timing will be.

After we considered bringing caste into the Bill in Committee, the Minister invited representatives of some 17 anti-caste organisations in the UK, representing several hundred thousand people, to give their point of view to her and her officials. I think that she will agree with me that this was a totally unprecedented gathering, at which all those organisations spoke with a single voice on the need to seize the opportunity presented by Bill for action against caste discrimination by treating caste as a subset of race. The Minister told us later that she was minded to accept an amendment along these lines. We were very grateful to her for listening for nearly two hours to those organisations in the Committee Room upstairs.

The Leader of the House wrote last week to the chairman of the Delegated Powers and Regulatory Reform Committee saying that the Government were minded to accept the amendment and explaining how proposed subsection (6) might be needed to make exceptions for a provision such as in paragraph 2 of Schedule 2, which limits the definition of race in the public sector equality duty in Clause 148. The reference to "specified circumstances" is required to enable consideration to be given to single-characteristic associations, exempting those associations from the application of the discrimination provisions in Clause 101 but not in terms of colour.

The note accompanying the letter to my noble friend Lord Goodhart also says that when the research shows that there is evidence of caste discrimination occurring in Great Britain, the Government will consider whether exercising the power in the amendment is a proportionate response to the problem. We are content to leave this problem to be resolved when the research becomes available and would ask only for an undertaking from the Minister that she will discuss it with the anti-discrimination organisations at the time, as she has done on this occasion.

This is a textbook example of how democracy should work. At first, the Government were reluctant to put any reference to caste in the Bill, but they listened to the voices of those who were at the receiving end of caste discrimination, and so did the EHRC. There is now the hope that a test case will be taken through the courts under existing legislation. In parallel, the Government have commissioned the research that we believe will demonstrate the proportionality of adding caste to the Bill using these powers. These are important steps towards to ending caste discrimination, which is as pernicious as discrimination against persons having any of the protected characteristics already in the Bill. I beg to move.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench

In rising to support the amendment, I join the noble Lord, Lord Avebury, in thanking the Minister for listening carefully for two hours to 17 of the most affected communities in Britain. The noble Lord, Lord Lester, said that such was the sense of passion and momentum at that remarkable meeting that it was like the early days of race relations legislation. There was an extraordinary sense of conviction, united passion and momentum. That said, I have to express on behalf of the affected organisations a sense of disappointment that there is not an amendment before us today which puts in the Bill discrimination on the grounds of caste.

I shall make only one point. Everybody has recognised that there is social discrimination on the grounds of caste, but the Government have argued that there is no clear evidence that discrimination is being exercised in the spheres of education, employment and the provision of goods and services. The affected organisations have presented a wealth of evidence to the Government which they maintain shows this, but the Government have so far remained unconvinced; they are therefore commissioning more research, for which we are grateful.

Because of this uncertainty on the part of the Government, it was arranged for me to meet personally and to talk with somebody who claimed that they had been discriminated against on the grounds of caste. This was an extremely well educated person who had been recruited to work in the NHS. He had obtained a good job here, and was well educated, intelligent and very sensible. All was going extremely well until he applied for leave to go back to India for a family event. In the questioning around where he came from and his background, it emerged that he was a Dalit, and he said that the relationship between him and his supervisor immediately changed for the worse in a most dramatic way. His position in the job was made extremely uncomfortable; eventually he was suspended and for a whole year, he was off work. His case was taken up by the union, which managed to obtain £12,000 compensation for him, but it said that it was unable to take it further-and this is the key point-because there was nothing in the law at the moment which made discrimination on the grounds of caste illegal.

I was absolutely convinced that this was a clear case of discrimination. An intelligent, well educated, sensible person, who I am glad to say has now gone on to another job, been promoted, and is doing extremely well, had a most devastating experience. Just one case of discrimination on the grounds of caste is surely enough to make it into the Bill, and of course, there is far more than that.

Like the noble Lord, Lord, Avebury, we look forward to the results of the research commissioned by the Government, and we hope that when they see that research, they will, as he has said, consult the affected organisations. We believe that at that point, the order-making power will be triggered.

Photo of Baroness Flather Baroness Flather Crossbench 4:30 pm, 2nd March 2010

My Lords, I want to add a few words and to thank the Government for adding caste to this Bill. This is an enabling amendment, and while it is not exactly what people would have liked, to have got this far is a big thing. I personally am very grateful. I am also looking forward to the research, not only because it will help us to do the right things in the future, but also because it will tell us what exactly is happening in this field. This is because so far, research has been mentioned on every occasion, but none has been done by any government agency. We look forward to that, and once again, I am very pleased to see such a provision in the Bill.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench

My Lords, I supported my noble and right reverend friend Lord Harries in the earlier stages of this Bill. I am also grateful to the Government for recognising that this is a major problem. I extend thanks, as the noble Lord, Lord Avebury, has, to the noble Baroness for sitting through what was a momentous meeting of the organisations. I can see that the phrasing of subsection (5)(a) in the amendment is a cunning means of introducing the measure by order, yet I remain uncomfortable with the wording. My noble and right reverend friend Lord Harries has made a powerful case for continuing in this battle for the right legislation. There is still a lot to be done, and I look forward to seeing the issue revived in a more developed form, perhaps in the next Session.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, I hope that the Minister will excuse me. I am suffering from a migraine; hence I may sound slurred as well, unfortunately. I wish to make one point only in relation to this. I had a lengthy meeting with the Anti Caste Discrimination Alliance. It attended along with CasteWatch, the Dalit Solidarity Network, and the Voice of Dalit. As noble Lords around the House have said, they make an extremely compelling case. The case studies that they have put forward are extremely moving. I agree with the noble and right reverend Lord, Lord Harries of Pentregarth, that it brings back those sentiments from when lobbying was being done in relation to race discrimination. These very sad and moving case studies have been tracked now for a number of years. What came out of that meeting is that this issue has been raised for many years at a national and a European level. Indeed, the Government have been lobbied for many years to try to identify this area of discrimination.

This flagship Bill has been many years in gestation, but now, at the eleventh hour, the Government effectively are having to accept this amendment by way of delay until another day. I am concerned that unfortunately we now have a position where the Government are not saying that this is such an important issue that we accept it and that therefore it should be in the Bill; nor are they saying that they have done the necessary research and inquiries and feel that it is not an issue and therefore should not be in the Bill. They are putting the matter off for another day. We should not be in this position on such an important Bill.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, this amendment contains a power to add caste to the definition of race in Clause 9. The power, if used, would prohibit unlawful discrimination and harassment because of caste in the same way as for colour, nationality and ethnic or national origins. The amendment also contains a power to make exceptions to provisions on caste and consequential amendments.

In Committee, I undertook in our debate on caste to come back on Report with more developed thinking. The case for legislating against caste discrimination has been made repeatedly during the Bill's passage with much passion by the noble and right reverend Lord, Lord Harries, and the noble Lords, Lord Avebury, Lord Lester and others, and by many people in the other place. At all stages, we have said that discrimination because of a person's identity or personal characteristics is unacceptable in modern Britain. The Government take this issue seriously and are always willing to consider whether there is a case for legislating against caste discrimination.

We have also made it clear that we are not persuaded of the need to legislate immediately on this as matters stand. The evidence to date, including the recent report of the Anti Caste Discrimination Alliance, suggests that caste prejudice tends to occur predominantly in areas such as marriage and social and personal interactions, rather than in areas covered by this Bill such as employment and the provision of goods and services. While the ACDA's study did not in our view warrant amending the Bill, it clearly suggested that there could usefully be more in-depth research in this area. As I said in Committee, the Government are taking this forward.

I am therefore pleased to announce that the Government have commissioned the National Institute of Economic and Social Research to conduct this research. It will be wide-ranging and will go beyond the relatively narrow area covered by discrimination law to examine caste-based prejudice and discrimination more broadly. It will involve structured discussions with stakeholders and individuals. The aims of the study will explore the nature, extent and severity of caste prejudice and discrimination in Britain, and its associated implications for future government policy. I would be very happy to share the other parts of the brief with noble Lords. It will report in July or August of this year.

The findings of the research will inform and shape the Government's thinking on caste discrimination. We accept that the outcome of the research will come too late for the inclusion in the Bill of specific provision prohibiting caste discrimination. But legislating now is not the only option. At the meeting I was privileged to attend on 4 February with the noble Lords, Lord Avebury and Lord Lester, and the noble and right reverend Lord, Lord Harries, and a large and passionate gathering of caste interest groups-indeed, I believe that the noble Baroness, Lady Northover, was there-a strong case was made for taking a power in the Bill now. This amendment contains such a power. It was a privilege to take part in that meeting.

I take the point made by the noble and right reverend Lord, Lord Harries, about the sense of disappointment at not putting caste in the Bill at this point. To the noble Baroness, Lady Warsi, I would say that at every stage of this Bill we have looked for evidence about discrimination. We now think that that evidence may exist, which is why we have commissioned the research. The appropriate and proportionate approach is to take the power to deal with this if and when that evidence is produced. Therefore, we have concluded that this is the proportionate approach. We place a high value on evidence-based policy making. This amendment will allow us to act in an appropriate way in response to the research evidence and any subsequent public consultation. I am happy to indicate to the noble Lord that that consultation will take place at every stage as we move forward. I am therefore happy to indicate to the House the Government's acceptance of the noble Lord's amendment.

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

My Lords, I am grateful to all who have spoken on this amendment, particularly to the noble Baroness, Lady Warsi. It may well be that when the research is received she is one of the Ministers who has to consider it. I am not prejudging the outcome of events likely to take place within the next few weeks but everyone will concede that there is at least that possibility. The favourable remarks of the noble Baroness this afternoon give me optimism that once this research is available we will proceed rapidly to legislation.

I must acknowledge the disappointment, expressed first by the noble and right reverend Lord, Lord Harries, but also by the noble Baroness, Lady Flather, that this is not, as she said, exactly what we were asking for. We would like to have seen something in the Bill. If people will be a little patient, we shall have the ingredients which conclusively prove, as we believe, that caste discrimination occurs in the fields covered by the Bill. We welcome what the Minister told us about the NIESR research being undertaken.

I conclude by saying how grateful we are to the Minister. She has listened. We would expect that of Ministers normally but that does not always happen to the extent that we have seen from the noble Baroness. With her help we have arrived at a satisfactory intermediate solution.

Amendment 10 agreed.

Clause 13 : Direct discrimination

Amendments 11 and 12 not moved.

Clause 19 : Indirect discrimination

Amendment 13 not moved.

Clause 20 : Duty to make adjustments

Amendment 14

Moved by Baroness Thornton

14: Clause 20, page 10, line 41, at end insert-

"( ) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format."

Amendment 14 agreed.

Clause 25 : References to particular strands of discrimination

Amendments 15 to 17 not moved.

Amendment 18

Moved by Lord Wallace of Tankerness

18: After Clause 26, insert the following new Clause-

"Harassment (gender reassignment): education

(1) A person (A) harasses another (B) if-

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of-

(i) violating B's dignity, and

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if-

(a) A engages in unwanted conduct of a sexual nature, and

(b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if-

(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b) the conduct has the purpose or effect referred to in subsection (1)(b), and

(c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account-

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

(5) This section applies to Part 6 (education)."

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, the purpose of Amendments 18 and 19 is to outlaw harassment in schools on the basis of what the Bill calls "gender reassignment" and harassment in schools as well as in services and public functions on the basis of sexual orientation. In a similar vein, Amendments 35 and 36 are designed to make it illegal for the responsible bodies of schools to harass students on the basis of sexual orientation or gender reassignment.

One can readily understand that harassment of young, gay students in schools can be disturbing and alarming for them. I raised this issue at Second Reading and shortly thereafter received an e-mail from someone in Northern Ireland underlining the concerns about harassment of gay pupils. Likewise, we would all abhor the harassment of those going through the transgender process. These amendments primarily establish in law a protection against harassment and also challenge the Government, who resisted these amendments when they were raised by my noble friend Lord Lester in Committee on the basis that they do not believe there is a gap in the protection. The amendments provide the Government with an opportunity to explain why they think that gap has been plugged.

On Amendments 36 and 37, Clause 85(3) states:

"The responsible body of such a school must not harass ... a pupil [or] a person who has applied for admission as a pupil".

Subsection (10) then says that in the application of Section 26, dealing with harassment,

"for the purposes of subsection (3), none of the following is a relevant protected characteristic".

It then includes gender reassignment and sexual orientation-the two paragraphs we are trying to delete. It almost seems as if the green light is being given to school bodies to go ahead with harassment, although I know that that is not the Government's intention. When you see exemptions set out so starkly, some explanation is required.

I understand that the argument that the Government have rehearsed in the past is that the application of what is now Clause 210(5) indicates that where there has been an exemption in respect of harassment in particular circumstances, it will still be possible for a person to bring a discrimination claim on the ground that they have been subjected to a detriment. We seek some reassurances about that because there are differences. When there is a question of a detriment it is necessary to provide a comparator, whereas our amendments relating to harassment import the reasonability test.

My noble friend Lord Lester of Herne Hill took part in debates during the passage of the Equality Act 2006 about the third exemption in Clause 85(10), relating to religion or belief. He argued strongly for that exemption on the grounds that there are distinctions. I am sure that we will return to this later in the debate this evening when we come to the clauses dealing with public sector duty. There are distinctions with regard to religion and belief because, as my noble friend has said on more than one occasion, one person's religion is another person's blasphemy. Whole issues of freedom of speech and expression arise and he certainly believed that the exemption was necessary to avoid legal uncertainty or misconceived or divisive claims. If the Government's argument with regard to gender reassignment or sexual orientation is that discrimination claims can be made by virtue of Clause 210(5), does that in any way open the door for any of the legal uncertainties that my noble friend raised in the past in relation to religion?

Finally, it is my understanding that nothing in the Bill would protect a pupil being bullied by another pupil because of any protected characteristic. However, a school's failure to deal with homophobic bullying against a pupil when it deals with other types of bullying could amount to direct sexual orientation discrimination. That being the case, it would be helpful if in replying the Minister could indicate what steps are being taken, over and above the steps that we have already heard about in recent months, to ensure that schools take a proactive approach to matters such as tackling homophobic bullying, which puts pupils who are lesbian, gay, bisexual or transgender at a disadvantage compared with straight pupils. I beg to move.

Photo of Baroness Wilkins Baroness Wilkins Labour 4:45 pm, 2nd March 2010

My Lords, I shall speak to Amendments 37, 38, 39, 40 and 41 in my name. The Disability Discrimination Act explicitly provides for the reasonable adjustment duties in education to be anticipatory-that is to say that the duty is to disabled persons generally and not just to an individual disabled person. The provisions in the Bill are not so explicit; in fact, they are at best confusing.

As noble Lords may remember, the noble Lord, Lord Low of Dalston, spoke about this at Second Reading, and I first raised the matter of anticipatory adjustments for disabled people in education in Committee on 19 January. My noble friend the Leader of the House said that she would write to me on this matter, and I am most grateful to her for her letter, in which she tried to assure me that the provisions in the Bill were already anticipatory and did not need changing.

Unfortunately, despite my noble friend's swift and helpful reply, the disability lawyers were not convinced that the provisions were explicit enough to make the law clear. I was therefore pleased when the noble Lord, Lord Low of Dalston, moved an amendment in Committee the following week to make the duty explicit. In response, my noble friend Lady Thornton gave the undertaking that the matter would be reconsidered on Report, and the amendment was subsequently withdrawn.

I am most grateful to my noble friends Lady Royall and Lady Thornton and to the excellent Bill team for their understanding and hard work in reconsidering the matter. It has been resolved entirely to my satisfaction and that of the noble Lord, Lord Low, and our disability legal advisers. The Government have agreed to make the changes that we sought and that are provided for in these amendments and I very much hope that they will be accepted.

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

I draw attention to Amendment 34, which is included in this group and is designed to remove the ability of schools to discriminate against pregnant students. I understand that the Government have indicated that they are likely to accept this amendment, and indeed have moved their own on the same matter. Without this amendment, it would have been legal for a school to expel a student on the basis of her pregnancy. We want to remove that discrimination, and I hope that the result of this debate will be to achieve that.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton - Shadow Minister (Work and Pensions) (Also Shadow Minister for Women), Health, Shadow Minister, Work and Pensions

My Lords, we debated these amendments at great length in Committee, but I am not surprised that the noble Lords, Lord Lester of Herne Hill and Lord Wallace of Tankerness, have tabled them again, given that the noble Lord, Lord Lester, was adamant that the answer from the Government was not acceptable. Nevertheless, we too remain consistent with our line from Committee. We accept the merit of the noble Lords' intentions. All of us, from all sides of the Chamber, agree that bullying is wrong in all circumstances. This amendment is therefore laudable in its desire and intention to address bullying on the basis of gender reassignment or sexual orientation. However, this is not the right way to tackle the problem of pupil-to-pupil bullying in schools. Where bullying is between pupils, it is not appropriate for the law to be involved. It must be dealt with by the school and by the appropriate school authorities. This is also addressed by clear guidance from the DCSF.

If the intention is to cover harassment from a person in authority-for example, from a teacher to a pupil-such as mocking a youth undergoing gender reassignment, then I agree with the noble Baroness, Lady Thornton, who made it clear in Committee that this would already be prohibited by the Bill. She said that,

"it would be unlawful discrimination for anyone working in a school to bully a pupil because of his sexual orientation or gender reassignment".-[Hansard, 13/1/10; col. 582.]

The Government then clarified this position with two further amendments. I am therefore unclear whether the amendments in the names of the noble Lords are necessary.

We then debated the amendment in the name of the noble Baroness, Lady Wilkins, in Committee. It was clear that there was agreement about the principle of these amendments. The Minister said that this was not a fundamental disagreement of policy or principle, but was simply a disagreement on the drafting. I know how that can be because I always seem to draft amendments poorly when I do it myself. We on these Benches agree with the noble Baroness, Lady Thornton, that the principle behind the amendments was sound, but we considered that the duty already contained sufficient provision to ensure that education authorities should anticipate the needs of disabled students and make reasonable adjustments accordingly.

