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Equality Bill

Volume 716: debated on Tuesday 19 January 2010

Committee (3rd Day)

Schedule 2: Services and public functions: reasonable adjustments

Amendment 57B

Moved by

57B: Schedule 2, page 132, leave out lines 25 to 27 and insert—

“( ) to remove the feature, or( ) to alter the feature, or( ) to provide a reasonable means of avoiding the feature, or( ) to provide a reasonable method of providing the service or exercising the function.”

My Lords, Amendment 57B makes more active the requirement to make reasonable adjustments for those with disabilities. We have tabled this amendment to probe the issue of reasonable adjustments for those people with disabilities. Amendment 57B increases the strength of the duty in Schedule 2. As the Bill stands, the duty states that where,

“a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled”,

then reasonable steps should be taken to avoid that disadvantage. In paragraph 2(3) of Schedule 2, this is then defined as,

“(a) to avoid the disadvantage, or

(b) to adopt a reasonable alternative method of providing the service or exercising the function”.

Our amendment would alter this provision so that reasonable adjustments such as,

“to remove the feature, or … to alter the feature, or … to provide a reasonable means of avoiding the feature”,

would also be options that would have to be taken into account.

We have tabled these amendments to probe the area of reasonable adjustments and auxiliary aids. We are just looking for some clarity. The Bill as it stands shows that the Government are clearly concerned that some reasonable adjustments should be made, and we welcome this provision. However, can the Minister tell the Committee whether any assessment has been made of the cost of such a provision? Furthermore, can she give us an example of an adjustment that would pass the reasonable test and an adjustment that would be considered as going beyond the call of legislation? Does the Minister think that there is the possibility that these provisions could be interpreted as too passive? They ask only that there should be a way of getting around the disadvantage or an alternative method to provide the service. As they stand, therefore, reasonable adjustments here may mean that disabled persons are only accommodated rather than actively welcomed. Will there be guidance on how the schedule should be interpreted? What might the impact be on a small shopkeeper who has a shop with a narrow entrance and several stairs? How far would the duty extend? I beg to move.

My Lords, we considered this same amendment in Committee in the other place, and I welcome the opportunity to discuss it again. The reasonable adjustment duty is an essential cornerstone of the protection for disabled people contained in the Bill. This amendment would import into the Bill similar language to that used in the Disability Discrimination Act, where a physical feature puts a disabled person at a substantial disadvantage. We heard evidence in Committee in the other place suggesting that the absence of a reference to removing the feature as an option had been interpreted as weakening the provision, but that is certainly not the intention and is certainly not the case.

The emphasis in the Bill is on taking such steps as it is reasonable to take to “avoid the disadvantage”, which is to say that we are legislating to ensure the outcome which will increase access for disabled people and not the means of achieving that outcome. That means may well, of course, result in removing the feature which is causing the disadvantage. That is what I wish to stress—that this is about the outcome rather than the means of achieving the outcome. In addition, one of the Bill’s benefits is that it simplifies and harmonises the legislation; and this amendment, which applies only to services and public functions, does not achieve that result.

We consider that exemplifying how the duty might be delivered in different circumstances is best done through an authoritative code of practice and other guidance which can be informed by good practical, real-life examples. When the noble Baroness asks me for examples, I must refer her to the forthcoming guidance.

For information, the Disability Charities Consortium has identified this in its briefing on the Bill as a key area for strengthening or clarification. However, we have already strengthened the duty by introducing the single, substantial disadvantage threshold, and we should and must acknowledge that. We will provide any necessary clarification in the codes and guidance.

The noble Baroness asked whether we were being too passive with this clause. I do not believe that we are being passive, as we are actively asking people to ensure that they achieve the best outcomes for disabled people. I respectfully ask her to withdraw the amendment.

My Lords, I thank the Minister for her reply. There has been some clarification, but I note with concern that the authoritative code to which the noble Baroness refers and the guidance are still to be forthcoming. That appears to be a feature of this Bill, which has been a long time coming—the fact that we are debating it in this place, when it has already been debated in another place, and are still waiting for guidance.

Many of the draft codes of practice are now on the internet for consultation, so I refer noble Lords there. I am not absolutely certain that the specific code to which this clause refers is on the internet, but I shall verify that and come back to the noble Baroness.

My Lords, I am not sure whether this is on the internet, so I look forward to the reply from the Minister. However, I would still raise the issue that I am raising. It concerns me that these matters are still out for consultation. Surely it would have been more appropriate if we had had responses on the guidance to these clauses, which is clearly interpreting the legislation. It is clearly not clear, which is why we have to table so many probing amendments. However, at this stage, I beg leave to withdraw the amendment.

Amendment 57B withdrawn.

Amendments 57C and 57D not moved.

Schedule 2 agreed.

Schedule 3 : Services and public functions: exceptions

Amendment 58

Moved by

58: Schedule 3, page 137, line 27, leave out paragraph (b)

My Lords, I wish to speak to Amendments 58, 107, 108 and 108EA.

Currently, local authorities and schools are not under the DDA duty to consider auxiliary aids in relation to disabled school pupils, and that position is mirrored in the Equality Bill. This group of amendments will reverse that position. Amendment 58 will place a duty on local authorities in relation to their education functions, as set out in Schedule 3, to comply with the third reasonable adjustment requirement, as set out in Clause 20, to consider auxiliary aids. Amendments 107, 108 and 108EA will do the same for schools in Schedule 13. Such aids could include adaptive keyboards, voice output and communication equipment for pupils with hearing and speech difficulties, and computer technology to help pupils with visual impairments. I am sure that we would all agree that disabled pupils need all the help they can be given to ensure they get the education they deserve.

However, the disability lobbies have long argued that the position of local authorities and schools not having to consider auxiliary aids is a barrier to some disabled pupils getting their education. Our view has been that many disabled pupils also have a statement of special educational needs, and so will get any auxiliary aids provided as part of that regime. In addition, schools and local authorities are under planning duties and strategies to consider the needs of disabled pupils more widely, so auxiliary aids will be considered in a more strategic and planned way. However, we have listened carefully to the lobby arguments and views on this and other disability issues in schools, and recognise that the whole approach to disability and special educational needs in schools needs to be reviewed. That is exactly what we have been doing. Following a Select Committee report on special educational needs in 2006, we asked Ofsted to conduct a review in 2009-10. It will look at how well the existing policy and statutory arrangements are meeting the needs of disabled pupils and those with special educational needs to determine if any changes and improvements need to be made.

It would have been logical to tackle the issue of auxiliary aids following that review. However, as noble Lords may be aware, an inquiry into parental confidence in the special educational needs systems was conducted by Brian Lamb, the chair of the Special Educational Consortium, in 2008 and 2009. His recommendations were published in December. One of the recommendations was that schools should be under the duty to consider auxiliary aids. We have therefore reconsidered the matter and we are keen to ensure that no disabled child who needs an auxiliary aid misses out. It would be wrong if even a single disabled child misses out through a gap in provision. We have therefore decided that it would be appropriate to introduce such provisions now, in this Bill, to ensure that auxiliary aids are considered in relation to all disabled school pupils.

We have gone further than the amendment which was originally tabled by the noble Baronesses, Lady Warsi and Lady Morris, and we have tabled Amendments 107, 108 and 108EA, which will amend Schedule 13 and place the same duty on schools themselves when offering all types of education. This group of amendments will ensure that there are no gaps in provision and that all disabled pupils will get the help they need to get the education they deserve. This can only be of benefit to disabled pupils, and I therefore hope that noble Lords will accept the amendments. I beg to move.

