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Lord Monson: My Lords, does the noble Lord agree that that ought to apply to age too? Why has not the Labour Party given age discrimination greater priority?

Lord McCarthy: My Lords, it may well be that it will. I am putting forward my position and in a sense it is also that of the party. I believe that at this stage we require a review of our discrimination laws. What we want to see, and what is reasonable to insist upon, is that the appointment, promotion progression and dismissal of people is related to the things they do, the way in which they perform and whether there is work for them to do. It should not depend on a whole range of totally irrelevant considerations, of which this is one.

That may not be the way in which the matter is dealt with. It may be that the Government will accept this Bill. Perhaps they will not accept the Bill. But as was said by the noble Lord, Lord Lester, cases in the pipeline may go before the European Court of Justice because the Government will not first give up. They will then find that everything is against European laws and regulations and the Government will have to accept the Bill in any event. They will have to accept the provisions not just within the compass of this Bill but also in the case of the armed services.

I wish to go through what I take to be the objections to the Bill as it is drafted. During the Second Reading of the previous Bill, those objections were put forward by the noble Baroness, Lady Miller of Hendon. She appeared to have five arguments and I hope that we shall not hear those arguments from the Minister tonight. I hope that he has some new ones.

The noble Baroness, Lady Turner, cited the quotations from the Second Reading debate. The first argument was that although the Government are against discrimination on grounds of sexual orientation, they do not believe in legislation. They do not believe in legislation because they feel that there are insufficient cases or that there is an insufficient incidence of this problem. I should have thought that my noble friend Lady Turner has dealt with that in the examples she has given.

It is remarkable that the evidence shows that people do not agree with the Government that there is a kind of dichotomy between trying to deal with sexual orientation by education and setting an example and doing it by law. People would like the matter dealt with in both ways. As was the case in relation to sex and race discrimination--and we hope in relation to disability discrimination--they believe that the existence of a law,

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as has been suggested by the noble Lord, Lord Lester of Herne Hill, actually makes people more likely to accept encouragement and leadership because the law is saying what society believes to be right.

Therefore, it is not a question, as was suggested by the noble Baroness, Lady Miller, that you either have education and promotion by example or you have law, and if you have law, you move against encouragement and setting an example. On the contrary, the law assists in that regard. That is what we say and we want to know what the Government say.

Secondly--and this has been dealt with in the debate but I should like to say a few words about it--the noble Baroness, Lady Miller, seemed to say that not only do we not need law and that it is inappropriate to have law but we have law already; that we have, for example, the Employment Protection (Consolidation) Act which deals with the problem. This debate has shown that it does not deal with the problem: first, because of the two-year rule; and secondly, because there have been many cases where tribunals have not accepted sexual orientation as a ground for unfair dismissal. Secondly the noble Baroness said that we have sex discrimination legislation because we have the Sex Discrimination Act which does not ban homosexuals as a group from coming before the tribunals. Of course it does not but it does not, give them protection. Therefore, that is not an argument.

Thirdly, the most bizarre argument was put forward which I hope we shall not hear this evening. The noble Baroness said:

    "Perhaps it would also be helpful to draw your Lordships' attention to the recently enacted Section 154 of the Criminal Justice and Public Order Act 1994, which makes it a criminal offence to cause intentional harassment. That was specifically introduced to penalise those who cause others alarm or distress through using threatening, abusive or insulting words, behaviour or displays, in particular when the behaviour is persistent in nature. We see no reason in principle why anyone who suffers intentional harassment in any of those ways cannot bring themselves within the protection of Section 154".--[Official Report, 14/7/95; col. 2017.]
The Government know very well that that is a criminal Act and that prosecutions must be brought by the police. That Act is all about public order and is nothing to do with the kind of harassment which happens inside dwellings.

Section 154 does not apply to behaviour in dwellings. Section 154(2) of the Act states:

    "An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used... or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling".
It is an outdoor, criminal Act which has nothing whatever to do with harassment at work for sexual orientation. I hope that we shall not hear that argument from the Minister this evening.

Previously, the Government said that what we are suggesting would be a bridge too far; that it would be a form of coercion in society; and that that protection of a particular lifestyle would lead to many other lifestyles bringing their own position forward and asking for legislation. It was said:

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    "The noble Baroness also invites the House to accept the proposition that specific legislation is necessary to protect the interests of this group who follow a particular sexual orientation and lifestyle. Were one to accept this principle, then one sends a signal to every group, however small and however narrow or partisan their cause, that they, too, could become candidates for specific legal protection".--[Official Report, 14/7/95; col. 2019.]
I repeat:

    "every group, however small and however narrow or partisan their cause".
That presumably is what the Government actually believe sexual orientation is all about: that they are the protestations of a small, narrow or partisan group. That is nonsense. It is a perfectly natural feeling, a natural reaction held by millions of our citizens. The Government do not tell us what these small, partisan and narrow groups are. If they were small, narrow and partisan, I do not see why they should be dismissed for that.