I gather, however, that the Government might be minded to accept these amendments to make it absolutely clear that the Bill includes this duty. We also feel that it is important to minimise, as far as possible, the disadvantage which disabled students may experience during their education. We would therefore not object to these amendments, which are, after all, a difference of drafting about a principle with which we all agree.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, I turn to the amendments on harassment, tabled by the noble Lords, Lord Lester and Lord Wallace, and the noble Baroness, Lady Northover. I am at one with the noble Lords in seeking that the Bill should ensure that lesbian, gay and trans pupils in schools, and indeed lesbian, gay and trans customers, are protected against bullying behaviour by schools and by service providers. As noble Lords said, it is abhorrent if gay and trans pupils are bullied at school. I am therefore grateful to them for tabling the amendments, as it gives me the opportunity again to state again very clearly that such protection is already ensured by the Bill as it stands. These amendments seek to plug a perceived gap in protection, mainly for schoolchildren but also for users of goods, facilities and services provided by or on behalf of public authorities. We gave firm assurances in Committee that no such gap exists, and I make that absolutely clear now. I am grateful for the support of the noble Baroness, Lady Morris.

Behaviour that constitutes harassment as anyone would understand it is already covered by the definition of direct discrimination. Pupils subjected to ridicule by their teachers because of their sexual orientation or their gender identity, or customers insulted or turned away by service providers for the same reasons, will be able to claim that they are suffering direct discrimination by way of a detriment.

We have looked long and hard at whether there might be a genuine need to extend specific provision that is modelled on the harassment clauses that apply elsewhere to schools and to the provision of goods and services, but no one has put to us, and we have been unable to imagine, a scenario in which there is unacceptable bullying behaviour in these contexts and where the direct discrimination provisions would not apply.

Children in schools have been legally protected against discrimination because of sexual orientation since the Equality Act (Sexual Orientation) Regulations came into force in 2007. Those regulations do not refer specifically to harassment, but the guidance to schools on their responsibilities makes it very clear that bullying behaviour is unlawful, and gives specific examples of harassment to illustrate this. The same message will be conveyed very clearly in the guidance on the Bill. The absence of a specific harassment reference makes no difference whatever to a school's responsibilities to the children in its care.

The noble Lord asked whether the Government were dealing proactively with bullying in schools. The Department for Children, Schools and Families has placed a duty on head teachers in England and Wales to put measures in place to prevent all forms of bullying, and has provided guidance for schools on dealing with homophobic bullying. The guidance makes it very clear that a school that does not take homophobic bullying as seriously as bullying on any other ground is vulnerable to charges of discrimination.

We intend to introduce a new duty on schools to record and report serious and persistent bullying between pupils and incidents of verbal and physical abuse against school staff, so we are being proactive.

On Amendment 34, I thank the noble Lords, Lord Lester and Lord Wallace, for again tabling this amendment, which was debated in Committee and which we accepted in principle then. It completes the protection for school pupils who are pregnant or new mothers. I assure the noble Lord who moved the amendment today and other noble Lords that we still fully support this amendment, and I am very happy to accept it.

Finally, I refer to the amendments in this group in the name of the noble Baroness, Lady Wilkins, on anticipatory duties in education. Although, as the noble Baroness, Lady Morris, said, they will not change the substance of the legislation, I recognise that there is a strong feeling that they will make clearer its provisions in this respect, and on that basis I am very happy to accept them.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, I am very grateful to the Leader of the House for her response to this debate, and to the noble Baroness, Lady Morris, for indicating-I think this was unanimous in the House-that the object of these amendments is to show our abhorrence and to ensure that there is adequate protection for the victims of bullying at school or elsewhere on the grounds of sexual orientation or transgender status. It has been useful to hear that unanimous view expressed and to have placed on the record the Government's belief that there is no gap and that the protection is adequate. I wondered why, if it was not required for sexual orientation, it is required for race-I am sure there is a reason-but it has been worth while to set it out clearly and for the record, as I said. It has also been worth while to hear about the guidance that has been issued and to hear that not to comply with it could open up school authorities to claims of discrimination.

I am also grateful for confirmation that the Government will support Amendment 34, so when we come to it I will make every endeavour to move it. In the mean time, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendment 19 not moved.

Clause 29 : Provision of services, etc.

Amendment 20

Moved by Baroness Butler-Sloss

20: Clause 29, page 15, line 37, at end insert-

"( ) A service-provider must make reasonable adjustments to ensure that, so far as is possible, no employee is required to be complicit with an action or circumstance to which the employee has a genuine conscientious objection on the basis of the employee's beliefs regarding sexual orientation."

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 5:00 pm, 2nd March 2010

My Lords, I shall speak also to Amendment 21. I declare an interest as an Anglican-though in relation to Amendment 21, I should emphasise that I am an Anglican and not a member of the Roman Catholic Church, although I am happy to put forward this amendment on its behalf. I am speaking to Amendment 20 on behalf of the noble and learned Lord, Lord Mackay of Clashfern, who is unable to be here today.

It is important to recognise that the matter of conscience is addressed in Article 1 of the Universal Declaration of Human Rights. Perhaps your Lordships will permit me to quote it. It states:

"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood".

As the noble and learned Lord pointed out in Committee, the question of conscience is a crucial criterion of a civilised state. We in this country recognise conscience in various ways. We recognised it during the Second World War, when people were permitted to be conscientious objectors and to serve our country in ways other than on the battlefield. Doctors, including doctors in the NHS, have the right, as a matter of conscience, not to perform abortions. Consequently we have a current use of conscience in our existing and current legislation.

It is interesting that, so far, there is no ability to have an issue of conscience in relation to sexual orientation. How do we balance equality, discrimination, rights and recognition of the needs of different groups of minorities? All sorts of minorities need protection, not only the minorities who are in same-sex relationships. It is important that we recognise, by a tolerance and a flexibility of approach, that there is a negative effect of anti-discrimination towards some groups in relation to other groups and that that is a matter where conscience should be allowed to play a part. We should be able to accommodate various religions and various cultural beliefs. We are a broadminded society, and the Equality Bill should recognise that too.

There was a case that fell foul of the statutory instrument on equality and anti-discrimination-the case of a marriage registrar who, as your Lordships may remember, refused to officiate at a civil partnership ceremony. She initially won the case but then lost in the higher courts. That was an issue of conscience. She was held to be wrong although other registrars were able to perform the ceremony. Such ceremonies are a very important day, but not every registrar has to officiate at them. Indeed, this particular local authority has an excellent record of looking after civil partners who wish to have the service performed for them. This is a modest amendment and deserves support. I hope the Minister will find its modest dimensions acceptable.

Amendment 21 relates to Catholic adoption societies. At the moment, Catholic adoption societies do not exist; some exist as non-religious societies but none as a Catholic society. The effect of the Equality Act (Sexual Orientation) Regulations 2007 has never been debated in either House. In considering the Equality Bill, the other place had four minutes in which to discuss the issue before the guillotine fell. This is therefore the only place where, and the only time when, this rather sad issue will come before your Lordships.

In the same way, it is important that same-sex couples should have the right to have a religious service in a church or other religious establishment that is prepared to allow them to do so. That is the subject of Amendment 53, to which I have put my name. I believe that same-sex couples should be able to have religious services in religious establishments where that establishment permits them to do so. As I understand it, both the Quakers and the liberal Jews in some places are prepared to do it. If we think that that is right, it ought also to be right for Catholic couples who wish to adopt to be able to go to an agency that has the same ethos and religious beliefs and will look after that couple in the way that Roman Catholics would wish. However, they cannot do so. I remember having to informally advise the Exeter Anglican and Roman Catholic adoption society that it could not continue using the words that it had used as regards suitable people for its adoption society. As I am sure everybody knows, the Catholic societies are no longer Catholic.

This is a relatively modest requirement that would permit a minority group to work through its own religious beliefs as regards those who wish to become adopters. It does not in any way prevent a gay couple going to any adoption agency. I understand that-to the knowledge of the Catholic Church-under the 2007 statutory instrument, only one such couple went to a Catholic agency, and they were helped to find another agency which was not Roman Catholic that would help them to adopt a child. We are talking about allowing for minorities. We ought to be able to allow for minorities in every way and not decide that they should not have the right to opt out as regards sexual orientation.

I asked a senior founder member of Stonewall, whom I know extremely well and whose aims I very much support, what he thought about my putting my name to this amendment. He said that he saw absolutely no problem with it. He knew very well that gay couples wishing to adopt-and good luck to them-could apply to many agencies; almost every agency, in fact. He did not consider that my amendment in any way infringed the rights of, or was discriminatory towards, gays. I found that a very comforting conversation.

The question really is, what are the outcomes of the 2007 statutory instrument and what would be the position if your Lordships' House did not accept this amendment? Two adoption agencies have closed down, a third is mired in litigation over whether it can continue, and all the other Catholic agencies have given up supporting Catholics, and, of course, have given up those obligations which the Catholic Church had required of the Roman Catholic agencies.

It is very important that same-sex couples should have the right to be considered as potential adopters-as they do, and as they should have. They can apply to many agencies, as I have said. However, it is also important that Catholic families should be able to apply to Catholic adoption societies. I beg to move.

Photo of Lord Waddington Lord Waddington Conservative

My Lords, I support the noble and learned Baroness as far as these amendments are concerned. It seems grossly unfair to require a person who has been recruited as a registrar of marriages to do something rather different, which is contrary to his or her religious convictions, and register a civil partnership. Yet that is what happened to a local authority employee recently. It seems that the local authority was just trying to make a point at her expense, because it was never suggested that there were not other registrars in the borough with no religious objection to registering civil partnerships who would be prepared to do that work. It was an act of gross unfairness. Here is an opportunity for us, in a Bill that is supposed to be about fairness, to remedy a very obvious wrong.

As for Amendment 21, it seems absolutely tragic that adoption agencies should have been driven out of business simply because of the obduracy of the Government a year or two ago. What possible damage is done if an adoption agency that is unwilling to place a child with a gay couple directs that couple to an agency that is perfectly happy to place a child with them? Here again is an opportunity to put right a very obvious wrong.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

My Lords, I support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, and I declare an interest as a Roman Catholic. I think that the House agrees that there must be a provision of public services and that there must be equality of access to the ability to adopt children. There must also be a protection of the freedom of conscience of anyone who is engaged in a public service-with necessary restrictions, of course. There are, in law, many competing rights and the function of this House is to attempt to balance the protection of those rights-not only to preserve the rights of those of different sexual orientation, where the right to adopt can be preserved, but also to protect the rights of religious believers.

It is enormously important in the process of adoption and fostering that there should be an understanding that this process also requires ongoing support for many years. The support that would be supplied by the Catholic adoption agencies would have been support in the context of faith and spirituality. That provision has now been lost to the people. I do not think that I need say any more, other than to support the noble and learned Baroness in this amendment.

Photo of Lord Patten Lord Patten Conservative 5:15 pm, 2nd March 2010

My Lords, one Roman Catholic follows another, rather like those trains that one is warned about at French level crossings. The noble and learned Baroness, Lady Butler-Sloss, has outed herself as an Anglican and I had better come out as a Roman Catholic and follow her example in declaration. I support her excellent Amendment 21, which is-I say this to the Leader of the House-very modest not only in intent but in extent. It is bent only on attempting to right an injustice to a minority.

As the noble and learned Baroness noted, back in 2007 the Prime Minister's official spokesman said that the objectives of the Government's policy in bringing forward the sexual orientation goods and services legislation was both to avoid any dilution or dissipation of Catholic adoption expertise and to avoid discrimination. That was on the record. Unfortunately, the Government did not, in the end, provide any credible means for the realisation of those objectives. For reasons that the noble and learned Baroness has explained so clearly, neither end has been achieved, with very unfortunate consequences for a minority of children and for a minority religion.

As it happens, Catholic agencies have quite simply been the very best agencies for placing children recently, as the record shows. I am sorry to break into fractions here but the latest figures available to me demonstrate that just 3.6 per cent of Catholic placements broke down in the period up to the adoption order, while the comparable figure for voluntary agencies as a whole was 5.5 per cent and the figure for local authority agencies-I pay tribute to the difficult work that they have done-was very much higher, at about 20 per cent. Catholic agencies have been particularly successful at placing children with serious behavioural problems-something that, again, the Prime Minister's official spokesman recognised.

In this regard, it is worth noting that on 21 February 2007 Mr Julian Brazier in another place questioned in that extremely brief four-minute debate the wisdom of the Government's failure to accommodate Catholic adoption agencies. He related the story of a boy called Jake, who was helped by the now defunct Roman Catholic Salford adoption agency. I am told that this boy was three when he was placed for adoption. I know that very often it is wrong to argue generalities from a particular case but I think that this is a telling one. Jake had waited a long time for a family. He had been placed with a very experienced foster carer, who managed his extreme behaviour with difficulty. I pay great tribute to that foster carer for the difficult work that was done with that child. He had some obsessional behaviour: he did not like doors being closed and he hated getting wet. He also had extraordinary behavioural problems. The local authority social workers were so concerned about any family coping with his challenging behaviour that they asked his foster carer to provide a video of him in all his difficulties to show to prospective adopters so that they knew what they were letting themselves in for. Jake did find adoptive parents. They were secured by the now closed Salford Roman Catholic adoption agency. They were given an option to say no but felt that the little boy needed them. Therefore, this child was very fortunate.

It strikes me that the noble and learned Baroness wishes only to see more boys and girls experience similar good fortune if possible. I wonder how many children like Jake are not adopted today but would have been had it not been for the unfortunate failure of the initial goods and services legislation to make reasonable space, as the noble and learned Baroness so eloquently set out, for faith-based adoption. It is a good question to ask your Lordships, although it is almost a rhetorical one, because the Salford agency no longer exists in any shape or form due to the failings of the Government's goods and services legislation.

Another agency that has been closed down by the legislation is the Westminster children's society. I think that I told your Lordships in an earlier debate on this Bill that that has had unfortunate effects. It strikes me as extremely odd, if not poignant, that as recently as Friday 19 February the equally recently retired chief executive of the Roman Catholic Westminster children's society, the Reverend Jim Richards, went to Buckingham Palace to have the MBE conferred on him by Her Majesty for services to children and families, as the citation said. Therefore, an honour has been given by the public to Mr Richards through Her Majesty for doing things that the Government think are illegal. It is a very peculiar world when someone can get the MBE for doing something that the Government do not wish to see happen-that is, providing goods and services through a faith-based adoption agency. It is pretty rum and I do not really understand it. The noble Baroness the Leader of the House may be able to explain later-or perhaps she could write me one of those letters that we conventionally get-how this odd conundrum can be solved in my mind.

In the question of Catholic adoption agencies, it seems that three sets of rights are in play. This matter needs to be debated because it has never been debated before in either place. First, there are the rights of the child-rights not to have his or her best interests placed in jeopardy by legislation that did not make space for what were the most successful adoption agencies. I am borrowing the noble and learned Baroness's phrase about space; it is very apposite.

Secondly, there are the rights of the service providers who wish to deliver a service as a vocation and to be allowed to do so without violating their identity. I imagine that some will be quick to point out that no one is forced to violate their conscience, in the sense that no one has to provide that service-it is not compulsory. However, being told that you can either violate your identity by making yourself complicit in an action that your faith prohibits or simply cease service provision, with a loss of vocation and livelihood, does not seem particularly reassuring. This does not help a more diverse and tolerant society. It is hardly a vaunting triumph for the equality agenda.

Then there are the rights of the service users-the would-be parents, the adopters-to-be. This interest group, the adopters-to-be, have barely been mentioned in your Lordships' House and I think not mentioned at all in another place. We should pause for a moment and reflect on the difficulties that they have. One of the interesting things about our earlier debates was that everyone focused on the rights of same-sex couples to access adoption services from any provider, while very little thought was given to those would-be parents who just happened to want to be able to access adoption services in the context of a Catholic ethos, from at least some providers, and who now lack that opportunity entirely.

This is strangely illiberal from a House that very often seeks to promote the liberal agenda. It is something that the noble and learned Baroness's amendment sets out to correct in all the clarity that her amendment contains. This situation is particularly strange when one recognises that, as the noble and learned Baroness said, there was record of only one same-sex couple approaching a Catholic agency, where they were courteously referred to an alternative provider. All went well and no one was outraged or upset. I was particularly interested to hear what the noble and learned Baroness had to say about her friend from Stonewall wondering what on earth the fuss was about in making it possible for people to have access in this way.

A large number of couples, including non-Catholic couples, who appreciated the opportunity of being able to access adoption in a Catholic ethos can no longer do so. In this context, on the basis of the Government's actions-again, perhaps the noble Baroness, Lady Royall of Blaisdon, can help me-it is difficult not to draw the conclusion that some rights are much more important than others and that some minorities are much more important than other minorities, such as Roman Catholic minorities, a number of Muslim minorities and others. The dismissal of the rights of those wishing to access adoption services in the context of a Catholic ethos is particularly strange because it comes at a time when the Government are placing so much emphasis, and I agree with them, on the importance of reforming public services to promote more choice, not less.

However, far from extending choice, we have here goods and services legislation that is actually eroding choice. Clearly the public are becoming increasingly unhappy about this restriction of choice-hence the e-mail petition on adoption choice, which has been drawn to my attention, that is currently on the Downing Street website. It calls on the Government to amend the Equality Bill to make space for Catholic adoption agencies, as they said that they would do back in 2007 but alas have not found the means of doing so. The noble and learned Baroness has given them the script to enable them to do what they said that they would do back in 2007.

I believe that, in just the same way that a law designed for the majority can have negative and destructive effects on a minority, from which the minority needs to be protected, through the provision of different treatment under the law, so, too, can laws designed for one equality strand, as one might inelegantly term it, have negative and destructive effects on some other minority strands, such as religious adoption and fostering agencies, which the noble and learned Baroness's Amendment 21 deals with. If we fail to respect the principle of equal treatment under the law, we will get into, and have got into, all kinds of quite unnecessary difficulties.