My Lords, I strongly welcome these amendments, which implement a key recommendation of the Lamb review, and the Disability Rights Commission review of Part 4 of the DDA which was back in 2007. Too many disabled children face barriers to participation in learning and school life, because if they do not have a statement of special educational needs, they have no enforceable entitlement to extra support. The Equality Bill provides the perfect vehicle to remedy this injustice, and I am delighted that the Government have seized it.

The effect of the amendments will be to provide many thousands of disabled pupils, and their parents, with the confidence to get the practical support they need to take part in school life. For example, I have been contacted by a parent of a child with chronic fatigue syndrome, who says that a right to auxiliary aids and services will greatly assist her and her son negotiating arrangements with the school—things like proper rest facilities, a mentor so that he can maintain contact with school life, and provision of forward programmes of work. None of these things involves any great financial outlay, but they would make a huge practical difference to his participation.

I congratulate the Government on bringing forward these amendments, which contribute to the goal of an inclusive education system, and wish them a speedy passage onto the statute book. However, I sound a note of concern about the absence of any explicit provision in the Bill for an anticipatory duty to make reasonable adjustments in relation to schools and education for disabled pupils. Disability discrimination lawyers are clear that the Bill does not provide for this and that there is a real risk of regression here. They are clear that it is not enough to refer to an anticipatory duty in the Explanatory Notes when the Bill itself provides otherwise. Can the Minister give me an undertaking that urgent discussions will be held to iron out this issue? I am afraid it will require a substantive amendment to the Bill.

My Lords, this is something for which I called at Second Reading, so I naturally very much welcome the Government bringing forward these amendments today. Indeed, I could hardly do otherwise, since I see that my name has been added to the government amendment. It got there by a rather roundabout route, I think. The Government, as the Minister has explained, tabled their first amendment, which covered half the ground, and the noble Baroness, Lady Warsi, put down another amendment for the Opposition, covering the rest of the ground, and which I supported. When the Government took over the amendment of the noble Baroness, Lady Warsi, and, as the Minister has explained, went a little further, the noble Baroness, Lady Warsi, withdrew her name but I did not. That is why my name has been added to the amendment, but I am happy for it to be so. Having asked the Government to make these changes at Second Reading, I am obviously delighted that they have done so.

We strongly support the government amendments. I just add that when the noble Lord, Lord Low, sounds the trumpet, we all follow him in this area. I am delighted that the Government have done so.

We welcome these amendments from the Government and thank the Minister for her introduction to them. Effectively, these amendments are about auxiliary aids and services in schools. The combined effect would be to remove the existing exception in the Bill, whereby a local authority or school is not required to consider the provision of auxiliary aids.

We have heard from the Disability Charities Consortium that there is a gap in provision where disabled children have suffered because they have not received a statement of special educational needs—which would then have placed a duty on the local authority to provide for those needs—or where accessibility plans have not been met for individuals. This may mean that there are children with disabilities who are yet outside the scope of either the SEN provisions or those of the Disability Discrimination Act and so no single authority is held responsible for their support. These amendments therefore address a gap in provision which it is very important to fix. We want to ensure that no child could be let down by falling between the two and so being helped by neither Act.

Can the Minister inform the Committee of the results of the cost assessment which the Government performed to analyse whether such provisions would be possible? Can she also inform us of how much it might cost a local authority if it had to provide auxiliary aids and services in this area? Nobody would deny the worthiness of these amendments. Indeed, we supported them at Second Reading for the help that they would provide for individual children. At a time of economic difficulty, however important these beneficial provisions are, and however much they are placed in the Bill, I am concerned about whether they will be delivered. I look forward to the Minister’s response.

My Lords, I am grateful for the broad support from all Benches for the government amendments. My noble friend Lady Wilkins expressed a fear that the Bill does not provide an anticipatory duty to make reasonable adjustments for disabled people in schools. I assure her that our intention has always been for there to be such a duty, and we are confident that the Bill as drafted achieves this. I will not go into the complexity of the drafting here, but I will write to her and place a copy of that letter in the Library, circulating it to all noble Lords who have taken part in debates on the Equality Bill.

The noble Baroness, Lady Warsi, made a very important point about the economics and asked about the costings. I have to confess that the exact costings have not yet been investigated, but I will come back to the Committee with the figures when they are available. However, notwithstanding the fact that we are in recessionary times and there are economic difficulties and, therefore, great challenges for local authorities, it is right and proper that all members of our society, disabled and able-bodied, have access to education and the educational aids they need in order to thrive as individuals and to participate as full members of our society. That is why we have put down these amendments, notwithstanding the fact that we do not have all the costings available.

Amendment A58 agreed.

Amendment 58ZA

Moved by

58ZA: Schedule 3, page 137, line 42, at end insert—

“(g) the celebration or marking of any religious festival;(h) the display or presentation of any holy book, religious symbol or religious object;(i) the saying of prayers;(j) the arrangements for funding, or contracting with, a religious organisation.”

I tabled Amendment 58ZA as a practical response to a real and growing problem. Although I attended much of the Second Reading debate on the Bill, I was unable to remain until the end and observed the convention not to speak at that time. Having followed the Committee proceedings with great interest, I recognise that there is a great deal in the Bill which ought to commend itself to the House. The noble Baroness the Leader of the House—as she has demonstrated again today—and others in the team who have been dealing with this Bill have shown great sensitivity and reasonableness in dealing with some of the issues that noble Lords have raised.

I am sure that the Government realise that there is growing apprehension in the churches and among religious believers of all faiths about how parts of the legislation may impact on them—concerns which are reflected beyond the faith communities. I commend to the Committee today’s article in the Times by the director of Liberty, Shami Chakrabarti, which looks at this question from the point of view of personal liberties rather than that of religious faith.

My amendment seeks to address a key question on the balance that always has to be struck between religious freedom on the one hand and how the exercise of that freedom impacts on the wider community. In moving this amendment to Schedule 3 which provides a list of exemptions related to education—I should declare that I am a governor of a Catholic school and that I have children in Catholic schools—I am advised by the Public Bill Office that this is the appropriate place to include these further exemptions, which have application both in schools and beyond.

The amendment adds to the list of exceptions which has been created in Clause 29 relating to religious discrimination in the provision of goods and services. There is much in that list of exemptions—relating to curriculum, acts of worship and admission—that will be welcome by those involved in almost 7,000 voluntary-aided schools with a religious character in Britain, as well as those in the independent sector. The Committee will be aware that religious discrimination in goods and services was first outlawed in Part 2 of the Equality Act 2006; so this is not a new concept. Along with the exemptions is a consolidation of existing provision. Clause 29 makes discrimination on the grounds of religion or belief unlawful, but with the law of unintended consequences in mind, I would like the Committee to consider what has become recognised as unlawful discrimination.

