Schedule 18

Equality Bill – in a Public Bill Committee at 4:45 pm on 30th June 2009.

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Public sector equality duty: exceptions

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families) 5:00 pm, 30th June 2009

I beg to move amendment 281, in schedule 18, page 215, line 25, leave out paragraph 1.

To remove the exception from the age public sector equality duty so far as relating to education and public services for young people, such as children’s homes.

The amendment would remove the exception on age from the public sector equality duty so far as it relates to education and public services for young people, such as schools and children’s homes. We briefly discussed such issues when we considered an earlier provision. I expect that colleagues have received the briefing from Young Equals, but a survey carried out by the Department for Children, Schools and Families shows that 43 per cent. of 18-year-olds reported unfair treatment on the basis of their age. Three in 10 children under 11 felt that they had experienced age discrimination, and nearly two thirds of older teenagers said the same. Unfair treatment on the grounds of age was by far the single biggest example of discrimination, so I hope that I can use the amendment to probe the Minister about why schools and children’s homes have been exempted from the public sector equality duty.

I would have thought that under-18s have the same need, if not more, regarding the elimination of unlawful discrimination, the advancement of equality of opportunity, and the fostering of good relations. The way in which are treated at school colours the rest of our lives. If we are disrespected because of our age, we will grow up with a certain view. If we are treated with respect, that ethos has the possibility of staying with us throughout school life. That goes for the numerous relationships formed at an incredibly important time in a young person’s life, such as between children of different ages and between children and teachers.

Schools provide an amazing opportunity to work on intergenerational projects and to foster good relations between different ages, and between old and young. One of the most powerful events at my daughter’s school was when the older children were able to go into  the class of the younger children and be their teachers for the day. Being able to form such relationships is crucial at that age, and respect for all ages is really important.

I was even more confused about the exemption of children’s homes from the public sector equality duty under schedule 18. One of the great problems facing children in care is being shifted around from home to home because they have reached the age limitation of the homes. That could affect 10 to 14-year-olds or 14 to 18-year-olds. The children are artificially moved on and that creates instability. It is a requirement of Ofsted to register, specifying by age the categories of children as a condition of the registration. That means that other children are precluded, which flies in the face of other legislation that favours keeping siblings together. If there are two siblings, one in the 10 to 14 age group, and the other younger or older, it will be impossible to keep them together if the Bill is enacted with such an exemption.

At present, a children’s home could get into trouble by taking in siblings of a younger age than that specified. Moreover, older children seem to have less favourable treatment in the commissioning of child care. Commissioners are likely to make sure that an appropriate placement is found and to take extra care for a younger child because sometimes, when cost is a dominant factor in the decision-making process, the needs of an older child are rated as less important.

As for fostering good relations between people of all ages, I cannot understand why the Government do not believe that the exemption will be of particular benefit, because it relates to something that is absolutely essential in the provision of important care. Research shows the particular importance for children in residential homes of relationships with not only the staff, but other children and young people. When the ages are more varied, children benefit from exposure to older youngsters acting as role models. The current arbitrary age restrictions prevent what I would regard as completely natural and beneficial age integration.

I will be interested to hear the Minister’s response. I do not know whether the provision existed in legislation before I was in politics, but if it has something to do with removing the bad influence of older children so that younger children will not be exposed to what teenagers and older children get into, I would think that things should be the other way around. There is more of an onus on young people to behave better when they are given support and looked up to by even younger ones. If they are off in a group on their own, they might be encouraged to get into all sorts of things when they do not have the responsibility that comes from being looked up to by siblings or younger children.

Perhaps the Government are saying through the exemption that such young people are not supervised and cannot be trusted to live in a situation similar to that of a normal family, which can include children of all ages. There is no exemption for families relating to an age range among siblings. On that basis, I ask the Minister to respond to those issues. Why have the Government sought to exempt the provision of education to pupils in schools, and of benefits, facilities and services to pupils in schools and children’s homes? I look forward to her response.

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

Let me make it clear that the equality duty will require the vast majority of public authorities to think about how they can advance equality for people of all ages, including children, when designing policies and delivering services. For instance, that might involve ensuring that swimming pools and leisure centres are accessible to children, or considering whether bus services cater adequately for children. Although the prohibition on age discrimination in the provision of goods and services does not cover under-18s, children will still benefit from the proactive duty in clause 143.

However, we do not think that clause 143, in so far as it relates to age, should apply to the exercise of functions relating to education and services to pupils in schools, and accommodation and services in children’s homes. Schools are based on the premise that children need to be treated differently according to their age, ability and aptitude. Advancing equality of opportunity for children of different ages makes much less sense than advancing equality of opportunity for children of different races or sexual orientations, for boys and girls, or for disabled children. That is where the focus should be.