Mindful of the fact that equality interests can sometimes conflict with each other, the aim of any democratic Government should surely always be to apply the law for one minority strand, governing the interactions of others with it, to the population at large and other minority strands generally. To this extent, and only to this extent, those other strands should be provided with different treatment under the law, so that there is space for different communities. That is what the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, seeks to do. If we fail in this task and create laws for one equality group that can be used to oppress another, we will have a recipe for social conflict and grave injustices to minorities.

I have two questions for the noble Baroness, Lady Royall of Blaisdon. First, why are the rights of those who want to have an opportunity as UK citizens to access adoption services in the context of a Catholic ethos in some instances less important than the rights of same-sex couples who want to access adoption in all instances? For the avoidance of doubt, I shall repeat that question. Why are the rights of those who want to have the opportunity to access adoption services in the context of a Catholic ethos in some instances thought to be less important than the rights of same-sex couples who want to access adoption in all instances? Surely there should be equivalence between groups.

Secondly and lastly, given that the Government were warned in advance that agencies would close-as they have done, including some of the very best-and given that it was clear that this service disruption could do nothing but negatively affect the best interests of children in need of adoptive parents, why did the Government not find a way through? The answer is extremely simple and it is has been given by the noble and learned Baroness. This is the way to make it possible, not just in the interests of all the Jakes out there who could still today access the very best adoption care if it were not for the blunt nature of the Government's goods and services legislation, but also in the interests of the service users-the parents-who wish to go to a Catholic adoption agency.

I believe that the Government should recognise three years on from the legislation that they made a small but unfortunately damaging mistake. I am sure that they did not mean it to be damaging-certainly not the Leader of the House. That mistake has been made but now there is a golden opportunity for the Government to support Amendment 21 or to bring forward an amendment of their own. I am sure that the Minister in her normal way will give me a straight answer to my first question, so will she then proceed to undertake to bring forward an amendment such as the model script provided by the noble and learned Baroness in her Amendment 21?

Photo of Baroness Afshar Baroness Afshar Crossbench

As a Muslim educated in a Catholic school and subsequently in a Protestant school, I think that for many people faith is an important parameter of life and that they should be allowed to exercise their belief and standards in choosing to adopt, which after all is a service to the nation. In this time of dire shortages, when the need for adoption is greater than ever, it is important not to exclude parents who would be supported by their faith from exercising their right to choose a child who would be raised in the same faith.

Photo of The Bishop of Bradford The Bishop of Bradford Bishop

My Lords, in the light of the noble Baroness's introduction of herself, I too must declare that I am Anglican. The fact that the sexual orientation goods and services legislation was introduced by secondary legislation in 2007 placed parliamentarians concerned about its implications for Catholic adoption agencies in a very difficult position. As unamendable regulations they could vote against the regulations as a whole, vetoing the many good provisions in them, or they could accept them knowing that they would be confirming the demise of Catholic agencies. Today, I very much welcome the fact that we can have a sensible debate about the sexual orientation goods and services legislation, affirming all that is good about it, but highlighting the need for this amendment to make space for Catholic agencies and others.

If we want to create a diverse society in which people with sometimes very differing views happily live alongside each other, we must have equality laws that make space for difference. There should be space, for example, for lesbian, gay and bisexual organisations to operate in line with their ethos. Regulation 18 of the sexual orientation regulations, now replaced by Clause 19 of the Bill, provides for this. There should be space for Catholic adoption agencies and for other faith-based bodies to operate according to their ethos.

Surely, in relation to the adoption of children, it is the well-being of the children that is primary. I believe that their needs are best served if the options are not reduced: if they are not reduced to eliminate lesbian and gay couples; if they are not reduced to eliminate Catholic couples. We must avoid developing equality laws for one strand in a way that makes life very difficult for another strand, thus vulnerable to exploitation by others, whose purpose is to make life difficult for the negatively affected strand and for their own different purposes.

Between January and March 2007, when the sexual orientation rights were being debated, Stonewall, which has already been mentioned and commended and which has a legitimate interest in sexuality, issued just three press releases on the subject, while the National Secular Society, whose raison d'être does not pertain to sexuality at all, issued 10 strongly worded press releases championing the unamended regulations. We must understand, as others have observed, that in the same way a law designed for a majority can have a negative and destructive effect on minorities, from which they must be protected by different treatment under the law, so, too, can laws designed for one equality strand have negative and destructive effects on other equality strands, for which they should also be provided with different treatment under the law.

Many people have mentioned registrars. I sometimes wonder whether the small town of Settle is rather like the village from which Miss Marple comes, where everything happens. That village happens to have a registrar who spoke to me and was very distraught. At the time of speaking to me, she was able to carry on her work because others would cover during the registration of lesbian and gay couples' civil partnerships. She was quite happy with that and they were happy, but she was thinking of retiring early because of the pressure upon her by the expected regulations. It seemed a shame. I hope that now that the Government have an opportunity to right this wrong, they and we will support the amendments of the noble and learned Baroness, Lady Butler-Sloss.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, the contributions we have heard today clearly demonstrate that goods and services legislation is complex and requires careful debate. I very much regret that that was denied in 2007 and welcome the opportunity that my noble and learned friend has given the House today to consider this question afresh. These amendments, which I strongly support, strike the right kind of balance for reasons that have been eloquently adumbrated during the course of our proceedings.

Like others who have talked about their faith background, I make no secret of the fact that I am from a Catholic background. I live in the Salford diocese, and there has been great sadness there that the adoption agency in that diocese has had to close. I think it is an example of the law of unintended consequences. I do not believe that the Government set out with a vendetta against Catholic adoption agencies, with an agenda to try to close them. However, it has been one of the unfortunate side effects of the legislation that was enacted in the past.

However, I do not come to this amendment as a Catholic. I come to it as a Member of your Lordships' House concerned about the position of minorities and, as the noble Lord, Lord Patten, said as well, the position of service users, about which we have heard far too little during these debates. I come to it also because of my belief in minorities. One of the reasons why, when I was in another place, I voted against Section 28 was because of my belief in the importance of the place of minorities in society. Minorities will often be in competition and we are hearing today the debate about when majorities and minorities sit together in a tolerant and plural society.

I also caution those who, as Queen Elizabeth I said, "make windows into men's souls". I think we have to be very careful in this plural society not to make a big issue of the way in which people practise their faith. I am concerned, as the right reverend Prelate the Bishop of Bradford has just said, that there is an aggressive agenda at work which is almost itself becoming an ideology. The National Secular Society should reflect on that carefully, because pushing people into a corner on issues of conscience is not healthy for a democratic society.

On Sunday, I was struck by the headlines in one newspaper about the effect of the Children, Schools and Families Bill and how it may be a requirement on Catholic, Jewish, Muslim and Anglican schools to refer pupils in the future for abortion services. I am sure that the Leader of the House will have seen those headlines. That too will raise a huge conscience question. It will be impossible for many people who run such schools. So respect for conscience is something that ought to unite the whole of your Lordships' House.

The noble Lord, Lord Patten, referred to the good work that these adoption agencies have done over the years. Rod Liddle is not a man who is given to writing very positive reports about many people, but I was struck by a review of a new book by Pauline Prescott that he wrote in last weekend's Sunday Times. She very movingly described how a church adoption agency helped her when she was a teenager to put her child into adoption. She has had the benefit of being reconciled with him; he has had an illustrious career in the Armed Forces as a result. The Jewish rabbi who said that a man who saves a single life saves the world was right. We never know how these events will work out when we provide the opportunity for people to be adopted and to live.

Modern concerns for equality were very much inspired by the work of scholars such as John Stuart Mill and Alexis de Tocqueville. They warned us about the tyranny of the majority and we should understand that warning today. They recognised that if you embrace a crudely majoritarian model of democracy, that will result in the formation of laws that have no regard for the rights of minorities. When laws designed for the majority are found to have negative or destructive effects on minorities, those minorities should be protected by different treatment under the law, usually courtesy of legal exceptions. There are numerous examples of such provision in relation to things such as military service, the taking of oaths, vaccination, abortion, the wearing of motorcycle helmets, and the wearing of protective head covering on building sites.

The sexual orientation goods and services legislation has failed because it has not made adequate provision to protect the interests of what have been described as "these other strands". The impact of this is clearly seen today in the closure of both the Salford and, closer to home, the Westminster agencies, and the cessation of operations by the Leeds agency that is this very week fighting in the courts for its continued existence. Other agencies have continued, but no longer as agencies of the church. It is a real tragedy when people are pushed underground when they are actually doing great work, which should be seen as such.

These changes have negatively affected children needing adoption by causing very unfortunate service disruption. They have had very unfortunate effects on those would-be parents wishing to access adoption in the context of the Catholic ethos. It seems bizarre to me that legislation that is supposed to further goods and services provision should have jeopardised the goods and services rights of so many people. These people did not want all adoption services to be provided in the context of the Catholic ethos, but they did hope that they might continue to have the option of accessing those services somewhere in a context that is accessible to their protected characteristic. They are asking why this has been taken away, because the Government have determined that another protected characteristic should be free to access services anywhere in a way that is accessible for their protected characteristic.

I very much welcome my noble and learned friend's amendment, which moves us to a place where a right balance can be struck. Failure to rise to this challenge leaves us with what might be described as majoritarian equalities legislation that has no regard to its effect on other minorities. Ironically, it moves us from the place where we properly worked to avoid the tyranny of the majority to a place where we are in danger, in some contexts, of creating a tyranny of a minority. I very much hope, therefore, that the Government will accept the spirit of the amendment which my noble and learned friend has moved today, and also accept, in view of the moderate way in which she moved the amendment, and in which all the noble Lords who have contributed to this debate today have spoken, that we want to see a reasonable resolution of an issue that is, as I have said, the result of the law of unintended consequences.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton - Shadow Minister (Work and Pensions) (Also Shadow Minister for Women), Health, Shadow Minister, Work and Pensions

My Lords, I too declare an interest as a Roman Catholic and vice-president of the Catholic Union of Great Britain. I say to the noble and learned Baroness, Lady Butler-Sloss, who I thought argued her case beautifully, as one would expect, that the Conservative Party is broad-minded and that we have always considered these issues to be issues of conscience and therefore subject to free votes. Therefore, what I am going to say is my personal view. I shall be brief because these are weighty issues coming very late in the Bill right at the end of the legislative process.

As my noble friend Lord Patten said, Catholic adoption agencies had a worldwide reputation for the work they did in placing some of the most damaged and vulnerable children. One reason why they had great success is that they were supported by the Catholic community in the parishes. Their aftercare was second to none. That was why they had good results. For the Catholic Church, the issue was not about sexual orientation, but about sex outside marriage. It was the same for heterosexual couples.

At one stage, my husband and I very nearly adopted from the Catholic adoption agencies. In the end, we decided not to, and I became pregnant. There was a young boy who did not want full-time adoption. He just wanted a family that would have him at the weekend because he wanted a ferret. A ferret was all he wanted in life. We considered long and hard whether we could give him a home at the weekend and give him a ferret. In the end, we decided not to. I have often thought long and hard about that young man. I hope he did get his ferret and I hope he got it in a loving Catholic home.

Photo of Baroness Murphy Baroness Murphy Crossbench

My Lords, I shall speak briefly to urge the Government not to accept these amendments. I find them quite shocking. Essentially, I would defend to the death the rights of religious groups and organisations to believe what they want to believe but, when it comes to how those religious groups behave in relation to the rest of society, they cannot exercise a right that so diminishes the rights of other groups. I do not doubt that that is not the intention of my noble and learned friend Lady Butler-Sloss, but these amendments are deeply, offensively, homophobic. The Government must resist them at all costs.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, I did not intend to speak in this debate, but I have listened carefully to what has been said and it has prompted one or two reflections that I would like to give voice to briefly, particularly in the light of the remarks by my noble friend Lady Murphy.

I am not a religious person, but people of all faiths and none should be concerned about the value of tolerance. It is a value that we should not lightly undermine. What leads people to support provisions that seem to have the effect of undermining free speech and conscience and creating the oppressive majoritarian regime of which my noble friend Lord Alton spoke? I think that it arises from concern over the exercise of free speech and conscience operating as a sword for the oppression of minority groups. That may not be the intention, but the exercise of rights of free speech and conscience can operate in that way, which is the mischief to which my noble friend Lady Murphy referred.

We should be concerned in our zeal to prevent such provisions from operating as a sword not to prevent them from operating as a shield in the hands of people who are simply concerned to protect their private belief and their freedom to act in accordance with it. As my noble friend Lady Afshar said, faith and belief are important strands in our civic life and we ought to be concerned not to undermine people's freedom to believe these things and to act reasonably in the light of them.

That word "reasonably" leads me to make a suggestion. If the Government are minded to stand pat on the provisions of the Bill and to resist the amendments, it occurs to me that they might like to reflect a little more on what has been said and come back at Third Reading, as was suggested, with their own amendment that glosses these amendments, upholds their spirit and enables people to exercise their conscience, so long as that does not cause any harm to others or have any disproportionately adverse effect. We have heard a lot of testimony in this debate to suggest that the operation of the provisions that are maintained in the Bill has had a disproportionately adverse effect. If exercising the right of conscience were not to have a disproportionately adverse effect, that is the basis on which we could reasonably support amendments of this kind in the interests of upholding the value of tolerance.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster 5:45 pm, 2nd March 2010

My Lords, Amendment 20, moved by the noble and learned Baroness, Lady Butler-Sloss, is similar to an amendment moved in Committee by the noble and learned Lord, Lord Mackay of Clashfern. During that debate, my noble friend Lady Thornton made it clear that, where it is operationally feasible for service providers to make allowances for the views of their staff, they are free to do so. However, if this amendment were accepted, we would be going even further by requiring service providers, so far as possible, to make reasonable adjustments for the views of their staff in the light of their beliefs on sexual orientation.

It is our view that no one offering goods or services to the public on a commercial basis should be able to discriminate on any grounds. While we understand that individuals may have strong views, in this modern world those views cannot be used as a reason for prejudice or discrimination. As an employer, a service provider can already, when reasonably able, take practical measures to respect the private views of staff.

The noble and learned Baroness and other noble Lords raised the recent case of the registrar. In that case, the Appeal Court handed down its judgment, which confirms that, while everybody is, of course, free to hold personal opinions about sexual orientation, those who are employed in providing a service to the public are legally obliged to treat their gay, lesbian and bisexual customers in the same way as they treat their heterosexual customers. In the case of registrars, that demonstrates that, if an individual registrar does not want to conduct a civil partnership ceremony because of his or her religious beliefs, a local authority could arrange for a different registrar to conduct the ceremony, if there is one available. However, if there is no other registrar available, the local authority can and should require the registrar to carry out the ceremony. That is precisely what happened in the case in question.

The amendment tabled by the noble and learned Baroness would go further by imposing an undefined and burdensome new duty on service providers to accommodate the views of their employees relating to sexual orientation. This would upset the balance that the Bill currently strikes where there are potentially conflicting rights. In this case, that balance is appropriately struck by the prohibition of indirect discrimination, which protects employees against an employer's failure to accommodate their beliefs. This means that, where an employer's policy or practice puts a group of employees sharing a protected characteristic at a disadvantage, that policy has to be objectively justified. In addition, we think that this amendment is not only unnecessary but would introduce uncertainty and confusion in what is expected of service providers, when the main focus should be on ensuring that they provide services to the public without discrimination in accordance with their legal obligations.

Amendment 21 would turn back the clock for adoption and fostering agencies. The proposed new paragraph in Schedule 3 would provide an open-ended, block exemption, allowing faith-based adoption and fostering agencies, for religious reasons, to refuse their services to a person because of his or her sexual orientation, provided that they referred that person to another agency. This Government are committed to adoption for children where this is in their best interests and we have made it clear that we are also committed to ensuring that people are treated fairly, no matter what their sexual orientation. That is why the Adoption and Children Act 2002, and its Scottish equivalent, focused strongly on the needs of children awaiting adoption and widened the pool of prospective adopters to include same-sex and unmarried heterosexual couples. It is also why the Equality Act (Sexual Orientation) Regulations 2007 introduced the right for same-sex couples and single, homosexual or bisexual people to be treated the same as other prospective adopters by adoption agencies. Under the regulations, adoption agencies must offer the same service to all couples or individuals who wish to adopt. Since that time, I have witnessed real joy, as I am sure many noble Lords have, for gay and lesbian couples who have adopted children and who have made a profound difference to the lives of those children.

Children's best interests must remain paramount. All prospective adopters undergo the same thorough and rigorous assessment process, irrespective of their sexual orientation, to ensure that children are matched with families who can best meet their needs. Like the noble Lord, Lord Patten, I pay tribute to the excellent work of all adoption agencies but, unlike him, I see no anomaly between the gentleman that he mentioned being bestowed with an honour for his work with adoption agencies and children and the law as it stands.

The Government made it clear at the time of introducing the 2007 sexual orientation regulations that there could be no exemptions from the regulations for faith-based adoption agencies offering publicly funded services. This was debated at length. We recognise the valuable services that these agencies provide and the vital role that they play in improving outcomes for some of our most vulnerable children. We also recognise, like the noble Baroness, Lady O'Loan, that adoption agencies work with families over many years.

The noble Lord, Lord Patten asked why, given that the Government were warned that agencies would close, they did not find a way through. We provided a transition period until 31 December 2008 to allow those agencies time to prepare for, and adjust to, the new requirements. We commissioned an independent review to assess the implications and we provided an additional £500,000 to support faith-based adoption agencies in England and Wales to help them to understand the implications of the new regulations.

We have listened to the viewpoints of all groups and carefully considered the views and needs of the sector. When the regulations were introduced in 2007, it was predicted that Catholic adoption agencies would close. I have heard many things around the House today but I believe that the predictions, in the main, were wrong. According to the latest independent assessment panel's reports, the regulations have not led to any significant loss of capacity in the sector. I noted the statistics about adoption agencies mentioned by various noble Lords but, according to the figures that I have, only one Catholic adoption agency closed and all others are operating within the law.

