Clause 4

Equality Bill – in a Public Bill Committee at 1:45 pm on 11th June 2009.

Alert me about debates like this

The protected characteristics

An amendment to widen the definition of who is protected from transgender discrimination.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss the following: amendment 118, in clause 15, page 11, line 3, leave out ‘reassignment’ and insert ‘identity’.

Amendment 119, in clause 15, page 11, line 12, leave out ‘7(1)’, and insert ‘[Gender identity] (1)(a)’.

Amendment 120, in clause 24, page 17, line 37, leave out ‘reassignment’ and insert ‘identity’.

Amendment 121, in clause 24, page 17, line 42, leave out ‘reassignment’ and insert ‘identity’.

Amendment 123, in schedule 3, page 151, line 18, leave out ‘reassignment’ and insert ‘identity’.

Amendment 124, in schedule 3, page 157, line 20, leave out ‘reassignment’ and insert ‘identity’.

Amendment 125, in schedule 3, page 159, line 5, leave out ‘reassignment’ and insert ‘identity’.

Amendment 122, in clause 188, page 134, line 26, leave out ‘reassignment’ and insert ‘identity’.

New clause 8—Gender identity—

‘(1) A person has the protected characteristic of gender identity if the person is or is perceived to be—

(a) a person intending to undergo, undergoing, or having undergone gender reassignment, where gender reassignment means a process which is undertaken under medical supervision for the purpose of reassigning the person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process;

(b) a person living permanently in the gender role different from that expected of a person of their recorded natal sex;

(c) a person who has, by virtue of the Gender Recognition Act 2004 (c.7), received recognition of their acquired gender for all legal purposes; or

(d) a person who has a gender identity that is different from that expected of a person of their recorded natal sex, provided that behaviour is not unlawful or offensive.

(2) A reference to a transgender person is a reference to a person who has the protected characteristic of gender identity.

(3) In relation to the protected characteristic of gender identity—

(a) a reference to a person who has a particular protected characteristic is a reference to a transgender person;

(b) a reference to persons who share a protected characteristic is a reference to transgender persons.’.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Amendment 115 is intended to widen the definition of who is protected in transgender discrimination. On these Benches, we have a high degree of concern about the narrowness of the protection in the definition of gender reassignment. The issue is not just about reassignment, which is the medical end to a process. We would also have concerns if, additionally, it were about the process that leads only to medical gender reassignment.

This is a vulnerable group, perhaps one of the most vulnerable in society. It is also a small numerical group who, even at the medical end, have a low number of operations. That sits atop a spectrum of a whole range of people who have concerns or confusion about their gender identity. With young people—this is particularly supported by the European Court of Human Rights—there is a great deal of concern about those who have not reached a decision or found their way in terms of  gender identity. A great many people have gender issues. In some countries, there is actually a third gender. That spectrum, which leads from slight confusion to actual medical gender reassignment at the other end, is very wide. People can find themselves anywhere on that spectrum. What I would like to hear is that this Bill—this legislation and protection—is so important that it is not just there for what can be identified medically, but for how people feel and where they find themselves in life.

The amendment to clause 7 defines what we would see as “gender identity”, not “reassignment”. We use the protective characteristic to protect all transgender—including gender variant people—while also allowing for more specific references to transsexual people, where appropriate. At the same time, if I leap across to the new clause, it would not have a chilling effect or prevent offensive jokes on gender presentation from inadvertently being covered by a protective characteristic.

One wants to be able to have entertainers such as Dame Edna Everage, for example, and not chill her out so that she cannot say anything. We think that the clause, on which Press for Change helped, delivers protection for all those characteristics and all those people on the spectrum wherever they find themselves, but does not affect life in terms of entertainment or humour.

Most of the amendments are consequent on the lead amendment being enacted. I disagree with the argument that the amendment is not necessary because it could be caught by other protections. It is so important, and it would be wonderful if we could give an explicit and unambiguous protection for those who are not so definite about where they are on the spectrum and who are not definite about reaching the other end. Many people never get to the medical operation or even near it. The protection extends to how people feel about their gender rather than what they are medically.

The new clause would also provide future-proofing for the Bill because, once amended, it would be in line with the international human rights, equality and diversity statements, the recommendations of the United Nations, the Yogyakarta principles, the Council of Europe, the EU and others, ensuring that the Bill will not suddenly fall foul of a claim in this area in the next couple of years.

It is important to include the term “gender variant”, because it allows the Bill to protect children or adolescents without requiring them to choose gender reassignment at a stage in their lives when their identities are still flexible and forming. Much change happens in those adolescent years. If there is any criticism of the amendment for not being perfect, which is entirely possible, I would be grateful if the Government were to ask their officers to look for any unintended consequences. The intention of the amendment is so important, I am anxious that we get it right. I am happy for the Government to take that away, should they be so minded, so that we do not narrow down the protection to the very few who need it but leave out the vast number of people who live in a far less certain world in the process to medical gender reassignment.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

By no means will I guarantee regularly to associate my views with those of the hon. Member for Hornsey and Wood Green, but in this case I will. The Committee will know the views—we have already  referred to this in the evidence sessions—that I have formed in relation to gender reassignment, because I was involved in the Gender Recognition Act 2004. We should remember in passing that that was an achievement, which I think the Government can rightly record, and I am delighted that it was passed with our support.

Nevertheless, the Act was driven by a European Court of Human Rights case, which said that the issue had to be dealt with. One of the glories of this place, and one of the glories of the European convention in keeping us to our vocation—if I can put it that way—is to look at the protected status of minorities. It is well known that those involved in gender transition at whatever stage are a small minority. I happen to have a distinguished and very articulate constituent who has been in touch with me about the legislation. He is following our every word, as we go through the Bill.

I have strong sympathy with the arguments, and I just want to draw out two particular points. First, as the hon. Lady has said, it is very much a spectrum of consideration. At one end is the full acquisition of legal status through the issue of a gender-recognition certificate, which takes us in the United Kingdom out of the idea of a three-gender situation, because it in effect switches from one to the other, being a kind of digital solution. However, long before that there will be people who have inclinations or concerns, others who may be seeking treatment—often with difficulty in finding access to it, or getting the appropriate counselling—and others then moving on to medical interventions and therapies. Eventually they may move through the whole spectrum or, in certain cases, reverse away from that and not take it forward. Those are very intense and personal decisions for a limited number of people. It is really important—I cannot see it as subversive of anyone or of any policy, or likely to cause cost—to embrace as many of those people as we possibly can. I would like to see the widest possible clear definition.