The hon. Lady gave an example involving children’s homes and siblings being split so that a 13-year-old could not go into the children’s home that started at age 14 and a 14-year-old could not stay in a children’s home with a 13-year-old sibling. However, her example makes exactly the opposite point. The arbitrary right to insist on placing a child of inappropriate age in a facility that provides for children of a different age, on the grounds that age inequality provisions apply, is exactly what we want to avoid. We want the child to be put with its sibling if it is good for the child to be with its sibling and the environment is acceptable, and not to be if it is not. That would be a decision taken on the basis of the welfare of the children, not an arbitrary test of age discrimination or advancing equality of opportunity for children of different ages. With great respect, the hon. Lady damages her own argument with that particular example.

Concern has been expressed by the hon. Lady and others that not having an age-related duty for under-18s in schools and children’s homes means that nothing will be done to tackle some older children’s problems accessing child protection services or being safeguarded, but those are functions of a local authority, and the duty applies to local authorities. The examples that I have heard are usually found to relate to functions of local authorities or other bodies, which are all covered. All that the exception covers is the actual environment of the care home or school. I know of no concrete examples so far of any mischief that has arisen from the duty not being in place, so we do not think that we will put it in place—in fact, we are quite sure that we will not.

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

I thank the Minister for her response. I think that we have a basic disagreement about the benefits of promoting opportunities for different ages and that we will not see eye to eye. I understand some of her rationale, and I will reflect on what she said. For the time being, 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 298, in schedule 18, page 215, line 41, leave out

‘, race or religion or belief’ and insert ‘, nationality’.

The amendment probes why the language in this part of the schedule is as it is, even if it is historical. The provision deals with exercising of immigration and nationality functions. Clause 143 will have effect as if subsection (1)(b), which I will not discuss further, did not apply to the protected characteristics of age, race, religion or belief.

Sitting suspended for a Division in the House.

On resuming—

Photo of Evan Harris Evan Harris Shadow Science Minister

I want to probe this part of schedule 2. The amendment has two functions. The first function is to explore why religion and belief are included in the exemption. Perhaps we might disagree for the same reason that we disagreed on the direct discrimination exemption. The Committee will remember that we had a debate about why one needs to keep out religious extremists. One cannot justify doing so simply on the basis of indirect discrimination, given the views that they express. I do not know whether the inclusion of religion and belief mirrors that, or whether there is another reason, such as rules to do with the immigration of imams and so on. It does not seem logical just to exempt religion and belief, since the immigration authorities would have to have a good reason and justification for taking action against someone whose immigration status is threatened because of a particular manifestation of their religion or belief.

The second function is to ask why the provision applies broadly to race, which includes colour, nationality and ethnic origins, and why it does not simply refer to nationality. One can understand why nationality needs to be exempted from a positive duty, since it is exempted, understandably so, from the discrimination legislation. It seems strange that there should not be a positive duty to ensure that immigration services are provided equally on the grounds of colour, given that people of colour—ethnic minorities—may face difficulties in dealing with the immigration service that other people with immigration issues who are white Australians or Americans are not as likely to face. The onus is on the immigration service to have regard to its need to deal with that, so it would be unfortunate if all references to race were taken out of a positive duty in respect of immigration. I would be grateful for the Minister’s clarification of those two separate points.

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

We do not believe that the amendment is helpful. Extending the duty to have due regard to the need to advance equality of opportunity on the grounds of race, religion or belief may not always be compatible with the UK Border Agency’s functions to provide effective immigration control that is consistent with Government policy and with public safety.

The Bill will permit the UKBA to differentiate between people on the grounds of ethnic or national origin, or of religion or belief in particular circumstances. Such circumstances do not occur frequently, but, when they do, it might not always be possible to say that due regard had been taken to the need to advance equality  of opportunity. We would not want to open up a new avenue of costly and time-consuming challenges against the Government.

For example, the UKBA has a policy of excluding from the country individuals whose so-called religious beliefs are so extreme that it would not be in the public interest for them to enter or remain. We would not want to open ourselves up to a hopeless challenge from a representative of an extremist group who suggested that, by excluding him, the UKBA was in breach of its obligation to have due regard to the need to advance equality of opportunity. None the less, it is important to make it absolutely clear that immigration policies will continue to respect the fundamental religious freedoms that are protected by the Human Rights Act.

The times when the UKBA would want to differentiate on grounds of ethnic or national origin are even more rare, and there has been no ministerial authorisation under section 19D of the Race Relations Act 1976 that would permit differential treatment on those grounds since 2002, but we cannot rule out a crisis abroad occurring at some stage in the future, when we may need to bring certain groups to this country for protection but not others of the same nationality. In such rare emergency situations, it may not be possible to have due regard to the need to advance equality of opportunity.

