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Sexual Orientation Discrimination Bill [H.L.]

8.49 p.m.

Baroness Turner of Camden: My Lords, I beg to move that the Bill be now read a second time.

This is the second attempt that I have made to introduce a Bill designed to outlaw discrimination in employment on grounds of sexual orientation. The last time was on 14th July last year (reported at col. 2004 of Hansard), but it was too late in the parliamentary Session for it to make much progress beyond Second Reading. Unfortunately, for personal reasons, I was unable then to introduce the Bill earlier. However, that Second Reading debate was useful in giving me some idea of what the response was likely to be. Indeed, as a result, Stonewall, the organisation which has briefed me (and I am a member of the Stonewall parliamentary group), has made certain alterations to the text which I hope will make it more acceptable. I shall deal with those a little later.

The intention of the Bill is to make it illegal to discriminate in employment against a person because he or she is homosexual or bisexual. The United Kingdom does not have legislation in place at present designed specifically to tackle discrimination against lesbians and gay men. Under existing employment legislation there is nothing illegal about rejecting a job applicant on grounds of his or her sexuality. That has serious implications for lesbians and gay men since it clearly gives some employers the freedom to exercise prejudice. Unfair treatment, once in employment, is not itself illegal. If he or she reveals, or someone else reveals, that employee as lesbian or gay, the employer can treat them unfairly, for example by refusing promotion. Again, there is no redress.

Harassment can and does occur at work. In the case of racial or sexual harassment the employer may be held vicariously liable for the actions of the staff who do the harassing. No such duty exists in regard to harassment of a gay man or lesbian.

Lesbians and gay men dismissed because of their sexual orientation have no redress unless they have been with the employer continuously for two years. Only then can they claim for unfair dismissal. Even then there is no guarantee of succeeding, because it has been held by the Employment Arbitration Tribunal that employers may dismiss homosexual people on the grounds of potential client prejudice, even where that prejudice has not been proven to exist.

Is such discrimination so widespread that it justifies introducing legislation to deal with it? Are we making too much fuss about something which is really quite negligible? I do not believe so. Stonewall has published a report based on a survey of 2,000 homosexuals entitled Less Equal than Others. Forty-eight per cent. had

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suffered harassment at work, 16 per cent. claimed to have been discriminated against at work because of their sexuality, and another 21 per cent. suspected that they had been discriminated against on similar grounds. A study by Social Community Planning Research indicated a similar pattern of discrimination.

When I referred to such surveys in my speech in July last year, the noble Baroness, Lady Miller, who replied for the Government, indicated that the sample upon which the research was based was too small to give a clear indication of the need for legislation, although she acknowledged (at col. 2019 of Hansard):

    "that there are some cases where the treatment received by some individuals left much to be desired in terms of good personnel practice".

However, there is a great deal of evidence available apart from that by Stonewall (which might perhaps be felt to be unduly partisan) and that of SCPR. The National Association of Citizens' Advice Bureaux (NACAB) has produced a report indicating that discrimination is in fact quite widespread. CAB clients who are homosexual often experience difficulty in getting employment. Once in employment harassment and various forms of discrimination are common experiences. One aspect of that harassment is that it often takes the form of threats of disclosure about their sexuality. The Equal Opportunities Commission also reports that it has had a number of inquiries about alleged discrimination on grounds of sexual orientation. A number of the cases reported by NACAB refer to individuals dismissed when the employer finds out that they are homosexual. As that normally happens within two years of the employment commencing there is no redress whatsoever.

NACAB makes the point that under existing legislation the options for lesbians and gay men are very limited. It is quite true that if the employee has been working for the employer for more than two years he or she can claim dismissal under the Employment Protection (Consolidation) Act. It may also be possible to argue that some forms of discriminatory treatment, such as persistent harassment, constitute constructive dismissal. But that, of course, involves the employee losing the job. Even so, there are difficulties, as I have indicated, in the way of proving unfair dismissal in the light of some EAT decisions. There is also the further disincentive that exists for lesbians and gay men when it comes to taking legal action, namely the fear of publicity, which with the present prurient interest of the press in all things sexual, could have a devastating effect on the individual taking a case. That is because of the general cultural climate within which we all live and which is often responsible for the harassment suffered by quite innocent and vulnerable people.