We are saying that people should be promoted, dismissed and appointed on grounds of their personal capacity even if they are small, narrow or partisan.

We do not believe that any of those arguments stand. I come, therefore, to the argument of the Government: the final (what I call) the little England objection. The noble Baroness, Lady Miller, said, referring to my noble friend Lady Turner:

    "The noble Baroness's contention is that the UK is out of step with standards applied elsewhere".--[Official Report, 14/7/95; col. 2017.]
We say that.

    "As a result the United Kingdom is less civilised in its approach than our EU partners and the approach advocated by the European Commission".
We do not quite say that.

    "If I understand correctly, the argument is that standardisation of treatment between countries of different social backgrounds and traditions is a sensible policy objective".
Of course, we do not say that. What we say is that there are a number of countries--they were mentioned by the noble Lord, Lord Rea, in his speech--where such a policy seems to work reasonably enough. The Government do not tell us that in those countries it does not work or it has counter-productive effects. Perhaps the Government should look at those countries and see whether they can learn from them. The noble Baroness said:

    "The Government do not find that argument convincing. Just because people drive on the right on the Continent does not mean that United Kingdom drivers should do so".--[Official Report; 14/7/95; col. 2020.]
No one suggests that the issue has anything to do with that.

We say that this is a reasonable proposal that the Government may have to come to sooner or later--and if it is later it will cost much more than if it is sooner. The central principle behind this is that the engagement, promotion and dismissal of people should be related to their capacity, conduct and availability of work. That is why we support the Second Reading of the Bill.

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9.52 p.m.

Lord Henley: My Lords, I was fascinated, as always, by what my noble kinsman Lord Russell said about what happened in the 17th century and habits then. We could no doubt talk about the 16th, 15th or 14th centuries, or for that matter any other century that we wish to. However, for once in this House we are talking about the 20th century and, I suspect, the 21st century. I do not intend to follow my noble kinsman on this occasion. Nor--I do not suppose that it will surprise the noble Lord, Lord McCarthy--do I intend to follow his opening remarks into a general debate on employment law. He tells us that Labour will address these matters in due course. Labour will address ageism. No doubt it will address sizeism. No doubt it will address beardism to protect his noble friend Lord Monkswell. I do not believe that that is the right way forward.

Last year my noble friend Lady Miller responded on behalf of the Government to points put forward by the noble Baroness, Lady Turner, in her original Bill. Perhaps we might call it Mark I. We are covering more or less the same ground today, although I appreciate that the Bill is marginally different and there have been a number of drafting changes to it. Nevertheless, we have gone over the same ground.

What I say to the noble Baroness, Lady Turner, and to the noble Lord, Lord McCarthy, despite having heard his wonderful oratory, is that our position has not changed in the eight months since then. We oppose unjustified discrimination against any person on grounds of their sex, sexual orientation, race, colour, ethnic origin or for that matter beards or any other reason, irrespective of where that discrimination occurs, be it at work or elsewhere. It is offensive to decent people everywhere and it is to be condemned. The Government's objective is to promote a fair and safe working environment by making it clear that unjustified discrimination is morally unacceptable and economically inefficient. We shall continue to urge employers to adopt employment practices which treat everyone equally by assessing people on merit against objective criteria and not on the basis of prejudice or stereotyping.

It is commonly assumed that homosexuals do not have any employment rights. I have to say that this is simply not the case. It may be helpful to repeat the words of my noble friend Lady Miller when she responded to the debate last year. She said that the Employment Protection (Consolidation) Act 1978 offers a comprehensive set of individual employment rights, regardless of sexual orientation"--despite what the noble Lord, Lord Lester of Herne Hill, had to say--including the right not to be unfairly dismissed and the right to a redundancy payment. Any employee who feels that their rights under this Act have been infringed can, subject to the two-year qualifying period--which the noble Lord, Lord McCarthy, mentioned as applying to all others--take their case to an industrial tribunal. Compensation up to the usual maximum of £11,000 is

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available for those unfairly dismissed. That, I believe, is substantial protection. In addition, I would make the point--

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