The exception is not designed to be a blank cheque to permit the immigration authorities to evade their responsibilities. It is there so that, when necessary, they can exercise their essential functions in these respects without the possibility of a challenge, and to ensure that the important new equality duty that we are creating is not misused and brought into disrepute by those who seek to frustrate the immigration system.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington 5:30 pm, 30th June 2009

I listened with interest to the Solicitor-General. I do not want to detain the Committee, but I am curious about why we are allowing skin colour, which is part of the race strand, to be a means by which the immigration service may discriminate. The Solicitor-General has not had my experience, but almost every black professional has experience of being singled out by immigration authorities, whether in this country or elsewhere, purely and solely on the grounds of skin colour. When they discover that someone has a British passport or even that they are an elected official, they back off—[Interruption.] Yes, it has happened to me. Black people are singled out because of skin colour. I listened to the Solicitor-General, but she did not explain why the immigration authorities need to be able to discriminate against people on the basis of their skin colour. It causes considerable bad feeling among people who otherwise do not interact with immigration authorities.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Lady makes my only residual point more eloquently from her direct experience than I could have done. I do not know whether the Minister has an answer, but I am not minded to press the amendment. If she does not rise now to respond, will she write to me about it?

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

I am happy to rise. Colour is part of the definition of race. That is all. We do not want to use the power in connection with colour—far from it. All the examples that have been given are  appalling and should not occur. I have seen them at airports, but race includes all those characteristics, and there is no fundamental point in seeking to slice out any aspect of the definition. The race exemption has not been used since 2002, and it has not been authorised. It is likely to be used, as I said, when we need in an emergency to take in one group of people and leave out another.

I shall not satisfy the hon. Gentleman or my hon. Friend that we can solve the problem with the Bill, but colour is included because it is a component of race and not because there is any intention of the UK Border Agency discriminating on that basis.

Photo of Evan Harris Evan Harris Shadow Science Minister

I do not want to prolong the matter, but the point that the hon. Lady and I are making is that, if there is a way of taking colour out of the exemption, that would put a positive duty on the immigration services to undertake even more training to prevent the incidents that have happened to my constituents who are from ethnic minorities but that do not happen even to overseas nationals who are white. Obviously, there is no point in pursuing the debate now, and we will reflect on what the Solicitor-General said. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 282, in schedule 18, page 216, line 13, at end insert—

‘Judicial functions, etc.

(1) Section 143 does not apply to the exercise of—

(a) a judicial function;

(b) a function exercised on behalf of, or on the instructions of, a person exercising a judicial function.

(2) The references to a judicial function include a reference to a judicial function conferred on a person other than a court or tribunal.’.

This amendment would provide that the duties imposed by clause 143 on public authorities, as well as on other persons exercising public functions, will not apply to the exercise of judicial functions (or other functions exercised in a judicial context).

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss Government amendments 283 to 285.

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

The amendments, essentially, will make minor corrections.

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

I do not want to take too much of the Committee’s time, but I have a few questions. Amendment 282 will insert an exemption for judicial functions. Will the Solicitor-General explain why those functions will be removed en bloc?

What is the logic behind amendment 284, which will remove the exemption for those who take decisions about prosecution—presumably the Director of Public Prosecutions, the Attorney-General, the Solicitor-General and bodies such as Her Majesty’s Revenue and Customs—so they will have to make decisions bearing in mind the public sector equality duty in clause 143. That seems to go in one direction for decisions about prosecutions; but at the same time, there will be a wider  exemption for judicial functions and two issues connected with judicial decision making seem to go in opposite directions.

Amendment 282 refers to judicial functions conferred on a person other than a court or tribunal. I just wanted to check that that applied to Ministers when they are making quasi-judicial decisions in their role—for example, when the Secretary of State for Communities and Local Government makes a decision about planning cases, or when other Ministers make similar decisions in that quasi-judicial capacity.

The explanatory notes refer to the UK Border Agency:

“The UK Border Authority, when taking immigration-related decisions, will not need to give due regard to the need to advance equality of opportunity for people of different races, religions beliefs or age.”

However, the agency does have to give due regard

“to the need to advance equality of opportunity for disabled people...for people of all sexual orientations and transsexual people”.

When the UK Border Agency makes a decision, that decision could be appealed at the Asylum and Immigration Tribunal, which is carrying out a function of a judicial nature. Presumably, the AIT is then exempted from the need to apply the public sector equality duty, which is a different test to the one that is being applied by the UK Border Agency. So the measure does not seem to be wholly consistent and could lead to one agency making decisions based on a certain set of criteria, but when it reaches the judicial part of the process, it is effectively exempted from that duty. That could lead to those organisations making different decisions purely based on whether or not the public sector equality duty is applied. It is not a major issue, but there is a potential for conflict. Perhaps the Minister could take us through the logic behind the reason for amendments 282 and 284, because they seem to be going in opposite directions, and address the other two issues that I have raised.

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

The measure does not apply to Ministers. I certainly did not have Ministers in mind. We were thinking about people, such as planning inspectors, who exercise judicial functions but who are not judges as such. It has never been our policy intent to have judicial functions in the Bill.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I am sorry that I had to leave the Committee for a moment. Just to be clear, is the Solicitor-General saying that Ministers never exercise quasi-judicial functions, that they might do or that, if they do, they are not covered by this kind of provision?