Photo of Lord Patten Lord Patten Conservative

There is obviously a huge gulf between us, which I regret. The obvious discrimination that is coming across against Catholics and other faith-based groups I regret even more. However, on a matter of fact, two Roman Catholic agencies have closed. The noble Lord, Lord Alton, and I have named them both: the Westminster Catholic Children's Society and the Catholic Children's Rescue Society of Salford-both gone. Unless the High Court helps Leeds, that agency will go as well. Maybe those who advise the Minster should look at those statistics again.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, I accept what the noble Lord says and I will look into this again. However, there are still Catholic adoption agencies and they continue to provide an excellent service to those couples who wish to adopt through a faith-based agency. The right reverend Prelate the Bishop of Bradford said that there must be space for Catholic couples to choose to adopt from a Catholic adoption agency. I agree with that, as long as those agencies comply with the law.

The noble Lord, Lord Patten, asked why the rights of those seeking to adopt in the context of a Catholic ethos are thought less important than same-sex couples. This is not about creating a hierarchy of rights. The Equality Bill has to strike a fair balance between religious freedom and the rights of people who are lesbian, gay or bisexual. There is nothing to prevent Catholic agencies from treating heterosexual couples consistently with their beliefs. All that they are prevented from doing is treating people less favourably because of their sexual orientation.

The noble Lord raised the question of the debating time given to the existing regulations. That point was also mentioned by the noble and learned Baroness. The Equality Act (Sexual Orientation) Regulations 2007 were subject to the affirmative procedure and debated in both Houses. I hear what the noble Lord said about four minutes in the other place and I do not wish to comment on that, but I know from my noble friend sitting beside me that the regulations were properly debated in this House.

In the Ladele case, it was not that there was no registrar available but rather that the local authority in question had a dignity and respect policy that required all registrars to conduct both civil marriages and civil partnership ceremonies. The court decided that the application of the policy was legitimate and the means of achieving it proportionate. I apologise if earlier I misled the House when I referred to that case.

The noble Lord, Lord Low, suggested accepting the spirit of the amendment in the interests of tolerance. We would never allow a person to have a conscientious objection on the grounds of race or disability, so why is sexual orientation different? I believe that we are a tolerant Government and a tolerant Parliament and that the law as it stands is a tolerant law. I believe that the new paragraph proposed in the amendment tabled by the noble and learned Baroness, Lady Butler-Sloss, would allow discrimination to embed itself where it has no place and I do not believe that that would be right in a tolerant society. Therefore, I urge the noble and learned Baroness to withdraw her amendment.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 6:00 pm, 2nd March 2010

My Lords, I thank noble Lords very much for their support-it seemed that I had the support of 95 per cent of the House for what I had to say. I strongly support gay rights-I have said so on numerous occasions-and I am a great supporter of Stonewall. However, I believe in tolerance. I was deeply shocked by what the noble Baroness, Lady Murphy, said. I do not think that she attributed homophobia to me-at least, I sincerely hope not-because, if she did, she was wrong. She certainly attributed it to the two amendments that I am putting forward. I am shocked that she should see them as deeply homophobic. I certainly do not see them that way and I do not think that other noble Lords do, either. I put forward two amendments in good faith and I am saddened and, I have to say, upset for that to be accused of being deeply homophobic.

It is quite true that nine out of the 12 Catholic agencies in this country continue to act as adoption agencies, but they are no longer connected with the Catholic Church. I have the names of every one of those agencies; they are no longer Catholic agencies. The absence of discrimination against one group creates discrimination against another group. The balance is not right. I heard what the noble Lord, Lord Low, had to say, with his customary common sense and wisdom, and I had hoped, because it was what I was going to ask them to do, that the Government would take account of what had been said. It seems clear that the Leader of the House is shutting the door. Consequently, I should reflect on what the position should be. I shall ask advice and I may bring back the two amendments at Third Reading. I give that warning to the Leader, but, for the moment, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Schedule 2 : Services and public functions: reasonable adjustments

Amendment 20A not moved.

Schedule 3 : Services and public functions: exceptions

Amendment 21 not moved.

Amendment 22

Moved by Baroness Thornton

22: Schedule 3, page 148, line 15, at end insert-

"(3) Sub-paragraph (4) applies to a person (A) who may, in a case that comes within the Marriage Act 1949 (other than the case mentioned in sub-paragraph (1)), solemnise marriages according to a form, rite or ceremony of a body of persons who meet for religious worship.

(4) A does not contravene section 29, so far as relating to gender reassignment discrimination, by refusing to solemnise, in accordance with a form, rite or ceremony as described in sub-paragraph (3), the marriage of a person (B) if A reasonably believes that B's gender has become the acquired gender under the Gender Recognition Act 2004."

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, in Committee, amendments were put forward by the right reverend Prelate the Bishop of Winchester and the noble Baroness, Lady Gould of Potternewton, regarding gender reassignment and marriage. These were accepted by the Government, as they made it clear that the Equality Bill would preserve the current position in discrimination law and would not interfere with the changes made to the Marriage Act 1949 by the Gender Recognition Act 2004 or the position regarding other faiths using registered buildings. The amendments now make up Part 6 of Schedule 3.

Paragraph 24 of Schedule 3 covers the majority of legally recognised religious marriages in England and Wales. It covers those who solemnise marriages according to the rites of the Church of England and the Church in Wales, and those persons who give consent to solemnisation in a registered building. However, paragraph 24 does not cover those who solemnise religious marriages under the Marriage Act 1949 but who are either members of a faith not required to marry in registered buildings or clergy or ministers of a faith with registered buildings but not the persons consenting to its use. By contrast, paragraph 25, relating to Scotland, covers all those persons solemnising legally recognised religious marriages

We consider that those persons who solemnise religious marriages under the Marriage Act 1949 but who are not currently covered may also have personal religious concerns about conducting marriages of persons who have undergone gender reassignment. Under current discrimination law, they may refuse to solemnise marriages of such persons without the risk of a claim for unlawful discrimination.

It is only fair, therefore, that persons solemnising marriages from all faith groups are covered by Schedule 3. They should not be put in a position of having to choose between facing a claim for discrimination and their personal religious conviction, and they should be able to refuse to marry persons who have undergone gender reassignment. Hence, Amendment 22 has been tabled.

Again, this is a permissive amendment that does not place any obligation on those who solemnise religious marriages and it maintains the status quo. I beg to move.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton - Shadow Minister (Work and Pensions) (Also Shadow Minister for Women), Health, Shadow Minister, Work and Pensions

We understand from the letter of the Minister that the amendments are further drafting corrections and clarifications. We welcome the changes.

Amendment 22 agreed.

Amendment 23

Moved by Baroness Morris of Bolton

23: After Clause 77, insert the following new Clause-

"Equal pay audit following contravention by employer

(1) In the event that a court or employment tribunal finds that an employer has contravened the provisions of this Act relating to equal pay, the employer shall be required to undertake an audit, to be known as an equal pay audit, and to make the results of this audit available in the prescribed manner.

(2) In this section "prescribed" means prescribed in regulations made by the Secretary of State."

Photo of Baroness Morris of Bolton Baroness Morris of Bolton - Shadow Minister (Work and Pensions) (Also Shadow Minister for Women), Health, Shadow Minister, Work and Pensions

My Lords, we have retabled our amendments from Committee because we feel that it is important to emphasise our concerns about the Government's proposals, which will not produce workable or effective solutions to the problem of the gender pay gap. We wish also to facilitate a debate on the metrics of the pay audit, which were unfortunately not available in Committee. We have therefore tabled amendments which would remove Clause 78 and insert our new provision applying a mandatory pay audit to any company found guilty at a tribunal. I shall listen with interest to the Liberal Democrat amendments, but I am sure that they will not be too surprised if we disagree with them.

We are at one with the Government and most people in the wider world who wish to reduce the gender pay gap. This is a shared ambition. The difference is in the method and how we approach it. It is shameful in the 21st century that, as of 12 November 2009, the Office for National Statistics was showing that the mean pay gap between men's and women's average hourly wage for full-time work was still 12.2 per cent. All are in agreement that this situation must change.

We on these Benches feel, however, that the Government's proposals will not achieve this, but, more worryingly, will place onerous burdens on businesses at a time when many are already struggling to stay afloat. The difficulties of producing the relevant data and the resources that will be required to do it place an unfair burden on many employers. Moreover, it is inappropriate for the burden to be shouldered equally by good employers. Under the Government's proposals, fair employers will suffer just as much as unfair ones. This does not seem just.

Moreover, I am not sure that I understand the reasoning behind the Government's limiting the proposals to companies which employ more than 250 people, or, as we will hear proposed in the amendment tabled in the name of the noble Lord, Lord Lester, limiting it to 100 employees. If, as we all agree, this measure is important to women, surely it must be a policy for all women. A workable solution must therefore apply to all companies and not just to those larger ones.

That the EHRC took such an unaccountably long time to come up with the metrics underlines the fact that this is not as simple an audit as has been suggested. This surely illustrates to the Government that the burden will be greater than anticipated, and that the exercise will be more complicated to complete than might first have been imagined. The very process of creating the metrics also managed to alienate business groups which were involved in the process.

We heard that an agreement was almost reached when, suddenly, an amended draft of the report was sent out in January, with changes that forced business groups to reject it. The Government had therefore lost the consensual engagement of these crucial business organisations. After all, consensus is exactly what is needed in order to achieve the result we are all seeking. Can the Leader of the House tell us what has been done to ensure that business communities and employers are satisfied with the proposals? As they are representative of groups which will be carrying out the audits, it is presumably vital that their input is considered fully and that their agreement is found.

I would like to raise two major problems that we see with the metrics. First, they concentrate almost solely on pay. Obviously they are about equal pay, and while a focus on pay is important, do the Government also accept that a real culture change is required if any progress is to be made? For this reason, there may be other metrics which are important indicators, such as the percentage of women who return after maternity leave, or the amount of available flexible working time that a company provides.

There is also the option of a voluntary narrative of causes of the pay gap. This, however, would only be done in addition to the quantitative measures, as an added extra rather than as one of the main metrics. We therefore believe that Clause 78 will not achieve a narrowing in the gender pay gap.

Secondly, it was suggested that there would be a menu of indicators which would allow companies to choose the ones most appropriate to them. Instead, here we see one narrative approach, and three quantitative measures. That is hardly indicative of a menu of choice, and it will not allow companies the flexibility to choose the metrics which will be most appropriate for them.

Does the Leader of the House concede that there is a danger that the legislation may do the exact opposite of what is intended and encourage companies to chase the best figures or manipulate them to their best advantage? This would be most disappointing. Nevertheless, there is a risk that these figures can be massaged to show the company in a better light. Not only would this not help to solve the gender pay gap, it would also serve to drive it deeper underground, where it is then harder to solve.

The CBI gave us some examples: in one company, you could have as many figures as you cared to have. It looked at salaries, and it came up with a mean annual salary of 11.3 per cent. However, if you looked at this figure with a bonus, then the mean was 12.2 per cent, and the median was 7.1 per cent. If the same salary was scaled up for full-time equivalent, then the pay gap was 6.4 per cent. The mean pay gap with a bonus would be 7.6 per cent. Most shockingly of all, playing around with these statistics would mean that they could appear brilliant, because the median would be 0.9 per cent. These are boggling figures, but by looking at the figures in different ways, that is exactly what one company was able to do. This would render the figures absolutely meaningless, and could serve to hide the problem.

We therefore believe that a different approach must be taken, and I look forward to the Minister's response. I beg to move.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, I speak to the amendments tabled by my noble friends Lord Lester of Herne Hill, Lady Northover, and myself. I share the outrage expressed from the Opposition Dispatch Box by the noble Baroness, Lady Morris, about the fact that after more than a generation since the Equal Pay Act 1970, there are still, as the Office for National Statistics has shown, huge disparities in pay between men and women.

I find it difficult that having highlighted this, the noble Baroness wishes to replace what we on these Benches would argue is an already insufficient Government response with an even less sufficient and even weaker response from the Official Opposition. The Conservative Party appears to be locking the stable door after the horse has bolted-you have to be found guilty of pay discrimination before an audit would be visited upon you. We do not believe that this kind of "stick", or punishment-based approach, is the best way of dealing with this. We believe that the Government and the Conservative Party should ask-as we do-what, after all these years, this Parliament can do to end the discrimination in pay between men and women which still exists. We regret that the provisions which the Government have brought forward do not adequately answer that question. For a start, the scheme will be voluntary, whereas our amendments would make it mandatory. We are led to understand that the Government will exercise the powers which they are taking under Clause 78 only if there is an insufficient voluntary publication by employers by 2013-some three years away. That means another three years of allowing a situation to carry on which for the past 40 years has not answered the question. One wonders why they believe that in the next three years the gap will be closed, when the experience of the past 40 years would suggest otherwise.

We also take exception to the proposed limit of 250 employees. We put it at 100 and the noble Baroness, Lady Morris, wondered why. We regularly hear concerns about the imposition of too many burdens on much smaller businesses. We also believe that if you require private sector employers with at least 100 employees to publish information about differences in pay between their male and female employees, this should identify discriminatory differences in pay and therefore encourage employers to eliminate sex discrimination in pay. They should know what their pay systems are. By the time you get up to a higher number of employees, that detailed level of discrimination in the system may not necessarily have been identified. They may think that they are good employers in terms of addressing issues of sex discrimination, whereas an audit might well prove that they are not. If it shows that particular pay systems are adversely impacting on their women employees, then through negotiation or otherwise, they would be expected to address the situation.

We are as a nation going through difficult times economically-there is no denying that. However, that should not be an excuse for companies in this country to exploit women as a source of cheap labour. I do not believe that anybody in this House believes that that should happen either. That is why it is important that we try to find a way to address the issue more immediately and effectively. We believe that our amendments will provide an answer. I do not suggest that it is the whole answer, but they make a more immediate attempt to address the question of why, after all these years, we have not eliminated the pay gap.

I encourage the Government to go down the road which we are adopting, because it is more likely to produce answers sooner rather than later. After all, we have waited far too long already.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster 6:15 pm, 2nd March 2010

My Lords, Amendments 24, 25 and 26, in the names of the noble Lords, Lord Lester and Lord Wallace, and the noble Baroness, Lady Northover, are the same as those which the noble Lord, Lord Lester, moved in Committee. At the outset I should say that, like both noble Lords opposite, we all agree that the current pay gap is unacceptable. We all share the same aim. We all want to reach the same destination, but we differ on the pathways to be followed.

Amendment 24 would mean that the voluntary arrangements for publishing gender pay gap information being sponsored by the Equality and Human Rights Commission were not given any time to work. A Minister would have to make regulations under Clause 78 as soon as the clause was brought into force. The Government appreciate the contribution of the commission and its partners in working out options for measuring the gender pay gap, and of course we regret that the partners were ultimately unable to agree to the menu of options that the commission decided on. We would clearly have preferred employers' organisations still to be engaged with the process. We hope that they and individual employers will recognise that real benefits are to be had in participating and helping to shape the future agenda on pay transparency rather than standing on the sidelines and perhaps having one imposed on them at some point.

The commission is currently developing guidance for employers, which I understand will be published within the next few weeks and disseminated as widely as possible to the target group-some 7,000 private and voluntary sector employers which employ at least 250 staff each. They are on track, and we stand by our policy of giving larger employers the chance to demonstrate their commitment to change on a voluntary basis, thereby making resort to the reserve power in Clause 78 unnecessary.

As I explained in Committee, that power could be exercised so as to require employers to find out where men and women are doing equal work or work of equal value and to collate pay data to identify gender pay gaps. The power could not, however, be used to require employers to analyse the data so as to establish the causes of any gaps identified, not all of which will be due to sex discrimination.

By contrast, Amendment 25 would effectively require employers to have analysed the data they had collated to establish the reasons for any pay gaps identified, prior to publishing information only about discriminatory differences in pay. That is, I suggest, hardly an incentive to make gender pay gaps more transparent.

With the greater transparency that publication of the data under our proposals will bring, employers could be more exposed to claims if the data showed a marked gender pay gap. Accordingly, it would be in an employer's own interests to analyse the published information to establish the reasons for the gap. However, we do not think it appropriate that they should be obliged to do so in all cases or to publish only discriminatory differences in pay.

Amendment 26 would apply the clause to employers with 100 or more employees instead of only to those with 250 or more. The noble Baroness, Lady Morris, asked why the number should be 250 and not 100. We opted for a 250-employee threshold because employers with fewer staff are classed as small and medium-sized enterprises and it is not as simple or as inexpensive for them as it is for larger employers to collate information about their gender pay gaps. I should also say that these employers employ around 40 per cent of those who work in the non-public sector. However, smaller private and voluntary sector employers are free to publish information about their gender pay gaps if they want to, regardless of Clause 78, and we encourage them to do so. I should add that a 100-employee threshold would be lower than that which we propose to apply in the public sector, which would clearly not be desirable. We will require public authorities with 150 or more employees to publish annually details of their gender pay gaps.

Amendments 23 and 27, tabled in the names of the noble Baronesses, Lady Warsi and Lady Morris, are the same as amendments moved in Committee. These amendments would remove Clause 78 and introduce a new clause. We had a full clause stand-part debate on that occasion, so I hope that the noble Baronesses will forgive me if I do not repeat what I said then to explain why Clause 78 is in the Bill. It is on the record.

