|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
The Government Equalities Office consultation recognises that equality does not mean uniformity of provision. Indeed, the reforms are all about treating people as individuals, whatever their age, circumstances or lifestyle. Could the Minister, therefore, set out why service providers would have to treat children of different ages in the same way as adults? This would be useful to aid our understanding of the operation of these clauses. I look forward to the Minister's response to this probing amendment. I fully expect to agree with her, but it would be useful to have some of our questions answered and explanations laid out on the record. I beg to move.
Lord Morris of Handsworth: My Lords, the substantive argument supporting the amendment has been ably put by the noble Baroness, Lady Warsi. I want to reinforce my support for the amendment, based on the anti-discrimination provisions contained in the Bill, which include age. Measured by the protected characteristics in Part 2, age discrimination is less protected than any other grounds. On this basis, Clause 28(1)(a) gives no protection against age discrimination in the provision of goods and services for those under 18. Put another way, this clause makes discrimination against those under 18 a permissive act, and it is that which the amendment seeks to remedy.
I find it strange that somebody who is 18 or under can take matrimonial responsibilities or die for their country, but the state reserves the right, under the relevant clause of the Bill, to allow practices that discriminate against them for the provision of some goods and services.
I am aware that my noble friend the Leader of the House disagreed with my comments at Second Reading, but I thank her nevertheless for her letter of explanation which subsequently followed. In support of my contention, I believe I need look no further than the report of the Joint Committee on Human Rights, published in November last year following its scrutiny of the Bill. The Joint Committee records:
"The total absence of protection against age discrimination for those under 18 in service provision and the limited protection in relation to the performance of public functions means that children who are subject to unjustified discrimination are left with little or no legal protection. This may prevent children enjoying full protection of their rights as set out in the UN Convention on the Rights of the Child ... We consider that the situation of children is no different and that exceptions to the general prohibition on age discrimination could also be made as required to cover age distinctions where children are involved".
"Age discrimination constitutes an unjustified denial of the right to equality and remains a serious problem in British society.
13 Jan 2010 : Column 588
Eighteen year-olds have a right and an aspiration not to be discriminated against in respect of goods and services and public provision. I say this not only because it is morally right but also because international experience supports that view. The Australian Age Discrimination Act 2004, covering among other things goods and services, explicitly includes children. This amendment provides an opportunity to strike a blow on behalf of children and young people against permissive discrimination. Like the noble Baroness opposite, I look forward to the assurances that the Minister is able to provide in respect of the principles contained in the amendment.
Lord Lester of Herne Hill: My Lords, contrary to some, I am not like WC Fields; I do not hate kids. However, the amendment reminds me of what happened when I introduced the infamous amendment that allowed light parental smacking. I won the support of all the violent Members of this House, who thought that I was a real man for doing it, and the opprobrium of all those who were part of the children's rights movement. It was like that because we were debating whether it was right to allow a parent to smack a child lightly when they could not smack their husband or wife lightly, because it would be common assault. The reason why both Houses came to the conclusion that there should be a difference of treatment between children and adults was that, in some respects, children are not adults. While that debate was going on, my late lamented friend Earl Russell whispered to me the following wisdom. He said: "Why don't you tell the House what John Locke, the great philosopher, said?". This was that children are not born equal; they are born to become equal. I believe this is true. The reason why one allows differences to occur is because children are not adults and one has therefore to allow differences in some contexts.
I was a member of the Joint Committee on Human Rights and have had a continuing disagreement with them as the noble Lord, Lord Morris, may know, going right back to the earlier issue. I fully appreciate the argument and I am totally opposed to some of the kinds of discrimination to which he refers, but I do not think one can ignore the fact, when legislating, that there are contexts in which children are not the same as adults. They are entitled to equal treatment and not to be discriminated against unfairly, but there has to be a range of situations in which differences of treatment on the basis of age are allowed for children and young people.
Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Lords for tabling this amendment, because it is helpful for the Government to have an opportunity to put on record why we have limited the protection from age discrimination in services and public functions to adults. I rather like the quotation from the noble Lord about Lord Russell.
First I should make clear that children and young people do have extensive protection under the Equality Bill. Like adults, they are protected from discrimination because of race, disability, gender, religion and belief, sexual orientation and gender reassignment and, like adults, from harassment because of disability, race and sex. Amendment 57 seeks to extend the ban on age discrimination in the provision of goods and services and the exercise of public functions to people under the age of 18. The Government have been clear from the outset that we are not minded to do this, and the decision not to has been taken only after very careful thought.
For adults we can identify only a very few situations where it is appropriate to differentiate services-as we did earlier this evening-according to age. The situation for children, however, is very different. It is almost always right to treat people under the age of 18 in a way that is appropriate to their age and particular stage of development, and it is often appropriate to treat them differently from adults. This is because age is a good indicator of a young person's level of development and their need for support or protection. It significantly influences how they need to be engaged, the services they require and the levels of personal responsibility and freedoms they should be afforded.