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

Ministers are covered when they make decisions on various kinds of development. I did not have it in mind that the exemption would cover Ministers, but we will write to all parties and clarify that point.

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

I just want to be clear. Ministers are explicitly set out in schedule 19 as being subject to the public sector equality duty. The example that I gave was in the planning case. The Solicitor-General just confirmed that the exemption would apply to a planning inspector, but the planning inspector will make their report to the Secretary of State, who will then make a decision in a quasi-judicial capacity. As in my example of the UK Border Agency and the Asylum and Immigration Tribunal,  different bodies will make decisions. The AIT will operate in a judicial capacity and the Minister in a quasi-judicial capacity, and they will have a different set of duties to the subordinate body. It just seems to be rather messy, and we could end up with some court cases. The Solicitor-General knows how controversial planning decisions can get, so it strikes me that it would be better to be very clear about this. If the planning inspector does not have to follow the public sector equality duty in quasi-judicial cases, neither should the Minister.

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

That sounds like a sensible conclusion to draw from the argument. We will write to the parties on whether Ministers will be exempted when exercising that role. There will not necessarily be an incompatibility between the UK Border Agency, for example, or the police and the judicial functions that follow them. They are different kinds of agency. The UKBA makes a decision that is not part of the judicial function, and if there is an appeal, it goes to a judicial body. Likewise, the police make a decision about whether to charge somebody in a non-judicial way and the matter then goes to court. The judicial function is exempt from the Bill in a way that the police are not. That is not a real issue, but we will write about whether Ministers are quasi-judicial.

I think that the hon. Gentleman was making another substantive point about whether we will go in opposite directions by excluding judicial functions for all purposes and bringing in a prosecution function. We do not think that we are doing that, although it is an oversight that we have not dealt with the matter before. We now wish fully to exclude judicial functions from the duty for all purposes. That is about the exercise of actual judicial functions. The measure is not, for instance, about HM Courts Service, the Ministry of Justice or administrative support to the courts; it is about purely judicial functions. The courts will have to have regard to the equality duty even when carrying out the instructions of a judge, but the judge will not.

On amendment 284, the policy is that the prosecution functions of the Crown Prosecution Service and the Serious Fraud Office should be subject to the requirements of the equality duty in the same way as other functions. They are included in schedule 19, so their decisions to prosecute will be subject to the requirements of the duty. However, paragraph 3(3)(f) of schedule 18 will disapply the equality duty to organisations other than public authorities exercising public functions in respect of decisions on whether to institute criminal proceedings. For safety’s sake, that will have caught any organisation not listed in schedule 19 that from time to time might exercise public functions in respect of decisions on whether to prosecute. We do not think that that is necessary, and we cannot think of any body like that anyway.

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

If I am clear about the matter, amendment 282 on the wider exclusion of judicial functions will correct an oversight. Amendment 284 will effectively reapply the duty to those who make prosecuting decisions. Is that an oversight or is that changing something because somebody has thought again? Does the measure effectively mean that, in relation to the test already applied by pretty much all of those who make prosecution decisions about the likelihood of success, the public interest test that is already used will be widened to cover  the public sector equality duty? I am thinking specifically about the area with which I am most familiar: the CPS’s decision to make prosecuting decisions in cases of hate crime. When making decisions in those cases, will the CPS effectively set the bar lower because of the need to advance equality? I am thinking particularly of hate crimes against disabled people.

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

The CPS already has that duty, of course, because it is already subject to the public sector duties that currently exist. The measure is not a change in policy towards the main prosecuting bodies. Paragraph 3(3)(f) of schedule 18 will disapply the equality duty for a community of people whom we now do not think need the exception at all, because we cannot think who would be involved. The measure will disapply the equality duty for persons who are not public authorities, but who exercise public functions in respect of decisions on whether to institute criminal proceedings. However, we cannot think of a body that is not a public authority that would, none the less, carry out the public function of prosecuting. The measure was left in the Bill when it probably should not have been, but it is not a change of policy. The CPS remains covered; the judiciary for pretty obvious reasons do not. In a nutshell, I hope that that is sufficient to deal with the hon. Gentleman’s concerns.

Amendment 282 agreed to.

Photo of Evan Harris Evan Harris Shadow Science Minister 5:45 pm, 30th June 2009

I beg to move amendment 300, in schedule 18, page 216, leave out line 25.

This amendment removes the exemption for the General Synod of the Church of England from the duty in section 143(2).

My amendment was tabled in response to one tabled earlier by the hon. Member for Glasgow, East, which we debated previously, that sought to un-exempt all the law-making bodies, except the Church of England, and remove them from the schedule. I thought that it was only fair that the Church should not be discriminated against and that this matter should be debated. I accept that it is a rather rhetorical point and that it was meant for the hon. Gentleman, so I do not expect the Minister to bother responding to it, because I guess that what she said in respect of lines 21 to 24 would apply. However, I should like to make an extra point.