Amendment 23 would require employers that were found to have breached the equal pay provisions of the Bill to conduct a pay audit and publish the results. I set out in Committee the reasons why the Government believe that this measure would make very little difference in practice to closing the gender pay gap, and our reasons have not changed. The reasons are that very few equal pay claims succeed at tribunal; the proposed new clause would not affect in any meaningful way organisations in the private sector, where the vast majority of people are employed; and more than 98 per cent of equal pay claims that reach an employment tribunal involve public sector bodies, most of which have already conducted pay audits-indeed, the results of these audits are often the reason why a case has been brought in the first place. The proposed new clause also removes any discretion from employment tribunals and would lead to their ordering pay audits where they may be inappropriate-for example, where the employer has recently conducted a pay audit. Of course we agree on the need to close the gender pay gap, but the noble Baronesses' proposals would make very little difference in practice. We believe that they could be regarded as punitive and arbitrary.

The noble Baroness asked a series of questions. She said that the CBI said that the metrics are capable of being manipulated or varied. That is why the EHRC is producing guidance on how employers should use the assessments in the menu of options. The commission will monitor how employers are deploying the options, which will help us to decide whether these are the right measures to prescribe if it becomes necessary to use the power in Clause 78.

The noble Baroness also suggested that the clause imposes disproportionate, bureaucratic, costly and time-consuming burdens on businesses at a time of recession. Fairness and equality are not things that we drop at the first sign of a downturn and we believe that, at such times, these matters are even more important. I am sure the noble Baroness agrees with me on that point.

As for the metrics proposed by the commission, there are, as the noble Baroness suggested, three options for measuring pay differences plus a narrative approach which would have to be combined with at least one of the three measurement options. The first of the three options for measuring the gender pay gap is to calculate the difference between the median hourly earnings of men and women by reference to all female employees' median pay and all male employees' median pay. That is sometimes called the single figure measurement. The second option is to measure the difference between the average basic pay and total average earnings of men and of women by grade and job type. The third is to measure the difference between the starting salaries of men and of women. The narrative approach would explain the context, explore and analyse the causes of any gender pay gaps, describe workforce involvement in addressing the issues, and seek lists of the actions being taken.

It is not for the Government to endorse or criticise a particular metric put forward by the EHRC. The commission has worked hard with its partners to identify options that might work for a particular employer. Our main concern is that the menu of options proves to be fit for purpose so that an increasing number of target employers will take them up over the coming months. However, we will only know if this is the case in the years to come as we and the commission monitor progress.

I recognise the point that we have reached in the discussions which have taken place. However, we hope that employers will see that embracing the EHRC's menu of options is in their own interests, acting as a means of attracting and keeping a high-calibre and diverse workforce and as a signal to potential clients that they are forward-looking and progressive concerns with which to do business. I also note that the EHRC has said that there is scope for further consultation, which I welcome. It has said that,

"we will take this forward during the preparation of guidance on the measures that we are proposing, with a view to achieving a greater degree of convergence and we look forward to continuing the dialogue with key stakeholders".

We hope that that dialogue will continue swiftly. In the mean time, I ask the noble Baroness to withdraw her amendment.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton - Shadow Minister (Work and Pensions) (Also Shadow Minister for Women), Health, Shadow Minister, Work and Pensions

As ever, I am most grateful to the noble Baroness the Leader of the House for her considered response. Perhaps I may say to the noble Lord, Lord Wallace, that we do not see our position as a weaker alternative; we see it as having two great strengths that the Government's proposals lack. The first is that it would cover women working in companies of all sizes, so it would protect all women. Secondly, it does not place an unnecessary burden on good and fair employers. It sends out a strong signal to all employers. The noble Baroness talked about pathways. We would not walk the Government's pathway, and it is clear that they would not walk ours. Nevertheless, however strongly we may feel about this issue, we will not press it to a vote. I therefore beg leave to withdraw the amendment.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, having heard the response of the noble Baroness the Leader of the House and the indication from the Conservative Front Bench that they would be minded to oppose, I do not want, in the interests of making progress, to cause a Division on this matter in order to take the opinion of the House. However, it should be recorded that we remain unpersuaded by the arguments from both Dispatch Boxes. We on the Liberal Democrat Benches feel very strongly about this issue.

Amendment 23 withdrawn.

Clause 78 : Gender pay gap information

Amendments 24 to 27 not moved.

Amendment 28

Moved by Lord Rosser

28: After Schedule 7, insert the following new Schedule-

"SCHEDULEWork: seafarersApplication of Part 5

1 (1) Part 5 of this Act applies to a seafarer who works wholly or partly within Great Britain (including United Kingdom waters adjacent to Great Britain) if-

(a) the seafarer is on a United Kingdom ship and the ship's entry in the register maintained under section 8 of the Merchant Shipping Act 1995 specifies a port in Great Britain as the ship's port of choice, or

(b) the seafarer is on a hovercraft registered in the United Kingdom and is operated by a person whose principal place of business, or ordinary residence, is in Great Britain.

(2) Part 5 of this Act also applies to a seafarer who works wholly or partly within Great Britain (including United Kingdom waters adjacent to Great Britain) and who is-

(a) on a ship registered in or entitled to fly the flag of an EEA State other than the United Kingdom, or

(c) on a hovercraft registered in an EEA State other than the United Kingdom, if sub-paragraph (3) applies.

(3) This sub-paragraph applies if-

(a) the ship or hovercraft is in United Kingdom waters adjacent to Great Britain,

(b) the seafarer has attained the age of 18,

(c) the seafarer is a British citizen or a national of an EEA State other than the United Kingdom, or of a designated state, and

(d) the legal relationship of the seafarer's employment can be located within Great Britain or retains a sufficiently close link with Great Britain.

2 (1) Part 5 of this Act applies to a seafarer who works wholly outside Great Britain and United Kingdom waters adjacent to Great Britain if-

(a) the seafarer is on a United Kingdom ship and the ship's entry in the register maintained under section 8 of the Merchant Shipping Act 1995 specifies a port in Great Britain as the ship's port of choice, or

(b) the seafarer is on a hovercraft registered in the United Kingdom and is operated by a person whose principal place of business, or ordinary residence, is in Great Britain, and sub-paragraph (2) applies.

(2) This sub-paragraph applies if-

(a) the seafarer is a British citizen, or a national of an EEA State other than the United Kingdom, or of a designated state, and

(b) the legal relationship of the seafarer's employment can be located within Great Britain or retains a sufficiently close link with Great Britain.

Interpretation

3 In this Schedule-

"British citizen" has the same meaning as in the British Nationality Act 2010;

"designated state" means the countries of the African, Caribbean and Pacific Group of States, the Kingdom of Morocco, the Most Serene Republic of San Marino, the Peoples' Democratic Republic of Algeria, the Republic of Croatia, the Republic of Macedonia, the Republic of Tunisia, the Republic of Turkey, the Russian Federation and the Swiss Confederation;

"United Kingdom ship" means a ship registered in the United Kingdom under Part II of the Merchant Shipping Act 1995;

"United Kingdom waters" means the sea or other waters within the seaward limits of the territorial sea of the United Kingdom."

Photo of Lord Rosser Lord Rosser Labour 6:30 pm, 2nd March 2010

My Lords, discrimination against foreign national seafarers is permitted under the Race Relations Act 1976-I think in Sections 8 and 9. Seafarers have to reside and be recruited abroad for the current exemption to apply. They are recruited abroad on local rates of pay to work on UK-registered vessels. Seafarers on ships trading between UK ports, including UK-registered vessels, can be paid at rates significantly below the national minimum wage.

This discrimination is applied in British workplaces. Other industries employing workers from abroad would, rightly, be expected to pay UK rates of pay when in a UK workplace. The number of UK seafaring ratings has declined from over 30,000 in 1980 to fewer than 9,000 today. In the last decade, the number of British ratings has fallen by almost 20 per cent. One of the primary reasons for this is the use by shipping companies of so many foreign national seafarers on low rates of pay, facilitated by the continued exemption in the 1976 Act.

In addition, foreign national seafarers work longer hours of duty than UK seafarers. For example, the UK seafarers employed by P&O Ferries work for one month followed by a month off. This is due to the long and demanding working hours. On ferries, these are normally around 84 hours per week but can be longer. Portuguese seafarers undertaking the same hours work for two months on and one month off. Filipino seafarers can be engaged for three whole months before they receive one month off.

Discrimination specifically against other EU nationals has of course now been declared illegal by the European Commission. A consultation paper setting out options for reform was finally published in March 2007 but proposals were put off on the basis that changes would instead be introduced alongside other changes in discrimination legislation under the single Equality Bill. Regulations to reform existing seafarer discrimination were published early in December 2009. They do not repeal all the discriminatory provisions of the 1976 Act but represent significant progress.

It is proposed that the current discrimination against EU and EEA nationals be outlawed on UK-flagged ships when a ship is in UK territorial waters. This is also proposed for non-EU and non-EEA nationals. In addition, for EU-flagged ships, discrimination could be outlawed for just EU or EEA nationals if the seafarer's employment had a sufficiently close link to the UK. How this will work needs to be clarified by the Department for Transport. The priority is now to ensure that regulations can become law alongside the Equality Bill. The best way to ensure that this happens and that the regulations stay as currently drafted is through the regulations being incorporated in the Bill. That is the purpose of Amendment 28, which I hope my noble friend the Minister will agree to.

A second issue is the national minimum wage. We are still waiting for action to be taken on enforcement of the national minimum wage for seafarers on ships trading in UK territorial waters or, as a minimum, on all ships trading between UK ports and the UK offshore sector. The Government have attempted in the past to defeat these proposals by referring to the position of the Foreign Office, which says that enforcement cannot be taken on foreign-flagged ships in any circumstances. However, as a result of the matter being raised by the tabling of amendments in the other place, I understand that the Department for Transport has agreed to convene a cross-departmental meeting to consider apparently conflicting legal advice.

The issue is that foreign national seafarers are entitled to the national minimum wage on UK-registered ships only when they are in port or in internal UK waters, as opposed to UK territorial waters. UK-resident seafarers receive the national minimum wage in UK territorial waters provided that the ship is flagged in the UK. UK internal waters include, for example, the Solent, the sea between Scotland and the Inner and Outer Hebrides, the Firth of Forth, the Wash and the Thames estuary. They do not include, for example, UK territorial waters between Scotland and Shetland or between the mainland and the Channel Islands or the Isle of Man.

The national minimum wage does not apply to the foreign national seafarer where the ship goes out of UK internal waters, even if the ship trades between two UK ports-for example, between Liverpool and Belfast or Aberdeen and Shetland. The current law does not give an entitlement to the national minimum wage to foreign national seafarers in these examples, even where employment is on a UK-flagged ship. On top of that, a simple transfer of flag can mean that the ship owner can avoid responsibility for payment of the national minimum wage to foreign national seafarers even where the seafarer is employed on a trip deemed to be within UK internal waters. Under current legislation that could potentially apply to a ferry sailing to one of the isles west of mainland Scotland.

Legal advice to the seafaring unions advises that an amendment limiting coverage of the national minimum wage to all ships trading solely between UK ports or in the UK offshore sector should not infringe the right of innocent and free passage for a ship. Amendment 30 would apply the national minimum wage to ships and vessels of all flags trading solely between UK ports and in the UK offshore sector. Applying the national minimum wage to ships of all flags tackles the usual argument that ships will flag out to avoid any minimum standards. To repeat, the amendment provides for the application of the national minimum wage to all ships trading between two UK ports or working from one UK port-that is, in the UK offshore sector.

I hope that my noble friend the Minister will recognise the unfairness to seafarers of the current situation, in relation to both the Race Relations Act and the national minimum wage, and that the Government will accept these amendments. I beg to move.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, many years ago I had the privilege of dealing with aviation and shipping. I welcome the stance taken by my noble friend Lord Rosser today. We have many interests in common. My noble friend may well succeed me as president of the British Airline Pilots Association, a post that I have had for some 29 years. He has done the House a great service today in outlining the position, to which the Minister ought to reply.

In my day-I am looking back quite a long time-the shipping industry was rather healthier than it is today. My noble friend Lord Rosser referred to the position in 1980. I ceased to be the Shipping Minister in 1979. At that time, one of the key features of my relationship with the industry was that I was not entirely satisfied to accept only the view of civil servants. I had regular meetings with the ship owners and with the seafarers' trade unions. In many ways, that is an imperative, which I hope the Minister will say is still practised today. I do not know the present situation.

Of course, there were disputes between the seafarers and the ship owners and the Government were left in a rather awkward position. However, as a result of the relationship that a Shipping Minister enjoyed with both sides, they were able to come to a reasonable accommodation, which is all that my noble friend is asking for. I would like to know whether the current Minister with responsibility for shipping has the same sort of relationship that I had at that time.

Although there was some improvement in the situation when the Labour Government took office, that improvement has not been sufficient. We rely on our shipping industry and I am sad that, whereas 30,000 people were employed in the industry in 1980, now there are only 9,000. Although, as I said, there have been some improvements on the position that existed before, nobody would proclaim that with satisfaction. I am grateful for the points made by my noble friend today. They are of immense importance not only to the trade unions but to the ship owners of our country and the people who are served thereby.

Photo of Earl Attlee Earl Attlee - Shadow Minister (Maritime and Shipping), Shadow Minister

My Lords, I am grateful to the noble Lord, Lord Rosser, for explaining the purpose of his important amendment. However, I thought that he would propose his new schedule and other amendments to primary legislation merely as a probing amendment. I thought that the noble Lord was too experienced to propose amendments that would, at this late stage in the parliamentary process, have the effect of removing the power to make such regulations and of enshrining the extent to which the Bill as primary legislation will apply to ships and seafarers.

To all intents and purposes, the contents of the proposed schedule repeat the draft regulations on which the Government are currently consulting all relevant stakeholders. As this process is not yet complete, it would be odd to enact the provisions now. Of course we look forward to the results of the consultation. The noble Lord makes it quite clear that these are complex issues. When the Minister replies, will she comment on the assertion of the UK Chamber of Shipping that, if adopted, the amendments would massively increase the costs of many ships operating under the UK flag and make their operation uncompetitive, with obvious consequences?

On Amendment 30, will the Minister confirm that the FCO has clearly advised the Chamber of Shipping that to apply the national minimum wage to foreign-flagged vessels when they are on innocent passage within UK waters, including to and from UK ports, would be unlawful under the United Nations Convention on the Law of the Sea and would interfere with collective agreements made between ship owners and mariners' representatives in accordance with the law of the relevant flag state and, as such, would be unenforceable?

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

The noble Lord has expressed the position of the UK Chamber of Shipping, but has he also had conferences or discussions with the trade unions concerned?

Photo of Earl Attlee Earl Attlee - Shadow Minister (Maritime and Shipping), Shadow Minister 6:45 pm, 2nd March 2010

Unfortunately not, my Lords. I would have liked to have had the opportunity, but the amendment arose at short notice, so I am not as well briefed as I would like to have been.

Because any such requirement is not enforceable against non-UK ships, the amendment would have the explicit effect of making UK-flagged operations uncompetitive in international markets, which would harm both the economic contribution of the British shipping industry and the employment that it is able to provide British seafarers.

Finally, does the Minister reject the notion that foreign seafarers on UK-flagged ships are being paid poverty wages? Seafarers who live with and maintain their families outside the UK are paid at international rates that reflect the living costs in the countries where they live. Their wages, while in some cases below the UK national minimum wage, can nevertheless be on a par with high-earning professionals such as doctors and lawyers in their home countries. Moreover, they are above the International Labour Organisation's minimum wage level and, in many cases, meet or exceed the levels in the standard agreements of the International Transport Workers' Federation.

The noble Lord, Lord Rosser, touched on working hours. I am extremely concerned about fatigue and safe manning levels, but that is not an equality issue and is therefore outside our discussions this evening.

Photo of Lord Greenway Lord Greenway Crossbench

My Lords, the Government would be unwise to accept these amendments. After all, this Government brought in the tonnage tax in 2000, thanks to the former Deputy Prime Minister, since when the British-flagged fleet has increased by a factor of six, bringing substantial amounts to the Treasury. Indeed, in the last year for which figures are available, 2008, the turnover of British shipping was more than £13 billion.

The amendments would inevitably, as the noble Earl just said, make the operation of ships under the British flag more expensive. Charges for tankers and bulk carriers would rise by an estimated 130 per cent, for container ships by over 80 per cent and for cruise ships by something over 40 per cent. The inevitable result, with shipping being in a difficult state at the moment as a result of the recession, would be the reflagging of quite a number of ships. It is estimated that as many as 172 ships, making up 43 per cent in terms of tonnage under the British flag, would move abroad. That would have a serious effect on maritime London, which is under threat already, particularly from nations such as Singapore, which only recently offered tax incentives to arbitrators to move there. Maritime London has been the world centre for shipping for many years-not only ship owners, but law, finance, shipbroking and insurance. We should be very careful before making changes to the Bill at this late stage when, as the noble Earl, Lord Attlee, said, consultation is still ongoing with regard to the draft regulations.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

Does the noble Lord agree with my assertion that, whatever may be included-

Photo of Baroness Crawley Baroness Crawley Government Whip

With respect, my Lords, this is Report and interventions should be kept to a minimum. I ask noble Lords to respect that.

Photo of Lord Greenway Lord Greenway Crossbench

My Lords, I had virtually finished what I was going to say anyway. The small company with which I work is a tenant of a big Taiwanese shipping company and I know full well that it has been looking seriously at moving its ships to the Singapore registry.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, I feel that we ought to have strong-armed my noble friend Lord Adonis into dealing with this question, given the new cast of noble Lords who have spoken. I turn to Amendments 28 and 29, which were tabled by my noble friend Lord Rosser. I warn him that I am about to disappoint him, but I will also outline some of the progress that has been made on this issue.

Given the nature of shipping, it is necessary to specify how, when and where the provisions in Part 5 apply to work on ships and hovercraft. It is the Government's intention to do so, through regulations which have already been drafted and were published on 30 November 2009. These amendments, however, remove the regulation-making power and seek to replicate the drafted regulations in the Bill, as the noble Earl, Lord Attlee, recognised. The Government would therefore not agree with this approach.