For example, three year-olds are very different from 10 year-olds, who in turn are very different from 15 year-olds. It would be nonsensical to require service providers to be age-blind when addressing the needs of children and providing services. There is no easy or sensible way to set arbitrary age limits on what should be appropriate treatment of children of different ages for every type of service that may be provided. Even 16 and 17 year-olds often need to be treated differently from adults. For example, they are restricted from purchasing tobacco products, alcohol, offensive weapons and knives, fireworks and sparklers and so on. The law also limits a child's responsibility in areas of contract and tort, including their liability for damages and their capacity to enter into contracts for goods and services.
We asked for examples of age discrimination to inform the development of policy on several occasions, but most of the examples of poor treatment of young people presented to us-the sort of examples cited by Young Equals-come from negative attitudes towards children, a general low opinion and mistrust of young people, and a lack of age-appropriate services for various age groups.
I have had a note passed to me about the various problems mentioned by Young Equals. The Government's Aiming High for Young People strategy aims to increase young people's influence over services, improve access to positive activities and counteract the way young people are often seen negatively. We are providing funding for local authorities to improve and involve young people in developing facilities and the Every Child Matters strategy and the Children's Plan put children at the heart of government policy. We are dealing in different ways with many of the things that Young Equals raises.
Outside the various age limits specified in law, there are many age-appropriate and age-restricted services that exist to help young people in their transition to
13 Jan 2010 : Column 590
It would be extremely complex to provide exceptions in law to protect all such treatment. However, even if we were able to provide such exceptions and an objective justification defence, many service providers would simply standardise services across all age groups or withdraw from providing age-appropriate services altogether out of fear of being tied up in complaints that could end up in court. There would also be a reluctance to commit the management and other resources necessary to ensure that their services are always delivered in an age-blind way, or that the objective justification assessments have been properly carried out to prevent challenge in the first place. It is just not worth the significant risk of compromising children's services and the widespread, legitimate, common-sense uses of age in this way, in a fruitless attempt to address young people's general sense that older people do not treat them with enough respect in circumstances that would not fall within the scope of discrimination law anyway.
We take such issues seriously, and the view that young people deserve more dignity and respect is one with which I have great sympathy. But there are better ways to tackle the problems that children face, including specific, tailored non-legislative measures for children and young people, existing legislation such as the Human Rights Act and the new equality duty, which is included in the Equality Bill. For this reason, the amendment is unnecessary and therefore I ask that it be withdrawn.
Baroness Warsi: I thank the Minister for her response, which was interesting in how the Government seek to engage with young people to ensure that their voices are heard. As I said, this was very much a probing amendment to try to address some of the concerns raised by the various children's charities. At this stage, I beg leave to withdraw the amendment.
Nothing in this Act shall have the effect of requiring a person (A) to provide a good or service to a person (B) when doing so has the effect of making A complicit with an action to which A has a genuine conscientious objection."
Lord Mackay of Clashfern: My Lords, I believe that there is a real sense in which the extent to which a society or country demonstrates its respect for conscience is a crucial criterion of the extent to which it has attained a civilised status. This is made very plain in the Universal Declaration of Human Rights, whose very first article says:
Respecting conscience is not merely a matter of human rights; it is also a matter of prudence. One of the earliest speeches that I heard in this House was given by the former Lord Chief Justice, the late Lord Lane. He was a man of great experience in the law, and the criminal law in particular. In it, he spoke of the need to ensure that we should not denigrate conscience, because he recognised, rightly, that conscience plays a very important role in upholding the criminal law. As Edmund Burke once said, the less you restrain a man from within, the more you are required to restrain him from without. Failure to respect conscience is a fundamental mistake on the part of any state that aspires to be Liberal Democratic in relation to human dignity and the maintenance of law and order.
Over the many years during which I have been involved in the law and the political process, people have often grumbled to me about aspects of our legal system. Until very recently I have always responded that in Britain, while there are undoubtedly matters about which people could be legitimately anxious, one could always be assured that the law would not require you to violate your conscience. In recent years, however, and certainly since 2006, this has been brought into question. I will give an example or two.
At the moment, the goods and services legislation with respect to religion and belief which was introduced by the Equality Act 2006 and is recounted in the Bill before us today, puts a gay printer in a very difficult position in the event that he is approached by an evangelical or Catholic theologian who wants him to print a theology book outlining the belief that same-sex sexual practice is a sin. He cannot print the book without becoming complicit in promoting a view with which he strongly disagrees and which he may feel violates his own identity. However, under the terms of the goods and services legislation it is not clear that he could refer the theologian on to another printer.
Similarly, the goods and services legislation with respect to sexual orientation introduced by regulations mandated by the 2006 Act and again referred to in the
13 Jan 2010 : Column 592
The conflict between religion and belief and sexual orientation is a recurrent challenge, but we must remember that there is actually no conflict between sexual orientation and religion. There are no mainstream religious groups, certainly within the Christian tradition, that object to a person's sexual orientation. The objection is narrowly to the practice of sex outside marriage.