The Church of England is different, because we have an established religion. Therefore, in my view, anything that it does as a religion that is discriminatory it is entitled to do. It is its own business if it does not want to have women priests or bishops or gay priests or whatever. However, that becomes our business, because the established nature of the Church means that our country, and this institution, is associated with the policies of the Church and many people, including many in the Church of England, do not find it satisfactory that there is essentially a homophobic Church of England and General Synod. Despite the many virtues of many of its policies relating to development aid and so forth, it is still, essentially, endorsing a homophobic position. That is either the Church of England’s business, because it is its own religion, or it is our business because it is the established Church and we are associated with it. The best example of this is in the House of Lords, where seats in our legislature are reserved for heterosexual, white—

Photo of Ann Winterton Ann Winterton Conservative, Congleton

Order. The hon. Gentleman is going slightly astray. This is not about the House of Lords; it is about the Synod.

Photo of Evan Harris Evan Harris Shadow Science Minister

I will seek to stay in order, Lady Winterton. My point was that without the duty applying to the General Synod, we end up in a situation where our society is male-only in respect of bishops in the House of Lords and heterosexual-only, which raises the question of whether there is a basis for the General Synod’s being exempted from this duty. However, I accept that I have gone wider than that point and I apologise for doing so.

I do not expect much of a reply—just an explanation as to why the General Synod is treated in the same as the House of Commons.

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

Most of the functions of the General Synod are private, so they would not be subject to the requirements of the duty at all. However, it can pass measures that, if approved by each House of Parliament and given Royal Assent, have the same force and effect as Acts of Parliament. So there are sound constitutional reasons why legislative bodies should not be subject to the requirements of the duty. That is why we keep them out of it.

Photo of Evan Harris Evan Harris Shadow Science Minister

I thank the Minister and 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 192, in schedule 18, page 216, line 31, at end insert—

‘(j) persons involved in the commissioning, content and broadcast of programmes.’.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss amendment 193, in schedule 18, page 216, line 44, at end insert—

‘(g) a function in connection with the commissioning, content and broadcast of programmes.’.

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

The amendments relate to whether the Bill will affect those involved in broadcasting. Committee members will have had a brief from the BBC, Channel 4 and S4C outlining their concerns about whether they will be caught under the Bill’s provisions. They have made it clear that they are committed to equality of opportunity and diversity and they recognise that, despite the progress they have made, they need to do more. They also mention the diversity pledge they have made, which is a commitment by broadcasters, independent production companies, in-house producers and suppliers to introduce measurable steps to improve diversity.

BBC, Channel 4 and S4C have said that the Bill aims to streamline the law and strengthen equality legislation, that it talks about the public sector equality duty and that it is about the positive duty to promote equality, which will apply to all their functions, unless some are specifically excluded. They are concerned that the Bill will result in inappropriate interference with their editorial independence, thereby having a negative effect on the range and depth of their programming—from news and current affairs to drama—and limiting their ability to make challenging content. They have made it clear to Government that functions relating to the commissioning, content and broadcasting of programmes and other  output should be excluded from the positive duty to promote equality and from the non-discrimination provisions.

Broadly speaking, that is what amendments 192 and 193 would do—at least, I think so. Amendment 192 would amend schedule 18, adding to the list of persons exempted from the public sector equality duty those

“involved in the commissioning, content and broadcast of programmes.”

Amendment 193 would amend the same schedule, adding to the list of functions that are exempted from that duty

“a function in connection with the commissioning, content and broadcast of programmes.”

The three broadcasting organisations have explained why this issue matters. They think that if the Bill applied to their content, they would effectively have complaints brought against their programming via the EHRC. That would create for them what they call double jeopardy, because they think those issues are already dealt with by existing broadcasting regulators: Ofcom and the BBC Trust.

The broadcasting organisations suggested two main types of action that might be brought: an action by a member of the audience who objects to a particular aspect of output as discriminatory; or an action by a person who has a closer relationship with the broadcaster—for example, a participant in a show, the subject of a documentary or an interviewee. Examples they have given in the brief include a claim of race discrimination on the basis that, over a period of time, their dramas featured too few non-white people; a claim that they were showing a film that was thought offensive to a particular group; a claim of sex discrimination on the basis that a programme was degrading to women; and a claim of indirect discrimination, in that output generally contained a disproportionate amount of material offensive to a religious group. They said that some of those complaints would not succeed, but even so, just dealing with them would have an impact on time and resources. They also said that it would have an inevitable chilling effect on the creative process.

The broadcasting organisations made the point that if people do not like the content of their programmes, they can already complain via Ofcom or the BBC Trust, and that in the Communications Act 2003 Parliament decided that the process involving Ofcom or the BBC Trust was best placed to supervise and make judgments about programme content and balance. The organisations want the Government to make it clear that they do not intend that functions relating to the commissioning, content and broadcasting of programmes and other output should be covered by the Bill’s proposed duty to promote equality or its non-discrimination provisions.