My second point has particular bearing when read with the age exclusions in the Bill in relation to persons under the age of 18. That lady constituent of mine who has been in touch with me has drawn attention to the fact that she has been concerned about her status and sexuality since her teenage years—she is now of mature years and is older than me. There is some plausibility in arguing, as came out in the evidence sessions, that there is a battery of local authority responsibilities in relation to persons under the age of 18 in school, for example. Nevertheless, given that people live in the community as well, and as such concerns, confusions, doubts and very difficult personal situations can start earlier, it is important to make sure that young persons, who are vulnerable enough in their teenage years, who have that extra incubus or difficulty to contend with are covered by legislation. If the Minister can look at whether more can be done in that area, it would be very welcome.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The hon. Member for Hornsey and Wood Green referred a number of times to a medicality of definition. Let me assure her that there is no medicality of definition. It is removed from the old definition that related to gender reassignments. Although we are discussing the matter under clause 4, the definition of gender reassignment is in clause 7—it is clear why she needs to discuss it under clause 4, none the less—where there is no medical reference whatsoever. It is not a medical definition; it is about a personal process.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I thank the Minister for that information, but:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”— that sounds pretty much as if it is an end-game decision and process to a complete reassignment. “Medical” might be the absolute end but before that is a total reassignment of gender, whereas I am arguing that gender identity is more complex than an absolute switch. There are stages in which people do not change physically at all, but they do change, and they need to be protected at whatever point they are at. That is the point that I am trying to make.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I hope none the less that the hon. Lady accepts that there is no reference at all to medicality in the Bill. The existing law talks about being under medical supervision, which may be what has misled her, but there is nothing here. We have deliberately left that out. The process is a personal one that an individual chooses to go through—I did not want to argue about the presence or absence of free will or any other way it might be driven, but it has nothing to do with medicality. I hope she has got that point.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I look forward to clause 7, which uses the phrase

“is proposing to undergo, is undergoing or has undergone”.

In the spirit of my remarks, I am wondering whether a better formulation for the Minister’s consideration might be “is considering undergoing”. “Proposing to” rather implies a definite decision, albeit one that has not yet been implemented, whereas “considering” could cover the ambiguous issues in which many young people in such a situation, and others, find themselves involved. I do not have that final rubric, but it might be an idea that would make the provision a little wider without destroying the clarity that is required.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

That is a helpful comment. However, the word “reassignment” implies that there is a reassignment as opposed to an identity confusion anywhere on that spectrum. Even the word “considering”, implies considering a complete reassignment, whereas people may not ever get to considering reassignment—they may be wondering about their gender, which is not the same thing.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

It is difficult to protect someone who is only wondering about their gender. What we are considering is that many people’s gender identity is the same as their sex—mine is and the hon. Lady’s is. Therefore, sex is protected, it is one of the extant characteristics. If one changes one’s gender identity away from one’s sex toward the other, then one is reassigning one’s gender identity. That is what the provision is about.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am becoming increasingly confused. The new clause proposed by the hon. Member for Hornsey and Wood Green provides a definition of gender identity. However that new clause, given the debate that has just been happening, specifically talks about gender reassignment and specifically reintroduces the concept of medical supervision. However, the whole point of what is in the Bill—or certainly as I read it and explanatory note 57—is that the medical necessity in provisions in the Sex Discrimination Act 1975 was specifically removed, thereby widening the range of people who would be protected. I felt that that was a sensitive change. New clause 8 seems to be going in the opposite direction. I draw that to the Minister’s attention, and perhaps the hon. Member for Hornsey and Wood Green may want to intervene in due course.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

It is clear that part of the definition in new clause 8 reverts to that medical basis of reassignment, but it is only part of the definition, so the hon. Lady is not totally regressing, although it is probably what is leading her astray about our definition.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I want people who are transsexual to have the protection as well, so that the measure is all-encompassing, wherever one is on the spectrum—not just medical, not just reassigned. However, in terms of what the Minister said regarding someone dressing as a different gender, that might be temporary—a passing phase. I want that protection wherever one is on the spectrum, so that the definition is as broad as possible so as not to exclude anyone. I repeat that this is a tiny group of people who are incredibly vulnerable—probably more so than any other group.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Let me put it this way. We are confident that our definition includes everything in new clause 8 except, possibly, subsection (1)(d), which I do not entirely understand. That is why I say that I cannot be confident about it. However, it must be made clear that the term “gender reassignment” is about a personal move away from one’s birth sex into a state of one’s choice, so that one is no longer protected by sex and is in a different category. That is what the provision is about. It makes it clear, by deliberately leaving out the medicality, that we are talking about a personal process, which may be proposed but never gone through. It may be considered, in process, or it may have happened. Its nature may be a medical one. Its nature may be in choosing to dress in a different way.

The whole of that range is satisfactorily covered. If it is not, the perception element in the definition of discrimination in clause 13 may cover others who are perceived to be in the category we protect under clause 7, even if, in fact, they are not. I will say one more thing before I give way to the hon. Member for Oxford, West and Abingdon. There is an illogicality in new clause 8 as well, because it states:

“A person has the protected characteristic of gender identity if the person ... is perceived to be” undergoing a transition. One does not make somebody into something by perceiving that they are it. If someone perceives that I am over 60, they will not make me over 60, and I will not have that characteristic. It is not there that it is necessary to put the point about perception. The definition of discrimination in clause 13 is wide  enough to deal with perception. The new clause, however, is over-complicated and completely illogical at that stage, and we could not accept it in any event on that basis, but the real point is that we have covered everything the hon. Lady has covered.

Photo of Evan Harris Evan Harris Shadow Science Minister

The Minister’s last contribution was very helpful in delineating the difference between us, and I accept that as long as clause 13 covers perception, as the explanatory notes describe it as doing, then that is the best place to put the definition. That is just a criticism of new clause 8. However, the question is whether her reference to reassignment will actually be an obstacle for someone who, for example, chooses to dress in the clothes of the other gender but actually has denied thinking about reassignment and just chooses because of their gender identity to cross-dress. We worry that the Minister’s definition will exclude those people from protection, because it refers to reassignment, even if it is just proposing reassignment. That may be the only difference between us, given what she has just said.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I shall try to make our intention as clear as I can. I am entirely satisfied that clause 7 fulfils our intention. Clause 13 covers the definition of discrimination, which is deliberately couched widely enough to include discrimination by perception and association, and comes to the aid of the category about which the hon. Member for Hornsey and Wood Green is particularly troubled.

The explanatory notes state that a person who was “born physically female” and decides to live as a man,

“starts and continues to live as a man”, with no medical intervention at all—just passes as a man—will have undergone gender reassignment. He will have started that process by proposing to do it in the first place, and will have continued it, but if he had started it—had proposed it, but withdrawn—he would still have been covered while he was proposing it. All the various vacillations of the process—often a very long one, is it not?—are very adequately covered by the definition, which is our intention, and we have fulfilled it.