The NACAB report quotes an instance of a client who experienced continued and systematic abuse and other harassment from colleagues because he was gay. He was subjected to extreme verbal abuse and several instances of intimidation which threatened his personal safety. He was so intimidated that he felt he could not discuss his situation with his supervisor in case that simply made the situation worse.

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There are many other cases to which reference is made in the reports I have mentioned. I do not think that it can be denied that discrimination does take place, that there is no protection against it, and that vulnerable people are being made unhappy because of it and denied rights which are available to other minorities.

As I indicated when I opened the debate, I have attempted to take note of some of the objections made to the Bill presented to your Lordships in July of last year. We were grateful for the indications of support received at that time from all sides of the House. In particular, I recall the speech made by the right reverend Prelate the Bishop of Southwark, whom I am sorry not to see in his place this evening. He said at col. 2007 that the Board for Social Responsibility of the General Synod of the Church of England had said clearly that homophobia was a pervasive evil in society. The speech he made then was, in general, sympathetic to what I was trying to achieve in the Bill.

However, the right reverend Prelate was concerned about the definition of sexual orientation in that Bill, which did not attempt to define what was meant by it. He expressed concern that it might also apply to those whose orientation led them to seek and engage in sexual activity with children. I said then that it was certainly not our intention to give encouragement to paedophilia. It will therefore be seen that in this draft of the Bill we have sought to deal with that by defining in the Bill itself what is meant by "sexual orientation". I am told that that works quite well in similar legislation in New Zealand, and clearly it does not include paedophilia which, of course, we all deplore.

It may well be argued, as the Government have, that although discrimination against homosexuals--gay men and lesbians--in employment is to be deplored, legislation is not the way to tackle it. It is, the argument goes, a matter of persuasion, of changing the culture, so that gradually people find such discriminatory behaviour unacceptable. I wish that that were so. Unfortunately, it is not. Experience indicates that legislation is required as part of the drive against unacceptable discrimination of all kinds. Hence we have had legislation on gender discrimination--the Equal Pay Act. How often we were told before 1975 that legislation was not necessary, but what a difference it has made to the position of women in society. The same applies to discrimination on grounds of race or disability.

In each case the existence of legislation has not only changed patterns in the working environment, it has enormously helped to change public perceptions as well. It helps to bring about a change in the cultural climate so that attitudes which 30 or 40 years ago would have been quite commonplace are now regarded by almost everyone as unacceptable. The law can affect behaviour. I hope that legislation along the lines of my Bill will have the same effect in regard to those currently experiencing pain and trauma as a result of discrimination because they are gay men or lesbians.

This is a simple Bill. It is a moderate Bill. Stonewall Parliamentary Group, which campaigns for non-discrimination against homosexuals, gay men and lesbians--I use those terms because they are widely

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understood and they are used to define themselves--contains members of all parties, but it is very much a mainstream organisation. I do not support compulsory "outing" of the kind that usually attracts press comment. I think that is a matter for individual choice. But if people want to live open rather than secretive lives, it should be possible for them to do so without fear of dismissal from their jobs or harassment at work.

Last year I drew attention to the fact that I was introducing the Bill just over 100 years after Oscar Wilde's conviction in 1885. An article by the noble Lord, Lord Alexander of Weedon, QC, appearing in The Times at that time, commented that the mob who taunted Wilde when he stood in handcuffs and in prison uniform on Clapham Station--including those who spat on him--had long since been forgotten, but Wilde continued to adorn the London stage and rests in Poets' Corner.