I asked the Secretary of State for Culture, Media and Sport what

“discussions he has had with the Minister for Women and Equality on the likely effects of the provisions of the Equality Bill on the commissioning, content and broadcast of television and radio programmes.”

In a written answer that I received on 9 June, he replied:

“Officials from my Department and from the Government Equalities Office have had detailed discussions about any effect that the Equality Bill may have on the commissioning, content  and broadcast of television and radio programmes. The Government policy is that the new equality duty should not apply to the commissioning, content and broadcast of programmes.”—[Official Report, 9 June 2009; Vol. 493, c. 824-5W.]

From my point of view, that is a helpful answer. That may be what the Government intend, but I reread the Bill and the schedule, having received that assurance, and I am not entirely clear that the Bill does what Government policy wants it to do. Given that the Secretary of State has set out what Government policy is, is the Minister comfortable that the clause and schedule as drafted adequately deliver that intention? Alternatively, can the Bill be improved, either by my two amendments—accepting that they themselves may be improved—or by tabling alternative Government amendments on Report to ensure that the Bill delivers that policy intention? That is what I am looking for from the Minister.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I rise briefly in support of my hon. Friend. It is appropriate to remind the Committee that I am a vice-chairman of the all-party BBC group, although that is not material to the comments I shall make.

I want to begin by reinforcing what has already been said. Of course, the BBC, to some extent exceptionally among public service broadcasters, is in effect a taxation authority, through its operation of the licence fee, for a very substantial sum—just under £3 billion annually. Indeed, in our earlier exchanges about Ministers exercising quasi-judicial functions and the Solicitor-General’s assurance that the Government thought they had covered the coterie of potential prosecutors, I was almost tempted to say that the BBC prosecutes for failures to pay the licence fee. It is the nearest to a public sector body that might have been covered by the discussion. Without commenting further, she might reflect on that before she responds. There is no doubt that the BBC, unless and until the arrangements for public service broadcasting are changed—they are controversial, as she will know—has a public function.

My second point—occasionally people can wax lyrical and seek to extend protection into areas where it is not appropriate—is that the BBC is an employer. Many of the functions it discharges are, as I understand it, quite properly within the remit of the Bill. I see the Solicitor-General nodding. I do not have a problem with that, and I understand that the BBC also does not have a problem with it. However, the point that my hon. Friend rightly homed in on—the integrity of editorial independence—is serious because clearly, nobody wants to claim that their editorial independence has been subverted, and provisions are already in place for regulation and receiving complaints. I cannot see a strong case for seeking to intervene in such things through the Bill when provision is made elsewhere.

None of that is to say, and nobody is saying, that the BBC and other media or public service broadcasters are walking away from the discrimination pledge. If I recall correctly, I was there when Mark Thompson, who was then leading Channel 4 rather than the BBC, led on the pledge. It is quite right that we should have it. The issue is simply the form in which any disputes are resolved, and I think my hon. Friend has performed a service to the Committee in the researches he has done, and by receiving assurances from the Department for Culture, Media and Sport. I hope that he will receive assurances from the Solicitor-General now.

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

Our intention is exactly as set out by the Secretary of State for Culture, Media and Sport. We have also written to the director general of the BBC, but let me again make it crystal clear that we have no intention of encroaching on the independence of public service broadcasters. The duty will not apply to the broadcasting and output functions of the public sector—public service broadcasters, whose editorial independence we are committed to retaining.

We will therefore list the BBC, Channel 4 and S4C in schedule 19 when we amend it to put the rest of the list in. When we do so, we will explicitly exclude their broadcast and output functions, which will make the situation clear beyond peradventure. As was said, they need to be in schedule 19 because they have other functions that it is entirely appropriate to cover by the equality duty.

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

I am grateful to the Minister—that is what I was seeking. She rightly says that the broadcasters do not resile from the fact that the duty should apply to other aspects of their role, such as employment. That is why the amendment was focused specifically on “commissioning, content and broadcast”. Given her assurance about what the Government are going to do to make it explicit that the duty applies to broadcasters in general but not to those particular functions, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 6:00 pm, 30th June 2009

I beg to move amendment 278, in schedule 18, page 216, line 34, at end insert—

‘(aa) a function in connection with membership of the House of Commons;’.

I hope to make some remarks that might have been included in a stand part debate and to address the exclusion of the House of Commons from the public sector equality duty. My probing amendment would provide a safeguard. It allows me to raise the exclusion of a Member of Parliament who has been sectioned from membership of the House of Commons under section 141 of the Mental Health Act 1983. I tabled a new clause on the matter, but I will not dwell on that because it was not selected for debate.

I want to consider what would happen if the public sector equality duty was applied to membership of the House of Commons. It states that bodies should eliminate discrimination and “advance equality of opportunity” between persons who share a relevant protected characteristic and persons who do not. In relation to membership of the House of Commons, that would mean that Members of Parliament who had mental health problems should be treated in the same way as those who had a physical medical condition, but that simply is not the case at the moment.