My concern is that these provisions may be used, and indeed are already being used, by those whose intentions are hostile to Britain’s Christian heritage. Others, who are more well meaning, may simply be labouring under the mistaken belief that stamping out religious discrimination means stamping out religion. Under the nomenclature and language of equality, this has led to countless, ludicrous examples of risible things which public and private bodies have done in recent years, all under the guise of equality. In 2008, two years after we first outlawed religious discrimination in goods and services, under the pretext of not causing offence, Oxford Council officials dropped “Christmas” from the title of the city centre celebrations. Instead of “Christmas”, they substituted “Winter Light Festival”. The banning or dilution of Christian festivals has been criticised not only by Christian leaders but also by Muslim and Jewish religious leaders. I enjoy the celebration of Hanukkah or Diwali, and I know of no Rabbi or Hindu leader who feels offended by my enjoyment of Christmas or Easter. Their complaint is usually about aggressive ideological secularisation.

In 2008, it was reported that a Yorkshire college had removed Christmas and Easter from its staff calendar in case they offended people. Instead, senior managers at Yorkshire Coast College in Scarborough in north Yorkshire said that the holidays would be referred to as “end-of-term breaks” in order to “increase inclusion and diversity”. What next? Must we refer to the Sabbath as “the day that dare not speak its name” or the parish as “the collective”? Will we have to remove the names of saints from all the streets, towns or colleges that bear them? Before a public outcry, Perth Royal Infirmary was told to remove the communion table from its chapel after the NHS trust warned that it could offend non-Christians. However, it is not people of other faiths who are driving this agenda, and perhaps I may give the Committee an example.

Last October, a town councillor in Kendal in the north-west of England who is an atheist and a member of the National Secular Society threatened legal action because of the council’s tradition of opening its meeting with a time of prayer, as we do in your Lordships’ House and in another place. It was claimed that prayers would lead to some people feeling excluded. The councillor demanded that the prayers be scrapped or held in a different room. In an attempt to respond sensitively, Kendal Council voted to move the prayers to five minutes before the official start of their meeting, so that those who did not wish to attend did not have to. The councillor responded by saying that he was bitterly disappointed by the decision, objecting to the principle of prayers at all, even though they would take place before the meeting began and there would be no duty on him to attend. He announced that he will now explore legal remedies. In 2008, a similar case occurred in Bideford. This all beggars belief and makes me wonder whether we have taken leave of our senses.

Surely, in a truly tolerant and diverse society, we would not have to contend with such ideological hatred. You do not have to be religious to recognise this country’s rich inheritance. Our Judaeo-Christian ideals are woven into the nation’s fabric: its laws, its charitable endeavours, its schools, hospitals and hospices, its art and architecture, its culture and its spirituality. It is in all our political traditions. After all, faith in politics gave us Wilberforce, Shaftesbury, Gladstone, Keir Hardie and many others. This makes it all the more perplexing for me to encounter an ideological intolerance that seeks to marginalise religion, and Christianity in particular, not least because the majority of people in this country—almost three-quarters—still call themselves Christians. I am not arguing that we should force the Christian faith on those who do not hold it; I am simply arguing that evidence of the Christian faith in society, such as Bibles, prayers and the wearing of a cross, should not in itself be classed as discrimination.

Along with many others, I was outraged to read about the case of Nadia Eweida, a British Airways employee who was told to conceal a small silver cross which she wore around her neck. In today’s Times, on page 26, Shami Chakrabarti, under the headline “Freedom must apply to all faiths and none”, said:

“The Christian’s right to wear a cross must be defended as fiercely as any other religious liberty”,

and she refers specifically to this case. Worse still, she said that BA, having initially been confronted with Miss Eweida’s complaint, instructed an international law firm strenuously to resist her claim of religious discrimination. What followed, says Miss Chakrabarti,

“was an extremely disappointing employment appeal tribunal that found no discrimination, because ‘Christians generally’ do not consider wearing a cross as a religious ‘requirement’. This fundamentally misunderstands the idea of individual rights and freedoms, which do not depend on how many people agree with your conscience or speech. It also opens up secular courts to lengthy arguments as to what is a theological necessity. Making windows into men’s souls is as pointlessly complex as it is dangerous”.

I wholeheartedly agree with her. I shall not quote from the article at great length but she goes on to say:

“Here the struggle for religious freedom has been strongly connected with the struggle for democracy itself”,

so I think that we should see these issues always as inextricably linked. She says, too, that a new poll has been published today. A Liberty-ComRes poll shows that,

“86 per cent of British Christians polled disagreed with BA’s treatment of Ms Eweida and 80 per cent agreed that her case sets a dangerous precedent. Even more encouragingly, 96 per cent think that everybody should have freedom of thought, conscience and religion as long as they do not harm others; 85 per cent say that regardless of your faith, the law should protect the right to wear its symbols as long as they do not harm others”.

Let me give another example: Pilgrim Homes is a 200 year-old charity, set up by William Wilberforce—

As another example, could the noble Lord explain which bit of the present law he thinks is coercive and incompatible with the views he has expressed—which I largely share—and why he thinks his amendment is therefore necessary?

It is precisely because cases like the ones I have just described have come before the courts or tribunals that it is necessary to put in the Bill, in crisp language, exemptions so that when anyone takes up vexatious measures against people like the BA employee I have just referred to, that kind of case does not come before the courts. That is all I want to do. I do not think that common sense, let alone the law, should lead to these kinds of vexatious actions.

Let me give the noble Lord a further example, because I think we would probably be of one mind on this. This is about some elderly Protestant Christians in Pilgrim Homes, a 200 year-old charity that was set up by William Wilberforce, which meets physical and spiritual needs. It became locked in a public battle with Brighton Council after the council threatened to withdraw the £13,000 of public money that it gives the home unless the residents complied with a series of very invasive personal questions to do with personal issues including sexual orientation, which they were to be asked every three months.

Government guidance has also been given, for instance, to store Bibles in libraries on top shelves. Why? What is so offensive about scriptures being available to people who want to read them? It does not force them on people any more than the provision of a Gideon Bible does. There is a fairly systematic campaign afoot to ban public reference to the Christian faith, and laws such as the one we are enacting can become part of the armoury. I know that this is not the Government’s intention, but they can help prevent such vexatious and discreditable attacks by putting proper safeguards in the Bill.

We live in a society that in the recent past has been known for its religious tolerance. We should be proud of this. This period of toleration began in 1829, when, after centuries of repression, Catholics saw emancipation in the repeal of penal laws, Test Acts and the Acts of Uniformity. Today, 6 million Catholics—10 per cent of the population—participate fully in the nation’s public life. Emancipation of Jews followed very rapidly thereafter. In this week of Christian unity in Britain, we should celebrate the co-existence of contemporary Christians, and understand the lessons of past divisions and mutual intolerance, and the applicability of those lessons for dealing with the tensions that exist between different faiths, and those between faith and secular society. If instead of learning to celebrate our country’s Christian story and its heritage, we try to deny it, we will be doing nothing to create a genuinely more plural or tolerant society and will probably only succeed in offending the Christian majority.

It is particularly significant that leaders of minority faiths argue for the importance of preserving this country’s religious heritage. The Chief Rabbi—probably the greatest of our spiritual leaders in Britain today—in his magnificent book, The Home We Build Together, makes the case with much better clarity and eloquence than I am capable of. Speaking of the marginalisation of Christianity, the noble Lord, Lord Sacks, said this:

“Marginalisation not only shows how deeply British elites are alienated from the national religion”.

However, he also said that:

“This is not yet, but it comes close to, self-hatred … It represents the breakdown of an identity, and nothing good can come of it”.