Unfortunately, the prejudice and ignorance which crushed one of our finest writers still exists. Because it does, legislation is needed and I ask for support for my Bill. Last time I introduced the Bill, the Government's spokesperson in the shape of the noble Baroness, Lady Miller, made the following comment:

    "The Government's position is clear. We oppose unjustified discrimination against any person on grounds of their sex, race, colour, ethnic origin or for any other reason, irrespective of where that discrimination occurs ... Everyone is entitled to equal treatment and, at work, to be assessed on merit against objective criteria, not on the basis of prejudice and stereotyping ... unjustified discrimination is morally unacceptable and economically inefficient".--[Official Report, 14/7/95; col. 2017.]
I could not have put it any more clearly than that. It is the basis for my Bill and I urge that it be supported. I beg to move.

Moved, That the Bill be now read a second time.--(Baroness Turner of Camden.)

9.2 p.m.

Earl Russell: My Lords, I wish the Bill a fair wind. The noble Baroness, Lady Turner of Camden, has made the basic case so well and clearly that I need not repeat it. She has reminded us that anti-discrimination legislation has a long history. It would be unwise to begin a history of anti-discrimination legislation any later than Catholic emancipation in 1829. That is a good example of how much good such legislation can do.

In the course of that time the arguments have tended to become quite familiar. They divide into the generic and the specific. Tonight I take one of each. The generic I take from the argument used on Catholic emancipation. It comes from Viscount Palmerston, later to be perhaps the most politically incorrect Prime Minister we have ever had. He said that he supported the measure on the ground that it was not expedient to exclude so many able persons from the public service. That is a strong argument because it is so simple. There is certainly no lack of need for talent in all fields of our national life. The example of Oscar Wilde serves to remind us that it is true that among people known to have been homosexual there is a large concentration of people of considerable talent. To exclude them from the

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public service or to allow them to be excluded from industry, commerce or any other field where an intolerant employer might try to do so is a loss to the whole country as well as to them.

However, that argument applies not only to people of distinction. I, too, have read the NACAB report to which the noble Baroness referred, and a very powerful report it is. Over and over again people who were pushed out of jobs because of their sexual orientation end up on benefit. I am aware--perhaps more than the Minister realises--of the need to keep the benefit bill under control. We have much better things on which to spend social security money than subsidising people who ought never to have been forced out of good jobs in the first place. So the saving of public money is one of the grounds on which I support the Bill. Incidentally, I know that the noble Baroness, Lady Turner, strongly agrees with this: we must again sometime have a good look at the laws on unfair dismissal.

The other point I wish to take up and on which the noble Baroness touched is the changing of public attitudes. The argument about whether the law can change public attitudes is endless. We all want to see a reduction in the disfiguring homophobia of which some examples have recently been quoted in the press from the Ministry of Defence survey. When I say "disfiguring", I speak literally. I have one friend who was walking innocently about the street in the evening when he was set upon by a large number of men whom he had never met before. When he recovered consciousness he had a fractured cheek bone. So when I say "disfiguring", I mean exactly that.

When we discuss how far we can change attitudes, we need to consider quite how ingrained those attitudes are. Naturally, as a historian, I look to see how much I find those attitudes in other periods. In the 17th century, regrettably, I find as much hostility between men and women as in any other century. But when I look for signs of homophobia I find remarkably little of it. In the reign of King James I one would have expected, with a homosexual on the throne and a coterie of fellow homosexuals around him, that one would find a good deal of it. One finds some resentment of homosexuals promoted at court, but it seems to me to be more a sense of unfair competition than anything else. It is the kind of feeling that a young woman rapidly promoted in the City might expect to encounter. It does not seem to me to be anything more intense than that.

I do not find any homosexual assaults. There is nothing like that in assize records. One does not find charges of homosexuality in seditious works cases. One does not get it coming into depositions about tavern brawls. If I look for cases of homosexual blackmail in the 17th century, I do not believe I can find any. The only one I am in doubt about is one where the other partner in the homosexual union was the King, where clearly confidentiality is unusually important.