Photo of Evan Harris Evan Harris Shadow Science Minister

The Minister has just described someone who chooses to live as another gender from the one they were born in. If we take the case of cross-dressing, the decision is not always permanent; it is not always an every-day decision and not always an all-the-time-in-any-day decision. It can be intermittent. Given what the Minister has just said, can she reassure us now or at a later stage that she is confident that her definition is wide enough to capture the need to protect people who, because of their gender identity, and not for the hell of it, choose on some occasions—not permanently or seeking to do so permanently—to appear as, and live as the gender other than that into which they were born?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Will that not be a question of fact in each case? Is it a characteristic, or it just something somebody fancies doing, not because they are driven by gender identity, but because they like to cross-dress? I do not know his name, but whoever is behind Dame Edna Everage cross-dresses for that purpose, but he is not driven to it. I do not think that Dame Edna will be involved in this clause, although in every other way she  is safe with this Government. However, somebody who was driven by a characteristic would be in the process of gender reassignment, however intermittently it manifested itself.

It is hard to see why that would not be the case, but I can see that it would be a question of fact in each case. The person would be rescued anyway by the association and perception provisions.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

The underlying problem may arise from the use of the phrase “gender reassignment” because that is a relict of the medical process. If I have correctly understood the concerns expressed by the hon. Member for Oxford, West and Abingdon, he is worried about people who may manifest some of the behaviour of someone who is contemplating trans-gender but may have resisted medical reassignment. The Solicitor-General is saying in effect that anything about the issue of transsexuality, however tentative, however reversible and however expressed, is somewhere covered. If that is what she is saying, and she can reflect on it and assure us that it is so, we would be a lot happier. There is a worry that once we start setting out criteria that a court has to consider if there is an accusation of discrimination, people will ask for objective tests, which would be easy to frustrate or argue against in a particular case and could then cause a great deal of distress to the individual.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

How a court determined the question if the unfortunate situation that one hopes will not arise ever arose would be a matter for the court. The use of the term “gender reassignment”, which in the earlier definition did connote medicality, has now been specifically rid of that component. I cannot say more often or with more emphasis that we are talking about a personal process that may or may not have medicality.

Lynne Featherstonerose—

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I will give way, although I have an “angels on the head of a pin” sense about this debate.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

The debate may hinge on a pin head but it is vitally important to a particular community. I am seeking reassurance from the Minister—although I know she feels she has probably already given it. I have constituents who are indeterminate and would not necessarily be identified as gender reassigned or as one sex or the other. They are somewhere in between and unidentifiable physically. I want to make sure that those people are protected. They may not even be on a journey; they may just be indeterminate in their gender identity, so there is no reassignment at all. Would that be covered?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

We have not found evidence of discrimination against people who one might call third sex. We have not found discrimination against people like that at all. What causes discrimination is characteristics that other people can see. A state of indecision within oneself or a tentative reflection on where one wants to be on the spectrum will not light itself up so that somebody can discriminate against the person who is thinking or feeling that way.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I would argue against that point because there are people who are indeterminate or third gender of whom it cannot be said which sex they are and they face discrimination simply because they do not look quite as expected in either gender.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

We have not come across discrimination against any such people that has not been linked to a separation—however tentative, however temporary and however partial—of gender identity and real sex.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Would the Minister at least agree that it would be extremely undesirable in terms of humanity and public policy if any individual who was in this ambiguous position felt under any pressure to undergo some physical process of gender reassignment by medication or whatever on the fear that otherwise they would not be able to avail themselves of defence under the protective characteristics provisions. The last thing we want is to drive somebody into doing something they do not want to do in order to get them protections they feel they need.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

There is no suggestion anywhere that a person has to be driven into a medical process. As I have said innumerable times, quite the reverse. Gender reassignment, as defined, is a personal process so there is no question of having to do something medical, let alone something surgical, to fit the definition.

The hon. Member for Daventry was worried that the protection would not apply to young people but it does. In due course I am sure we will have a debate about age discrimination not applying to people under 18, but all the rest of the statute does so. I ask the hon. Member for Hornsey and Wood Green not to press the new clause. I understand why she tabled it, but it was on the false basis that medicality is the key. I hope that I have explained that it is not.

Photo of Evan Harris Evan Harris Shadow Science Minister 2:15 pm, 11th June 2009

Before my hon. Friend the Member for Hornsey and Wood Green responds, I should like to make two quick points about what the Minister has just said. First, the whole Committee is grateful to her for explaining the intention behind the wording of clause 7. Even though we are discussing it under the hook of an amendment to clause 4, the wording of clause 7 is critical.

The Minister used two arguments, which are important and I recognise the intellect behind them. Proposing to undergo a process of reassignment does not involve medication or medicality. We accept that. Just because part of the definition in new clause 8 reintroduces that point, it does not mean that we think that is the criterion. Obviously it is not, because the other three components of our definition in new clause 8 have nothing to do with being under medical supervision.

The problem is the use of the term “gender reassignment” and the process of gender reassignment, to which one must refer to have any protection, even if protection can be obtained by arguing that the person is proposing to undergo gender reassignment. The hon. Member for Daventry helpfully suggested the idea of “considering”,  but even that would not capture someone who has absolutely decided that they will not reassign themselves—that is in their own terms. Although the Minister may say that cross-dressing because of their gender identity is in itself a process of gender reassignment, I do not think that it is for Parliament to tell people how to describe their own processes. Those who do not wish to have gender reassignment resist the idea that they are seeking gender reassignment simply because they have a gender identity that involves adopting facets and characteristics of a gender, for example in the way that they dress, that is different from the one they were born in.

It would be unfortunate if the Bill ran against the face of advocates for that group of people. That is why we still think that the definition in clause 7 is unsatisfactory. The Minister said there is no evidence—another limb of her argument—that the sort of people we are talking about are discriminated against. That may or may not be the case. We will have to go back to their representatives to see whether they can give us some examples. It is generally one of the benefits of equality law that we can act to provide protection before there is clear evidence of discrimination. That is exactly what happened under disability, race and gender, where many more data were made available after the law came in.

Finally, the Minister says that in any event we can rely on the read-in provisions of perception in clause 13. Obviously we hope that is true. The problem is that I do not think it should be necessary for us to use that back-door approach to get protection in such a limited area, on the basis that if someone is cross-dressing, other people will perceive that they are gender reassigning even if they feel that they are not. That might catch it, but it is more than slightly unsatisfactory. The Minister might accept that it is unsatisfactory from an intellectual point of view, even if from a practical point of view it might catch almost every case.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I cannot see anything to take exception to in relying on perception and association. They are key developments in the law of discrimination and very important components of protecting people. Perception should cover cross-dressers, whatever the draft would afford.

Nobody here is suggesting how people should define themselves. What we need to do to nail it finally is to look at new clause 8 and see whether it includes anybody who is not covered by our clause.