If a Member of Parliament has a physical problem that prevents them from carrying out their duties, such as suffering severely from cancer, there is no legal way of excluding them from membership of this House. By and large, satisfactory arrangements have been put in place when Members have been physically unable to participate in their duties, such as Members from neighbouring constituencies taking up constituents’ cases and tabling questions, and their membership of this  House has continued. However, the seat of a Member of Parliament who has a mental health problem can be vacated under section 141 of the 1983 Act if they are sectioned for a six-month period and a report is laid before the House. If the public sector equality duty applied to the membership of the House, that would not be allowed to stand.

I think that the Minister was in the Chamber when I raised this issue during last week’s Prime Minister’s Question Time. I mentioned that Alastair Campbell had talked about the specific issue when giving evidence to the Speaker’s Conference on parliamentary representation, which is considering how to make Parliament more representative and diverse. He has great experience of dealing with this issue and he stated that this would be a clear way of changing the law. What he said fits well with the public sector equality duty.

When I asked the Prime Minister whether he would change the provision in the 1983 Act, he said:

“Mental health is a serious problem and we should look at it with great care before we make any decisions, but of course I will look at what the hon. Gentleman says. I think he will understand that it needs the greatest of care.”—[Official Report, 24 June 2009; Vol. 494, c. 793.]

It certainly does. Will the Minister commit to consider this issue with a view to returning to it, preferably with amendments, on Report? It would be better if we dealt with this matter in the House of Commons because that is the body that is affected. However, it would be better to do it in the House of Lords than not do it at all.

The reasons behind the proposal are straightforward. I have never been one for reading out great chunks of “Erskine May” and I will not start now, but I will read a small section:

“Mental illness is a disqualification at common law. There is also, under section 141 of the Mental Health Act 1983...a statutory procedure for vacating the seat of a sitting Member of unsound mind.”

That relates only to those of unsound mind. It does not mention those who are physically ill, and that is the discriminatory nature of the current law. Given the way in which the process works, there is not even a requirement for somebody to assess whether the Member of Parliament is capable of doing their job. If an MP has been authorised to be detained, the Speaker would be notified. If, after six months, the specialists report that the MP is suffering from mental illness, and they are authorised to be detained again, their seat automatically becomes vacant. That seems to be discriminatory, and a number of organisations agree. The Royal College of Psychiatrists thinks that it is a discriminatory provision that gives the false impression that an MP cannot recover from a mental disorder. It also makes the point, which was raised by Alastair Campbell, that the provision has never been used. Nevertheless, it stated that it was

“a totemic piece of law, which ensures that discrimination exists at the heart of our democracy” and it would like it to be removed.

What would happen if the public sector equality duty applied to the House of Commons specifically with regard to membership? If we think back to one of the previous clauses, we specifically tackled legislation that applied to political candidates, and there are provisions  in the Bill for widening the diversity of candidates with regard to gender. If the Bill as a whole were applied to disability, and mental health specifically, that provision would have to go.

The Royal College of Psychiatrists welcomed the fact that I raised that issue last week during Prime Minister’s questions. It said that my amendment to the Equality Bill presented a

“significant opportunity for MPs to demonstrate to the outside world that discrimination against mental health has no place in parliament.”

As I have said, this is a probing amendment and I would like the Minister to take it away, look at it and come back, perhaps with a more elegantly drafted solution. Rethink, a mental health charity, pointed out that there is no such provision for physical illnesses. It said that mental illnesses and physical illnesses were both common and that people could recover from them and lead a full and meaningful life, and so should be treated in exactly the same way. Rethink supports a move to change the law and RADAR, the disability organisation, has welcomed the raising of this issue, as well as the change that would be implemented. There is a clear support for the proposal.

The final piece of evidence that I wish to cite comes from a report on mental health in Parliament carried out by the all-party parliamentary group on mental health. It was based on responses to a questionnaire that was sent out in February 2008 to all MPs in the Commons, all eligible Members of the Lords, and staff members. There were responses from 94 Members of Parliament, 100 Peers and 151 staff members—a pretty good response rate—and there were very clear findings. Of those who responded, 94 per cent. had friends or family who had experienced a mental health problem. That number was significantly higher than that found from a similar poll of the general public. One in five MPs who responded—they did not need to identify themselves—had some personal experience of a mental health problem, and two thirds thought that the fact that an MP would automatically lose their seat if sectioned under the Mental Health Act was wrong.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

Order. I remind the hon. Gentleman that he must stick to the subject of his amendment and not go too wide. I have allowed him some rein, but I must reign him in now.

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

I am grateful for your guidance, Lady Winterton. I will finish off narrowly.