I think I am entitled to say that that suggests that homophobia in the 17th century was a great deal less deep-seated than it is now. Lucius Falkland--I do not allude to the present Viscount, but to his ancestor, the second Viscount, of the same name--used to write to

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his friend, Edward Hyde, and regularly began his letters, "Sweetheart". I am not sure what construction to put on that word by itself. It may well be that the obvious construction is not the correct one. What I am certain of is that in a homophobic world two ambitious young men trying to make their way in the world would not have begun their letters to each other with that word.

That suggests that homophobia is not entirely a deep, instinctive prejudice, that a very large part of it is culturally determined and that it flourishes in a climate of official encouragement or semi-official encouragement. That is why I have more faith than I might otherwise have had that official discouragement of the sort this Bill would offer might do a great deal to diminish it. I am happy to support the Bill.

9.9 p.m.

Lord Monkswell: My Lords, at this late hour the House will no doubt be pleased to know that I shall be brief. I thank the noble Baroness, Lady Turner of Camden. I am sure that the whole House will be grateful to her for again bringing this measure before us, and at a point in the parliamentary year where we can hope to see some progress made on it.

British industry and commerce operate in a very competitive world environment. To succeed in that competitive environment needs the best people for the job. Our employers need to employ the right people. We have quite rightly recognised in previous legislation that discrimination against people because of their sex or race is counter-productive. It reduces the productiveness of the individuals involved and also the productiveness of those companies that practise it. It is only right that we should also legislate to prevent discrimination on the grounds of sexual orientation.

I hope the Government will lend their support, or at least allow the Bill a fair wind. To prevent employers penalising themselves and our national effort in this competitive world is surely something that should be dear to the Government's heart.

9.11 p.m.

Lord Monson: My Lords, before I come to the Bill, I must say that I was taken aback by the fact that the noble Earl, Lord Russell, with his classical education, used the word "homophobia" not once but several times. I am sure that upon reflection he will concede that the word "homophobia"--if it means anything at all, which is doubtful--can only mean "an aversion to one's own kind"; and I do not think that is what he had in mind.

I recognise that the noble Baroness, Lady Turner of Camden, is motivated by the most benevolent sentiments in introducing this Bill--which is why I am all the more sorry that I have to knock a few holes in it. To avoid misunderstanding, I had better set out my own philosophy, so to speak, on the matter.

Long before it became fashionable--indeed, when it was distinctly unfashionable and considered positively shocking--I opposed the continued criminalisation of private behaviour between consenting adults, and spoke and voted accordingly. More than that, I consider that the existing criminal law is still too illiberal in some

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respects. For example, it was quite wrong to send consenting males to prison for hammering nails into one another, utterly nauseating in a literal sense though the thought of that is; or, for example, to impose a sentence of life imprisonment for bestiality. Moreover, I believe that the legal treatment of people in this country who have had successful sex change operations is still unnecessarily harsh. Why should they not be able to alter their records? However, that said, I believe it is quite wrong to go to the other extreme and force people by law to welcome with open arms behaviour that they find repugnant.

Partial support for this widely held point of view comes from a surprising quarter. Three or four years ago, a very well known and respected political commentator, a witty and intelligent man, a former Conservative MP who, since retiring from Parliament, has made no secret of his homosexuality, told me and the small group of people I was with that, whereas he had previously been wholly libertarian on sexual matters, as one might expect, he had latterly swung round to believing that quite a few forms of sexual behaviour were so repugnant to the man and woman in the street that they should not be condoned, let alone encouraged, even--and this is rather a surprising point--if they were carried out in private. He went on to quote John Donne about no man being an island entire of himself, and so forth.

Surely, so much depends on whether this Bill covers only involuntary characteristics--notably in this case homosexual orientation--thereby putting it on a par with sex, race, national origin and so on; or whether it extends to cover voluntary behaviour--namely, homosexual activity--thereby putting it on a par with religion, political belief, philosophy, hairstyle, dress, lifestyle generally, and so on. Discrimination against none of that is illegal on the UK mainland at present.