First, the medical definition in subsection (1)(a) is undoubtedly covered by our clause. Secondly, a person living permanently in the gender role other than their birth sex is covered. Thirdly, somebody who has received gender recognition would obviously be covered, and fourthly, somebody

“who has a gender identity that is different from that expected of a person of their recorded natal sex”, is covered too. Where is the deficiency in our clause? Each and every one of those cases is covered, and I have said that at least 15 times.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I thank the Minister. She has tried hard. Perhaps the problem is not in the totality of the clause, but in the title of “protected characteristic”. It is the differential between gender reassignment and gender identity that for me is the most forceful issue.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

In the hon. Lady’s proposed new clause, a

“person has the protected characteristic of gender identity” if they fall into one of the four categories that I have just set out. The new clause that she drafted would not add anything to those categories.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I thank the Minister, but I am not sure that subsection (1)(d) of the proposed new clause is covered. It is people with the protected characteristics who press for change and the community behind them who are the most vulnerable, and the ones to whom we have to try to give future-proofing for almost any eventuality on the spectrum, which is barely discussed in the world as we know it. I am worried, but I will not seek to divide the Committee. I ask the Government to give a little more thought to that differential between the words “identity” and “reassignment”, which send out completely different messages to that community and to others. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I beg to move amendment 6, in clause 4, page 4, line 11, at end insert ‘or paternity’.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss the following: amendment 139, in clause 16, page 11, line 15, leave out ‘maternity’ and insert ‘parenthood’.

This amendment extends protection against discrimination to fathers in the first 52 weeks of his child’s life in non-work cases.

Amendment 138, in clause 16, page 11, line 22, leave out ‘26’ and insert ‘52’.

This amendment extends the protected period for protection against discrimination on the grounds of pregnancy and maternity to 52 weeks.

Amendment 141, in clause 16, page 11, line 24, at end add—

‘(4) A person (A) discriminates against a man if, in the period of 52 weeks beginning with the day on which his child was born, A treats him unfavourably because he is a father.’.

This amendment extends protection against discrimination to fathers in the first 52 weeks of his child’s life in non-work cases.

Amendment 140, in clause 17, page 12, line 18, leave out ‘maternity’ and insert ‘parenthood’.

This amendment extends protection against discrimination to fathers in the first 52 weeks of his child’s life in non-work cases.

Amendment 149, in clause 17, page 12, line 22, at end insert—

‘(2A) A person (A) discriminates against a man if, in a protected period in relation to a child he has fathered, A treats him unfavourably because he is a father.’.

This amendment extends protection against discrimination to fathers in the first 52 weeks of his child’s life in non-work cases.

Amendment 150, in clause 17, page 12, line 27, at end insert—

‘(4A) A person (A) discriminates against a man if A treats him less favourably because he is exercising or seeking to exercise, or has exercised or sought to exercise, the right to paternity leave.’.

This amendment extends protection against discrimination to fathers in the first 52 weeks of his child’s life in non-work cases.

Amendment 151, in clause 17, page 12, line 38, at end insert—

‘(6A) The protected period, in relation to paternity, begins with pregnancy and ends 52 weeks after the child is born.’.

This amendment extends protection against discrimination to fathers in the first 52 weeks of his child’s life in non-work cases.

Amendment 152, in clause 18, page 13, line 23, at end insert ‘parenthood.’.

This amendment includes pregnancy and maternity as a protected characteristic in cases of indirect discrimination.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The amendment is short and probing. It would simply add “or paternity” to the protected characteristic “pregnancy and maternity”. There are two reasons for the amendment, one of which is similar, I suspect, to the reason for the amendments on parenthood tabled by the Liberal Democrats to cover fathers in those clauses that refer to maternity and maternity breaks from work. Given the developments that I think are supported across the parties in increasing the role of fathers in bringing up their children, especially at the early stage, I wish to explore with the Minister whether she feels that having another look at that might help.

The second, slightly wider reason, is one that we looked at when we discussed the gender pay gap. A number of the witnesses in the evidence sessions mentioned that one of the reasons for the gender pay gap might be that, in many cases, women are still the primary carers for children. Because of the compromises that they have to make in their working lives to look after their children, they might either not be paid as much, or not progress as far in their career. Another reason for exploring the issue is that fathers taking more of a role may equalise the roles of mothers and fathers in the workplace, and be of benefit to fathers and their children. It might also even up the roles that mothers and fathers take in looking after their children, which in itself might help to deal with issues such as the gender pay gap, when that occurs because of the choices that people make.

This is a short amendment and I have given a short explanation. For both of the reasons that I have outlined, I wish to explore with the Minister what thinking the Government have done about the role of fathers and paternity. As I have said, I have noticed that the Liberal Democrats have tabled some amendments on fathers as well. Given the developments that we have had since the parent legislation that has been rolled over into the Bill, the Government might give that some thought.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I will be relatively brief, as I will essentially make the same argument as the hon. Gentleman. It is important that we probe the Minister’s thinking on this subject. Many consequential difficulties, to quote Nicola Brewer’s assertion, have arisen from people not employing women because their maternity benefits were so good. If we can equalise the entitlement for men, not only might it encourage men to take part more—I am sure that all the Gentlemen in this room already do—but it will further protect women from discrimination in the workplace.

Amendment 138 is slightly different. We do not understand why the Minister is only extending the period of protection for mothers—and indeed fathers, because amendment 141 is for fathers—from 26 to 52 weeks. We do not understand why it is protected at 26 weeks, when the allowances for mothers—and fathers, we hope—now extend longer than that. We understand why that has been cut down, but the essential point of all the amendments is to create equality between men and women in their care for their children.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Amendment 6 would add paternity to the list of characteristics. Amendment 138 would extend the period of time a woman is protected from maternity discrimination in non-work cases. Amendments 139 and 141 would give men the same protection against paternity discrimination in non-work cases. Amendments 140, 149 and 151 would give men protection from paternity discrimination in the workplace for the period from when their child was conceived to 52 weeks after birth. Amendment 150 would give new fathers protection from discrimination for taking, or trying to take, paternity leave. Amendment 152 would prohibit indirect discrimination where the relevant protected characteristic is parenthood.

Forgive me for stating the obvious, but paternity would apply to men only. There are clear and well established reasons why women need protection against pregnancy and maternity discrimination, but there is no equivalent evidence to suggest a problem where men are discriminated against outside the workplace, particularly if they are new fathers. As my colleague put it to me last night, what the lads usually do is take a new father out for a drink; they do not start to discriminate against him. We have not found any evidence to suggest a new strand that needs protecting.

We would add characteristics if there was a need. We recognise that fathers as well as mothers should spend the time they need with their families and be able to balance work and family life, but discrimination law is not the way to tackle that. There is separate provision, alluded to by the hon. Member for Hornsey and Wood Green, which advances the cause of balancing work and life, and we will continue with that. When rights are given, they will of course be in the legislation that gives remedies in case those rights are breached.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

If an employee becomes a father for the first time and requires, beyond the normal immediate provisions of paternity leave, time off for “exceptional family circumstances” under employment law, would there be a prima facie breach of employment law or would there be discrimination if the boss said, “Look, I am really getting fed up with this. You are away all the time, you are producing these pretexts which arise out of your being a father and I am going to sack you.” We need an assurance that the boss would not be able to do that.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Yes.

Let me top off my argument on the amendment, which is acknowledged to be probing, by saying that I agree that it would be only beneficial if we could move to a situation in which we can commit to extending maternity leave with pay to 52 weeks at some point. After the first six months, during which we think that leave is better allocated to the woman, the leave would become transferable. That would mean that the woman could take six months leave and then the man could do so. In a direct sense, that would be a great aid to work-life balance and to redressing the traditional imbalance in roles.

