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Mrs. Laing: The hon. Gentleman has raised an important issue. I agree that there is a problem, and he explained it very well—I do not usually pay him that compliment. This issue has a long history. Many Committees and Governments of different political persuasions have examined it, but there is still a problem. The issue has not been properly tackled.
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There can be little doubt that discrimination exists. Some children whose parents choose for them to go to a denominational school have to travel further than they would if they did not go to such a school, so their school transport is paid for, while other children, who might live less than half a mile under the limit for receiving free school transport to a non-denominational school, are disadvantaged because they cannot benefit.
In my constituency, there is a suggestion that children who attend a school for children with special needs should not have their school transport paid for if their parents' income is above a very low threshold. It is right for there to be limitations on budgets. However, because of that—these matters always come back to taxpayers' money—children whose parents follow a particular religion and choose a particular school and type of education for their offspring, which they have every right to do, get a financial advantage over parents whose children have special needs. Those children might even need to be transported in a wheelchair or by another costly means, but they do not benefit.
I have no precise and perfect solution to this problem, and I am not certain that new clause 16 would solve it perfectly either, but it would open the way for discussion, and I am sure the Minister will appreciate that. Like the hon. Member for Oxford, West and Abingdon, I ask her to give the Committee an assurance that the Government are aware of the problem and intend to address it in the near future.
The Chairman: I cannot recall whether the Minister was present on Tuesday afternoon, but I know that the hon. Member for Beaconsfield (Mr. Grieve) was on the Front Bench when I ruled that we should discuss the matter of guidance. We had a considerable debate at that time. I appreciate that these are important issues that probably affect the constituents of every Member of Parliament. I ask the Minister to stick strictly to the matter of guidance, but if she wants to write to hon. Members on the broader issues, that is of course entirely a matter for her.
Meg Munn: I shall do my best, Mr. Gale. As has already been said, the Bill contains exemptions from the provisions on discrimination for local education authorities and public authorities on the grounds of religion or belief in relation to school transport. LEAs have a statutory requirement to provide free home-to-school transport for pupils who live a certain distance from their nearest school. They also have some scope to decide when transport is necessary in any other circumstances, and they consider each pupil's case on its merits, taking account of all relevant factors.
There is discretion, which means that LEAs often provide subsidised transport for pupils of a particular faith school that is outside the local area, although I stress that the discretion is not limited to transport to faith schools. LEAs may also—it is our clear belief that they should—provide subsidised transport to a non-faith school for a child whose parents are strongly opposed to their attending a faith school closer to
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home. The exception is needed to protect such special arrangements, whether they benefit those of a particular faith or those who for philosophical reasons seek an alternative to a faith school. I emphasise that LEAs can, and do, offer pupils free or subsidised transport in various circumstances.
The hon. Member for Oxford, West and Abingdon discussed this matter earlier this week, and I know that he understands the need for the transport exemption and has not sought to remove it. By seeking to require the Secretary of State to issue guidance on the provision of home-to-school transport—guidance that must have particular regard to the duty not to discriminate on the grounds of religion or belief, and to the duty on local authorities to carry out their functions relating to school transport with due regard to the Human Rights Act 1998—the hon. Gentleman is pointing it out that there is uncertainty about the provision of free school transport. I agree, and acknowledge that the home-to-school transport legislation is out of date. That is why we have included proposals to extend rights for home-to-school transport in the White Paper ''Higher Standards, Better Schools for All''.
The proposals will be included in the forthcoming School Transport Bill, and as a result of those proposals, the Secretary of State for Education and Skills will issue new guidance relating to the provision of home-to-school transport, a draft of which will be published alongside that Bill. The guidance should clarify the duties of LEAs with regard to the provision of school transport and their obligations to ensure fairness. I believe that that will be a more appropriate place in which to deal with the issues raised by the amendment.
Dr. Harris: I am listening carefully to the Minister, and I note her comment about an alternative way of issuing guidance. Will she ask her ministerial colleagues to ensure that that guidance is consulted on, that it is taken seriously and that the concerns expressed in Committee are passed on? Will they also ensure that the Select Committees that have expressed concern about the existing guidance get the chance to comment on an early draft of the new guidance to prevent more public authorities from disagreeing about its appropriateness? Perhaps that is one way in which to deal constructively with the matter of the guidance.
Meg Munn: I am a big fan of joined-up government, and I am certainly happy to pass on the hon. Gentleman's comments.
Kitty Ussher (Burnley) (Lab): I agree that the current guidance is quite confusing. I have a constituency case on which I would appreciate a response from the Minister, now or in writing, on what the current law would advise. A mother who is not Catholic but who nevertheless wanted her child to go to a Catholic school visited my surgery. She succeeded in her application, and so an atheist child attended a Catholic school. The school was some distance from her house and when she applied for free transport, the local education authority official told her that it would not be provided because she was not a Catholic parent. I believe that to be clearly wrong and discriminatory against that individual. Will the Minister say whether my assumption is right?
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The Chairman: Order. In the spirit of Christmas, I allowed the hon. Lady to ask her question, but I fear that the Minister will have to write to her with the answer.
Meg Munn: Indeed, I fear that it may be outside my competence to do so, but I shall certainly consider the matter.
The hon. Member for Oxford, West and Abingdon managed to interrupt me with slightly more than three words to go, as he tended to do to my hon. Friend the Under-Secretary. I hope that the hon. Gentleman is willing to withdraw the amendment.
