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Lord Dubs: My Lords, this amendment is similar to one tabled at Committee stage by my noble and learned friend Lord Archer of Sandwell and my noble friend Lord Morris of Manchester. I appreciate that my noble and learned friend Lord Archer said it was similar but not identical.

The amendment has become known as the "affirmative action exemption". It is based on the concern that Clause 71 might call into question the ability of public bodies to take affirmative action to correct disadvantage in appropriate cases. We would be concerned if there was such an incompatibility between affirmative action and the new statutory obligation on public authorities. Affirmative action, in appropriate circumstances, is an important method of combating inequalities. It is our firm intention that it should remain available and, after careful consideration, we do not believe that Clause 71 calls this into question.

Nothing in Clause 71 renders unlawful what would be lawful affirmative action under the existing fair employment, equal opportunities and race relations law. Moreover, the fundamental duty imposed by Clause 71 is for public authorities to,


The justification for affirmative actions is that they are necessary to correct existing disadvantage or imbalance in equality of opportunity. They must therefore be directed at promoting equality of opportunity. Clause 71 as it stands is not only consistent with affirmative action but means that public authorities are bound to have regard to the need for affirmative action when considering their duty under the clause.

The Government are confident that Clause 71 in no way hinders affirmative actions when properly directed at promoting equality of opportunity. In some cases it will have the effect of requiring public authorities to have due regard to the possibility of undertaking affirmative actions, where they are not already doing so, if these would enable them to fulfil their duty.

An exemption for affirmative actions is therefore unnecessary and runs the risk of calling into question the broad nature of the equality of opportunity

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obligation which the Government intend to enact. I hope that my noble and learned friend will feel somewhat persuaded by what I have said.

8 p.m.

Lord Archer of Sandwell: My Lords, I am grateful to my noble friend. If I sought to divide the House now I would be a candidate for the most unpopular character in history. My noble friend and I have both made a prediction. Time will tell whether my anxieties are justified. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 99:


Page 35, leave out lines 9 to 13 and insert--
("(a) any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;
(b) any body (other than the Equality Commission) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);
(c) any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation;").

On Question, amendment agreed to.

Clause 72 [Discrimination by public authorities]:

Lord Goodhart had given notice of his intention to move Amendment No. 100:


Page 35, line 24, after ("Ireland") insert (", including functions relating to the provision of goods, facilities or services to the public or a section of the public,").

The noble Lord said: My Lords, I do not intend to move Amendment No. 100, but I intend to move Amendment No. 102, with which it is grouped. I am not sure whether it would be procedurally correct to talk to that amendment now or after Amendment No. 101.

[Amendment No. 100 not moved.]

Lord Archer of Sandwell moved Amendment No. 101:


Page 35, line 26, after ("belief") insert (", sex, race, disability, age, marital status, dependants, sexual orientation").

The noble and learned Lord said: My Lords, it is rare indeed that one listens to my noble friend Lord Williams of Mostyn without acquiring a clear grasp of his argument and the reasons for his conclusion. At Committee stage I underwent that unique experience. We all agreed that in Clause 71, which deals with the duties of public authorities in promoting equality of opportunity, there is a requirement to promote equality of opportunity in respect of all the potential bases of discrimination, which are set out in Clause 71(1)(a). Yet when we come to Clause 72, which deals with discrimination by public authorities and incitement to discrimination, the protection is confined to religious belief and political opinion.

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I listened to my noble friend in Committee--and carefully read and re-read what he said--but I still have not grasped the reasons for the difference. I cannot believe that it is something to do with what is not explicitly spelled out in the agreement. Surely it was clear among all parties to the agreement that all these bases of distinction were intended to be discouraged. I promise my noble friend that if he seeks again to explain the reasons for the distinction I will try very hard to follow him. I would much prefer that he accepts the amendment. I beg to move.

Lord Dubs: My Lords, Clause 72 is designed broadly to re-enact Section 19 of the Northern Ireland Constitution Act 1973, which creates a ban on discrimination by public authorities on the grounds of religious belief or political opinion. Amendment No. 101 would widen the scope of the clause so that it made unlawful discrimination by public authorities on the grounds of gender, race, disability, age, marital status, dependants and sexual orientation.

My noble and learned friend Lord Archer of Sandwell referred to my noble friend Lord Williams of Mostyn, assuming that he would be dealing with this amendment. I hope I can be nearly as persuasive as my noble friend, who is on the Front Bench with me.

My noble and learned friend Lord Archer makes a strong case for extending the ban on discrimination to cover these additional grounds. There is, however, one "but". Such a far-reaching proposal is not envisaged in the Belfast agreement and so this is not the proper place to consider it. This legislation is intended to give effect to the Belfast agreement, not to enable a comprehensive review of discrimination and equality provisions. It is not intended to do that. That is the only argument that I shall use tonight against my noble and learned friend's amendment. If we were embarking upon a wide-ranging review of discrimination measures, I would listen very sympathetically to what my noble and learned friend has said. But that is not the case. It is not appropriate to do that on the back of a Bill dealing with the Belfast agreement. I hope that my noble and learned friend will feel able to withdraw his amendment.

Lord Archer of Sandwell: My Lords, my noble friend is very patient with me. It was in the 1973 Act--I follow that--but human rights is not a static subject. We have moved a long way since 1973. If that were the only basis of my noble friend's reasoning I would not be impressed.

He tells me that it is not in the agreement. It is certainly not spelt out specifically in the agreement, but I thought that was because everyone thought that that went without saying. I am not sure that I can carry the debate much further this evening. The Government's reasoning is clear to me now--it is the agreement, the whole agreement and nothing but the agreement. If something escaped inclusion in the agreement perhaps we should not be dealing with it at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Goodhart moved Amendment No. 102:


Page 35, line 26, at end insert--
("( ) For the purposes of subsection (1), a person discriminates against another person on the grounds of religious belief or political opinion if--
(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but--
(i) which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it, and
(ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied, and
(iii) which is to the detriment of the other because he cannot comply with it.").

The noble Lord said: My Lords, Clause 72(1) of this Bill makes it unlawful for a public authority carrying out functions in Northern Ireland to discriminate against a person or class of person on the grounds of religious belief or political opinion. It does not, however, define discrimination so that it clearly involves indirect discrimination. It is well known that all anti-discrimination legislation, in order to be fully effective, needs to prohibit both direct and indirect discrimination. The purpose of this amendment is to write into Clause 72 a definition of discrimination which includes indirect discrimination.

Indirect discrimination can, in many cases, be at least as effective a method of discriminating as direct discrimination. The definition used here is not novel in any way. It is a definition of indirect discrimination which is used in the Fair Employment Act. As this definition is already included elsewhere in legislation for Northern Ireland, I ask the Minister why it is that indirect discrimination cannot be expressly incorporated into Clause 72 as it has been in other legislation. I beg to move.


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