One of the Opposition Members, talking about the amendments on that point, said that such a provision would take away the point of discriminating. I am not talking about husband and wife now. An employer  faced with a man and woman who are both job applicants will not know which one will take the time off, and there will be no point in discriminating against the woman who is going to get pregnant. That has always seemed to me a key point of that proposal. I hope that I have given the necessary reassurances on parenthood and paternity.

That leaves me with the question of the protection of maternity and breastfeeding, raised by the hon. Member for Hornsey and Wood Green. The 26-week period of protection is not the end of the protection. We have brought in special protection because we want to enhance the 26-week period, which is what the World Health Organisation and the Department of Health recommend for exclusive breastfeeding. We want to frame that and light it up, to make it clear that there is special protection during that period. We want to use every available facility, including discrimination law, to encourage breastfeeding to continue.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families) 2:30 pm, 11th June 2009

I do not understand why there should be any time limit for breastfeeding. Why should discrimination be allowed at any point?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I do not know how long the hon. Lady has in mind, but discrimination is not allowed at any point.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Six months is the recommended period during which breastfeeding should be the exclusive way that the child is fed. After that, the recommendation is to start to mix foods, but of course breastfeeding may continue. The hon. Lady need not worry about protection stopping. It does not stop. It is sex discrimination in any event to discriminate against a breastfeeding mother. We have made a special characteristic of those first six months for the purpose of enhancing their importance.

It is a shame that the relatively recent 2005 infant feeding survey showed that the majority of mothers in this country stop breastfeeding long before the recommended 26 weeks are up. We want to flag up that period and give encouragement. As I have said, after that period, any discrimination continues to be direct sex discrimination. If we want to get technical, there has been a successful claim, notwithstanding that sex discrimination requires a comparator, but that has not presented an obstacle.

I hope that with that reassurance, the amendments will not be pressed, although they have provoked a useful debate.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I thank the Solicitor-General for that useful debate. Given her reassurances to me, the hon. Member for Hornsey and Wood Green and my hon. Friend the Member for Daventry, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

An amendment to outlaw discrimination based on a person’s caste.

The amendment looks again at protected characteristics. We are seeking to probe the Solicitor-General’s thinking on caste being a protected characteristic. The caste system exists in the United Kingdom because it has been imported by a large south Asian immigrant community. My understanding is the caste system makes distinctions between different sections of society by dividing communities into rigid social groups determined by birth and/or occupation. That type of behaviour in this country is exactly what the Bill, in its essence, seeks to outlaw, so we ought to give serious consideration to whether caste-based discrimination should be specifically outlawed by making caste a protected characteristic.

I am aware that the Government claim that they have found no evidence of caste discrimination, but I am interested to hear from the Minister what efforts the Government have made and how they have sought such evidence. Does the hon. and learned Lady agree that it is likely to be more difficult to find out whether discrimination exists in an immigrant community because of the inherent difficulties of consulting members of the community about something they know is not part of the ethos? Just because the Government have not been able to find the evidence, should we not question whether that discrimination exists in some form? Those who might suffer caste discrimination—untouchables, or whatever—are less likely to be plugged into those routes, to come forward to make a complaint, or to use the channels that others who are not in a caste system might use.

The evolution of the Bill has been based largely on engagement with established and organised lobby groups that are well geared to respond to the Government’s consultations, but I am not sure that that is true of those who experience caste discrimination. If the Government are not persuaded, rather than miss the opportunity of a generation to outlaw a potential form of discrimination that flies in the face of everything that the Bill tries to do, why not allow the possibility of an enabling clause to be enacted by a Minister in the future, if now is not the right time or if the Minister is not minded to add it as a protected characteristic? Perhaps we can enact it to protect against a future where we discover the evidence.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I rise to speak briefly for two reasons. First, I want to say one or two things about the amendment. It and the following amendments raise another issue, which is relevant to how the Minister might decide to tackle this one. Part of the point of the Bill is to codify and simplify the law. If we go through the population, pick out lots of different groups and invent a new protected characteristic for every single one of them, there is a danger that we will make the whole thing very complex. I am a little concerned that that is what we are in danger of doing.

On a specific point, I suspect that the hon. Member for Hornsey and Wood Green has had correspondence from the anti-caste discrimination alliance. It also sent a copy of the letter from the Government Equalities Office. Two points were raised, and I want to the Minister to address them. The first is on the lack of evidence. GEO specifically referred to an informal survey of 20 key stakeholders that the Department for Communities and Local Government conducted to see if they were aware of evidence. It would be helpful if the Minister outlined the nature of the stakeholders, without  necessarily listing them all, because there is concern that the stakeholder groups might well be those from castes that do not suffer discrimination. Unless the Government spoke to organisations representing those who do suffer discrimination, they may well not have picked up evidence of it. We would appreciate some reassurance on that point, as well as on whether the GEO or the DCLG is keeping the matter under review, so that if evidence emerges, the Government can take the appropriate action.

Secondly, if such evidence became available, rather than invent a new protected characteristic, could caste be subsumed in the protected characteristic of race, given that that already includes colour, nationality and ethnic or national origin? If it was thought that it was sensible to act in that case, rather than create yet another protected characteristic, could a new dimension be added to an existing one?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The amendment would add caste to the list of characteristics. I am invited to add it, in a sense, speculatively, and I do not propose to accede to that invitation. We are always willing to consider whether there is a case for legislating on caste discrimination, but it is not a matter of the Government “claiming”, as the hon. Member for Hornsey and Wood Green put it, that there is no evidence of it; it is the fact. We have done our best to look for the necessary evidence, but we have not found any. There really is not sufficient evidence to suggest that caste discrimination is a significant problem domestically. We would protect if it was seen to be a problem, but we cannot find any evidence to justify such a measure. One has to appreciate the areas in which domestic legislation prohibits discrimination—in the workplace, in vocational training, in the provision of goods, facilities and services, in education, in the management and disposal of premises and in the exercise of public functions. There is no evidence that, in those areas, caste discrimination is occurring.

In response to a report published by the Dalit Solidarity Network in 2006, the Department for Communities and Local Government carried out what the hon. Member for Forest of Dean talked of as an informal look, but was, in fact, a scoping survey. The survey was carried out by contacting a number of Hindu, Sikh and Muslim organisations to ask whether they were aware of any evidence that individuals or communities had been discriminated against on the ground of caste in Great Britain. The scoping survey was, in fact, designed to pave the way for a formal consultation if the evidence came up in the survey, but it did not, so there really was nothing to take us further forward in a process that we were perfectly willing to engage with if there had been.