If the Bill is confined to the former--that is to say, the homosexual orientation--I suppose that it is relatively harmless, although one cannot help wondering why the Labour Party evidently thinks that discrimination against homosexuals is more heinous than discrimination against people over the age of 50 or even 40, which is a much more widespread problem; or indeed discrimination on the grounds of physical appearance. It has been established in survey after survey that goodlooking women and to a less extent goodlooking men have a much greater chance of obtaining employment and being promoted once they have obtained employment than their plainer brethren. Yet such discrimination remains legal unless the person it affects happens to belong to a minority ethnic group.

If, on the other hand, the Bill extends to homosexual behaviour, as to some extent it must do because there are bound to be grey areas, why is only that form of voluntary behaviour to be protected by law, unlike, for instance, the practice of religion or political opinion, and so forth? After all, the Church of England--I regret that no right reverend Prelate is in the Chamber to give an opinion on this matter--makes a clear distinction between homosexual orientation and what I believe it calls homosexual genital behaviour. The first is deemed to be acceptable, which is understandable; the second is

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not acceptable. Indeed, it is considered to be a sin. Other Christian Churches as well as Judaism and Islam take much the same line, at least officially.

Probably most people nowadays are largely agnostic--one has to be realistic about the matter--and do not consider it a sin. Nevertheless, they find it distasteful when it is flaunted in front of their noses, whether it be at first hand or even second hand. If people with unusual sexual tastes behave in a low key, discreet manner--as they used to do 20 or 25 years ago--there should be no problem. But if people boast of their orgies in San Francisco-style bathhouses or possibly are convicted for indecent behaviour in public lavatories, they should not be surprised if other people prefer not to employ them or to work alongside them. If those other people do not mind, all well and good; but if they do mind, and I suspect that most people do, their freedom of choice and non-association should not be overridden.

Apart from the question of whether the word "orientation" includes behaviour, some of the drafting is rather curious. I suggest, first, that the word "lesbian" is a tautology; "homosexual" embraces lesbian. The fact that the general public may be etymologically confused is no excuse for Parliament to follow suit. Secondly, can there really be such a thing as "bisexual orientation"? Surely, the whole point about bisexuals, whether they be the cynical sensualists depicted in Simon Raven's novels or people in prison or stationed on some remote outpost, is that on the whole they prefer one sex, but if that sex is not available, they will happily have sexual relations with the other, faute de mieux; in other words, there is no hard and fast orientation.

Clause 6 refers to equal pay. I suppose there is no great harm in that but I wonder whether there has ever been a recorded instance of a homosexual receiving less pay than a heterosexual for doing precisely the same job. It is not a terribly important point but it would be interesting to know.

In view of Section 38 of the 1975 Sex Discrimination Act, are advertisements included? Will it be a criminal offence to imply in an advertisement that one would prefer on the whole the heterosexual applicant? It seems probable under the Bill as it stands.

We all know about the outrageous case in the north of England which involved somebody being awarded £29,000 for being called by his workmates an "Irish pratt" on a couple of occasions. Will someone, for example, called a "lesbian pratt" be eligible for similar, preposterously high damages?

Does the Bill extend to those working in private households--for example, au pair girls or housekeepers, and indeed gardeners and chauffeurs living in cottages in the grounds, if there are children of the household about? I suggest that there would be enormous resistance to this Bill if that were proved to be the case.

Finally, would it be the Labour Party's intention when it comes to power to build upon and extend this Bill so that it applied, for example, to private lettings, as I believe the sex discrimination Bill as a whole does? In other words, will people posted for a year or two to

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Nigeria, the Gulf or New York be forced against their will to let their houses to homosexual couples, trios or quartets? Once again, I suggest that if that were so it would meet with enormous resistance. But that is not on the cards tonight.

