Clause 29

Part of Equality Bill – in a Public Bill Committee at 2:15 pm on 18 June 2009.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 2:15, 18 June 2009

I am sorry, Lady Winterton, if I have been chattering too much.

The clause is interpretative and supplementary to clause 27, setting out meanings of public functions—provision of a service—largely replicating the position under existing law but bringing various diverse points together in one place for ease of reference. We have expressly linked the definition of “public functions” in the Bill to the Human Rights Act to provide, in so far as legislation can, clarity and consistency across the two pieces of legislation. We have also made it clear that the reference to providing a service covers services provided by both public and private organisations. That is important because we do not want to apply different requirements to organisations that are providing essentially the same service, simply because one is publicly funded and the other is not.

We have also used the clause—this does have some relevance—to make clear that the liability is therefore limited to that under part 5, when people are simply arranging for services to be provided by a third party to their employees. They should not then be regarded as a service provider. The employees would be regarded as a section of the public in relation to the third-party provider. The relationship between them and the third-party provider would be governed by this part, but that is not actually central to the point the hon. Member for Oxford, West and Abingdon raised.

Schedule 2 sets out reasonable adjustments and how they apply in relation to providing services and exercising public functions, and schedule 3 sets out exceptions to the prohibitions in the clause. I think at the core of the hon. Gentleman’s concerns are public functions in the Human Rights Act, rather than some of the other bits I have referred to. I can tell the hon. Gentleman that concern is not confined to my hon. Friend the Member for Hendon, nor is there a struggle over the issue. I was on the Joint Committee for Human Rights long before he was and we produced a report trying to probe how best to define public functions. I do not think it is putting it too bluntly to say we were slightly taken  aback by the way the court defined what a public function was, first of all in the case of Heather v. Leonard Cheshire Foundation and again in the case of YL.

Public functions are not specifically defined in the act, which instead speaks of functions of a public nature. Things that would be considered to be public are law enforcement, immigration and local authority revenue raising and collections. Public authorities provide public services such as leisure and day care centres, as well as carrying out non-service public functions such as law enforcement and revenue collection. If the activity falls into the category of providing a service to the public it will be covered by the provisions making it unlawful to discriminate in the provision of goods, facilities and services. If the activity is not caught under those provisions, it will be captured by the public functions provisions. What is important is that all the activities of public authorities are subject to the prohibition on discrimination unless there is a specific exception. That is helpful as I can be.

Dr. Harrisrose—