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Currently discrimination can only be proved for an impairment which has lasted for 12 months or more. Should the Bill pass in its current form, it will still be perfectly lawful for an employer to sack someone for taking time off for a shorter episode of severe depression. There are also cases where people face benefit sanctions because of this rule, such as the one brought to RADAR by a distraught disabled woman who had been summoned for a work-focused interview. She could not get to the bus stop to get to the jobcentre because of a serious, though short-term, injury; but the jobcentre would not make reasonable adjustment and send a taxi because she was not covered by the long-term requirement defining disability.

Let us make sure that the Bill deals with the discrimination and not with fruitless arguments about the extent of disability. This is a good Bill which contains many helpful improvements in protection against discrimination and, with a little more work, could prove to be a great landmark in transforming the British economy and our society for the better.

10.03 pm

Lord Wallace of Tankerness: My Lords, it is a great privilege to take part in this debate, a debate which has shown the rich diversity of the House in experience and background, all of which are of such importance and relevance to the issues that we have debated today.

The Liberal Democrats support the Bill; it is a good Bill. Our political creed has at its core the importance, freedom and dignity of the individual. We believe that the right to equality without discrimination is an

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individual right. It is not a right for communities, although it goes hand in hand with the responsibility to respect the rights of others. Discrimination offends that fundamental dignity and, while inequality is invariably a barrier on the road to individual fulfilment and freedom to fulfil one's potential, we believe that fulfilling one's potential is something that is done in society and the community. That is why we support the Bill. It brings together in one piece of legislation a plethora of Acts and orders, or, as the noble Lord, Lord Low, more graphically said, "an overgrown and impenetrable jungle". It gives a coherence and consistency that ought to make its application more effective, although I echo the concerns expressed by the noble Baronesses, Lady Campbell of Surbiton and Lady Wilkins, and the noble Lord, Lord Low, that there should be no regression, especially with regard to disability.

Nor should we be starry-eyed about the capacity of legislation to right the wrongs of the world. In his book, Strength to Love, published in 1963, Martin Luther King said:

"Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless".

Arguably, over many years, perhaps a culture can be changed. It is undoubtedly the case that today language and attitudes that were all too common at the time of the original Race Relations Act are simply not acceptable.

In supporting the Bill, we on these Benches do not accept that it cannot be improved. We will challenge what we believe to be misguided or unnecessary and we shall seek to correct omissions through constructive amendment. Already we have been engaging positively with Ministers and officials, and I hope that across the House we can improve the Bill as it makes it way through your Lordships' House and secures a successful passage.

One immediate improvement would be to drop Part 1. Tackling socio-economic inequality is important and desirable, but it is wholly questionable whether the three clauses can achieve that end. I join the noble Lord, Lord Warner, in the sceptical pragmatist camp. The noble Baroness, Lady Young of Hornsey, analysed the vagueness of the wording and referred to "desirability". The noble Lord, Lord Ouseley, said that "due regard" was the ultimate cop-out for organisations that wanted to do nothing. I do not think that they will assist in achieving the objectives that no doubt underlie the insertion of that provision.

Poverty and inequality are so often different sides of the same coin. I do not question the good faith of Labour Ministers who came to power in 1997 desiring to tackle poverty, but Britain has become a less equal and less fair society under their tenure of office. Today, a person born into a poor family is more likely to remain poor throughout their adult life than a person born 30 years ago. One gets the feeling that as their period of office possibly comes to an end, Ministers wish to atone and are trying to salve their consciences by inserting well intentioned but practically limited provision in this legacy legislation. It is abundantly clear that as a result of Clause 3 it would never be put to the legal test, except perhaps through a costly judicial review, which those at greatest socio-economic disadvantage could never afford.



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There is a legal maxim: ubi ius ibi remedium-where there is law, there is a remedy. But this part of the Bill seems to turn that on its head: ibi ius ubi remedium-here is the law, where is the remedy? I do not believe that that is what we should be doing. Aspirational legislation which, as the Solicitor-General was quoted as saying, "might do no harm" is not a suitable substitute for substantive policies with regard to education, health and taxation to tackle inequality.

My noble friends Lord Lester of Herne Hill and Lady Northover indicated areas on which we would wish to concentrate. I shall go over them very briefly. Equal pay was mentioned by the noble Baronesses, Lady Gould and Lady Howe of Idlicote. There is the comparison with predecessors, discussion of pay with colleagues and the scope of the employer's defence. We will be looking at ways of strengthening that to try to ensure that the objectives of equal pay are more likely to become a reality sooner rather than later. The noble Baroness, Lady Howells of St Davids, mentioned representative actions in equal pay claims. While it was important to do that ahead of the civil justice review, perhaps the Minister can indicate whether that can be done under existing tribunals legislation by bringing forward procedural rules rather than by means of an amendment. If it can, we would need to debate one amendment fewer in Committee.