To sum up, very few people nowadays, thankfully, want to go back to the bad old days when adults could be fined or imprisoned because of sexual activity carried on in private and with their consent. I also believe--and in this I join with noble Lords who have already spoken--that anyone, whatever their sexual proclivity, who behaves with discretion and dignity ought not to be penalised when seeking employment. I suggest that probably they are not very often penalised. The ones who do find themselves at a disadvantage are those who flaunt their orientation openly. It is wrong to put in the dock employers or partners in professional firms who want to exercise their choice either against people who behave in what they consider to be an outrageous fashion or in favour, for example, of a married man or woman.

Perhaps I may point out that unless the words "sexual orientation" are to be interpreted very narrowly in this Bill in order to exclude sexual behaviour, it will be inconsistent with all the previous anti-discrimination legislation to date in that for the first time it will embrace optional behaviour as well as non-optional physical realities.

9.21 p.m.

Lord Rea: My Lords, I am rather tempted to follow the noble Lord, Lord Monson, through the rather murky areas which he has been treading, but I believe that would be wrong because most of his remarks were not directed actually to this Bill which deals with employment.

I intend only to detain your Lordships for a very few minutes. In fact, I have very little to add to the remarks that I made in the debate on 14th July last on Second Reading of my noble friend's first version of this Bill. The crux of the problem to my mind is whether legislation is necessary or whether the protection offered by the present legislation is sufficient.

I believe that the Stonewall survey and other evidence which has been cited by my noble friend--for example, from the National Association of Citizens Advice Bureaux--suggests that current legislation is not sufficient. There is a need to move further forward in the continuing campaign to make life tolerable for those who have the misfortune to have a different sexual orientation from the majority. I am talking of probably about 5 to 10 per cent. of the population of this country.

I am perfectly aware that there are many other countries where the position of gay and lesbian people is far worse than it is in the United Kingdom. Homosexual acts between men are deemed illegal, whether in private or in public, in at least 19 countries. In Iran the penal code allows for prison sentences, whipping, the chopping off of hands and feet, stoning and the sentence of death. We have come a long way from there.

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Chris Smith MP, in a leaflet promoting the campaign called "War on Prejudice", which has been set up to help end the situation in the countries that I have described, says,

    "I believe we are winning the battle for lesbian and gay human rights in the West. It has been a long and difficult struggle and we still have a long way to go, but we have made fundamental advances".
I repeat, that we still have a long way to go. My noble friend outlined the reasons why we still have a long way to go, as did the noble Earl, Lord Russell.

Other countries have passed similar legislation to the Bill now before us and for the same reasons. Those countries include New Zealand, Denmark, Finland, France, Ireland and the Netherlands. Why should not Britain follow those eminently civilised countries and enact this extremely simple and fair piece of legislation? I support the Bill and hope that the House will give it a Second Reading.

9.25 p.m.

Lord Henderson of Brompton: My Lords, I apologise for my unscripted and brief intervention. I intervene because the last time the noble Baroness introduced a Bill on this, I noticed on reading the debate that no mention had been made of the services. I have a relevant little tale to tell. Fifty-two years ago--that is quite a long time ago, but not back in the 17th century, I advise the noble Earl--I had the honour to command a platoon on active service. Two men in my platoon were obviously in love. I was, I suppose, the last person to notice, but it was drawn to my attention and I took no action--partly, be it noted, because everyone in my platoon was quite happy about the relationship, but also because we were just about to go into action. Both of those men behaved in a conspicuously brave manner in a particularly nasty night attack. But early in the morning when we were all cleaning our weapons, two other soldiers, whom I particularly trusted, committed self-inflicted wounds, one in the foot and the other in the trigger finger.

Perhaps I may ask the admirals, generals and air marshals which two of those four men presented a graver risk to good order and discipline. I am sure that the top brass would agree with me that the two who committed self-inflicted wounds were the ones who presented the gravest risk to good order and discipline. I am sure that the top brass would agree with my action of bundling them back to base as soon as possible before the infection could spread and there was a bad loss of morale. I am sure that the top brass must agree with me on that, and I wonder whether this little tale could be drawn to the attention of the top brass by the noble Lord who is to reply to the debate. I should be extremely grateful if he would do so.