It is common practice globally for seafarers' pay to reflect the country where they are based and where their wages are likely to be spent, as was also mentioned by the noble Earl, Lord Attlee. This practice of pay differentiation is currently lawful in the UK by virtue of the Race Relations Act 1976. While there are economic arguments supporting the practice, many people clearly find it unacceptable. The draft regulations, and my noble friend's amendment, make no reference to differential pay and would make the practice unlawful. The difference is that the regulation-making power allows the legal position to be established, following full consideration of all economic and equity arguments. Secondary legislation also provides greater flexibility, allowing, if necessary, for further regulations to be made as the law develops.

My noble friend Lord Clinton-Davis asked whether the shipping Minister regularly meets industry and unions. I can reassure him that the Minister is meeting the RMT tomorrow to discuss a range of issues, including those that are relevant to the Equality Bill.

The Government must carefully consider the implications of ending the practice of differential pay, including the economic impact. There is no question of any form of differential pay for citizens of the EU, EEA or other designated states, but the possibility of putting UK employers at a significant commercial disadvantage against other employers, and leading them to consider deflagging their ships, has to be given serious consideration.

I appreciate that further delay in reaching a final decision is very frustrating, but following publication of draft regulations in November, the Government called for evidence from stakeholders and received a number of responses. Full consideration must be given to this evidence, so the Department for Transport is commissioning a review. This will allow the Government to make a well informed decision on this issue very soon. They will then be in a position to introduce the regulations for approval as soon as possible after Royal Assent, to ensure that they come into force at the same time as Part 5 of the Bill. These regulations will be subject to the affirmative procedure and will undergo full parliamentary scrutiny.

Amendment 30 would extend eligibility for the national minimum wage to seafarers on a ship of any flag trading solely between UK ports, anchorages, roadsteads or offshore installations. The Government have investigated this issue on numerous occasions, each time concluding that extension of the national minimum wage in this way would conflict with international law. The UN Convention on the Law of the Sea, to which the UK is party, grants foreign-flagged vessels the right to innocent passage through states' territorial waters, and limits the ability of states to apply their laws to foreign-flagged vessels. Travel between UK ports, anchorages, roadsteads or offshore installations can require passage through UK territorial waters and in some cases even the high seas. To be clear, applying the national minimum wage, as provided for in the amendment, would breach this international agreement, so my noble friend rightly understood that there is a problem here.

The Government have agreed to meet the RMT parliamentary group on 16 March. This meeting will allow the Government and the RMT to share their respective legal advice on this issue, and perhaps to reach a better mutual understanding. On this basis, I urge my noble friend to withdraw his amendment.

Photo of Lord Rosser Lord Rosser Labour

I find it a little depressing that immediately somebody stands up and seeks to apply the provisions of the national minimum wage on an equitable basis-in this case in respect of seafarers-or makes submissions that the exemptions that apply to foreign seafarers in relation to the Race Relations Act should no longer apply, such a degree of opposition is then expressed. Frankly, one would have thought, on the basis of fairness and justice, that such proposals ought to be implemented.

I am aware of the views of the Chamber of Shipping, but if my amendments had been accepted, or are accepted at some stage, one effect would be that the ease with which more responsible shipping companies-of which there are some-can be undermined by low-cost operations would be minimised around the UK coast. The measures contained in my amendments will, at a minimum, help to stabilise UK seafaring ratings employment; noble Lords have already referred to the significant reduction that has taken place over a number of years. I suppose it depends on your stance, and on the importance you attach to applying the provisions of the national minimum wage and of the Race Relations Act.

I note the Minister's reply. It remains to be seen what, if any, further progress is made in the discussions to which she referred. The reality is that this issue has been around for some years. It has not suddenly been brought up in the later stages of this Bill, but has been discussed in your Lordships' House before. It is a long-standing issue which has not been resolved, where representations have been made for the national minimum wage to apply in the circumstances I have outlined, and for the exemptions from the Race Relations Act 1976 to end. Although I am obviously disappointed by the Minister's reply, in reality I have no option. I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Amendments 29 and 30 not moved.

Schedule 9 : Work: exceptions

Amendment 31

Moved by Baroness Turner of Camden

31: Schedule 9, page 170, line 22, after "religion" insert "and that given the nature of the particular occupational activities concerned, or the context in which they are carried out, A's application of a requirement under sub-paragraph (4) in relation to the employment, constitutes a genuine and determining occupational requirement, and that the objective of this application is legitimate"

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I will speak to Amendment 32 as well. This section of the Bill deals with employment and concerns the religious requirements of the employer. A faith school is an obvious example, but there could be other such employers. We had a lengthy discussion on this subject in Committee, and it is not my intention to undermine the decisions taken then. The wording of my amendment is designed not to do that. I respect the decisions taken by your Lordships in that regard, and for that reason I have drafted my amendment in the section dealing with individuals and the way in which requirements may be applied to them.

The wording aims for clarity in regard to the employment in which it would be legitimate for the employer to make requirements of the employee. The wording refers to the nature of the occupational activities and, very importantly, to the context in which these activities will be carried out. It should be a genuine and determining occupational requirement that the individual employee should comply with the religious requirement of the employer, and the objective would need to be legitimate. Of course, in all enterprises there are jobs of a routine character in which it would be unreasonable to require that the occupant should abide by the religious requirements of the employer. There are all sorts of employments of that kind, such as cleaners, gardeners, people concerned with building maintenance, and so on. Nowadays, people do not choose where to work and are only too happy to take whatever work is available.

The objective of my amendment is to make it clear that such people could not be subjected to the requirements of a religious nature, because they, too, have their rights, which should be respected. The wording does not mirror the EU directive which was discussed in Committee, and, as I said, it is not meant to undermine the decisions already taken by this House. I hope that it will therefore receive support.

The other amendment was pointed out to me by one of my colleagues. It was felt that religion and belief were originally intended to be listed among the requirements in the clause and were omitted in error, so I tabled an amendment that would write them back in again, alongside the other requirements that are standard in the Bill. I beg to move.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health 7:00 pm, 2nd March 2010

My Lords, the first amendment to paragraph 2 of Schedule 9 from my noble friend Lady Turner would add to this exception wording from the relevant provision of the European directive that underlies the exception: namely, Article 4(1) of the framework directive. Member states are not required to copy the wording of the directive; they have only to achieve its intended result, which is what this exception does. Its wording is not materially different from the existing exceptions that it replaces and harmonises, one of which, Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, was held to be compatible with the directive by the High Court in the Amicus case. I hope that that will help to reassure my noble friend that the additional wording is unnecessary.

Paragraph 2(6) expressly refers to the "nature" or "context" of the employment, which includes an appointment to a personal or public office but which is narrower than the expression "particular occupational activities" used in the directive. The words "genuine and determining" in the amendment would not add anything to the natural meaning of the word "requirement". The question whether being of a particular sex, for example, is or is not a requirement for a particular post will be a matter of fact to be determined in the circumstances of each case. If a requirement is not genuine, the facts will show that. If it is not determining, by definition it cannot be a requirement.

As paragraph 2(1) requires the employer to show that the employment to which a requirement is applied is,

"for the purposes of an organised religion", it is not necessary to state that the requirement is "occupational".

Finally, the exception specifies in paragraph 2(5) and (6) the two narrow objectives of complying with the doctrines of the religion and avoiding conflict with a significant number of the religion's followers' strongly held religious convictions. These are both legitimate objectives, and in the Amicus case the High Court thought it clear that a requirement that meets either of the conditions pursues a legitimate aim.

Amendment 32, which is my noble friend's second amendment to paragraph 2 of Schedule 9, would add,

"a requirement related to religion or belief", to the requirements to which paragraph 2(4) applies. All the requirements listed in paragraph 2(4) relate to religion or belief in that they reflect matters of religious doctrine. For example, the Roman Catholic Church requires its priests to be men and unmarried. If an organisation with a religious ethos wishes to require an employee to be of a particular religion or belief, it could seek to rely on the specific exception at paragraph 3 of Schedule 9. I therefore hope that I will be able to reassure my noble friend on this.

I also make it clear that, notwithstanding the outcome of the votes on various amendments to this exception in Committee, the law will remain as it is. As my right honourable friend the Minister for Women and Equality put it,

"in anti-discrimination law there is an exemption for religious jobs but not for non-religious jobs".-[Hansard, Commons, 4/2/10; col. 468.]

For all those reasons, I ask my noble friend to withdraw her amendment.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I thank my noble friend for that explanation, which I shall study with some care when I have the opportunity. I accept what she said about the existence of the anti-discrimination law, and in the circumstances I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

Amendment 32 not moved.

Amendment 33

Moved by Lord Wallace of Tankerness

33: Schedule 9, page 172, line 34, leave out paragraphs 8 and 9

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, Amendment 33 is in my name and that of my noble friends Lord Lester of Herne Hill and Lady Northover.

Amendment 33 would remove the default age of retirement, and employers' ability to dismiss employees, at the age of 65 or over for no reason other than that they have hit the age of 65 or over.

We tabled Amendment 61 after reflecting on the comments of the noble and learned Lord, Lord Mackay of Clashfern, when this issue was debated in Committee. If the amendment were accepted, the default retirement age would exist only until the end of 2011, so it would allow a breathing space of approximately 20 months in which to bring this measure into effect.

When my noble friend Lord Lester of Herne Hill raised this matter in Committee, he indicated that the amendments were probing, but I think there is a widespread belief that their underlying aim to remove the default retirement age has a lot of substance and merit. In the most recent Equal Opportunities Review, Michael Rubenstein wrote:

"A fixed retirement age is fundamentally discriminatory. It is based on the assumption that age affects someone's ability to do their job. Unlike other protected characteristics, age can be used arbitrarily to fairly dismiss people".

The JCHR, in its report on the Bill, said,

"there are strong arguments to suggest that the current statutory provisions governing the default retirement age unduly restrict the rights of older workers to equal treatment and non-discrimination".

It acknowledged that employers had a legitimate interest in workforce planning, but believed that other methods of workforce planning avoided the age discrimination inherent in a default retirement age.

Indeed, one can go back further than the most recent edition of the Equal Opportunities Review and the JCHR's report to the report of the Select Committee on Economic Affairs of this House, which was published in January 2004. Now more than six years ago, that report recommended,

"that the Government should not permit the continued use of a normal retirement age by employers, whether at age 65 or 70 or 75, unless the employer can provide a reasoned and objective justification for the use of age rather than performance criteria in the determination of employability".

That goes to the heart of the matter. Rather than seeing retirement as something arbitrary when one hits a particular age, the employer should look at the criteria for determining when a person's employment should be terminated. It should be objective rather than simply an arbitrary application of a birthday milestone, albeit that the age of 65 has been recognised as such for a considerable time. People should be treated as individuals, and the employer should look at the merit of what a particular individual can contribute in his or her place of employment. Many might be able to go on for some years beyond the age of 65.

If we were to be as arbitrary with some of the other protected characteristics, people would see an obvious unfairness. Perhaps we have become so familiar with the age of 65 as the default retirement age that it is not so immediately recognised as being discriminatory. That is why we wish to terminate the default retirement age, but we have set a timescale in which that can happen. I believe that the Government are ultimately sympathetic to reaching the same destination. Perhaps by tabling these amendments we can hurry them along the way. I beg to move.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I certainly support the amendment today, as I did in Committee. It is absolutely crucial that we get rid of this default retirement age at the earliest possible moment. The age of 65 is pretty arbitrary when you consider our life expectancy, and it has a particularly bad effect at the moment on the older generation, who would like to stay in work but are more likely to get their marching orders as a result of the default retirement age. I join the noble Lord, Lord Wallace of Tankerness, in what he has said. If we can help the Government to move more swiftly in the direction of getting rid of it, that would be an excellent outcome.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, our views on this issue are well known and we went through them at length in Committee. I shall therefore not hold up Report stage unduly by espousing them all over again. We on these Benches support in principle the removal of the default retirement age. We have long believed that retirement should be a process and not an event. However, we are concerned that a number of very complicated practical issues need to be taken into account when considering this matter, and that is particularly true in the context of the current economic climate. For example, we are worried that moves to remove the default retirement age might have a further detrimental impact on the large number of young people who are out of work at present.

Under the current law, if the default retirement age were removed, it could be difficult for employers to ask especially older employees who are not able to fulfil their job responsibilities to leave. This is a very important issue which needs careful assessment. Under the current law, it is realistic to suppose that if an employer were to ask an employee to leave, that could result in disciplinary action or claims of wrongful dismissal. We are concerned about that and the fact that it would be damaging to the relationship between employer and employee. As I said in Committee, perhaps there is a case for instigating some kind of neutral discussion in the workplace regarding retirement. Therefore, we on these Benches are concerned that while there is certainly a case for removing the default retirement age in principle, many options need to be considered carefully to ensure that all the practical issues are addressed. We look forward to seeing the government review which has been promised.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, the intention of these amendments is to abolish the default retirement age or to introduce a sunset clause that would remove the default retirement age at the end of 2011. We believe that these amendments are unnecessary and inappropriate as the Government have clearly set out a process for reviewing the default retirement age. As the noble Baroness, Lady Warsi, said, retirement is a process and not an event. However, I understand the strong views expressed by the noble Lord, Lord Wallace of Tankerness, and the noble Baroness, Lady Howe of Idlicote.

We are committed to a review this year-a year earlier than originally planned-and to implementing any changes necessary, in light of the evidence, during 2011. I stated that very clearly in Committee. In between, there will need to be consultation on the detail of any proposals and an opportunity for businesses to prepare for any changes. However, I want to reassure the House that we will seek to implement changes flowing from our evidence-based review as quickly as reasonably practicable.

We are already collecting information from a variety of sources about both the views and the experiences of older people and their employers. We have recently concluded a call for evidence on the operation of the default retirement age in practice and the costs and benefits of raising or removing it. There were over 200 submissions from a wide range of stakeholders, including the representatives of older people, business, unions and the public sector, and many individuals and individual businesses. We are currently analysing these responses, which will need to be considered alongside the Government's own evidence.

Key pieces of government evidence will include the results of the survey of employers' policies, practices and preferences that was commissioned by BIS and DWP. This involves a representative sample of over 2,000 employers, with results due to be published in summer 2010 although we will be able to consider the raw data earlier. In addition, the BIS-commissioned fair treatment at work survey, with a boosted sample of older workers, will be published shortly. Those surveys and stakeholder evidence will be supplemented by statistics on the labour market, qualitative research on the experience of employees and businesses dealing with retirement, and comparative studies of a range of retirement practices in different countries.

This is a comprehensive look at the issue which will enable the formulation of policy on the basis of wide-ranging and credible evidence. It should be remembered that the review will not only consider whether the default retirement age is still appropriate and necessary but seek to understand best practice around retirement. That includes considering how to encourage flexible retirement and flexible working options and driving culture change. It also means that we can try to anticipate and mitigate any unintended consequences of changing the law. Making policy on the basis of evidence is the key to making good policy.

As consideration of the evidence on the default retirement age is now under way, it is not necessary to make changes to the Equality Bill for evidence-based changes to the law to be made. We have set out a clear timetable. I therefore ask the noble Lord to withdraw his amendment.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, I am very grateful to the Leader of the House for that reply. I believe she indicated in Committee that there has been an acceleration of the review. I also think she said that she hoped that the matters emerging from the review could be carried forward during 2011. Although it would be helpful and encouraging for that process to be completed, the difference between us is now probably relatively small. The noble Baroness, Lady Warsi, has also given me an indication that the Conservative Party shares the same objective. I do not wish to test the opinion of the House on this issue. Therefore, I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Clause 84 : Application of this Chapter

Amendment 34

Moved by Lord Wallace of Tankerness

34: Clause 84, page 54, line 40, leave out paragraph (c)

Amendment 34 agreed.

Clause 85 : Pupils: admission and treatment, etc.

Amendments 35 and 36 not moved.

Schedule 13 : Education: reasonable adjustments

Amendments 37 to 41

Moved by Baroness Wilkins

37: Schedule 13, page 188, line 31, after "paragraph" insert "-

(a) "

38: Schedule 13, page 188, line 33, at end insert ";

(b) the reference in section 20(3) or (5) to a disabled person is-

(i) in relation to a relevant matter within sub-paragraph (4)(a), a reference to disabled persons generally;

(ii) in relation to a relevant matter within sub-paragraph (4)(b), a reference to disabled pupils generally"

39: Schedule 13, page 189, line 11, after "is" insert "-

(i) in relation to a relevant matter within sub-paragraph (4)(a), a reference to disabled persons generally;

(ii) in relation to a relevant matter within sub-paragraph (4)(b) or (c), a reference to disabled students generally;

(iii) "

40: Schedule 13, page 190, line 9, at end insert ";

( ) the reference in section 20(3), (4) or (5) to a disabled person is-

(i) in relation to a relevant matter within sub-paragraph (4)(a), a reference to disabled persons generally;

(ii) in relation to a relevant matter within sub-paragraph (4)(b), a reference to disabled persons generally who are enrolled on the course"

41: Schedule 13, page 190, line 23, at end insert ";

( ) the reference in section 20(3), (4) or (5) to a disabled person is a reference to disabled persons generally"

Amendments 37 to 41 agreed.

Clause 104 : Selection of candidates

Amendment 42

Moved by Lord Wallace of Tankerness

42: Clause 104, page 67, line 2, at end insert ", and

(c) which, subject to subsection (7), are a proportionate means of achieving that purpose."

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat 7:15 pm, 2nd March 2010

My Lords, this amendment stands in my name and in the names of my noble friends Lord Lester of Herne Hill and Lady Northover and the noble Baroness, Lady Morris of Bolton. My noble friend Lady Northover will speak to the substantive new clause on the diversity of candidates and I shall speak to the amendments in this group.

Our purpose in tabling the amendment is to try to determine why Clause 104 does not contain an explicit reference requiring that the action taken by political parties to address under-representation among their candidates must be taken in a proportionate manner. The amendments would introduce an explicit proportionality test which would require that any action taken by a political party in regulating the selection of its candidates to reduce any inequality in the party's representation in a particular elected body must be a proportionate method of achieving that aim. Furthermore, the proportionality test will not apply to Clause 104(7), which contains a provision allowing the use of women-only electoral shortlists.

