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Meg Munn: I thank the hon. Gentleman for creating the opportunity for the Committee to discuss the exemptions that apply to the intelligence agencies in the context of sex discrimination in the same way that we did when we discussed national security matters in the context of part 2 on Tuesday.
As the hon. Gentleman said, Amendments Nos. 164 to 167 would remove from clause 81 the exceptions provided in that clause for the Security Service, the Secret Intelligence Service, GCHQ and the parts of the armed forces that assist GCHQ in accordance with the requirement of the Secretary of State.
The amendments would make it unlawful for the intelligence agencies, as we may collectively call them, to commit any act in exercising their functions that would constitute discrimination or harassment. In the light of Tuesday's debate, and from what the hon. Gentleman has just said, I understand that he wants me to set out the rationale for exempting the intelligence agencies from the prohibition on discrimination, the reason why the Government believe that the exemption should remain, and why we cannot accept his amendments.
When we considered the policy on sex discrimination in public functions and any exceptions to it, we paid close attention to all the relevant issues when we developed the exceptions provided for in new section 21A of the Sex Discrimination Act 1975. We considered the specific circumstances of sex discrimination and the exceptions to the comparable provisions relating to discrimination in public functions in the Race Relations Act 1976 and the Disability Discrimination Act 1995. It is not surprising that many of the exceptions that we have provided mirror those in the race and disability prohibitions, as there are obvious reasons for consistency. That includes the exceptions for certain bodies exempted for constitutional or national security reasons, such as Parliament and the security services.
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However, we did not simply slavishly roll forward the status quo into this legislation. Our view is that the exemption is justified. The intelligence agencies need to be as unfettered as possible in the discharge of their activities and responsibilities. We need to remove from them any uncertainty about whether they are falling foul of the discrimination requirements. There may be sound operational reasons for exercising their functions in respect of one sex or another. If they were not exempt, that might constitute unlawful discrimination, and that is simply not what we want to achieve. We do not want to apply such constraints to their operational autonomy, or cause uncertainty about whether they are breaching discrimination laws when conducting activities that have an overwhelming operational logic.
The hon. Gentleman made a fair point about an internal mechanism for dealing with the issue; I hope that he is content for me to write to him to reassure him and other Committee members about the processes. These days, we have to be especially vigilant about national security matters, as I am sure that all Committee members agree, and the
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arrangements for exclusion of the intelligence agencies from the prohibition on discrimination are proportionate to the need. I invite the hon. Gentleman to withdraw the amendment.
Mr. Grieve: I am grateful to the Minister for her response. I certainly look forward to her letter setting out the internal administrative procedures. I believe that there are some in place; indeed, at one level there is a system involving a senior High Court judge, to whom complaints about various kinds of impropriety by the security services can be brought internally. I rather assume, therefore, that there is also a complaints procedure for those who think that they are being unfairly discriminated against on any basis. It would be helpful for the Committee to know exactly how that works. Subject to that, I accept that there is some merit in what the Minister says, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Vera Baird (Redcar) (Lab): I beg to move amendment No. 139, in clause 81, page 48, leave out lines 30 and 31 and insert—
'The provision of separate services exclusively or primarily to members of one sex where justified by a legitimate aim and where the means of achieving that aim are appropriate and necessary.'.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 140, in clause 81, page 48, leave out lines 32 to 37 and insert—
'The maintenance or adoption of specific measures to prevent or compensate for disadvantages linked to sex, where justified by the aim of ensuring full equality in practice between men and women and where the means of achieving that aim are appropriate and necessary.'.
Amendment No. 141, in clause 81, page 49, leave out lines 1 to 16.
New clause 14—Sex discrimination exceptions for public authorities—
In the Sex Discrimination Act 1975 (c. 65) the following shall be inserted after section 34—
''35 Exceptions for Public Authorities
(1) Sections 29 (1) and 30 shall not be construed as rendering unlawful—
(a) the provision by public authority of the goods, facilities and services exclusively or primarily to members of one sex where justified by a legitimate aim and where the means of achieving that aim are appropriate and necessary; or
(b) the maintenance or adoption by a public authority of specific measures to prevent or compensate for disadvantages linked to sex, where justified by the aim of ensuring full equality in practice between men and women and where the means of achieving that aim are appropriate and necessary.
(2) In subsection (1), a 'public authority' includes any person certain of whose functions are functions of a public nature.''.'.
Vera Baird: The amendments and the new clause are an attempt to point to a solution to a problem in the clause. The amendments have a techie aspect to them, although the issues that they address are deep, so it will take me a moment to set out my point.
As my hon. Friend the Minister says, clause 81 puts new section 21A into the Sex Discrimination Act 1975. The new section outlaws sex discrimination in the discharge of public functions by a public authority or a private body. In effect, it reverses a House of Lords case, and it is new and very welcome.