He perceptively writes that Britain set out with a commitment to value all cultures,

“then it became valuing all cultures equally, a completely different proposition. Then it became valuing all cultures except your own. That is when it becomes pathological. You cannot value all cultures except your own … one who does not respect himself cannot confer respect on others”.

I was struck that when the University of Leicester NHS Trust considered banning Bibles from bedside lockers to avoid offending other faiths, Resham Singh Sandhu, the Sikh chairman of the Leicester Council of Faiths, said:

“I don’t think that many ethnic minority patients would object to the Bible in a locker”.

Suleman Nagdi, of Leicestershire’s Federation of Muslim Organisations, said:

“This is a Christian country, and it would be sad to see the tradition end”.

I have no doubt that the Government will offer a number of reassurances today, but they are no substitute for the crispness of law. Far from being otiose, my amendment would add four new exemptions, which would, I hope, halt the vexatious attacks that I have referred to. They would guarantee the right to celebrate or mark any religious festival; to display or present any holy book, religious symbol or religious object; and to say prayers or make arrangements for funding or contracting with a religious organisation. I have tried to do justice to the amendment and to set out the reasons why such provisions are needed. I beg to move.

My Lords, it is unfortunately the case that equality legislation, while giving certain people new rights, has deprived others of theirs. It has also been misinterpreted and misused, sometimes by troublemakers but more often by well-meaning and overenthusiastic people who only half understand the legislation that we have passed. It was obviously someone in the latter category who, in 2008, advised the council in Devon to stop opening its meetings with Christian prayers. When Governments embark on equality legislation they should remember not only that in a civilised society people should be able both to hold religious beliefs and express them but that any such legislation should spell out clearly what is and is not unlawful.

The purpose of paragraph 11 of Schedule 3, as I understand it, is to allow local authorities to support denominational schools without being accused of discriminating against those of different denominations and different faiths. Unfortunately, while spelling out some ways in which the religious character of a school can be maintained, it omits other rights that in my view should be safeguarded to prevent the ethos of a school being undermined. In view of what has happened recently, our fears that the ethos of church schools may be undermined cannot be said to be groundless.

The amendment refers to,

“the celebration or marking of any religious festival”.

Christianity is part of our heritage and Christian principles have played a key part in the formation of our society, culture and laws, so one might have thought it inconceivable that anyone would want to stop the recognition of Christmas. The noble Lord, Lord Alton, has already drawn attention to the fact that a college in Scarborough recently decided to do just that and remove Christmas and Easter from its staff calendar. He also referred to the bizarre antics of Oxford Council which, in 2008, dropped Christmas and substituted a winter light festival.

This amendment is concerned with local authorities; there have already been too many cases when local authorities have tried to prevent teachers and others expressing their faith. There was the school receptionist in Crediton, in Devon, who, after learning that her daughter had been told off for speaking about her faith in school, sent an e-mail to friends asking them to pray about the matter. She was accused of misconduct and was disciplined. There was the Somerset maths teacher who was dismissed for offering to pray for one of her pupils who was too ill to come to school and actually too ill to have lessons at home. Surely if there is to be a list of actions with regard to church schools and actions within church schools such as the organisation of acts of worship, which should not be considered unlawfully discriminatory, that list should be very much more complete. It would certainly help, as the noble Lord, Lord Alton, has said, to stop vexatious attacks on those who practise Christianity, the religion in which the vast majority of the people in this country were brought up and which most consider their own, even if they do not attend church. For that reason alone, the amendment is surely worthy of support.

I, of course, share many of the sentiments of the noble Lord, Lord Alton, about some of the ludicrous examples that he has given. I very much hope, as does Shami Chakrabarti, that the appeal be won in relation to British Airways—it is sub judice, but I think I can say that. Having said all that, and although I am not a Christian, I say “Happy Christmas” all the time—when it is Christmas time—and I totally deplore the political incorrectness of the ignorant who say “winter lights” instead of Christmas, and so on.

To come back to the law, we are talking about the exception to Clause 29, which deals with religious discrimination, among others, general discrimination in the provision of services to the public and religious discrimination. I assume, however much we may support the established church, that most of us believe that those who adhere to other religions are also entitled to be treated as individuals on the basis of their religious beliefs and not to be discriminated against. What kind of exception is appropriate to a law which creates a right not to be discriminated against, among other things, on the grounds of religion?

The exception which the noble Lord’s amendment seeks to widen is to be found in paragraph 11 of Schedule 3 on page 137, and it is extraordinarily wide. In fact, it is too wide. It says:

“Section 29, so far as relating to religious or belief-related discrimination, does not apply in relation to anything done in connection with—

(a) the curriculum of a school;

(b) admission to a school which has a religious ethos;

(c) acts of worship or other religious observance organised by or on behalf of a school (whether or not forming part of the curriculum);

(d) the responsible body of a school which has a religious ethos;

(e) transport to or from a school;

(f) the establishment, alteration or closure of schools”.

All those provisions are there to deal with the kind of points that the noble Lords, Lord Alton and Lord Waddington, have made. The Joint Committee on Human Rights, of which, until recently, I was a member, produced a vast and comprehensive report on the Bill. I will not take time now in boring or detaining noble Lords by reading paragraphs 215 to 220 on pages 72 and 73, which I commend to the Committee. In those parts of the Joint Committee’s unanimous report, attention was drawn to what it had said about the previous sexual orientation regulations. Concern was expressed at the risk of the exemption for the content of the curriculum leading to unjustifiable discrimination being even greater under the broader exemption contained in the Bill—in other words, the one I have just read out. To make it short, the committee expressed understanding and sympathy for,

“the Government's reasons for exempting the content of the curriculum from the duty not to discriminate”.

It said, as does the noble Lord, Lord Alton:

“We agree that schools ought not to be distracted by having to justify in legal proceedings the inclusion in the curriculum of particular works of literature, for example. However, we continue to have the concerns we expressed in our report on the Sexual Orientation Regulations, that exempting the content of the curriculum from the duty not to discriminate means, for example, that gay pupils will be subjected to teaching that their sexual orientation is sinful or morally wrong”.

The committee continued:

“It is the content of the curriculum (the teaching that homosexuality is wrong), not its presentation, that is discriminatory. We therefore recommend that the exemption for the content of the curriculum be confined to the scope of the existing exemption, and not extended to other protected characteristics”.

It was arguing not to go any further than one would here.

I apologise for taking so long, but against that background, I turn to the amendment tabled in the names of the noble Lords, Lord Alton and Lord Waddington. I do not want to get into even deeper waters, but “religion” and “religious” are, quite properly, not defined. The Church of Scientology, which I have professionally represented, would say that it is a religion, has prayers and is a religious organisation, as would many other new religions or cults. The widening of the exemption beyond its already great width would be completely unnecessary, create more ambiguity and give rise to the very problems that the Joint Committee on Human Rights worried about so far as, for example, gay people are concerned. I hope that the Government will oppose this amendment as strongly as we do.

It might be helpful to the Committee if I remind it that no application has been made or granted to lift the sub judice rule in relation to any case relevant to the discussions this afternoon, so the sub judice rule applies.

I am grateful for the Lord Speaker’s wise advice. I welcome the existing range of sub-paragraphs (a) to (f) of paragraph 11, and I welcome this amendment, not only for its detail but for the sense of the need to put down some markers that underlies it. I suspect that the noble Lord, Lord Lester, would agree with me that no church school should be teaching that homosexuality is wrong or making general statements about orientation. That is not the view of the Christian churches, which are concerned about certain sexual behaviour. It is important to put that right.