Although I am sure that many members of the Committee have had correspondence about this issue from what I shall in shorthand, without the slightest disrespect, as a write-in campaign, there is, apart from the odd piece of anecdotal evidence, none of which we have been able to drive down to a factual basis, still no evidence from that campaign that the territory which can be covered by anti-discrimination legislation is impacted upon by caste at all.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I take the Minister’s point that there is very little evidence at the moment. Can she at least give the assurance that, if evidence comes to light in the future, she will look at this issue again?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Yes, we are considering looking at it. I have found out about the stakeholders surveyed. The Hindu Forum of Britain and the Hindu Council were the two largest and the best we could do in terms of representative organisations in that field. They were, and to this day remain, totally against the introduction of caste legislation. We consulted a variety of predominantly Hindu groups and some Sikh and Muslim groups as well, and because this was a scoping survey and would have carried on to a more profound consultation, people did their best to ensure that we were not talking only to the discriminators, as it were, and not talking to the discriminated against.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Will the Minister go back to those organisations to ask why they were so against caste being included as a protected characteristic?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Because it is socially divisive to have legislation against something that is not happening and is needed by no one. The hon. Lady is inviting us to introduce a new characteristic when there is no evidence that protection is needed. That is hardly going to contribute to community cohesion, and I think that those groups are very sensible in taking the view that they do, having, we are satisfied, conscientiously sought for what we asked.

As I said, we intended to carry on to a real investigation and consultation if there was the evidence to justify such a step. We were very willing indeed to do that, and we have no intention of stopping looking now that we have looked. Officials from the DCLG and the GEO, the Department that sponsors the Bill, are continuing to monitor the situation and to meet representatives of interested parties, but even as that happens, we are still not getting any evidence. The concern was rightly raised, but I hope that it has now been put to rest.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families) 2:45 pm, 11th June 2009

I am reassured by the sincerity of the Solicitor-General and the efforts made by the Government to find evidence. I still worry about whether they will come back if such things occur, but at this point I am minded not to divide the Committee. I accept the reassurance of the hon. and learned Lady that the Government will keep looking, but hopefully no evidence will turn up. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 112, in clause 4, page 4, line 15, at end insert—

‘genetics and family medical history’.

An amendment to outlaw discrimination on the basis of a person’s genetics or family medical history.

I rise to speak to the amendment standing in my name and that of my hon. Friend the Member for Hornsey and Wood Green. It relates to the suggestion that there should be an additional protected characteristic—specifically that of genetic information, including family history—to protect those who might suffer from genetic discrimination.

The Committee will know that the matter is a live issue these days not only in this country, but in the United States. It was the subject of consultation in the discrimination law review, the issue being that those  who are genetically susceptible to a condition might be discriminated against in the provision of insurance in a way that really damages their life chances. Insurance is just one way, but it is the most well known.

We are talking about genetic predisposition, and such people do not get the coverage of the disability protected characteristic. They would be pre-symptomatic. They would not be exhibiting symptoms. Indeed, they would not yet have the condition, but the likelihood might be such that it was significant enough to worry those doing actuarial calculations on behalf of insurers and would deny such people insurance and leave them to be discriminated against. Moreover, they could be discriminated against if the information became available in respect of applications for work, as employers might not want to take on someone whom they considered possibly being at high risk of not being able to continue at work indefinitely or for a specific time.

The matter was subject to consultation and the Human Genetics Commission, which the Government set up to advise them on

“new developments in human genetics and their influence on individual lives, with a particular focus on social, ethical and legal implications”,

responded to the discrimination law review, arguing that discrimination on the grounds of genetic information should indeed be prohibited. I shall take the Committee through some of its reasons for making that decision because it is important that we recognise the strength of the case for such grounds to be included in the Bill.

The commission said:

“Unfair discriminatory treatment of groups or individuals on grounds of genetic difference is unacceptable”.

We could say that using the adjective “unfair” means that it is automatic that we would describe something that is unacceptable as unacceptable. However, I can say more than that: there is a public interest in ensuring that, rather than creating a group of people about whom it might be argued that it is justifiable to discriminate against them on narrow or even broad actuarial grounds, it is wrong to allow the development of a group of people—a genetic underclass—who are not able to get insurance or find it difficult to get employment. The alternative is that we could ban the discrimination and share the risk on those actuarial calculations of insurance, for example.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The way that the hon. Gentleman came to a conclusion was helpful, given that I was about to ask about the matter. I agree with some of what he said, but there are two dangers in respect of insurance. First, it is already the case that, if something has happened to people that is known about, an insurance company is allowed to take that information into account. If someone has a terminal illness, an insurance company can decide not to write life cover for them or to do so on terms that would be expensive. He might say that that would be discriminatory. However, if that could be done, clearly the basis on which insurance is done would fall apart.

The second danger comes down to the quality of information , which is one reason the moratorium is in place. If individuals can arrange their own genetic testing and know their genetic inheritance, yet the insurance company is not allowed to use it, people will be able to get insurance for all sorts of things, which again may  lead to that insurance not being available for everyone. There is a public policy issue to deal with here, but I am not sure that adding a protected characteristic to the Bill is the right way to go about it.

Photo of Evan Harris Evan Harris Shadow Science Minister

I was going to come to all the good points that the hon. Gentleman made and will deal with them in order to save time. He made three points, although he might not have realised that he made a third. The extra point is that part of the problem—unlike when someone is terminally ill and refused life cover, for example—is that even for single allele conditions the actuarial calculations are incredibly complex because many predictive genetic tests are simply not as predicted in all cases.

For example, the genetic condition may not be fully penetrative—it does not exhibit itself physiologically in every case in the same way in every person. It is complex, yet insurance companies may generalise and say, “We know that if we exclude these people we are at less risk of making an adverse offer and paying out a claim. Therefore, we can cut the premiums for everyone else—those who are not afflicted by this genetic predisposition.” If it were an exact science, there would be a stronger case for it, but it inevitably leads to rough approximations and generalisations, which are part and parcel of why this is unfair.

One key reason that this differs from having the condition when considering insurance is the fact that there is a significant public policy interest in encouraging appropriate people to have appropriate tests in their best interests and to ensure that family members, where appropriate and with consent, also have the information to help them to judge their genetic susceptibility.

As the moratorium is, by definition, not permanent, if people worry that a test will be used against them, that is a huge disincentive for those already at a health disadvantage to access the technology, have the test and get early intervention and lifestyle advice where that is relevant. There is a real problem of deterring people from accessing testing, as well as a problem for researchers who have an ethical obligation to ensure that those taking part are not damaged by taking part in research. If there is any concern that life chances will be harmed by taking part in the research and being randomised to the test, for example, the risk of randomisation cannot be offered with equipoise because the researcher knows there is a chance of discrimination. It holds back research.

I hope the Committee will accept that these are serious issues that have to be considered. This is not simply a matter of saying that people are not yet ill and that we can cross that bridge when we come to it—when they are disabled in employment protection terms or when they are symptomatic and insurance companies must be allowed to distinguish between people with serious conditions and those without. We are not suggesting that insurance companies should not be able to distinguish between people with symptomatic serious conditions.

