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Baroness Lockwood: I support the principles behind these amendments. As my noble and learned friend Lord Archer said, our knowledge of discrimination is far beyond what it was some 20 years ago. There is already an enormous amount of court interpretation of the concept of indirect discrimination. In answer to the noble Lord, Lord Monson, that is a safeguard against irresponsible use of legislation and bringing irresponsible cases under the legislation.
However, the court cases and the interpretation of indirect discrimination have been very educative in the ways in which people can be discriminated against. There is some discussion at present about whether or not there is institutional discrimination in the police force. Institutional discrimination usually relates to the way in which processes have been developed over time. Such processes can accidentally discriminate against individuals or groups of individuals. Therefore, I think it is important that the concept of indirect discrimination is incorporated in the Bill. In the light of our discussion on the first group of amendments and the assurances that were given, can my noble friend the Minister tell us whether the concept of indirect discrimination will be embodied in the Bill and whether it will be applicable in the case of public authorities in the same way as against individuals?
Lord Lester of Herne Hill: The grouping here is somewhat eccentric. Quite different subjects have been grouped together. In speaking to Amendment No. 160 I shall speak also to Amendments Nos. 161 and 163. I shall not speak to Amendment No. 164 because that deals with affirmative action, which we have already covered. I shall not speak to Amendment No. 169 because that deals with the definition of "public authority", which we have already covered.
Amendment No. 160, which stands in my name and those of the noble and learned Lord, Lord Archer of Sandwell and the noble Lord, Lord Rix, seeks to do two things. First, it seeks to widen the types of forbidden discrimination beyond religious and political discrimination in respect of the public authorities exhaustively listed at present in Clause 61. We are seeking to widen the obligation so that not only is direct religious and political discrimination forbidden, but also indirect religious and political discrimination, and direct and indirect discrimination on the other grounds set out in the amendment, including, for example, disability and sexual orientation.
Those are important because there is no reason in principle--I doubt whether the Government would disagree--why any public authority should discriminate directly on any of those grounds, nor is there any reason why there should be unjustifiable indirect discrimination on any of those grounds. Public authorities are already covered by the obligation not to discriminate directly or indirectly under sex and race discrimination legislation and under fair employment legislation in respect of religion.
It is important that public authorities, in discharging their public functions, should not discriminate directly on any of those grounds or indirectly without good cause. In other words, they should not apply rules which are equal in a formal sense but unequal and unfair in their impacts against members of particular groups; namely women, ethnic minorities, religious groups, the disabled and so on. That is the purpose of Amendments Nos. 160 and 161.
Amendment No. 163, which stands in my name, is confined to extending the scope of Clause 61 to indirect discrimination on the grounds of religious belief or political opinion. So, that amendment is narrower than the others.
When the concept of discrimination came out of the Van Straubenzee report and into, first, the Northern Ireland Constitution Act 1973 and then the Fair Employment (Northern Ireland) Act 1976, the concept of discrimination was not well understood and it was considered to apply only to purposive or intentional direct discrimination. It was only later, in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Fair Employment (Northern Ireland) Act 1989, that the wider concept of indirect discrimination was included. Nothing in the Belfast agreement, as I read it, suggests that the concept of religious and political discrimination is to be frozen into the mind-set of the framers of the Northern Ireland Constitution Act 1973. I would be astonished if anyone suggested that that was the point of the Good Friday agreement.
It is extremely important, first, in dealing with religious discrimination that this Bill covers indirect as well as direct religious discrimination. Just as in the fair employment legislation, the provisions should similarly apply to public authorities under Clause 61. That is absolutely vital. It is equally important that public authorities should be under the wider duty.
Some of your Lordships may be wondering why the existing equality legislation does not cover the ground in respect of gender and race discrimination. The answer is the decision of the Appellate Committee of your Lordships' House in the case known as Re: Amin, which decided that the relevant provisions of the Race Relations Act and therefore of the Sex Discrimination Act applied only to marketplace activities, not to the public activities of public authorities. That is why the existing provisions do not adequately cover the area of Clause 61. They cover private employers. A private employer cannot directly or indirectly discriminate on grounds of sex or race, but a public authority, in the exercise of its functions, is, for the reasons that I have just given, not caught at the moment. I do not think that there is, or should be, anything controversial about the notion that a public authority should not discharge its functions in an arbitrary or discriminatory way on any ground.
As I said earlier, the Privy Council has made it quite clear that English common law would in any case require that kind of standard in respect of any public authority. We are seeking to spell out on the face of the statute what the common law requires--and to do it in a way which is within the well-known tests of the fair employment, sex discrimination and race relations legislation. Those are my reasons for supporting Amendments Nos. 160 to 162.
The Earl of Dudley: Before the noble Lord sits down, does he consider that, as a matter of legal interpretation, the Ministry of Defence would fall within the category of a "public authority", having and discharging functions relating to Northern Ireland?
Lord Lester of Herne Hill: I cannot think of any authority more likely to be a public authority than a ministry of the Crown. The Bill states so specifically. The Ministry of Defence would undoubtedly be such an authority. If the Ministry of Defence were to discriminate against women, ethnic minorities or any other group arbitrarily or unfairly, directly or indirectly, it would undoubtedly fall within the scope of Clause 61. I say that subject to correction from Ministers.
Baroness Turner of Camden: I had intended to speak to this group of amendments because I have put my name to Amendment No. 164, which we seem to have dealt with already in relation to Amendment No. 162. Nevertheless, I should like to join my voice to those who have been supporting Amendments Nos. 160 and 161 for the simple reasons that I support everything that has been said about the need to refer to the important issue of indirect discrimination and I cannot see that that is provided for elsewhere in the Bill.
As my noble friend Lady Lockwood said, the fact that we have been able to move on indirect discrimination in the United Kingdom has meant that a whole range of issues has been dealt with on behalf of women which might not otherwise have been dealt with. Such provisions will enable the commission to tackle rules or policies which appear neutral but which, in practice, may impact unfairly on one particular minority or disadvantaged group.
Lord Rix: I apologise for being absent from the Chamber when the noble and learned Lord, Lord Archer of Sandwell, moved Amendment No. 160 and spoke to Amendment No. 161. Perhaps I may support those amendments briefly. Indirect discrimination means imposing a requirement or condition on a job which makes it harder for disabled people to gain access to it. The effect may be unintentional, but it can be just as damaging as the effect of overt discrimination. Indirect discrimination on the basis of disability can, in most cases, be grasped easily without the need for detailed statistics. Therefore, Amendment No. 160 is important to disabled people who face many systematic barriers.
On Amendment No. 161, I hope that the Government can give some reassurance that issues of religious or political discrimination will not overshadow other equality considerations. The Government have the opportunity to entrench equality within the culture of the new administration. If they are serious, as I believe they are, in their intent to promote equality, they should ensure that a public authority does not discriminate on other grounds which, of course, include disability.
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