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There are exceptions to the new duty not to discriminate, which are set out in subsection (9) of new section 21A. The ones that I am concerned about allow for the provision of single-sex services where they are appropriate; I am thinking of domestic violence refuges for men or women, single-sex swimming lessons, and that kind of thing. Of course, in parts 3 and 5 of the Sex Discrimination Act 1975 there is already a duty not to discriminate on the basis of sex in the delivery of public services such as education and health. There are exceptions to that older duty, too—again, to permit the delivery of single-sex services where they are appropriate. However, although new section 21A will outlaw sex discrimination in the delivery of public functions, and parts 3 and 5 of the Sex Discrimination Act 1975 outlaw sex discrimination in the delivery of public services, the exceptions in the two pieces of law are quite different in ways that will cause problems. Those in the old Act are much narrower than those in new section 21A. I share the view of the Equal Opportunities Commission, to which I am indebted, that the exceptions in new section 21A are too wide and could easily be abused to evade its legislative purpose.
Amendments Nos. 139 to 141 would therefore narrow those exceptions and make deletions as appropriate. They do that by substituting a much more stringent test for the justification of single-sex provision. They refer to the definition in the 2004 European directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services. The directive does not include the wide exceptions in new section 21A, but takes a principled approach to exceptions to the duty against sex discrimination. It bases those exceptions on the very good principle of proportionality, under which separate services are
''justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.''
That is language with which lawyers who contend in human rights and equal rights areas are very familiar. That proportionality test is clear and is one of principle.
In any event, the equal treatment directive, which provides the test in my amendments, comes into force in the UK in December 2007. If the wide tests in new section 21A remain, they will, at the very least, have to be interpreted in the light of the new directive from December 2007. One will have the wide tests in the new section for six months and then the narrower tests controlled by the directive. That does not seem to be the right way to go about setting up a new duty against discrimination and recording exceptions to it.
If amendments Nos. 139 to 141 were accepted, they would narrow the extent of the exceptions to the new public duty in new clause 21A. However, they would leave untouched the exceptions to the duty in the 1975 Act not to discriminate, which are very different from the exceptions in the new section and the equal treatment directive. Consequently, new clause 14 would also include in the 1975 Act the tests for exceptions from the directive. As a result, the exceptions to the duty in new section 21A and in
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parts 3 and 5 of the Sex Discrimination Act would be narrower and the same as each other. Again, that is linked to the principle of proportionality—I did warn the Committee that this issue had its techier aspects. However, the import of the amendments is to narrow the exceptions to the new duty not to discriminate and to make them the same as the old duty not to discriminate. That is what this is all about.
Why do that? If we are introducing duties not to discriminate, it is rational to ensure that the exceptions are the same. The accident that the policy has changed in the 25 years between the first Act and the second—so there are different exceptions—does not help when trying to set down the law, which needs to be clear.
There is no reason why there should be different tests. The duty not to discriminate on the grounds of sex in the 1975 Act applies to the delivery of public service across the board, including education and health, which is a wide area. The duty not to discriminate in the performance of a public function, which would be included by the new section, is a much narrower provision in terms of reach, but there is no reason why the exceptions should be different.
Although I said that one is a narrow area of activity and the other is a broad area of public activity, it is not clear which duties placed on public authorities will fall within which provision. For instance, if we consider a typical argument for an exception to the duty not to discriminate on the basis of gender, such as the provision of a domestic violence refuge, there is widespread agreement from a policy perspective that such places should be single sex, but individuals have attempted to challenge public authorities for not providing refuges for men when they provide refuges for women.
If the local authority provided a refuge, it would be delivering a public service, which would fall under the duty in the old Act and the exceptions would be those under that Act. If the local authority funded another organisation to set up a domestic violence refuge, it would not be acting under the old Act and relying on its exceptions, but would be acting under the new section and relying on the wider exceptions contained in it. So, if there were two identical domestic violence refuges funded in different ways, one might be a lawful exception and the other might not, because the exceptions are different.
I hope that the example I have given makes the point that the two duties are alike, but they are not easy to separate. There is no rational reason why the exemptions should be different. The amendment attempts to narrow the exemptions, compatible with achieving the purpose of an end to discrimination on the basis of sex and bringing the two bits of legislation close together. I hope that I have managed to explain that, without sending everybody to sleep or confusing them hopelessly. Obviously, there is a techie aspect, but I am sure that the Minister can grasp that that is important when one is introducing new duties. The gender duty, which goes way beyond stopping discrimination and into the promotion of gender equality, will also be impacted on by the incompatibility of exceptions. That is the wrong way to introduce a new duty. The new duty has to be clear
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and everybody has to understand what is outside it, but with the current mismatch between the 1975 Act and the new proposal, that will not happen.
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