There is an argument, which we heard in the caste debate, that there is not a huge amount of evidence that this discrimination is taking place. While there is a moratorium in respect of insurance, it may well be argued that there is not much discrimination. However, as I said in respect of gender identity—it is well recognised—anti-discrimination law should lead, not always just respond to established poor practice. It is there not only in case of discrimination, so that people  can take advantage of it, but as a deterrent to discrimination that might occur. As we know from previous anti-discrimination law, it also enables data to be collected because there is a legal framework. Finally, in this case there are the positive public health and public policy advantages of not deterring people from taking the relevant steps.

In the insurance field, for example, relying on a moratorium does not give the required long-term assurances—this applies to employers as well as insurers. The United States is a country where there is great support for financial services, including insurance companies, some of which have done better than others in recent years. Nobody could say that the United States is hostile to the purchase of private insurance or that its people are not interested in trying to make as much money as possible out of the system—consistent with the law, of course, at least in most cases, and consistent with the ideals of the American dream.

In the United States, research has been carried out to check whether there would be significant gaming—adverse selection, I think it is called in actuarial circles—to identify whether people who were genetically at risk of serious disease would get insurance, up the premium, have the test and not disclose the results, or if the test was banned, take it anyway and screw the insurance companies. In the research that I am aware of, it was not found that that is likely to happen.

People with these serious conditions, or genetic susceptibilities to them, have other things on their mind and there is a cap on the amount of life insurance that people can get without providing the test. That is another way forward—they can get a reasonable amount, but cannot go for millions and millions—and it has worked well.

Members of the Committee will be aware of the Genetic Information Nondiscrimination Act 2008—an Act of the US Congress signed into law by President George Bush on 21 May 2008, which prevents medical advances in DNA testing from being adversely used by employers and health insurance companies against people with a genetic predisposition to particular health issues. I think that Act was passed by the House of Representatives by 414 votes to 1, which, by any account, is a significant margin. We would be fortunate to consider in the House anything that attracted such overwhelming support.

That Act refers to the use of family medical history—my understanding is that if the insurance companies had not resisted the restriction of the use of medical tests, they would probably have got away with still being able to use family history—and I have included the term “family medical history” in my probing amendment.

There are positive public policy advantages in doing this and there is clear evidence from other jurisdictions that it is felt to be necessary. We should not have to wait for gross examples of such discrimination in employment—that would put the onus on the victim to come forward before we would act—when there is a clear argument that the measure might be used. It would do away with the need for people to worry about whether the moratorium will continue past 2014 and give certainty to the insurance industry that this is not a path that it needs to spend a lot of time investing in and that we will share the risk. I speak as someone who is willing to pool that risk so that a genetic underclass is not created. I urge the Minister and the Committee to give consideration to the amendment.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

We reflected on this and concluded that there is no reason to include the amendment in the Bill. There is no clear evidence of a problem. All the examples sent to us that might be termed genetic predisposition would already be covered by disability discrimination. The hon. Gentleman referred to the insurance industry’s voluntary measure to guard against the inappropriate use of genetic tests, which could lead to certain people being asked to pay higher premiums. That is in place and will last until 2014. It is working well and he has not suggested that it is not.

The other relevant area is employment. The Human Genetics Commission reported in 2006 that it had no evidence of employers using genetic tests. The Information Commissioner has told employers that if they plan to use genetic tests, they must inform the Human Genetics Commission. These measures seem to be working well and are sufficient.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 3:00 pm, 11th June 2009

On the moratorium and the fact that it is in place until 2014, is the Minister able to give the Committee any information about what the Department of Health’s view is on what the next steps might be, or are we at a stage where it is too early to think about that? Given that it is working well, is the Department of Health thinking of rolling that forward, perhaps indefinitely, or is it thinking about a legislative solution along the lines that the hon. Member for Oxford, West and Abingdon has spoken about?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I will check that and drop the hon. Gentleman a line, so that I can give him a complete answer.

Photo of Evan Harris Evan Harris Shadow Science Minister

The Minister rattled through that response very quickly, but she said that the moratorium was working well. The fact is that it is a moratorium and at some point, a future Government may end it. That would mean that people would be exposed to being required, before they can get insurance, to disclose any genetic test that they have had.

In addition, it is possible that employers may seek to take advantage of what is becoming a more available technology. Other than legislation in this area, I would like to know what future-proofing the Minister can provide that would prevent employers from discriminating against people who would not fall within the disability definition because they are healthy, are asymptomatic but have a genetic predisposition, or do not consent to their information being used by the employer. In itself, that is sufficient to trigger a problem for individuals. I would be grateful if she could provide some information on that.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I rattled through the response quickly because I thought that we were finishing at 3 o’clock and I wanted to try to complete this section. Now we have more time, I am not going to say it all again, but I can slow my pace. The hon. Gentleman has not suggested the moratorium is not working well. Negotiations on an extension or whatever is to follow are for the future. In our view, it is not appropriate to deal with that in the Bill.

The Human Genetics Commission, to which the hon. Gentleman has referred quite a lot, found no evidence of employers using genetic tests. The Information  Commissioner has made it clear that employers must inform the genetics commission if they plan to use them. That would trigger further inquiry. Again, he has not suggested that these arrangements are not working well and are insufficient.

This is perhaps a key point for me. If there were evidence of a problem—I make it clear that there is not scant or limited evidence, but no evidence, despite being open-minded about looking for it—it is by no means certain that discrimination law would be the right way to deal with it. It would almost certainly be better tackled through the use of data protection legislation, prohibiting the use of genetic test information in setting insurance premiums and vetting for employment, so I hope that the hon. Gentleman will withdraw his amendment.

Photo of Evan Harris Evan Harris Shadow Science Minister

First, I would like to apologise to the Committee if there was a 3 o’clock time limit that I was not aware of. The Government Whip has been extremely helpful—

Photo of Evan Harris Evan Harris Shadow Science Minister

Had there been such a time limit, I would have spoken even more quickly, although I could not compete with the Minister.

I understand the thrust of what the Minister was saying. It would be impossible to respond to all her points, so the best thing I can do is take them away to discuss them with the Human Genetics Commission and others with a particular interest in this matter. We will see if there is a necessity to bring the matter back for further debate. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I beg to move amendment 113, in clause 4, page 4, line 15, at end insert—

‘belonging to a disadvantaged socio-economic group’.

An amendment to outlaw discrimination against a person on the basis of their belonging to a disadvantaged socio-economic group.