The noble Lord, Lord Macdonald of Tradeston, referred to employment and religion. The noble Lord, Lord Warner, commented on Schedule 9, feeling that the exemptions are too widely drawn, whereas the noble Baroness, Lady Cumberlege, would probably suggest that they are too narrowly drawn. That links to the issue that was also raised by the noble Lord, Lord Warner, about discrimination on grounds of sexual orientation in the provision of public services. Many people are concerned that when public money is spent on public services, discrimination that in other circumstances would not be acceptable somehow seems to get in under the shield of religion.

We understand that the European Commission has recently given two opinions on UK equality legislation with regard to areas of discrimination and whether it gives insufficient protection against certain forms of it. I think it would be helpful if the Minister could indicate whether the Government have received these opinions and, if so, whether it is possible to put them in the public domain because they will properly inform our debates at subsequent stages of this Bill.

My noble friend Lord Lester of Herne Hill reflected on the public sector duty in Clause 148 and these points were picked up by other contributors, not least the noble Baroness, Lady Murphy, the noble Lord, Lord Warner, and the most reverend Primate the Archbishop of York. In its present form, there is a possibility of reaching the stage where different services could be provided for different groups by different people, which would not be a sensible outcome. There are clearly issues which still need to be addressed. This also raises the tension which inevitably exists between free speech and equality, particularly when we deal with issues of religion or faith. If people have to declare interests, I am certainly not the president of

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the Humanist Association, being an elder of the Church of Scotland. We will do service if we concentrate on these important issues in Committee.

I want to raise again another point in terms of the balance between equality and free speech, which was referred to by my noble friend Lord Lester. Broadcasters are concerned that the Bill could lower the bar for complaints to be made, making it easier for complaints via the EHRC, when there is already an established route through Ofcom and the BBC Trust agreement. We should be concerned if, by implementing the provisions as they stand, we somehow dilute creativity. This is not a fanciful situation; there has already been a complaint to Ofcom that Channel 4's "Undercover Mosque" might have included material that was likely to cause an incitement to racial hatred. The Government have already indicated that they do not intend to interfere with editorial independence and, with regard to the positive duty to promote equality, they have indicated a willingness to meet that. There is concern, however, on the other side of the coin, that they have not yet made their position clear on the non-discrimination duty. I hope that the Minister can address that tonight or give some indication ahead of the Committee stage that that point is understood and acknowledged.

Another point at which we will want to look is the issue of homophobic and transgender bullying. There are provisions with regard to harassment in schools, but why do they not apply on grounds of gender reassignment and sexual orientation, or indeed of religion and belief? In her opening address, the Leader of the House referred to tackling homophobic bullying at work. The Government seem to be in denial about homophobic or transgender bullying in schools. The briefing which noble Lords will have received from Barnardo's makes it clear that there is an issue here. Sixty-five per cent of young lesbian, gay and bisexual pupils have experienced direct bullying. Less than a quarter of young gay people have been told that homophobic bullying is wrong. Significantly, where they were told that it was wrong, young gay people were 60 per cent more likely not to have been bullied. If the issue was sufficiently important for the Department for Children, Schools and Families to have issued guidance last week on tackling this bullying, one would wish to ask the Government what steps they intend to take to extend the provisions to tackle the issue of homophobic bullying at school.

In conclusion, we wish to ensure that this Bill is properly delivered. We do not want it to be dealt with in the wash-up and we certainly do not want it to be washed up. I wish to pay tribute to my colleagues in the other place, particularly Lynne Featherstone and Evan Harris, who have raised a variety of issues by way of amendments-for example, that there should be anonymous applications; the issue of discrimination against gay men in the collection of blood; the issue of Scottish Gypsy Travellers, as mentioned by my noble friend Lady Northover; and, as raised by my noble friend Lady Northover, the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Flather, the issue of discrimination by caste, in which my noble friend Lord Avebury has certainly taken an interest. As I think my noble friend Lord Lester indicated, if the definition of race in Clause 9 could include

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descent, then possibly the Convention on the Elimination of All Forms of Racial Discrimination might cover the question of discrimination by caste. I ask the Minister to look into that.

The Bill is up against a tight timetable, although that is not an excuse for not giving it proper scrutiny. I think we should ensure that the best does not become the enemy of the good, but I think that with some work we can make it better.

10.15 pm

Baroness Morris of Bolton: My Lords, given the wide-ranging nature of the Bill, I think that I have to declare all my interests as set out in the Register, because, quite rightly, this Bill should reach every part of our lives.

