Equality Bill [Lords]

---

 
Column Number: 229
 

 
Column Number: 231
 

Standing Committee A

Thursday 8 December 2005

(Morning)

The Committee consisted of the following Members:

Chairmen: †Mr. Roger Gale, Janet Anderson

†Baird, Vera (Redcar) (Lab)

†Barlow, Ms Celia (Hove) (Lab)

Blackman, Liz (Erewash) (Lab)

†Brokenshire, James (Hornchurch) (Con)

†Brown, Lyn (West Ham) (Lab)

Campbell, Mr. Gregory (East Londonderry) (DUP)

†Dhanda, Mr. Parmjit (Gloucester) (Lab)

†Evennett, Mr. David (Bexleyheath and Crayford) (Con)

†Follett, Barbara (Stevenage) (Lab)

†Gidley, Sandra (Romsey) (LD)

Goggins, Paul (Parliamentary Under-Secretary of State for the Home Department)

†Grieve, Mr. Dominic (Beaconsfield) (Con)

†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)

†James, Mrs. Siân C. (Swansea, East) (Lab)

Laing, Mrs. Eleanor (Epping Forest) (Con)

†McCarthy-Fry, Sarah (Portsmouth, North) (Lab)

Miller, Mrs. Maria (Basingstoke) (Con)

†Munn, Meg (Parliamentary Under-Secretary of State for Trade and Industry)

†Seabeck, Alison (Plymouth, Devonport) (Lab)

†Ussher, Kitty (Burnley) (Lab)

†Williams, Hywel (Caernarfon) (PC)

Geoffrey Farrar, Emily Commander, Committee Clerks

†attended the Committee

[Janet Anderson in the Chair]

Equality Bill [Lords]

Clause 80

Regulations

8.55 am

Mr. Dominic Grieve (Beaconsfield) (Con): I beg to move amendment No. 162, in clause 80, page 45, line 40, leave out 'or harassment'.

The Chairman: With this it will be convenient to discuss amendment No. 163, in clause 80, page 46, line 4, leave out sub-paragraph (c).

Mr. Grieve: We now come to part of the Bill that is not controversial in its intention but, I regret to say, is extremely controversial in terms of the way in which the Government have decided to implement it. Although we are mindful of the Government's problems, the introduction of complex legislation relating to discrimination on the grounds of sexual orientation on the basis of providing one paragraph of vague guidelines to bring in subsequent regulations is profoundly unsatisfactory. The Minister for Women and Equality will have noted last week's debates on religious discrimination; she will know that important issues needed to be considered then and that we are, in effect, to be deprived of the opportunity of doing that now.

The general problem with regulations, as and when they are brought in, is that there is no possibility of amendment and thus no opportunity to improve them. I know that the Government intend to consult widely before any regulations are introduced, but I am sure that the Minister will be the first to agree that, even after lengthy consultation, it sometimes happens that someone in Committee either here or in another place has an idea that commends itself even to the Government. On that basis—at the risk of repeating what was said on Second Reading—I must register my considerable concern at the manner in which we are proceeding. We do not want to send out a signal that we are not interested in discrimination on the grounds of sexual orientation. We support what the Government are trying to achieve. All we can do—short of considering on Report whether the clause should be in the Bill at all in its present form—is examine the detail this morning to see whether the framework can be improved.

Amendment No. 162 relates to harassment. Given that in another place harassment was removed from the part dealing with discrimination on grounds of religion or belief, what should be done with the clause? The Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), will appreciate our anxiety. There could be a logical argument for saying that harassment should be included in the regulations. Indeed, the hon. Gentleman said that he might return
 
Column Number: 232
 
to harassment in religious discrimination, after the publication of the report that the Government have commissioned.

The difficulty is that, if we leave the provision in its present form, it will be impossible to remove harassment unless the Government voluntarily decide to do so. My view is that if harassment is not considered suitable to be included in the legislative framework for religion, there are compelling grounds to leave it out in respect of sexual orientation. I should be grateful to hear the response of the Minister for Women and Equality on that point. The hon. Lady will have noted that amendment No. 160 would ensure that the regulations are of a more prescriptive nature. The merit of our persuading the Government to accept the amendment is that we would have proper definitions. The amendment would also ensure that harassment had subsequently to be included in the regulations.