I want to speak about the underlying trends that many of us, like the noble Lords, Lord Alton and Lord Waddington, note. They are energetically represented in the correspondence that comes over my desk and, I suspect, those of my friends on these Benches and many others. There is a sense in society, if one can speak of such a thing, that non-faith or, in some of the implications of the Bill, one should say non-religious faith, is the norm. It is uncontroversial, undogmatic, unideological and how everyone ought to be. In fact, it is how everybody is, except for what is often an exaggeratedly small number in such people’s minds. Those people seem to be hugely represented in the media, for instance, and, sometimes, in your Lordships' House and the other place. This non-faith is the norm, uncontroversial and non-ideological, except for the reality of an exaggeratedly small number of eccentrics. Religious faith and practice appears to be viewed in many places as abnormal, exceptional, deviant, as if it alone is ideological and controversial and, for a whole range of reasons, undesirable. Your Lordships may think that that is wildly exaggerated, but that is how very many people of faith, Christians and others, feel. The noble Lord, Lord Alton, quoted the noble Lord, Lord Sacks, who is a very distinguished man. This is how many people feel. They write to us and to others. They note cases, some of which are sub judice, and I shall not mention any of them by name.

As I watch this happening—and I come up against it in a range of places, including from time to time in your Lordships’ House—it seems to be a thread that is at risk of running through the equality and diversity agenda. In fact, in my observation it does run through it; that fundamentally admirable agenda is often popularly followed out in many a town hall, in a significant element of the lower echelons of many police forces, at the more rarefied level of parts of this Bill, in Parliament, and even, if I dare say so, in some of the judgments handed down by the Joint Committee on Human Rights.

My concern is for Christians, for the churches, for members of other faiths and their attempts to do what any honest believer would by not keeping their faith in some little box, only getting it out at home or with fellow believers. There is also a much greater danger for our society in that we could reach a point where Christians, and peoples of other faiths too, find it increasingly difficult to survive in the public service, and, indeed, in Parliament. A Member of the other place is reported very recently as saying that people who hold Christian views really ought to consider whether they should be working in the public services.

Lastly, there is a danger that a Government, of whatever complexion, who are coming to rely ever more heavily on faith-based social and voluntary and caring services, may find themselves making it impossible for bodies coming from a faith perspective into social service, which is often for the most deprived and needy people, to continue.

I suspect that we may come back to this next Monday. I hope that the Committee will consider the detailed issues raised in the amendment and those issues of principle and principled practice.

Can the right reverend Prelate, the Bishop of Winchester, explain to me whether he is then opposed to Clause 29, which guarantees that in the provision of services there should be no discrimination on the basis of religion and belief? Would he rather that that provision was not there? Why does he think that the wide exception that I have quoted is insufficient?

I am grateful to the noble Lord for asking that question. I am very happy about Clause 29 with the material that is in the clause about which we are speaking. I am happy that at a range of points in this Bill, in relation to Clause 29 and in other places, the Government have made it clear that they are gathering together existing legislation, rather than either repealing it or tightening it, noose-like. The difficulty that some of us have with the material with which we will be dealing next Monday is that whereas the Government are asserting that they have not changed anything in the existing legislation, others among us believe that it has been very significantly tightened. I hope that is a sufficient answer for the noble Lord.

Can the right reverend Prelate explain why he thinks that there should not be some limitation on any religious organisation, which is what he seemed to be implying, that is taking taxpayers’ money for the provision of services?

This would take us into quite another issue. To what extent are your Lordships’ House and the other place, the court of Parliament, prepared to work at holding intention regarding competing rights—indeed, competing tracts in this Bill? That seems to be the issue that faces us time after time.

My Lords, we have heard an extremely interesting speech from the noble Lord, Lord Alton, which has called attention to many examples of what can happen when the principles of so-called equality are applied in extreme cases. He referred to the Oxford case, the Yorkshire college case and the case of where prayers are held five minutes early. That particular example is interesting. In this House, for example, prayers are held and people have a choice in whether they want to attend. As a person of the Muslim faith, I regularly attend those prayers, which are a moment for reflection. I think that the point that the noble Lord, Lord Alton, was making in the example he gave was that there was no choice. Effectively the meeting started at the time that it should have started. Those who were the exception were not those choosing not to be there but those who were choosing to be there. The exception was applied against the religious community, which is an important point to note.

Extremes can result in a restriction of religious freedom. Many faith-based organisations do important work for their communities while retaining a distinct religious character. We are concerned that the Bill may restrict their ability to do this and therefore that it could represent a misguided attack on religious groups. I am sure that many of us will remember the publication in February 2009 of guidance from the Museums, Libraries and Archives Council, which answered to Andy Burnham, the then Culture Secretary. I am not sure whether the noble Lord, Lord Alton, is referring to the same example. That department advised that as Muslims in Leicester wanted the Koran moved to the top shelves in libraries, because of the Islamic belief that it is the sacred word of God, the Bible too should be moved to the top shelf. This was, as the guidance stated, so that,

“no offence is caused, as the scriptures of all the major faiths are given respect in this way, but none is higher than any other”.

Will the Minister concede that this demonstrates a fundamental misunderstanding of the purpose of equality legislation and the shape of religious beliefs? Surely the Minister does not believe that in order to achieve equality there must be a one-size-fits-all approach. In Protestant Christianity—I stand to be corrected by the many who are more learned in this field than I am—the importance of the Bible as the word of God is not simply that it is a sacred text that must be kept higher than any other text; it is that it must be an accessible scripture which anyone should be able to look at. Therefore it should not be assigned to the top shelf. Achieving equality is more complicated than finding a way to treat everything in exactly the same way.

We are a society made up of individuals with a range of different beliefs. The pursuit of equality should be the pursuit of a situation where people are allowed to cherish their individual beliefs safe in the knowledge that they will not be castigated or discriminated against for holding them. It does not, however, mean that the differences should be steamrollered out altogether. Equality achieved by making everyone the same is not real equality. Equality should mean that differences are embraced and not removed. That is why I am troubled when we hear about the legacy of Labour's Britain, where a community nurse can be suspended for offering to pray for a patient's recovery or—as in the example referred to by the noble Lord, Lord Waddington—a school receptionist can face disciplinary action for sending an e-mail to friends asking them to pray for her daughter. Will the Minister tell the Committee how measures in pursuit of equality seem to have been subsumed into a quest to remove any freedom of religious expression?

On a personal note, as a woman of Asian descent who practises Islam and who was born into an economically challenged background, I could argue that I have everything to gain from an overzealous approach to equality. I would probably tick most boxes. Does the Minister accept that this overzealous pursuit of equality can cause a backlash for ethnic minority communities? Much of this overzealous activity is not done by ethnic minority religious communities but in the name of those communities. Thus they, too, fall victim of this overzealous approach which is done in their name. Does the Minister accept that this creates a sense of unease in our communities and does not accord with the Government’s so-called pursuit of community cohesion?

The noble Lord, Lord Alton, mentioned an article by Shami Chakrabarti, a lady whom I hold in high regard, and he indentified an extremely important issue, as did she—the state’s continual encroachment on our private lives. We must ensure that the Bill does not do that.

My Lords, I congratulate the Government on holding fast to their clause which is subject to the amendment. The criticism of it by the Joint Committee on Human Rights is not well founded.