We believe that this amendment is needed because Clause 104 as drafted contains a very broad power for political parties to take action to support those with a protected characteristic that is under-represented within the party. Effectively, the clause permits a form of disproportionate action that we believe would be at odds with the principle of equality which the positive action provisions are intended to support. For instance, a political party can provide financial and other support to candidates with one form of protected characteristic but refuse any such support to other prospective candidates, even those with a different protected characteristic that was also under-represented within the party. The effect could be to prevent other candidates having a proper chance of getting on an electoral shortlist.

We therefore think that it would be inappropriate for political parties to be able to take forms of action that would not be a proportionate means of reducing inequality in the party's representation, albeit that that is a valid objective. Therefore, we want to import the proportionality test within this clause. By parallel argument, it would bring Clause 104 into line with other clauses in the Bill, specifically Clauses 157 and 158, which propose positive action provisions, and each of them contains an explicit proportionality test.

However, we seek to exempt from that test the reference to single-sex shortlists, which should be done for a limited period. I confess that one of the great disappointments of my time as leader of the Scottish Liberal Democrats was that I did not manage to persuade my party in Scotland to go down the road of single-sex shortlists, particularly when the Scottish Parliament was established and there was no problem of incumbency. There was an opportunity then to ensure a much better gender balance. Indeed, the other political parties in Scotland took the opportunity to ensure this. One of the reasons why my own party opposed it-and I hasten to add that it was often opposed as much by women as by men-was the wonderful Liberal Democrat principle that the centre cannot tell the local parties what to do. Furthermore, there were concerns at the time that we could run the risk of legal action. If my memory serves me correctly, I tried to amend the Scotland Bill to enable us to achieve this aim but was unsuccessful.

The other parties, to their great credit, took positive steps to secure a better gender balance among their candidates in 1999. This has resulted in the Scottish Parliament being probably one of the most gender-balanced Parliaments of the democratically elected Parliaments of western Europe. I want to encourage that, which is why we seek to make an exception and introduce the test of proportionality in this case. I beg to move.

Photo of Baroness Northover Baroness Northover Spokesperson for International Development, Liberal Democrat Lords Spokesperson (International Development)

I support the government amendments on diversity. We need to work together across all parties to ensure that those whom we put forward to represent us fairly reflect the society in which we live. We know that Parliament currently does not fairly reflect the diversity of our society. We therefore seek not to discriminate but to flatten the playing field. For some years, outside organisations such as the Fawcett Society have monitored how many female candidates are put forward, and that serves to encourage us all to do better. Within the Lib Dems we have gathered much of the information about candidates which these amendments also propose.

The first step in addressing under-representation of groups is simply to recognise that very fact. The next step is to collect information to see what the patterns are. With that knowledge we can set about analysing why things are as they are, and then how we might address that. There is now huge understanding of, for example, why it has been particularly difficult for women to participate. They have lower earnings, less time, more childcare responsibilities, and they care for elderly relatives, all of which all militates against political participation. It is excellent that the Bill allows positive action so that special measures can be taken to address this; and, of course, the Lib Dems have done it for the European elections.

The Speaker's Conference on greater diversity among candidates more generally was very welcome and its conclusions heartening. I am glad that we have together found a way of incorporating many of its recommendations in the Bill. I look forward to further discussions on how these things are to be put into practice in due course so that not only are unintended consequences protected against, as the noble Lord, Lord Wallace, indicated, but the principles of greater diversity among those who seek to represent us are taken forward.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton - Shadow Minister (Work and Pensions) (Also Shadow Minister for Women), Health, Shadow Minister, Work and Pensions

My Lords, my right honourable friend David Cameron made clear in his evidence session to the Speaker's Conference that he accepted the principle of reporting candidate data, as, indeed, did all the leaders of the main political parties. He explained that the desire and determination to make progress on the diversity of our candidates means that we monitor closely their gender, ethnicity and any declared disability. He also made clear, however, that we do not ask our candidates about their sexual orientation. For this reason I welcome the new clause and thank the noble Baroness the Leader of the House for taking on board the concerns regarding the sensitivity of collecting data around some of these characteristics, particularly sexual orientation and gender reassignment, and for arranging important cross-party meetings before Report.

I was therefore grateful to hear confirmation-actually, I have not yet heard confirmation, but I look forward to hearing it-from the Minister that the regulations will initially cover only the reporting of gender and ethnicity. In this way, the success of the data-gathering can be judged before any further steps are taken. It is most welcome because it addresses the concerns that were raised regarding more personal data. However, as a party, we accept that there may be benefits in monitoring sexual orientation, and so we will monitor sexual orientation internally, using similar methodology to that used by blue chip companies such as Barclays and Goldman Sachs. However, we remain concerned about the privacy of data, and for this reason the information we gather will be used to help us internally and will not be published.

We also welcome the amendments on proportionality in the names of the noble Lords, Lord Lester and Lord Wallace, to which I have added my name. It is important that action taken in pursuit of a legitimate aim should also be proportionate. I am grateful for the clarity that Amendment 43 provides on the potential use of all-women shortlists, which will be allowed even within the framework of proportionality.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, I shall speak to government Amendments 44, 45, 57, 58 and 59 and to Amendments 42 and 43.

In Committee, in the light of some of the concerns expressed, I decided to withdraw the amendment in order to consider these concerns. Like noble Lords opposite, we believe that the principle of the amendment remains sound. Our intention in this amendment is to identify under-represented groups from the data collected with a view to identifying barriers causing or contributing to that under-representation.

First, in dealing with the concerns raised, I assure noble Lords that the Government will fully consult with political parties and others before the regulations, which will be subject to the affirmative procedure, are issued. The regulations will cover, among other things, which protected characteristics the duty will apply to, how a party will publish the data and to which parties the duty will apply. In practice this might mean, for example, that depending on the consultation, only information on candidates' gender and ethnicity will be published. However, we must consult on those issues.

Secondly, in relation to smaller parties, concerns were expressed about how individuals could be identified from the published data. The Data Protection Act 1998 imposes strict safeguards about how the party collects, stores and publishes the data in question. These safeguards will apply in full to the data collected under this amendment. The data will amount to personal data, such as gender, or sensitive personal data, such as disability, as defined in the Act. Sensitive data are given a higher level of protection under the Act. However, all data collected under this amendment will be treated as sensitive data, which means that they will be collected and published only if the explicit consent of the candidate has been obtained. A breach of the Act can result in the party being fined. All data provided voluntarily will be aggregated nationally and anonymised. However, in the unlikely event that individuals could be identified, subsection (5) makes it clear that the party will not be required to publish the data.

Thirdly, concerns were raised that this provision could lead to the introduction of quotas by the back door. I take this opportunity to make clear that it does not allow positive action measures that would otherwise be prohibited by the rest of the Bill. However, I appreciate noble Lords' concerns. I am therefore happy to support Amendment 42 and the related Amendment 43, which makes clear that the positive action in candidate selections allowed by Clause 104 must be proportionate. Parliament has already decided that the use of women-only shortlists is proportionate, hence the provisions in the 2002 Act which we are now extending so that they will apply until 2030. However, we agree that nothing else done under this clause should be subject to an express proportionality requirement.

Amendment 45, together with Amendment 59, gives the Equality and Human Rights Commission enforcement powers. Amendment 58 ensures that the regulations will be subject to the affirmative procedure. Amendment 57 provides that the amendment is an exception to the harmonisation provisions since there is no EU law which applies to the amendment.

I note the strong support from the Benches opposite, for which I am very grateful. As I stated earlier, the Government are pleased to accept Amendments 42 and 43.

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour

My Lords, this is a happy occasion in that the measure before us has already been substantially endorsed in principle by the parties through the vehicle of the Speaker's Conference. It is to the credit of all the parties to recognise that in the year 2010, through the vehicle of the Equality Bill, an opportunity has arisen to make progress.

Anyone who has been involved in party matters, especially election and selection, will be well aware of the sensitive nature of this issue. As I see it, the way in which things have been done in this field has been unaltered for the past 100 years or more. The Government should be congratulated on conceiving the idea of an Equality Bill. When I first heard of the Bill, I certainly knew about inequality in wages and inequality in opportunities, but I did not dream of the range of matters that could be seen to be equal or unequal that has been published here. I think that the safeguards that the Leader of the House has mentioned; that is, adequate consultation-

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster 7:30 pm, 2nd March 2010

My Lords, I thank my noble friend for his strong support, but I remind him that this is Report stage and though I was moving the government amendments, I was first disposing of Amendment 42. Therefore, while I am grateful for his support, I think it more appropriate to move back to the amendments.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

On that basis, my Lords, I thank the Minister for agreeing to these amendments and I think there is consensus in the House with regard to the new clause.

Amendment 42 agreed.

Amendment 43

Moved by Lord Wallace of Tankerness

43: Clause 104, page 67, line 14, at end insert "; and subsection (3)(c) does not apply to short-listing in reliance on this subsection."

Amendment 43 agreed.

Amendment 44

Moved by Baroness Royall of Blaisdon

44: After Clause 105, insert the following new Clause-

"Information about diversity in range of candidates etc.

(1) This section applies to an association which is a registered political party.

(2) If the party had candidates at a relevant election, the party must, in accordance with regulations made by a Minister of the Crown, publish information relating to protected characteristics of persons who come within a description prescribed in the regulations in accordance with subsection (3).

(3) One or more of the following descriptions may be prescribed for the purposes of subsection (2)-

(a) successful applicants for nomination as a candidate at the relevant election;

(b) unsuccessful applicants for nomination as a candidate at that election;

(c) candidates elected at that election;

(d) candidates who are not elected at that election.

(4) The duty imposed by subsection (2) applies only in so far as it is possible to publish information in a manner that ensures that no person to whom the information relates can be identified from that information.

(5) The following elections are relevant elections-

(a) Parliamentary Elections;

(b) elections to the European Parliament;

(c) elections to the Scottish Parliament;

(d) elections to the National Assembly for Wales.

(6) This section does not apply to the following protected characteristics-

(a) marriage and civil partnership;

(b) pregnancy and maternity.

(7) The regulations may provide that the information to be published-

(a) must (subject to subsection (6)) relate to all protected characteristics or only to such as are prescribed;

(b) must include a statement, in respect of each protected characteristic to which the information relates, of the proportion that the number of persons who provided the information to the party bears to the number of persons who were asked to provide it.

(8) Regulations under this section may prescribe-

(a) descriptions of information;

(b) descriptions of political party to which the duty is to apply;

(c) the time at which information is to be published;

(d) the form and manner in which information is to be published;

(e) the period for which information is to be published.

(9) Provision by virtue of subsection (8)(b) may, in particular, provide that the duty imposed by subsection (2) does not apply to a party which had candidates in fewer constituencies in the election concerned than a prescribed number.

(10) Regulations under this section-

(a) may provide that the duty imposed by subsection (2) applies only to such relevant elections as are prescribed;

(b) may provide that a by-election or other election to fill a vacancy is not to be treated as a relevant election or is to be so treated only to a prescribed extent;

(c) may amend this section so as to provide for the duty imposed by subsection (2) to apply in the case of additional descriptions of election.

(11) Nothing in this section authorises a political party to require a person to provide information to it."

Amendment 44 agreed.

Schedule 15 : Associations: reasonable adjustments

Amendment 44A not moved.

Clause 113 : Jurisdiction

Amendment 45

Moved by Baroness Royall of Blaisdon

45: Clause 113, page 72, line 3, at end insert-

"( ) Subsection (1)(d) does not apply to a contravention of section (Information about diversity in range of candidates etc.)."

Amendment 45 agreed.

Clause 148 : Public sector equality duty

Amendment 46

Moved by Lord Ouseley

46: Clause 148, page 95, line 39, at end insert-

"( ) To comply with the duties in this section, a public authority in the exercise of its functions, or a person within subsection (2) in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in subsection (1)."

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, this amendment is necessary to improve the obvious limitations of the public sector equality duty as it is set out in Clause 148. The limitations are evident by the partial success to date of the existing equality duty, with public bodies and authorities now thinking about their statutory equality responsibilities and having due regard to these, but not necessarily going beyond that point, in most cases, to deliver the outcomes required. I commend the Government on introducing the due-regard approach in existing race, gender and disability duties. It has got us to where we are now, but the proposed duty as set out in Clause 148 takes us no further. What we have now are volumes of equality strategies, schemes and policies, but not a great many desired and required outcomes that add up to recorded equality results.

Yes, there are statements of intent, declarations, aspirations, commitments, warm words, policy reviews and mountains of reports, all in order to satisfy the requirement to have "due regard". Many of our public service authorities will do as much as they have to in order to meet the standard of compliance required to keep the EHRC from enforcement action, but that standard of due regard is, in my view, woefully inadequate. The amendment is not nearly as radical as I would like, or would have hoped for, or as many of the intended beneficiaries would want and need, yet, as drafted, it is absolutely required to give total clarity to all concerned, such as public authorities, private and voluntary bodies carrying out public functions, the EHRC as the lead enforcement agency, the audit and inspection bodies and members of the public, about the proportionate steps they must take across all relevant functions in order to comply with this duty.

If the duty is to achieve its full potential, it is crucial that the Bill should make clear that the obligation to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations includes a requirement to take proportionate steps towards the achievement of those aims. Nothing in the amendment would increase the burden on public authorities; in fact, it would do the opposite, as it provides a specific focus to ensure that a duty is applied appropriately and eliminates any doubt as to what the duty requires in order to meet the essential compliance standards. Nor does it limit what a public authority should do to comply with the duty. It would preclude any possibility of adding to the existing tick-box approach by public bodies, as they would be compliant only by meeting their obligation through taking appropriate and proportionate steps towards equality.

Proportionality is central to the meaning of the equality duty. To have due regard involves giving weight to equality in proportion to its relevance to each of an authority's functions. Equality will be more relevant to some public functions than others: for example, for an NHS trust, equality will be highly relevant to all aspects of patient care, communications with family members and provision of information, but may be less relevant to the purchase of sterile equipment or maintenance of trust buildings. Proportionate steps in relation to a particular function of an authority will be steps that are proportionate to the relevance of equality to that function, taking account of the other obligations on the authority, its size and resources.

This amendment has been developed in conjunction with the Discrimination Law Association and the Disability Charities Consortium in collaboration with the Equality and Human Rights Commission. It is fully supported by a wide range of expert equality groups, including Citizens Advice, Unison, Race on the Agenda, the 1990 Trust, the Equality Bill alliance, the National AIDS Trust, the Children's Rights Alliance for England and the Equality and Diversity Forum. This wide support amongst key stakeholders representing all the equality groups is not accidental. It reflects the concerns of people in communities with experience of the existing race, disability and gender equality duties who want to ensure that the new public sector equality duty will amount to more than a paper exercise. They want to see public authorities instituting effective changes to policies and practices to achieve real progress towards equality. Many of these organisations have been disillusioned and frustrated by the failure of public bodies to meet their existing duties across all their relevant functions. They support this amendment because they want the legal obligations on public bodies to be clear from the outset, including a minimum standard of compliance.

The EHRC, which is the enforcement body, will be the sole agency with statutory powers to enforce the Clause 148 public sector duty and it is important that it is clear about what it is enforcing. It can carry out a formal assessment of compliance with this duty and can serve a compliance notice. By putting into the Bill what a public authority, or other body exercising public functions, must do for minimum compliance, this amendment will give the EHRC a clearer basis to challenge any public authority, or other body, with poor evidence of compliance. It should enable the EHRC's enforcement procedures to be faster and more robust. It is very likely that the courts will continue to play a role in enforcing equality duties. This amendment, which builds into the statute a test for compliance, should also assist the courts when they are asked judicially to review certain acts, or omissions, of a public authority in relation to the authority's compliance with its equality duty.

It is also important that we provide a standard for the audit and inspection bodies to measure the equality performance of public authorities. The third aspect of clarity provides for members of the public. The amendment will provide a standard against which equality groups, community organisations, trade unions and members of the public can assess compliance with the equality duty. That is important because, by specifying the basic test of "taking all proportionate steps" towards achieving these matters, this amendment offers a useful baseline for organisations and individuals to hold public authorities to account.

In my view, it would be incomprehensible for the Government not to accept this simple amendment to improve Clause 148. The arguments for it are powerful, the likely benefits are substantial and support from the experts, practitioners and communities undeniable. I beg to move.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, the noble Lord, Lord Ouseley, makes an important point. We are all familiar with the problem of equality duties being complied with, with the boxes being ticked punctiliously, but without any difference being made to the outcome. I hope that the Government can appreciate the risk of the public sector equality duty being prone to this drawback and I hope, therefore, that they will reflect seriously about whether some strengthening of the wording on the public sector equality duty in the Bill might not be called for.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton - Shadow Minister (Work and Pensions) (Also Shadow Minister for Women), Health, Shadow Minister, Work and Pensions

My Lords, as in Committee, we have considerable sympathy with this amendment. We feel that it is of the utmost importance that the public sector equality duty is not allowed to become just vague gesture politics, which encourages a culture of box-ticking rather than real action. Nevertheless, we remain unconvinced that the amendment would add much to the Bill to change that. We believe it is most important to assess the outcomes of the duties contained in this clause, as in this way authorities can be held to account and necessary changes can be made to the duty in order to ensure maximum compliance and effect.

Photo of Baroness Young of Hornsey Baroness Young of Hornsey Crossbench

My Lords, I support the amendment, based as it is on a substantial body of opinion and experience of the successes and failures of previous legislation. The term "proportionate" has been mentioned several times this evening and in other contexts in the legislation before us, and it is important that we ensure that "all proportionate steps" are taken.