This matter was mentioned in a judgment of the court in Northern Ireland in connection with an application for judicial review. Mr Justice Weatherup noted that the view that same-sex sexual activity is sinful is an orthodox religious belief which is worthy of recognition in a modern democratic society. In the original proposal for a Council directive in the European Community on equal treatment there is an explanatory memorandum which sets out views about the provisions in the proposal. It states:
"The discriminatory grounds referred to in paragraph 1 coincide with those laid down by Article 13 of the Treaty, with the exception of the ground of sex. With regard to sexual orientation, a clear dividing line should be drawn between sexual orientation, which is covered by this proposal, and sexual behaviour, which is not. Furthermore, it should be underlined that this proposal does not affect marital status and therefore it does not impinge upon entitlements to benefits for married couples".
The problem is around goods and services. The difficulty arises because people who have these views object to the practice, for example in their homes, of sexual relations outside marriage. That is the view which they take and, as I have just quoted, it is a fairly orthodox view which requires to be recognised in a liberal democracy nowadays.
When this was discussed before, it was suggested that the person who, for example, provides bed and breakfast could not make arrangements which required non-married couples, whether same-sex or heterosexual, to use different rooms in their establishment. I am certainly very much aware of that as a difficulty in, for example, the Scottish highlands, where quite a number of people go in for bed and breakfast. They are people who really are dependent on that type of living, because not too many opportunities for alternative employment are open to them in the remoter glens of the Scottish highlands. On this particular question, if a boarding-house keeper has the arrangement that unmarried couples-whether homosexual or heterosexual-are to be accommodated in their establishment in separate rooms, is that a breach of the regulations? It is a simple question, to which I would be glad of an answer.
The idea that conscience should rule in circumstances such as we are familiar with is, for example, referred to in the abortion legislation. A doctor who has a conscientious objection to performing an abortion is not obliged to do so. Even if he is with the National
13 Jan 2010 : Column 593
This Bill is in a unique position to deal with that problem, because the previous introductions in relation to sexual orientation, for example, were done by means of delegated or subordinate legislation and were unamendable. I welcome this Bill very much and certainly hope that it will, suitably improved, reach the statute book in good time. Yet I certainly think it right that it should be improved in this respect, by allowing individual conscience when it comes into play as a genuine conscientious conviction. It is possible to have lots of things that are not genuine, but I am talking of a genuine conscientious objection which should be allowed. That would promote the brotherhood of which Robbie Burns spoke and of which Article 1 of the human rights declaration speaks. I should probably declare a number of interests. I am an office-bearer in various Christian societies and a member of some others. I beg to move.
Lord Lester of Herne Hill: My Lords, nobody could reply to the noble and learned Lord properly after such a wide-ranging speech, and at this hour, and I will not attempt to do so. However, perhaps I could just explain extremely briefly why I respectfully disagree with him about his entire approach. It is an approach which I believe will be contrary both to European Union and European Human Rights Convention law on equality.
It is of course the case that freedom of conscience, religion and belief are as important to human rights as the principle of equal treatment without discrimination, and that both have to be accommodated within our legislation. That is entirely the case and therefore when we come later on to consider the position of the churches I am sympathetic to recognising that we should render unto Caesar only those things which should be rendered unto Caesar, and unto God those that should be rendered unto God. Therefore we should do nothing which would violate the basic tenets of the Christian or other churches in this area, provided that they are shown to be really necessary for their purpose. So we can leave that entirely on one side.
However the amendment which the noble and learned Lord puts forward is a blanket exception which, if it were to be accepted, would create a huge loophole in the whole of our discrimination law. It would mean presumably, for example, that a person could refuse to serve a gay person or a Muslim because they had a conscientious objection to doing so. I know that is not what is intended-
Baroness Warsi: I am sorry to interrupt the noble Lord, Lord Lester, when he is in full flow, but I would be interested in an example where somebody could potentially have a conscientious objection to serving, for example, a Muslim.
Lord Lester of Herne Hill: The question would be whether it was a conscientious objection, for example a genuinely held homophobic belief. Let me give an actual example rather than a hypothetical one. Take the Ladele case. In Ladele, a public officer, a registrar of births and marriages, had a conscientious objection to carrying out a civil partnership ceremony. There is no doubt that it was a deeply held aversion to the idea of homosexuality, not just because of homosexuality as practised as the noble and learned Lord would suggest, but because of the very idea that gay people should be entitled to be treated, for this purpose, in a similar way to married people. This person, who had a conscientious objection, refused to perform a state-funded, important function on conscientious grounds. The court, in a carefully reasoned judgment, explained why that was wholly unacceptable, contrary both to European and our domestic law. It is a good example because there is no doubt that the objection was conscientious but there is also no doubt that it would be completely intolerable if you allowed public officials in providing a service to decide on the basis of their own deeply held convictions that they were not prepared to carry out the service.
|Next Section||Back to Table of Contents||Lords Hansard Home Page|