Those statistics are clear, and I think that people have got the message. This is an opportunity for the Minister to go away and look at this issue—as the Prime Minister promised that he would do last week—and come back to it on Report, if she thinks that there is something worth moving on. That would get support from not only Committee members, but from across the House and from the public.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I assure the Committee that I do not intend to speak at length. I do not guarantee that I will always support my hon. Friend, but I have great pleasure in doing so on this occasion.

My first recollection of this place is being invited to have lunch here in 1959 by the then Clerk, because of school connections. For the record, he had joined this  place in 1924, so the link is a fairly long one. I remember listening to the debate on the Mental Health (Scotland) Bill. I will just make the point to the Solicitor-General that we are not many years out of the world of using “lunatics”, “persons of unsound mind” and all the other deeply derogatory phrases that we were prepared to entertain in legislation, as well as in substance, for our treatment of persons with a mental health problem. As my hon. Friend said under your tutelage, Lady Winterton, the matter has been one of great concern to the all-party group on mental health. It is a matter of record that the problem has been identified as substantial among our numbers as well as in the population more generally.

My basic support for this is on the stigma issue, but my secondary support relates to the question of what will happen in public policy. One danger is that if a Member has a sufficiently serious mental health problem—one that could result in a loss of livelihood, or the threat of a loss of livelihood—they might not seek or take help as they should, thus aggravating their problems, meaning that they are unable to resolve them, whereas they might have been able to do so if they had been attended to in good time.

My third concern is the potential for discrimination, which is more than purely formal. If we understand the importance of attending to physical disabilities—people with physical disabilities have, or should have, opportunities here—we should equally be prepared to deal with mental health issues as well.

My final concern—I look at the Annunciator as I say this—is that the provisions interact with the legislation on parliamentary standards and our conduct that is going through this place. Although I know that the Government, on reflection, have made some concessions on the matter, and I think that we should debate that Bill in its context and this Bill in this context, the Minister might well want to reflect on the fact that there is an interaction with whatever a standards authority might want to say about the fitness of persons to serve in this place and expectations.

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

My hon. Friend makes a good point. The body that will be set up by the Parliamentary Standards Bill does not yet exist, so clearly it has not been put into this Bill, but it would be interesting for the Minister, when she responds to this debate, to touch on whether the Parliamentary Standards Authority would be captured by the Bill, whether the public sector equality duty would apply to it, and whether that would have any bearing on my hon. Friend’s comments.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I am grateful to my hon. Friend. My concern is with the individual Member of Parliament and whether they would be disciplinable under the Parliamentary Standards Bill or sanctionable through the mental health provision. However equally, as my hon. Friend said, the Parliamentary Standards Authority will clearly be a public body discharging public functions and will, prima facie, be embraced by this Bill’s obligations, notwithstanding the fact that Parliament is probably seeking to exempt itself. There is a lot to think about. The amendment is looking not for trouble, but for a sensitive and more enlightened approach to how those difficult issues can be resolved.

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

We were trying to work out what amendment 278 was for. Not unsurprisingly, we did not. Although the hon. Member for Forest of Dean clearly pinpoints an issue that looks, on the face of it, like discrimination between one kind of disability and another, that is the law, because Parliament has decided that it is so. The equality duty will operate only within the law, so even if it were applied to Parliament, it would not trump the law and get around section 141 of the 1983 Act. The way to deal with the problem is not to apply the equality duty to something that it cannot reach, but to look at repealing section 141, which others are reflecting on, partly in response to the hon. Gentleman’s question.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 6:15 pm, 30th June 2009

To help the Minister, I am aware that that is how to do it. I attempted to draft such a clause, but it was not selected. The amendment was a convoluted way of getting the discussion to happen, which we have managed. That was the objective. I am aware of the appropriate solution, which is working out how to get that into law—changing the law so that that is the objective achieved. We shall not be relying on the public sector equality duty.

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

As I say, other people are thinking about a way forward, now that the issue has been drawn into public focus. I invite the hon. Gentleman to withdraw the amendment on the basis that this is not the right place.

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

Your admonitions earlier in the debate and my new clause not being selected, Lady Winterton, suggest that the Bill is not the correct vehicle for bringing about that change, despite it promoting equality of opportunity for those with mental health problems and other disabilities. Given the Minister’s assurances, following the issue being raised by me at Prime Minister’s questions and by others a number of times, that other Ministers are looking at it, I am happy for the time being and, therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 283, in schedule 18, page 216, line 40, leave out paragraphs (d) and (e).

This amendment is consequential on amendment 282.

284, in schedule 18, page 216, line 43, leave out paragraph (f).

This amendment would remove from the exceptions to the duty imposed by clause 143 on persons other than public authorities who exercise public functions, an exception for decisions to prosecute; accordingly, the duties imposed by clause 143 on public authorities, and others exercising public functions, will apply to such decisions.

285, in schedule 18, page 216, line 45, leave out sub-paragraph (4).—(The Solicitor-General.)

This amendment is consequential on amendment 282.

Schedule 18, as amended, agreed to.

Clause 144 ordered to stand part of the Bill.