I entirely agree with the noble Lord, Lord Lester of Herne Hill, that many of the examples that we have had cited to us are really quite extraordinary and in no way based on the law as we have it. The sooner that that is manifest, the better it will be for all of us. There are just too many of them, and they are not all one-sided either—they go in every possible direction. The sooner that this stops, the better it will be. I am not sure that I can practically address exactly how to stop it, but I believe that it can be addressed to some extent in the guidance that the Government will offer on the Equality Bill when, as I hope, it becomes law.

As for the funding of public services provided by religious institutions, the Government are funding, with taxpayers’ money, the service that the institutions provide. In all cases that I can imagine, the Government think that it is perfectly reasonable that adoption agencies, care agencies and so on are provided with government money because the care, adoptions and so on, are services that the Government wish. The fact that there is a variety of them with a variety of religious ethos—I am not too sure of the proper plural—is helpful. There are a lot of different people in our community, and some can benefit from one type of religious services and others from other types.

The noble Lord, Lord Lester, said that there was no definition of religion in the Bill. In a sense there is, because it says that “religion” includes no religion, and “belief” includes having no belief. In a sense, that is a kind of definition; it may not take you very far, but at least it is there.

The Government may feel that the amendment is unnecessary. I am not sure what their attitude will be. However, a clear statement by Her Majesty’s Government from the Dispatch Box that the amendment is unnecessary would serve quite a good purpose.

My Lords, the primary focus of the amendment in the name of the noble Lords, Lord Alton and Lord Waddington, is on the education exceptions in Schedule 3, but, as drafted, it is not confined to that. I will explain why and perhaps address some of the issues that noble Lords raised in the debate.

Schedule 3 and paragraph 11 of that Schedule are related to things done in schools. Although the noble Lords, Lord Alton and Lord Waddington, have made it clear that their concerns relate to education, the amendment’s effect would be to apply it to bodies carrying out public functions more widely, as other noble Lords have suggested.

The exceptions for religion or belief in the Bill are based on those in existing legislation. We argued through those in detail in relation to the Equality Act 2006. They have been in force for some years now and appear, by and large, to be working well. I have already returned to some of the instances that have been mentioned. We have not been faced with complaints and legal cases in relation to schools or the local authorities that support them or, indeed, more widely. There is currently no case for extending them.

I assure noble Lords that nothing in the Bill is going to outlaw the celebration of any religious festival. Nor does anything in the Bill make unlawful the display of a religious book or artefact. Even if there were a question about this in a schools context, the exceptions for faith schools in paragraph 5 of Schedule 11 recognise that there will be some differences in the ways in which such schools deliver education to children of different faiths.

The amendment seeks to exempt the saying of prayers, but sub-paragraph (c) of the same paragraph already exempts acts of worship in schools, which would clearly cover prayers. The final section of the amendment—which refers to the arrangements for funding or contracting with a religious organisation—makes no particular sense to us in the context of an education authority. I can see no reason why a local education authority should need or want to discriminate on religious grounds when awarding a contract of any kind, so that it would be appropriate to provide an exception to such discrimination.

The exemptions in place at the moment are specifically for schools because of the particular issues around religion or belief that arise in a schools context given, in particular, the part played by faith schools in our system and the approach to organised worship in schools more generally. These, as I said, were covered in great length in 2006 when the Equality Bill, as it then was, was discussed. They are now well understood.

We do not believe that there is any need to introduce further exceptions more widely. First on the list in this regard is the banning of Christmas—that myth has been mentioned by several noble Lords. It never has been and never will be discrimination to celebrate Christmas or any other religious festival—the wording of the discrimination provisions would not allow that. Nor is it easy to believe that the recipient of a public service could claim that they were receiving less favourable treatment solely because a religious artefact or a copy of a holy book is on display in the place where the service is being provided.

The noble Baroness, Lady Warsi, spoke with great wisdom about the top-shelf issue. I absolutely accept her point and the wider point about one size not fitting all. In a way, that is the whole point of this legislation and of the exceptions. The proposed exception for the saying of prayers perhaps raises different issues. Prayers take place in schools but parents have the right to withdraw their children from such acts of worship should they wish to do so. I cannot envisage a situation where it would be appropriate for the provider of a public service to impose prayer on recipients of a service, but nor do I believe that a discrimination case would succeed if, for example, the staff of a church group contracted to deliver a public service shared a quiet moment of prayer at the beginning of the working day. The point must be that it should not be inflicted on unwilling participants and there should be no discrimination against anyone who refuses to take part.

As for the exemption for arrangements for funding or contracting with a religious organisation, I think the argument against works both ways. An organisation offering services of a public nature should not be allowed arbitrarily to pick and choose contractors on the basis of religion or belief, and thus neither to refuse to contract with a business just because of religion or belief nor to prefer one business over another because of it. In some cases, there may be a genuine need for a religious “aspect” to a particular contract—for example, a local authority that contracts out its provision of care for the elderly in an area with a large Jewish community may well choose to use the services of both a Jewish care home and a secular care home. The Bill, via the general exceptions in Schedule 23, would allow that because it enables religious or belief organisations that meet the qualifying criteria to limit their provisions to people who have a particular faith or belief.

I recognise that several noble Lords will be aware of a matter that is related to this debate that is before the Court of Appeal today—the case of Ms Eweida, who was suspended from work. It would, of course, be inappropriate for me to comment on this case in advance of the outcome of the appeal being determined. However, in principle people should be able to choose what they wear and how they dress, subject to any valid restrictions that may be appropriate for employers or any other organisation to impose—for example, for safety or hygiene reasons. What is clear is that any such restrictions need to be a proportionate and reasonable response to dealing with this sort of sensitive issue.

The Equality Bill embraces the cultural diversity of UK society. It is ridiculous to suggest that anyone should stop referring to Christmas or any other religious festival, and local authority tenants will not be asked to take down their Christmas lights. There is nothing in the Bill to stop local authorities or their tenants putting up Christmas trees or lights, or from celebrating any other religious festival such as Diwali, Eid or Hanukkah.

My Lords, does the Minister accept that, among other things, the Bill is an opportunity to clarify? As it stands, the position is not clarified, which is why Members around the Committee can refer to so many unusual examples. I think the noble Lord, Lord Lester, referred to them as “ludicrous”, but I may be quoting him incorrectly. However, the point is that this is an opportunity to clarify. It may well be that, as it stands, the Bill will not allow such incidents to happen, but could we not use it as an opportunity to clarify and to ensure that they do not occur again?

We are clarifying a great deal in the Bill, including the issues raised in the debates that we have had. I share the perplexity of the noble Lord, Lord Alton, at idiotic decisions; there is absolutely no question about that. If only this Government, or any Government, could legislate against people’s occasional silliness. Given the details in paragraph 11 of Schedule 3 and the reassurances that I have been able to give the Committee, I hope the noble Lord will feel able to withdraw the amendment.

Perhaps my noble friend can clarify one further point. There is support on all sides of the Committee for ensuring that when the legislation has been enacted—possibly without the amendment of the noble Lord, Lord Alton—guidance will be given to local authorities on dealing with the ridiculous assertions that some have made. Would that not be normal practice? My noble friend used the word “ridiculous”. Cannot my noble friend’s thoughts on local authorities be put into guidance? I would then be happy with the position of my Front Bench.