This is an important Bill on a complex and emotive subject and your Lordships' contributions to the debate have been suitably thorough, thoughtful and heartfelt. There is no doubting the passion and determination all around the House-I think in particular of the noble Baroness, Lady Campbell, and the noble Lord, Lord Alli. I am pleased to be able to contribute to the first stage of what I hope will be a more detailed and lengthy consideration of the Bill than was possible in the other place.

The noble Baroness, Lady Northover, said that my noble friend Lady Warsi did not seem to spell out our views in any positive way. My noble friend said that we want to achieve a workable piece of legislation. I do not think that anyone can doubt her commitment to equality, because anyone who knows her knows her commitment.

I join those who have welcomed the general principles of the Bill and I thank the noble Baroness the Leader of the House for her sensitive and thoughtful introduction. The fact that there is much for us on this side to welcome should not be too surprising. The majority of the Bill's provisions are, after all, concerned with consolidating existing pieces of equal rights legislation, which were passed with a large amount of cross-party support and, in several cases, under Conservative Governments.

I think that we should take a moment to pay tribute to those of all parties who pioneered the measures that form the backbone of this new Bill and who, in doing so, made a real difference to the lives of millions of people over the years. The list of repeals at Schedule 27 to the Bill is a roll-call of 40 years of social progress in this country: from the Equal Pay Act 1970 and the Sex Discrimination Acts of 1975 and 1986 via the Race Relations Act 1976 to the Disability Discrimination Act 1995. We can on all sides of this House feel proud that those Acts are on the statute book and it is right that we record that fact as we discuss replacing them.

Equality and fairness are objectives to which almost all of us aspire in today's society. There are very few people whose views are genuinely bigoted or who would defend deliberate discrimination against people on the grounds of race, disability, gender or sexual orientation. However, there remain otherwise decent people who express frustration at what they perceive to be special treatment or preferment in favour of one group or another in society. I was pleased that the

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Leader of the House said that this Bill does not give preferment to one group. Much indirect discrimination and negative attitude can be traced to this unease and, when addressing inequality, we must be constantly wary not to take measures that risk fostering more resentment.

The Minister for Women in another place made much of the traditional Labour commitment to equality, so I hope that I may be permitted to say that such a commitment has also played a prominent part in my party's history over the years. I have, I think, mentioned before in your Lordships' House a favourite election poster of mine from the mid-1990s, which featured in John Major's handwriting the message "Opportunity for All". That, for me, summed up a simple but fundamentally Conservative commitment to true equality: not a fruitless search for equality of outcome or a pretence that we are all the same, but the belief that we should all, whatever our background, gender, race, sexual orientation or disability, have access to the same opportunities to get on in life and that we should all be treated in accordance with who we are. I think that the noble Lord, Lord Alli, said that we should be judged on who we are. That message is made more, not less, important by the current economic climate. It is in the interests of a productive economy that we should not allow anyone's talent to go to waste, a theme articulated by the noble Lord, Lord Adebowale. We are all in this together, as someone wisely said.

However, as we all know, the subject often has its controversy. That is true of this Bill as well. We on this side may applaud the Bill's broad objectives but we cannot help but feel that, in its detail, it contains some ill conceived measures which make it difficult for us to give it the wholehearted support that we would wish to. That is why we tabled a reasoned amendment in another place and why we continue to seek amendments to parts of the Bill. Many people are sceptical of attempts by the state to bring about a better society through legislation. They are right to be. We have no magic wand. Increasingly, however, it seems that Ministers are waving around the legislative equivalent of a magic wand.

It is against this background that we view the first part of the Bill, with its duty on public bodies to help to reduce socio-economic inequality. This is a worthy objective, but not one that is necessarily within their competence to achieve, even with the promise of guidance from Ministers. On this side, we sincerely agree with the need to reduce such inequalities. We are, however, complacent or naive if we think that an edict from this place will achieve that. The first part is, therefore, at best ineffective and at worst a damaging distraction from what should be this Bill's main purpose. Although we cannot conjure up equality, we can enact measures that restrict unfair discrimination and unacceptable practices. That is a proper role for legislation.

On that subject, I commend my noble friend Lady Miller of Hendon for her wonderfully entertaining speech-vintage Lady Miller-and the noble Baroness, Lady Deech, for highlighting yesterday the discrimination that exists here in your Lordships' House over the different treatment of our spouses. Although yesterday the issue raised a smile or two-and it is not the most

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pressing inequality facing society-it hardly sends the right message. We should reflect on that in the context of this Bill.