Dr. Harris: I am willing to withdraw the amendment. I shall carefully consider the timings of the alternative approach. I was not sure whether the Minister meant that guidance would be produced under the Bill and that, in respect of school transport, it would refer to other guidance, or whether it is proposed first to enact the Bill, in which case there would still be a gap in respect of part 2 before the new guidance was formalised. Perhaps the Minister will write to me about the timing, as it is a legitimate point.
The hon. Member for Burnley (Kitty Ussher) raised a fascinating case. I do not propose giving a view on it because it is a complex matter. However, it underpins the need for clearer guidance, and I am sure that it is not the only case.
I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
The Chairman: Once again, I remind the Committee that on Thursday last, we had a considerable debate on clause 35. I therefore expect a fairly narrow debate on new clause 17.
New clause 17
DISCRIMINATION ON THE GROUNDS OF
GENDER REASSIGNMENT
'In section 2A (1) of the Sex Discrimination Act 1975 (discrimination on the grounds of gender reassignment) for paragraphs (b) and (c) substitute—
''(b) any provision of Part 3.''.'.—[Dr. Harris.]
Brought up, and read the First time.
Dr. Harris: I beg to move, That the clause be read a Second time.
I do not seek to explore the need to protect transgender people from discrimination in the provision of goods and services, because most of what needs to be said about it was said in previous debates. However, one point not raised previously concerns the Gender Recognition Act 2004. During the passage through the House of that legislation—I was a member of the Committee that considered it—the Joint Committee on Human Rights clearly indicated that it was appropriate for transgender people to be protected in connection with the provision of goods and services and other areas. The Joint Committee said that that Bill could usefully fill an omission, although the Government chose not to take that opportunity to do so. The Government have decided on a number of occasions not to close that gap.
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The new clause explores how the Government have chosen to close the gap, which we believe could and should have been closed many years ago. The new clause would make it clear that part III of the Sex Discrimination Act 1975 applies also to transgender people. Because trans people are currently excluded from most aspects of the gender duty in so far as it relates to goods and services, the new clause would bring them within the gender duty, because part III currently applies to trans people only for vocational training.
I recognise that the new clause is not a holistic way of dealing with the problem of trans people because it does not provide for exceptions to be made, although I would argue that the need for exceptions is limited, given that exceptions already exist for the provision of separate sex facilities in respect of goods and services, as we heard from the hon. and learned Member for Redcar (Vera Baird). I understand that the Minister might not want to accept the new clause purely because it is not holistic enough to deal with the problem. However, it seeks to explore the way in which the Government seek to meet their obligations.
The Minister will be aware that Council directive 2004/113/EC of 13 December 2004 implements
''the principle of equal treatment between men and women in the access to and supply of goods and services''.
It requires protection to be provided for transgender people by 21 December 2007. My question is simple. Will the Government commit themselves to doing that, will they commit themselves to doing it by that deadline and, if so, how? Having failed to use the vehicle of the Bill, it is not clear whether they will be able to do so in the most appropriate manner by that deadline. It is a question of timing.
2.30 pm
There are three approaches that the Government could take. First, they could use this Equality Bill, but by rejecting the amendments tabled by my hon. Friend the Member for Romsey and myself, they have indicated that they do not wish to use the Bill, although I live in hope that before Report, the Government will have seen the wisdom and justice of doing so. The other two approaches are to use the single equality Act promised after the discrimination law review and the equalities law, or regulations under section 2(2)(a) of the European Communities Act 1972. As the Minister knows, the directive states that the provisions need to be brought in by 21 December 2007. In cases where there is no primary legislation, legislation exists under the European Communities Act for them to do that quite quickly.
On the possibility of using the single equality Act, in the Committee's debate last Thursday, the Minister promised a Green Paper on discrimination law in the spring of 2006. We all know how long some seasons can last, given not just climate change, but Government deadlines for publication. The worry is that it might not be spring. However, assuming that it is spring—the Minister said a few moments ago in a semi-ironic way that spring can last a long time in relation to the publication of the discrimination law review—in the normal course of events, that might
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lead to a White Paper, following consultation, around six to nine months later. That brings us, at the earliest, to late 2006, and a Bill perhaps six months after that. We are talking about legislation that is likely to enter Parliament in mid–2007. Because such a Bill will involve various arrangements that will have an impact on other people, there may be delays in bringing in the legislation, and that would be seen as good government and good regulation.
The question is: if the Minister does not use new clause 17, can she be certain that the alternative—the single equality Act—will meet that 21 December 2007 deadline, which is only 107 weeks away? If she does not use the proposal in the new clause, the only alternative to meeting the deadline, other than the one that I have just described, is using the European Communities Act. As she will be aware, the problem is that the use of regulation would allow goods and services protection to extend only as far as the extent of the directive, and no further. It would not, for example, include education, which is a key issue for many transgender people who return to education following their change of gender, or the content of media and advertising, which are excluded under article 3(3) of the 2004 directive. Although the directive itself does not prevent Parliament from enacting more comprehensive provisions, use of the European Communities Act's regulation-making power reduces the scope. I do not believe—the Minister may agree, but I wait to see—that the use of the European Communities Act is a satisfactory alternative to bringing in this protection. I am seeking from her an indication of how she will meet the deadline if she does not use the Bill. If she cannot give that, my hon. Friends and I, and others, may wish to return to the matter on Report, to seek to draw her out further. I would be grateful for her response to my remarks.
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