My noble friend makes an important point. The Bill and the guidance and codes which will flow from it will give us yet another opportunity to explain how we expect people to conduct themselves and how we do not.

Does the Minister agree that the fact that there are idiotic bodies around which misinterpret the law is no reason for changing the law if one can make sure that it is clear? For example, the police have been known to use the terrorism law to stop people taking photographs of the Palace of Westminster; and the Human Rights Act has frequently and ludicrously been blamed for all kinds of things. There is no reason, is there, to give in to stupid people by making the law less effective? We need to make absolutely sure that our courts lay down the law when they interpret it properly, and that vexatious and frivolous cases are ruled out and costs awarded against those who misuse the law.

My Lords, we need a definition of what is a silly person. What appears to be a silly person to noble and learned Lords does not necessarily appear to be a silly person to an alderman sitting on a borough council. We need to legislate for the general public and not for the courts.

I agree. That is why, when we debated the Equality Bill last time, I advocated taking out the notion of religious harassment. I was worried that individual human dignity would be violated by thin-skinned zealots who would then bring crazy cases in county courts. There would then be publicity in the Daily Mail which would bring the law into disrepute. I am totally in favour of defining the law, if one can, to avoid that. However, my experience, after a long time at the Bar, is that idiots, stupid people, thin-skinned people and zealots are always around, and the law should not cater for them.

Many of your Lordships will accept the argument of the Government but will not be happy to say that silliness just happens and is something that we have to put up with like rain. Can the Minister give any assurance that guidance will be brought before the House to indicate what the boundaries of sheer silliness might be?

The noble and right reverend Lord makes a good point—a point I was trying to make—that you cannot always legislate against what people might decide to do. You have to make sure that your guidance and the clarity of your legislation is adequate and serves its purpose. The Bill already does that. The noble Lord, Lord Lester, read out that part of the Bill and I could not see how it did not cover the anxieties expressed by the noble Lord, Lord Alton.

I do not wish to detain the Minister much longer but I wish to make two points. First, it was guidance from a government department that led to issues about the top shelf and the Bible and the Koran. Therefore, a part of me does not have much faith in any guidance issued to clarify. Secondly, these issues do not relate just to legislation or to how legislation is interpreted. Many of these cases do not come before the courts. These matters are not dealt with in a county court but they are of great importance because they cause unease within our communities. Can the Minister comment on whether, if it is not legislation and the interpretation of legislation, there has been something in the Government’s policy and approach which has led to this culture?

The contributions to the debate on this amendment demonstrate the worth of having discussed this issue. It was good to hear the Minister using the word “proportionate” in her reply. That is what concerns us all. As for “ludicrous”, “vexatious”, “idiotic” and “silly”, I look forward to seeing the noble Lords, Lord Elton and Lord Lester of Herne Hill, sitting with the Minister and working out a new schedule of silly people, silly organisations and silly measures. The tragedy is that these are not “myths”—a word the Minister used earlier, although she meant it perhaps in a wider sense. These are not hypothetical cases but instances which have occurred. There are others, such as the example recently of a decision in a European court to require in Italy the removal of crucifixes from public places in schools where they have been historically placed for many centuries. We are taking some of this argument to absurd lengths and creating a backlash as a consequence. We ought to be careful where we tread.

I was particularly pleased to hear the remarks of the noble Baroness, Lady Warsi. I concur wholeheartedly with her sense of proportionality. At some time in the future we may well need a short, crisp Bill just dealing with religious liberty and the right of people to hold conscience, not as a way of provoking hateful measures against other groups or oppressing minorities. I hope my own record over 30 years in both Houses of Parliament will demonstrate that you do not have to hate one country because you love another, or hate one faith because you are a member of another, or despise people who have no faith because you have faith. Often we are made up of our own upbringings. My mother, too, was from an overseas community—Ireland. Her first language was Irish, not English. She married my late father who was a Desert Rat and had been demobbed after the Second World War. They married across the denominational divide—not easy in the early 1950s. In Liverpool, the city I represented for 18 years, the Bishop and the Archbishop would not even say prayers with one another at the cenotaph in the 1950s because they did not recognise one another’s orders. It was as recently as 10 years ago that members of other faiths were welcomed to the cenotaph in order to celebrate the memory of those who died, from all backgrounds, fighting for this nation in two world wars.

We have travelled a long way and need to tread with great sensitivity in these areas. I was thinking during the debate how fortunate we are in this nation to have the laws that defend our rights. In 1987, after I had helped to cofound an organisation called Jubilee Campaign, which works for human rights all over the world and in particular raises issues of religious liberties of all faiths and denominations, I travelled to Ukraine. I met there Bishop Pavlo Vasylyk, who had spent 18 years in prison. I also met the chairman of the committee for the defence of the church in Ukraine, who had spent 17 years in prison, and the young chaplain who had been at Chernobyl to clear radioactive waste without any protective clothing because he had been caught celebrating liturgies in the open. There are contemporary examples. On Christmas Day of last year, a young man called Robert Park walked over the border into North Korea because of his faith. I am chairman of the All-Party Parliamentary Group on North Korea and have followed the case with great interest; the latest report is that he was beaten almost to death last week. He went there not in a hostile way but in order to challenge a regime that according to the United Nations probably has 300,000 people in its gulags today. The liberties that we enjoy in this country are of huge worth and we must take them seriously. Matters of conscience should matter to us and we must preserve them.

The noble Baroness, Lady Thornton, mentioned provisions already in the Bill, which I had welcomed. I made it clear in my earlier remarks that the schedule applies to education, but I was advised that this was also the place to include an amendment if one wanted to extend some of these questions beyond schools. The Minister cited “acts of worship” and said that it would cover prayer, but prayer in an evangelical, protestant setting is often just two people sitting together and praying. Is that an act of worship? She will know that I mentioned that someone was disciplined not because they prayed with someone but because they had offered to. The person to whom the offer was made did not complain, but somebody else did and it snowballed completely out of control.

Perhaps I may reassure the noble Lord that the Human Rights Act, which brings into our law the European human rights convention, guarantees freedom of conscience, worship and religion as part of the general guarantees, including the manifestation of one’s religion. Therefore, this statute, if we pass it, has to be read in the light of the convention and the Human Rights Act, where there is ample protection covering the issues that he has stated.

I recognise what the noble Lord, Lord Lester of Herne Hill, said. We both agree that it is ludicrous that the examples which I gave earlier on, true though they are, should have reached tribunals or the courts. However, the fact that they have done, and that there are those who are pursuing a vexatious agenda, demonstrates, as the noble Baroness, Lady Warsi, said, the need for crispness or, as the noble and learned Lord, Lord Mackay of Clashfern, and other noble Lords indicated, the need for it to be in guidance. That would be right signal that we are strongly opposed to such cases coming before tribunals and that they are not in accordance, as the noble Lord has just said, with the way in which statute currently operates.

There may be need for some amendment. I shall reflect carefully on what the Minister said. I am extremely grateful to her and all noble Lords who have participated in this short debate. I beg leave to withdraw the amendment.

Amendment 58ZA withdrawn.