In my view, the amendment represents an opportunity to ensure consistent compliance with standards across all the bodies covered, discouraging the tick-box mentality, which we all abhor, of some public bodies. These standards will apply not only to public authorities but also to private and voluntary sector bodies in the exercise of public functions. The use of the term "proportionate" ensures that an inappropriate burden is not placed on public authorities. The amendment seeks to provide standards which the EHRC and the courts can use to enforce compliance, and for audit and inspection bodies it gives the necessary guidance for the measurement of equality performance. Of course, I agree with the noble Baroness, Lady Morris of Bolton, that it is very important to focus on outcomes and, although the wording may not be perfect, that is certainly implicit in what we are trying to achieve here.

As my noble friend Lord Ouseley said, the amendment will enable equality groups, trade unions, community organisations and the public to assess the compliance with, and progress of, the equality duty. I re-emphasise the wide and impressive range of organisations that have supported the amendment.

Photo of Baroness Coussins Baroness Coussins Crossbench

My Lords, I also support the amendment for all the reasons set out by my noble friend Lord Ouseley but also because I have given some thought to what the Minister said in her reply to me in Committee when I put forward a similar amendment with a similar purpose. She said that these matters would be dealt with by the specific equality duties that would be set out in regulations at a later date. I have thought about that but I really do not think that that would be adequate, because the public sector equality duty applies to private and voluntary sector bodies when they exercise public functions. However, under the Bill, any specific duties imposed by regulations would, as I understand it, apply only to public authorities listed in Schedule 19 and would therefore not apply to private or voluntary sector bodies that carry out public functions. Increasingly, public functions at local and national level are carried out by private and voluntary sector bodies. This is particularly true in education-I think in particular of nursery education-but it also happens in health, prisons, social care and some aspects of social housing. As well as any equality obligations built into their contracts, such bodies, when taking over the functions of public authorities, should, I believe, be bound in the same way as public authorities to meet their equality duty, and I think that the amendment provides the only way to define for such bodies what they need to do in order to comply.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, Amendment 46 tabled by the noble Lord, Lord Ouseley, and the noble Baronesses, Lady Young and Lady Coussins, is similar to the amendments tabled by the noble Lord, Lord Ouseley, and moved by the noble Baroness, Lady Young, on his behalf in Committee. We have not changed our mind about this amendment. We do not believe that it would improve the Equality Bill; instead, it would disturb the balance achieved by the current wording of the equality duty.

I appreciate that the amendment is intended to clarify Clause 148(1) but it would not have this effect. It would instead create further confusion by introducing additional requirements for public bodies to take all proportionate steps towards the achievement of a number of matters.

I shall try to explain what "due regard" means and how the courts interpret it. The courts have made it clear that having due regard is more than having a cursory glance at a document before arriving at a preconceived conclusion. Due regard requires public authorities, in formulating a policy, to give equality considerations the weight which is proportionate in the circumstances, given the potential impact of the policy on equality. It is not a question of box-ticking; it requires the equality impact to be considered rigorously and with an open mind.

The noble Lord, Lord Ouseley, implied that the only enforcement of the equality duty would be through the EHRC. Clearly, that is not true. The general duty can be enforced through judicial review by individuals and third sector organisations, as well as by the Equality and Human Rights Commission, but only the commission can enforce specific duties. The Bill makes it clear that in certain circumstances the duty will involve taking action to meet the needs of particular groups.

The purpose of the equality duty is to oblige public bodies to consider equality issues in respect of all their functions. However, the amendment appears to be an attempt to take away an authority's discretion as to how it exercises its functions and to require public bodies, and private authorities that exercise public functions, to take all proportionate steps to eliminate discrimination, advance equality and foster good relations in respect of all their functions and in respect of all the protected characteristics, regardless of the circumstances.

If bodies subject to the duty are required to "take all proportionate steps" to advance equality of opportunity in respect of all eight protected characteristics, it is inevitable that public bodies will be required to spread their finite resources more thinly and that some persons with more pressing needs will end up with less.

The general duty will be underpinned by a number of specific duties to assist better performance of the equality duty. The secondary legislation sets out the detailed steps that a public authority should take to meet the duty, and in our opinion that is the right place to set them out.

On 25 January 2010, we published a policy statement in response to the consultation exercise on our proposals for specific duties. We would want public bodies to take steps such as developing and publishing equality objectives and reporting progress against them, and publishing their gender pay gaps and BME and disabled employment rates. We want them to do this in a standardised manner which allows citizens to track progress and compare public bodies. We believe that this package will lead to better policy, better public services and less bureaucracy and that it will be an asset for all. It will increase focus on the equality outcomes which we all wish to see.

Perhaps the noble Lord, Lord Ouseley, could consider that we have been here before. I am surprised that the noble Lord and those supporting this amendment, and indeed all the organisations that they have prayed in aid, have not beaten a path to our door asking for a meeting with us. It is not too late; they can certainly come and talk to us now. However, it seems that we have been in permanent session, meeting people about aspects of the Bill, for months and months. I reflect that the noble Lord and I had one very small exchange in the Cloakroom last week. It occurred to me then that perhaps we could have had a longer discussion had he and his colleagues come to see us to discuss the matter in more detail. Therefore, I invite him to do that.

The structure of a general duty underpinned by specific duties has worked successfully for the current duties. Why change an existing successful structure? We want to build on that, so I ask the noble Lord and the noble Baronesses, Lady Young and Lady Coussins, not to press their amendment.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench 7:45 pm, 2nd March 2010

Before the Minister sits down, perhaps I may ask her how she responds to the point made by, I think, the noble Baroness, Lady Murphy, that the specific duties do not apply to private and voluntary sector bodies. Could the Minister consider what the Government might do to take care of that point?

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

Certainly we will take on board and consider that point, but I have the feeling that the generality of the legislation applies to everyone. I think that we shall need to have some discussions about this. I am getting a nod that that is generally the point of view. I probably need to write to noble Lords about that in specific detail, because I think that there are more details to give.

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, I thank the Minister for the very thoughtful, and indeed helpful, response, suggesting that those of us who tabled the amendment have a discussion with her and colleagues.

I am disappointed that the Government have not been able to change their mind on this, not even with the persuasion of the three of us or others. It is a closed mind because many of the organisations which support this have been in dialogue with the Government. They have been in dialogue with the Government's equality office and with all those who have been drafting the Bill. They have had discussions and briefings with those who have been drawing up responses to amendments. I find it difficult to accept that there is not an understanding about the importance of this amendment. It could be a lot stronger-I do not think it could be much weaker, but it is appropriate and proportionate. Bearing in mind the urgency of tonight and not wishing to waste anyone's time, I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

Amendment 47

Moved by Lord Wallace of Tankerness

47: Clause 148, page 96, line 4, at end insert-

"but subsection (1)(b) does not apply to the protected characteristic of religion or belief."

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, as we have heard in the discussion of the previous amendment, Clause 148 brings existing public sector duties in relation to race, disability and gender together into a single duty and seeks to extend the duty to cover age and sexual orientation as well as religion and belief. Under Clause 148(1)(a) the authority must have due to regard to the need to,

"eliminate discrimination, harassment, victimisation and other conduct prohibited by or under the Act", while Clause 148(1)(c) covers the need to,

"foster good relations between persons who share a relevant protected characteristic and those who do not".

We find these subsections entirely laudable. For the most part we can support subsection 1(b) as well. However, we wish to draw the line at the inclusion of the protected characteristic of religion and belief in the public sector duty that would be established by subsection 1(b). We find that problematic, hence this amendment. My noble friend Lord Lester has spoken on this issue on Second Reading and in Committee. In Committee other noble Lords raised concerns as indeed did the most reverend Primate the Archbishop of York.

I want to state why we believe that religion and belief is different as a protected characteristic and why we believe that this clause is potentially both unworkable and divisive. The protected characteristic of religion and belief is different because whereas race, age and gender are very obvious, a person's religious beliefs are for the most part-perhaps not in the case of the right reverend Prelate-not quite so obvious.

The other point is about intrusion. A public body would have to be intrusive to find out people's religions and beliefs. It is a characteristic, which is not innate at birth. Beliefs can change-they are not immutable. Moreover, as I said earlier, to use the phrase that my noble friend Lord Lester regularly uses, one person's belief is another person's blasphemy. Very often beliefs are irreconcilable. That, too, makes it different and in turn can raise very fundamental issues about freedom of expression. So I believe it is a different characteristic.

We want to pursue these amendments because the clause will impose unreasonable burdens and demands on public authorities. If one particular religious group has some provision made in respect in public education, then surely almost every other religious group could come along and expect similar provision from the public authority. In many parts of the country, we look to religious organisations to provide some basic public services. Many care facilities, the length and breadth of this country, are provided by religious organisations. If public funding is made available to help and assist some of these religious groups to make that important provision, might not other religious groups ask for similar public funding? That could lead to an inefficient use of resources.

We could also get some very odd requests coming from people who consider themselves religious. I cannot remember the figure, but, under the question of belief, the most recent census produced a very high percentage of Jedi believers. Do they count for the purposes of this provision? The provision could lead to resentment. In some extreme situations, what is intended to be a very good and purposeful provision in a Bill that is intended to draw people together could end up being divisive, bringing the particular provision into disrepute and, I fear, leading to a silo provision of services. There could be a particular provision for one religion, a different provision for another and a different provision for yet another. That would not be healthy at a time when we want to bring communities together.

It is quite proper that our law prohibits direct and indirect discrimination based on religious identity. However, we believe that Clause 148(1)(b) takes it well beyond that. There is nothing more unsatisfactory in politics than to say, "I told you so", but I fear that if this comes to pass there will be an opportunity to say that. I hope it will not happen but "I hae ma doots". I beg to move.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

My Lords, I have listened to the impassioned speech of the noble Lord, Lord Wallace of Tankerness, with rapt interest and deep attention. It follows from the passionate speech of the noble Lord, Lord Lester, in Committee. We have heard very persuasive language. However, I have to apologise to the noble Lord because my feelings have not changed one iota. I still do not agree with the practical consequences or the intentions behind these amendments and would go as far as to say that perhaps the noble Lord has misunderstood the outcome of what his amendments would achieve.

I wonder if the noble Lord is aware that by removing only religion or belief from the protected characteristics, which will be provided by the public sector equality duty, he is creating an anomalous position. If the amendments were carried and the Bill were to be altered then we would be in a situation where some religions would be covered by the duty because they would also come under the heading of race. For example, the Sikh community and the Jewish community would remain covered by the duty because they are legally defined as races. The same would apply to Hindus who are nearly 99 per cent Indian in origin. Those who would be left out in the cold would therefore be Christians, Muslims and Rastafarians. We would end up in a situation where a public authority charged with providing a service would be legally obliged to take into account Vaisakhi and Yom Kippur but not Friday prayers or Eid. I wonder if this was the result that the noble Lord was looking for.

The noble Lord is already aware of course that Section 75(1) of the Northern Ireland Act 1998 means that public authorities are required to have due regard to the need to promote equality of opportunity:

"between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation ... between men and women generally ... between persons with a disability and persons without; and ... between persons with dependants and persons without".

I am not suggesting that just because religion or belief is included in one piece of legislation it is a given that it should be included in another. However, the latest research on the impact of this provision provided in the Equality Commission for Northern Ireland's report Keeping it Effective-Reviewing the Effectiveness of Section 75 of the Northern Ireland Act 1998which was published in 2007, said that the research on the impact of Section 75 on individuals found that the impact and outcomes on individuals had been positive, although partial. In general, the commission concluded that individuals of different religious beliefs will have benefited from the steps taken by public authorities to better understand their needs in terms of service delivery, for example, through increasing accessibility in the delivery of services to take into account times of worship. There are also examples of recruitment and selection policies being amended to mitigate the adverse impact for individuals of different religions.

It would appear, therefore, that the success in Northern Ireland is further evidence to ensure that the public sector equality duty applies to religion or belief as well as other protected characteristics. The report states that it has been particularly helpful in,

"the steps taken by public authorities to better understand their needs in terms of service delivery".

We on these Benches believe that it is a vital part of the public sector equality duty and it is of the utmost importance to ensure that communities are brought together in social cohesion.

If religion or belief were struck out of the Bill, it could mean that specific needs of Muslim women were not taken into account with regard to the local swimming pool, for example. I probably should declare an interest as a Muslim woman. If that happened and the pool was built and opened without due consideration for religious needs, it would simply mean that, at some point after the event, the local authority would realise the error and be forced to provide specific alternative provision. The noble Lord refers to silo provision. That would be more likely to arise by taking out the provision and adopting the amendment. Indeed, it exists at present.

That will cause difficulties not only in funding but in an acceleration towards segregation. We are opposed to that and believe that a big part of community cohesion comes from providing mainstream resources for all to use. That may mean that special services are provided as part of those mainstream services. To continue with my swimming pool example, it could mean that there are special classes for women, not Muslim women specifically but women generally. All could use the mainstream provision.

I am sure the Minister will go into more depth regarding the need to take into account the different needs of those with distinct religions or beliefs. It is important to note that we would have to implement all these specific demands, which would be beyond the scope of any public authority. However, it would help the process of community cohesion if all needs were at least considered, and if people felt that they were heard and mattered in the provision of local services. The noble Lord, Lord Wallace, talks of funding in silos. I submit that we already have such provision as all beliefs are not taken into consideration when providing services generally. We have a shortfall of services which results in specific silo funding and provision thereafter. I am sure that the Minister will share some of our concerns about these Liberal Democrat amendments and the potentially divisive unintended consequences that I believe will follow.

Photo of The Bishop of Bradford The Bishop of Bradford Bishop 8:00 pm, 2nd March 2010

My Lords, I have been asked to speak by the Chief Rabbi and by Sir Iqbal Sacranie. It is interesting that Jew and Muslim should come together in asking for this. It makes me wonder whether the noble Lords, Lord Lester and Lord Wallace, and the noble Baroness, Lady Northover, might not have a distinguished role to play in the Middle East.

The original measure is about protecting not religion but people against discrimination. It is important to understand that, and to be careful. The noble Lord, Lord Wallace, is very western in his suggestion that people can just change their religion, but often a group of people are brought together and assumed by others to be one group. The assumption can be made, certainly in Bradford, that all Asian people are Muslim. The Sikhs and the Hindus will then feel that they are being discriminated against and overlooked because of that assumption. I can imagine that happening in other ways in other cities where the demography is different. There needs to be close attention to the faiths of different groups who live together in our cities but who have different needs and concerns.

I hope that we will resist the amendment and allow people of religion-which is so intrinsic and not something that people can change just like that-to be recognised, and ensure that others do not ride roughshod over what are deeply held and sincere sensitivities in terms of their lifestyles.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, Amendment 47, tabled by the noble Lords, Lord Lester and Lord Wallace, and the noble Baroness, Lady Northover, is similar to Amendment 111, tabled by the noble Lord, Lord Lester, in Committee. I said that we would consider it further, and we have thought very hard about it. In 2008 we held a mini-consultation on applying a second limb of the equality duty, advancing equality opportunity in relation to religion or belief. My noble friend Lady Royall has reviewed responses to this consultation and we have also discussed it further with the noble Lord, Lord Lester, in some of our meetings on the Equality Bill and in other places.

During our consultations, officials from the Government's equality office met representatives from religious and belief groups to discuss our proposals to extend the second limb of the duty to religion and belief. The majority of religion and belief groups supported the proposals, including the Church of England, the Catholic Bishops' Conference and the Evangelical Alliance. Most public bodies also responded in favour of the proposals. The noble Lord, Lord Wallace, said that it would impose an unreasonable burden on public authorities to seek a variety of needs. As was said in our earlier debate, there is a duty to have due regard. Therefore, a public body is required to consider whether a need exists and whether it can meet that need. After carrying out that exercise, there is no requirement to meet a request if it is not reasonable to do so.

As I mentioned in Committee, the evidence available through the Equality and Human Rights Commission and the equalities review states that some people with religious beliefs, for instance Muslim women, or those without religious beliefs, are suffering disadvantage or their needs are not being met. The equalities review identified a Muslim penalty in terms of labour market participation and the fact that Muslim employees are less likely to achieve the same success as non-Muslims with the same qualifications. One in five Bangladeshi and Pakistani women reported experiencing negative comments about, for example, wearing religious dress. The amendment would build a hierarchy of equality into a duty. As this was much more adequately explained by the noble Baroness, Lady Warsi, I shall not go into the fact that Jews and Sikhs also will be covered. That has already been adequately covered in the debate.

I hope noble Lords will agree that advancing equality of opportunity in relation to religion or belief is necessary. I therefore ask the noble Lord, Lord Wallace of Tankerness, to withdraw the amendment.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, I am grateful to those who have taken part, and to the right reverend Prelate for suggesting that my noble friend Lady Northover and I might do some useful work in the Middle East. Some of the criticisms are a travesty of what was being proposed. The noble Baroness, Lady Warsi, said that we were trying to write religion and belief out of the Equality Bill. This is a narrow amendment referring to Clause 148(1)(b), which is not exactly writing religion and belief out of the entire Bill. It is unfortunate that the attack should be made on the basis of a misrepresentation of the proposal.

If a council wishes to take into account different interests when planning a swimming pool, it will not be prevented doing so simply because a specific statutory duty has not been set out. Indeed, it might be good practice to do so. We are concerned about having a specific statutory duty exposing public authorities to judicial review by thin-skinned or zealous people. I am not necessarily talking about mainstream religious groups of different faiths but those who are on the extreme wings who might want to try to pick a fight. That is where the concern lies as the Bill currently stands.

In response to the right reverend Prelate the Bishop of Bradford, there are distinctions between protected characteristics with regard to a person's gender, race, age or belief. It may be that a large number of people do not change their beliefs, but some do. They do not necessarily change between faiths. One of the sad reflections of recent times is the number of people who move from belief to non-belief. I do not think that the right reverend Prelate does believe that that has not been happening, and it probably gives him grief too. This is an important point and I wish to test the opinion of the House.

Division on Amendment 47

Contents 46; Not-Contents 132.

Amendment 47 disagreed.

Division number 2 Equality Bill — Report

Aye: 44 Members of the House of Lords

No: 129 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Consideration on Report adjourned until not before 9.20 pm.