Eliminating unfair practices does not mean, nor should it mean, ignoring differences. As the most reverend Primate the Archbishop of York said, you do not get equality by concealing difference. The richness of our society is its diversity and that is undoubtedly a good thing. The question is how we ensure that such differences are respected and notused to discriminate unfairly. My noble friend Lady Cumberlege talked about accommodating difference. In relation to gender, where would we be without differences in the sexes? Certainly not here is the biological answer.

In an amusing section of her speech, the noble Baroness, Lady Royall, told us exactly what the Bill was not about. I, too, should like to address a concern that was expressed to me and illustrates a point. This Bill will not require "Top Gear" to have a woman presenter or "Loose Women" to have a man. The appeal of these programmes is not restricted wholly to men or women, even though their formats are based primarily on assumptions of differing interests. Should we be legislating for their presenting teams to be evenly balanced? Would we want to see Jeremy Clarkson swapping relationship advice with Coleen Nolan, while Lynda Bellingham demolished a caravan with James May?

Noble Lords: Yes! Yes!

Baroness Morris of Bolton: My Lords, I do not think so. There is a role for differences in society and we should not be afraid of them.

I want to mention a number of areas of the Bill where we have specific concerns about the detail of what is proposed. The first is equal pay, a subject about which I feel particularly strongly, as do a number of noble Lords, particularly the noble Baronesses, Lady Gould and Lady Howe. I introduced a Private Member's Bill on this subject earlier in the year. We applaud the measures designed to eliminate the gagging clauses that prevent staff from discussing what they earn. In today's climate it seems that we do little else but discuss levels of remuneration. As bankers have recently discovered, greater transparency seems to focus the mind and makes it harder for employers to get away with clearly unequal levels of pay.

However, as my noble friend Lady Warsi explained in her powerful opening speech, we are not convinced of the Bill's intention regarding compulsory pay audits, which are costly and time-consuming. We would welcome the hints given on the "Today" programme and in the Times that the Government might row back on this. However, we regard equal pay as a matter of social justice and we would not wish to see the plight of women working in smaller firms ignored. We believe that the more sensible solution would be to require an audit in all companies in which an employee had brought a successful case on these grounds. That would greatly strengthen the current position by providing meaningful sanctions against unfair employers, while not burdening the majority of fair employers with a new administrative burden. We will bring forward amendments on this in Committee.



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My right honourable friend Theresa May said in another place:

"We have consistently supported positive action on the basis that it could be used as a tiebreaker when there are two equally qualified candidates".-[Official Report, Commons, 2/12/09; col. 1228.]

But some people are nervous about any suggestion of positive discrimination. There should be discretion for employers but we should be wary of going further down the road towards allowing the whole recruitment process to be unfairly weighted. That concern lay behind the discussion in Committee and on Report in another place about the Bill's reference to "as qualified" versus our preference for "equally qualified". That important distinction is one to which I know we shall return; as well as being substantively important, it will provide hours of productive activity for the armchair lexicographers in your Lordships' House.

It goes without saying that we are supportive of the extension of the Sex Discrimination (Election Candidates) Act 2002. The noble Baroness, Lady Howe of Idlicote, said that all parties were introducing all-women shortlists. We have not yet had all-women shortlists, although we have had a number by desire rather than design. David Cameron has said that he will use them if necessary. I say to the noble Baroness, Lady Gale, that the Sex Discrimination (Election Candidates) Act is not just about all-women shortlists; it allows political parties to use positive action in a number of ways and through that we set up our priority list.

Getting the balance right on these issues is, of course, fraught with difficulty, but I return to the basic premise that it is possible and desirable to acknowledge and to celebrate differences while being utterly intolerant of practices that seek to discriminate unfairly using those criteria. If we blindly follow the principle that there should be no differentiation in what can be provided for specific audiences or in who is best to provide them, we could end up with all sorts of unintended consequences. A good example is the provision of goods and services to particular sections of the community, such as car insurance for women and holidays for older people, to which my noble friend Lord Ferrers spoke.

This leads me to my final points about the potential impact of the Bill on religious organisations. We on these Benches have listened to the arguments of the Church of England, the Catholic Bishops' Conference and others who have a real concern that the measures in the Bill will cause them difficulties. As the most reverend Primate the Archbishop of York, the right reverend Prelate the Bishop of Chester and my noble friends Lady O'Cathain and Lady Cumberlege so ably explained, it revolves around a tightening of the definition of employment for the purposes of religion, which would appear to exclude many of those who currently work in religious organisations. I am sure that we shall discuss this issue in some detail in Committee. We would do well to remember that the principle underpinning this Bill is respect for diversity. It would be wrong, and not a little odd, if in the same Bill we were to show intolerance of the deeply held views of different faiths and restrict their right to employ those who share a commitment to their way of life.



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