9.28 p.m.

Lord Lester of Herne Hill: My Lords, I congratulate the noble Baroness, Lady Turner of Camden, on her initiative in introducing this Bill, which is well designed to combat an ancient and outmoded form of unfair discrimination against employees and potential employees because they are gay or lesbian in their

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sexual orientation. I pay tribute to the moderate and effective way in which the noble Baroness presented the powerful case for the Bill.

The Bill does not seek to encourage any form of sexual activity or sexual preference whether for the same sex or the other sex; nor does the Bill concern sexual conduct as distinct from sexual orientation. The aim of the Bill, like the aims of the Sexual Discrimination, Race Relations, and Fair Employment Acts, is to achieve justice for a significant number of men and women who suffer hardship and detriment by being treated unfairly in their access to employment benefits. It seeks to use the civil law, so far as practicable, to ensure that an individual is treated on the basis of personal merit and is not subjected to adverse discriminatory treatment unfairly in relation to employment, except where a particular sexual orientation is a genuine occupational qualification for the job.

Contrary to what has been suggested, and I believe misunderstood, by the noble Lord, Lord Monson, the Bill does not forbid treating someone adversely because of his or her sexual conduct rather than because of sexual orientation, whether real or supposed. Nor does the Bill make unlawful many issues of sexuality or sexual freedom which do not involve discrimination on the ground of sexual orientation.

The basic principle on which the Bill is based is well recognised: an individual is entitled to the equal protection of the law and to be treated on the basis of his or her individual merit without unfair discrimination. That fundamental principle is universally recognised in international human rights law by which this country is bound. It is also part of the great heritage of our common law. We have enshrined that fundamental principle of equality in the statute book in relation to gender discrimination, race discrimination and, in fair employment legislation in Northern Ireland, religious and political discrimination. That is a form of what the noble Lord, Lord Monson, has described as optional behaviour, since one can choose one's religious belief or one's political opinion, but in Northern Ireland to treat someone worse as a result is unlawful.

I agree entirely with the noble Baroness, Lady Turner, and other noble Lords that we should do the same for unfair and invidious sexual orientation discrimination. The only possible legal protection under existing British law is the remedy for unfair dismissal under the employment protection legislation. But the prospects of success under this law are very poor. As the noble Baroness has indicated, most industrial tribunals, led by the Employment Appeal Tribunal, have readily upheld the fairness of dismissal of gay or lesbian employees as having been for a "substantial reason". In the absence of statutory protection, a gay or lesbian applicant or employee has, either furtively or deceptively, to conceal his or her sexual orientation, and to live in fear that it will be revealed, or rely upon a voluntary equal opportunities policy. I am happy to say that that policy is in force in many local authorities, trade unions and the Bar Council, but not with many other public sector and private employers.

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Your Lordships will know that many employers and employees have traditionally been hostile, sometimes very hostile, to gay and lesbian employees. I am sorry to say that one of the worst is the employer referred to by the noble Lord, Lord Henderson of Brompton, who gave a moving and instructive anecdote from his experience. I refer to the Armed Forces, whose policy until 1992 prohibited their recruitment and required that at least they should be administratively discharged, if not court-martialled, imprisoned and dismissed with disgrace.

In July 1991 the Prime Minister announced that neither homosexual orientation nor private homosexual activity should any longer preclude appointment even to sensitive posts in the home civil service and diplomatic service. The noble and learned Lord the Lord Chancellor has made similar announcements in relation to judicial office. These are very welcome reforms. But the Government have emphasised that homosexual activity remains incompatible with military service and that those who engage in it must expect to be discharged. To the Government's credit, the automatic ban in the senior civil service has been lifted, but unfortunately the automatic and complete ban in the Armed Forces has been steadfastly maintained.

The Master of the Rolls, Sir Thomas Bingham, pointed out in recent judicial review proceedings that under the Ministry of Defence's ban,

    "proof of homosexual activity is not needed.