For those reasons, I ask the Minister to explain why harassment has been kept in for sexual orientation, but removed for religion. I ask her also to explain to the Committee, in perhaps a bit more detail than was possible on Second Reading, how the Government intend to proceed generally in dealing with the regulatory framework, given that Parliament will not have the opportunity to consider it in detail.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): This appears to be a time for a general discussion of the clause, so I shall first say a few words about its genesis.

The Minister and Committee members will know that my party has long argued for equality on the basis of sexual orientation of the sort that we are discussing—indeed, the first time that we made a serious attempt to achieve that was when my noble Friend Lord Lester introduced an Equality Bill in the House of Lords a number of years ago. It was extremely disappointing that the Government did not take that opportunity to bring in that sort of equality—that is, to end discrimination on the grounds of sexual orientation in the provision of goods and services. Ending that discrimination has been in our manifesto on a number of occasions and there is no doubt that the Government have similar intentions. Labour's 1997 manifesto said—

The Chairman: Order. If the hon. Gentleman intends to speak on the general nature of the clause, he may prefer to do so on clause stand part, because I have had an indication that another Member would like to contribute on clause stand part. It is entirely up to the hon. Gentleman; he is at liberty to carry on now, if he wishes.

Dr. Harris: I am grateful to you for giving me the options of carrying on or not, Mrs. Anderson. I will carry on, and therefore limit my remarks on clause stand part. I have started, so I will finish, so to speak. I have tabled no amendments to the clause.

In the 1997 Labour manifesto, there was a commitment to end unfair discrimination wherever it existed. There is no doubt that the Government agree that the sort of discrimination faced by gays and lesbian in the provision of goods and services exists
 
Column Number: 233
 
and is unfair. One has to ask why, three manifestos and eight years on, we are still trying to get legislation on to the statute book. It is a big disappointment, not only to me but to Members of all parties, that we are still in this situation; it certainly is to the community of people who face that type of discrimination.

We read about cases of such discrimination regularly, and it almost certainly occurs far more widely than we read about, because victims are not necessarily always in a position to, or willing to, complain. We are talking about the sort of discrimination that leads to the atrocities—there is no other word for them—that we read about in which, tragically, people are killed on the basis of their sexual orientation, as courts have found. We know that there is a great deal of queer-bashing, too. The fact that it is still lawful to discriminate in the provision of goods and services on the basis of sexual orientation at least eight years after that should have ended, given what politicians have said, leads to an atmosphere in which queer-bashing and hate crimes can take place.

The Government decided that they were going to end discrimination and make unlawful any unreasonable and unfair discrimination on the grounds of religion or belief. The Bill presented an opportunity to do the same in respect of sexual orientation There is no doubt that discrimination on those grounds is just as acute, widespread and damaging to the fabric of our society, and just as hurtful to the victims. It was extremely disappointing that the Government chose not to take the opportunity of the Bill to do that, especially as they had decided, rightly, to tackle the problem in respect of religious discrimination.

The problem is the creation of hierarchies. The Government are not directly responsible for the discrimination that people face, but they appear to be creating a hierarchy of victims of discrimination, and that is provocative and deeply disappointing. That is why Lord Alli and others rightly proposed amendments to ensure that the same provisions apply to discrimination on the grounds of sexual orientation. My hon. Friend the Member for Romsey (Sandra Gidley) made those points on Second Reading and they have also been mentioned in the House of Lords. It was disappointing that the Government resisted those amendments. Instead, they have compromised and included a clause giving regulation-making powers.