The amendment would outlaw discrimination against a person on the basis of their belonging to a disadvantaged socio-economic group. It is to probe the Minister because we have a socio-economic duty, but no strand, or no protected characteristic for it to work with. As we have said, the socio-economic duty is weak. We think that the amendment might give it real teeth. In providing for a protected characteristic, people from disadvantaged socio-economic backgrounds would be protected from direct and indirect discrimination. The amendment would make it clear that we believe that socio-economic disadvantage is one of the great strands of inequality.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I will not rehearse all the arguments about the socio-economic duty; we did so at length this morning. However, if a protected characteristic were added and, effectively, called a “disadvantaged socio-economic group”, how would one define such a group? Would it be only people who were poor, or would it be a more complex definition? I do not see a definition in the amendment.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I have to say that I have not defined that in an explicit way at this point because I want to probe the Minister’s thinking about whether the Government would even consider such a characteristic. Obviously, it would require a great deal of thought and work. There would be a number of legitimate concerns that such a protected characteristic would have unintended consequences. However, as other Members have said, that is always the case when new discrimination law is introduced. With will, the Minister might be persuaded to ask the Government Bill Office to establish what those unintended consequences might be, and what would qualify a person to be someone from a disadvantaged socio-economic background. Would it be simply poverty? The definition would be within the sense and meaning that the Government place on the socio-economic duty.

Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury

I hope that the hon. Lady will not take this the wrong way, but is it possible that the amendment is a clear characterisation of what it must be like to be in a political party that has no chance of having any power? To put forward something that has such a vague aspiration and then ask the Government to go away and sort it out seems unnecessary; there is no background to it and it is not practical.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I thank the hon. Lady for her helpful intervention. However, that is exactly the point of scrutinising legislation. The Government have come to the Bill at the end of a very long germination. I regard the new socio-economic duty as important, but it is not connected in the same way with the rest of the Bill, as Conservative Members said at this morning’s sitting. Therefore, this amendment seeks to test out whether the proposal would make a connection that gave the duty some substance and strength.

Also, one of the key purposes of the Bill is to eliminate the hierarchy between equality strands. Without giving the socio-economic duty that protected characteristic, we create a new hierarchy that will, at some point, need sorting out. I want to test the Minister as to whether that is an appropriate thought pattern or not.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I do not want to be unfair to the hon. Lady, either. However, I think that she wants me to send the Bill team out to look for the unintended consequences of outlawing discrimination against something that she cannot define.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I would simply say that the disadvantaged socio-economic group would be a disadvantaged socio-economic group in terms of poverty.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Let me make two points. I have reason to believe that I am a member of a group that would be socio-economically disadvantaged compared with the group that the hon. Lady is a member of. She would have to give me her lunch from time to time, if we enacted the provision, to put me right. It is not an unchangeable condition; it is not a characteristic. We want to encourage people no longer to be in disadvantaged socio-economic positions. We do not want to give them a right to stay there. It does not fit at all with any of the other characteristics. We need to root out the causes of  socio-economic inequality, and that should be done not on an individual basis, but on a basis such as that set out in clause 1.

How will the hon. Lady define that? It is all very well to say, “I haven’t defined it because I want the Minister to do so, even though I think it’s a crazy concept.” Socio-economic deprivation is a relative concept. I am certainly more socio-economically deprived than the Queen, but does that mean that I should have some special protection? Some of those present may regard themselves as socio-economically deprived and may well take action, but against who? Against me because I am richer? I come from a very poor household, but do I still have some credit for that poverty, even though I have crossed the class barrier? It is impossible.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Forgive me, but I was simply trying to demonstrate that the duty on public authorities to “have regard to” socio-economic inequality is also difficult to define. It was a probing amendment. Anyway, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 182, in clause 4, page 4, line 15, at end insert—

‘carer status’.

An amendment to outlaw discrimination against carers.

I rise without much confidence that the amendment will gain the Minister’s favour, but I look forward to further interventions from the hon. Member for Islington, South and Finsbury, because she has added a bit of spark to the proceedings and is clearly determined to keep us on our toes. I am sure that she will play a full part in the Committee in future, even in a constructive way. [Laughter.] I meant that without any irony, which I am incapable of—probably.

The question is whether carer status needs more explicit protection under equality law. This is a probing amendment, so the Minister need not unleash the full thrust of her argumentation on the principle involved. The amendment is a way of getting at, and giving her a chance to say, how the Bill provides sufficient, which to my mind means significant, protection from discrimination in work and elsewhere for those who have carer status. Now is perhaps not the time to debate the issue in detail, and I am not inviting the Committee to discuss the case of Coleman in detail, but there clearly has been some doubt about whether one who cares for a disabled person is protected by the existing disability protection in our anti-discrimination law. Is the Minister confident that the status of men and women who care for people who would not necessarily be described as disabled, but may be isolated, young or even neonatal, is sufficiently covered in existing law, in the Bill or in what she hopes the courts will interpret in the Bill based upon the European directive that underlies it?

I do not seek to make any party political points, because I think that we all recognise, particularly during carers week, how much work carers do, how much they save the country in doing it, what valuable work they do and how important it is that those of us involved in public policy protect them from any greater disadvantage than that that in which they often find themselves, even though they willingly undertake their work because of the need to care for family members. I think that we all  share that view, but I seek reassurance from the Minister that she is confident that the Bill provides protection for that important group of people.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 3:15 pm, 11th June 2009

The hon. Gentleman strongly argues the case for carers. There is no doubt about their good work, their importance and the commendable position that they occupy in the community. It is carers week and there has been a debate about carers in Government time today, between 12.30 and 2 o’clock. The Government recognise what carers do and how valuable they are.

Rightly, the starting point when looking at what constitutes a protected characteristic for the purposes of the Bill is to consider who a person is rather than what they do. The analogy is clear so I do not need to set it out, beyond saying that everyone has a sex, belongs to a racial group and has a sexuality. Some people subscribe to a religion or belief, some consciously do not, and some people have a disability. One might say that those are part of the core characteristics that make us what we are and, apart from religion or belief and gender, are ultimately not a matter of choice. They are qualitatively different from being a carer. We do not think that we could add to the protection and support that we firmly intend to give carers, demonstrated by the steps that we have taken, today and historically, by giving carer status a branch in the Bill. In no way does that diminish the often, even now, undervalued service that carers perform.

The hon. Gentleman knows about the Coleman case. A young woman—I assume that she was young, but I have not seen her—with a disabled child went to the European Court, after exhausting the remedies here, due to the way that she was treated by the firm she worked for. I am sorry to say that it was a law firm that  used to instruct me. The court established that there was such a thing as discrimination by association with someone with a protected characteristic. In that case, it was discrimination on the basis of her association with her disabled child. We looked at what to do about the judgment, and decided that it was a good principle and that we should not merely take on the European Court’s judgment but extend the principle further across strands. That will help carers of disabled people straightway.

The other relevant strand is age. People will be protected against being discriminated against because of their association with somebody in a particular age group. We think that we have taken a major step forward and the best way to support carers is through such protection, together with the panoply of things such as the right to request flexible working, the right to careers advice and the emerging right to have breaks. The addition of further legal ground in respect of discrimination would not help them. They are a most deserving community that we intend to continue to champion and we are glad that we are able to do so through the mechanism in the Bill.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the Minister for her response. It provided the reassurance, which many want to see, that the Government’s view is that the needs of carers are adequately met and it explained why their position is different from many of, if not all, those with protected characteristics. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Lyn Brown.)

Adjourned till Tuesday 16 June at half-past Ten o’clock.