    A reliable admission of homosexual orientation is enough. Where homosexual orientation or activity is clear, the service authorities give themselves no choice but to discharge the member involved without regard to the member's service record or character or the consequences of discharge to the member personally".
No matter that the lives and livelihoods of the victims of a rigid and unjust policy are grossly disrupted; nor that they are loyal and efficient, with exemplary service records; nor that they have committed no homosexual acts and made no homosexual advances on the mess deck or in the barrack room. Once their sexual orientation is avowed or established, they must be banned.

I am firmly opposed to using legislation to enforce private morality, but discrimination against gay people is not just a matter of private morality. It is divisive and unfair in a manner which quite transcends personal tastes and prejudices. Sexual orientation discrimination opens covert gay and lesbian employees to blackmail, wastes the talents of very able men and women and creates much unnecessary distress. So far as concerns the Armed Forces, that case will surely go the European Court of Human Rights.

I agree with the advice apparently given to the Government by their legal advisers that the European Court will probably rule against that discriminatory policy, once more coming to the rescue of what are or should be British constitutional rights, by finding that the present policy is in breach of the fundamental right to respect for personal privacy without discrimination. The ministry will then have to abandon its present policy to comply with the European rule of law. I find

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it regrettable that the ministry will not make any change without being commanded to do so by the European Court.

I shall not take up the time of the House by referring to the bleak and dispiriting assessment published this week by the ministry. It describes a situation in the Armed Forces which is dispiriting for anyone who seeks to combat prejudice. The publicity surrounding the publication of a squalid report, and the statements made in support of it, contain no regret at the prevalence of such hostile attitudes. They suggest no positive measures to combat those prejudices in the Armed Forces. That is a regrettable feature, because surely this is an area in which firm and courageous leadership is called for.

Employment in the Armed Forces is not covered by the Bill as it stands, which deals with ordinary employment. The unjust situation in the Armed Forces and the Government's apparent approval of that unjust situation or of the ban are a vivid example of the need for effective measures to combat this form of discrimination.

What can legislation hope to accomplish in dealing with such a complex social problem, whether in ordinary employment or elsewhere? The answer was well expressed by the late Lord Bonham-Carter, my noble and much missed friend, writing a generation ago in the first report of the Race Relations Board. He said:

    "A law is an unequivocal declaration of public policy. A law gives support to those who do not wish to discriminate, but who feel compelled to do so by social pressure. A law gives protection and redress to minority groups. A law thus provides for the peaceful and orderly adjustment of grievances and the relief of tensions".
And, finally:

    "A law reduces prejudice by discouraging the behaviour in which prejudice finds expression".

The way in which a society treats unpopular minorities is a litmus test of the extent of its civilisation. Of course the law can affect behaviour. The time is surely over-ripe to legislate, using the civil law to combat unfair sexual orientation discrimination, as Parliament has done already in relation to discrimination on grounds of sex, marriage, race, religious belief or political opinion.

The unelected Upper House, your Lordships' House, has, I believe, a fine record as a watchdog, promoting cultural liberty and protecting minorities against the tyranny of prejudiced and ill-informed majorities. It was this House which a quarter of a century ago gave a spur to the campaign for the legislation against sex discrimination. I very much hope that the House will give this Bill a Second Reading tonight as a further step in the long march towards genuine equality of treatment and respect for private life.

9.40 p.m.

Lord McCarthy: My Lords, we on this side of the House thank the noble Baroness for introducing the Bill for a second time and we hope that it will make better progress. We do not say that the Bill is incapable of improvement by amendment. If that is the Government's view let them say so. My view is that in an ideal world

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the subject of the Bill would be part of a general review of key standards at work. They range wide across what should be the individual rights of workers against employers.

Perhaps I may say in answer to the noble Lord, Lord Monson, that the central issue behind such a review would be to try to create a situation in which people are employed, promoted, deployed and possibly dismissed on grounds which are related to their individual conduct and capacity in the job and not to a whole range of irrelevant considerations such as sex, race or sexual orientation.

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