In so far as that is better than nothing, as Lord Lester said in the House of Lords, it is welcome compared with the previous position, although it is a second-best option, or a third-best option given that we have had other opportunities to make provision. Nevertheless, we should welcome it in those terms. However, it raises the sort of problems that the hon. Member for Beaconsfield (Mr. Grieve) mentioned in that the regulations will not be subject to amendment and scrutiny, as is possible during Committee and other stages of primary legislation. It would be helpful if the Minister gave some assurances so we know what to expect at a later date.

On harassment, the hon. Member for Beaconsfield made, as usual, an interesting and important point on
 
Column Number: 234
 
whether the timing of the Bill will ensure that harassment provisions are not controversial. No one wants to see harassment in the criminal sense, or in the sense of the general tort, against people because of their sexual orientation. However, there is a balance to be struck with free speech, which is a difficult issue for a liberal to deal with. People with strong religious views may wish to express them and, while not they may not be discriminating in the provision of goods and services, that may be felt by some to be harassment. We have to ensure that we get the balance right. The balance goes further in respect of restricting free speech than it does in respect of religion, because people can argue about religion and it is natural that one religion will attack another. I do not think that an attack on someone's sexual orientation has the same value in free-speech terms, because sexual orientation is innate—something that someone is—rather like race and gender.

There are difficult issues to deal with in connection harassment and I hope that the Minister will offer to pre-consult Members of both Houses, rather than just produce draft regulations and have the usual consultation, and discuss with us how the Government propose to deal with that. The understanding is that the regulations will come into force at the same time as the religion or belief measures. Perhaps the Minister will clarify that. If that is so, it will be useful to know whether she envisages that happening before or after the outcome of the discrimination law review and whether that review has any relevance to the way in which harassment will be dealt with.

The definition of harassment will be important. I do not support the amendment, which I suspect is probing, but it raises issues about which we need reassurance.

I should also like to know how exceptions will be dealt with. I should be grateful if the Minister explained that, although not in detail, because that would be pre-empting the regulations. There is concern among those who are campaigning for equality for lesbians and gay men that the provisions for exceptions in subsection (3) will allow too many exceptions, particularly in those areas where we know that there is already discrimination. Clearly, some people who discriminate wish to discriminate; they will think that they have good reason to do so and they will seek exceptions. There will have to be objective justification for those exceptions in a way that the Government did not require when it came to some of the part 2 exceptions for religious organisations, religious charities and faith schools.

I would be grateful if the Minister assured us that the exceptions made in such regulations will be subject to objective justification and that there will be a high threshold for exceptions because of the distinction that I have urged her to consider between matters to do with religion and those to do with sexual orientation. One is a belief, the other is a part of who one is to a far greater extent. Subsection (3)(e) makes a clear reference part 2:

''whether or not of a kind similar to those provided for by Part 2 of this Act''.

 
Column Number: 235
 

That is indeed the question. Will the regulations be similar to those provided for by part 2 or will they be drawn more stringently?

I am conscious of that concern, which is held by Stonewall and others from the lesbian and gay community and those who support them, because in the employment regulations in respect of sexual orientation, where one would have thought that the threshold for exception would be higher because they deal with one's income, career and means of support, a broad exception was made for religious organisations. I consider it to be very broad, as did the trade unions, Stonewall and other such organisations. The exception is over-broad because it allows religious organisations to continue to discriminate either on the basis of doctrine or because significant offence would be caused to a significant number of the congregation of that religion. That is as high a test as that given in part 2, but even that was too broad and too low a threshold for the exceptions than that that should be warranted by this clause.

Since the Government clearly felt that they could allow people to point to doctrine or say that a significant number of their congregation would be offended if they continued to employ a gay person, does the Minister think that such exceptions are appropriate, civilised and likely to arise from part 3? It is an important point. The record of our debates will show that the matter was highly controversial. We would feel much less happy about giving regulation-making powers to the Government to provide exceptions like those in the employment regulations or anything broader. Although the clause is welcome compared with the original draft of the Bill, I hope that the Minister understands that there is great concern about the delay that has occurred and the hierarchy that has been created, and a worry that there will be over-broad exceptions for discrimination against people on the grounds of sexual orientation.

---

Prepared 8 December 2005