Amendment 58ZB

Moved by

58ZB: Schedule 3, page 139, line 8, at end insert—

“as long as any decision or thing done is a proportionate means of achieving a legitimate aim”

My Lords, I declare an interest as a member of the Independent Asylum Commission because it was in this capacity that I was alerted to serious concerns about the potential implications of the regressive immigration exception proposed in paragraph 16 of Schedule 3 for disabled asylum seekers and migrants, including those with diagnosed HIV. This is not the first time that concerns about this exception have been raised, because a similar amendment was drafted and tabled by the Equality and Human Rights Commission in Committee in the Commons, where the Government failed to give sufficient reasons for this broad exception being necessary and the need for further debate on the exception was noted.

I welcome the fact that the Bill prohibits for the first time direct discrimination against disabled people in the provision of goods and services. I note, however, that, in relation to immigration, the Bill creates a new exception where direct discrimination is not prohibited if it is on the ground that doing so is necessary for the public good.

Previously, disability discrimination in the provision of goods and services was prohibited apart from where it was a proportionate means of achieving a legitimate aim or in certain limited circumstances. Several disability charities, led by the National Aids Trust and backed by RADAR and the Disability Charities Consortium, have voiced their concerns about this new exception where there is no requirement to proportionality. In addition, it is not clear what could fall within the overly broad scope of “necessary for the public good”.

For that reason, my amendments return to the approach under Section 21D of the Disability Discrimination Act requiring a legitimate aim and proportionality in disability discrimination. The Joint Committee on Human Rights’ scrutiny of the Bill supports this amendment’s approach. It states that the Bill should be amended to make clear that any decision to exclude someone from the United Kingdom must achieve a legitimate aim and be objectively justified in line with the standard proportionality analysis. This is what these amendments will do.

The JCHR also has concerns that as the Bill stands this exception could permit treatment of disabled people that could violate their right to equal treatment as well as potentially threatening other rights, such as the right to life protected under Article 2 of the European Convention and the Article 3 right to freedom from inhuman, degrading treatment.

What would be the implications if the exception remained as proposed? I have been contacted by these organisations which are concerned that the exception could be used to exclude disabled people on grounds of cost. For example the additional cost of allowing a migrant with learning difficulties to enter or remain in the United Kingdom, and also on grounds of public health—allowing migrants living with HIV to enter or return or remain in the United Kingdom. In terms of HIV, this could have potential individual and public health implications if people feel unable to disclose their HIV status or access treatment. It may also discourage migrants from seeking an HIV test, with obvious public health consequences including the onward transmission of the virus.

The Government may reassure us that this exception will not be used in this way. However, with this power on the statute book there is nothing to stop a future administration using the power in these ways. In addition, the exception seems to be directly opposed to the policy set out in the UK Border Agency’s equality scheme which states that staff are,

“to ensure that asylum seekers are able to ask for assistance, and know that particular needs can be indicated. It should be made clear that disclosure of disability will not be a negative factor in the consideration of cases”.

I have already mentioned the JCHR’s grave concerns about this exception. The Government proposed a similar reservation to the United Nations Convention on the Rights of Persons with Disabilities to retain the right to introduce wider health screening for applicants entering or seeking to remain in the United Kingdom. The Joint Committee, in its report on the UN convention, noted that the Government have not provided an adequate explanation of their view that the proposed reservation is necessary. It goes on to recommend that the Government abandon this reservation. There are similar concerns that the Government have not provided sufficient reasons as to why this exception is necessary.

There is international precedent in this area that underlines the need to amend the current exemption. Worryingly, a similar exception in Australia has been used to separate disabled migrants from their families. These amendments will safeguard against this approach and ensure that direct discrimination against disabled people is permitted only where there is a legitimate aim and proportionality. I beg to move.

First, I make it clear that we support the Government in retaining the reservation. We supported them when the reservation was introduced with regard to the United Nations Convention on the Rights of Persons with Disabilities to retain the right to introduce wider health screening for applicants entering or seeking to remain in the United Kingdom. We have therefore tabled this probing amendment with the aim of asking the Government some questions pertinent to this area, and I hope that the Minister will be able to furnish the noble Lord, Lord Ramsbotham, and me with some answers to our queries.

The amendments tabled by the noble Lord would greatly narrow the exceptions to the application of Clause 29. Amendment 58ZE, for example, would mean that even the Secretary of State could not make immigration decisions without being subject to the prohibition of discrimination in the provision of goods and services. The amendments would go too far. We agree that the reservation of the public good is an acceptable one. The Explanatory Notes state that it is a new exception that was obviously not required before, because the previous Disability Discrimination Act did not prohibit direct discrimination in the provision of services or the exercise of a function, because disability-related discrimination that did apply to these areas already included the proviso that it could not endanger the health or safety of any person. On those grounds, can the Minister assure the Disability Charities Consortium that this is not in any way a regressive step?

Moreover, can she inform the House what the exact intention is regarding the interpretation of the phrase “for the public good”? The Disability Charities Consortium is nervous that it may be used to apply to cost—for example, the additional costs that may be incurred if a migrant with learning difficulties is allowed to enter the UK. Does the Minister envisage that this example would be affected by this part of the Bill? I would be interested to hear an explanation of where it is hoped that the threshold of “for the public good” would lie. Moreover, what guidance is available to aid interpretation in this area?

Is there a concern that, if it becomes well known that certain conditions would not be welcome, that might discourage potential immigrants from having tests to identify them? Is there any reason to believe that this could be a legitimate worry? I look forward to the Minister’s response.

I welcome the amendments of my noble friend Lord Ramsbotham and support the points that he has raised, and some of the question raised by the noble Baroness, Lady Warsi.

It seems clear that the current exception could permit a non-citizen who develops cancer, say, to be expelled from the UK if it is deemed necessary for the public good—and it will be very important to hear what that definition is—because of the possible cost of their cancer treatment to the NHS. As the National AIDS Trust has suggested, it could result in families being split up if, for example, one member has a disability such as HIV and they are refused entry because of the costs to the health system over time. That may not be the Government’s intention, and I certainly hope that it is not. However, if it is not, it is even more important to amend the Bill at this stage and clarify the situation. I note that in Committee in the other place, the Solicitor-General attempted to reassure colleagues that a legitimate aim and proportionality would be considered by the courts when applying this exception. However, she went on to note that that particular route seemed somewhat circuitous.

Amendments 58ZB, 58ZC and 58ZE would make clear in the Bill—and there is a lack of clarity, as we have argued on previous Bills, though not of this nature—that the exception could be applied only when it is a genuinely proportionate means of achieving a legitimate aim.

I end by reminding noble Lords that disabled migrants are some of the most vulnerable people in our community, and they face potential discrimination from many different angles. They are also a group who can and indeed have contributed a great deal to our society and who deserve protection from discrimination in the same way as their UK-citizen counterparts. It is therefore vital that the Government clarify in the Bill that this new exception can be used only in limited circumstances when it really is a proportionate means to a legitimate aim.

These amendments raise a very important issue about the principle of proportionality as it should apply to immigration control in the context of equality of treatment. We support these amendments, but we wonder why the movers of them have restricted them only to disability. In Part 4, one finds that a similar problem arises in relation to ethnic origins—paragraph 17 covers that—and exactly the same problem arises with regard to religious or belief-related discrimination in paragraph 18.

It is not true that the department that I once had the privilege of serving—the Home Office—rejoices in the maxim that power is delightful, and absolute power absolutely delightful, but it is true that it has been a tendency of the Home Office to seek blanket exceptions in this area in order to allow it to exercise its powers as it thinks fit. Therefore, the question is whether the principle of proportionality should apply not only in relation to disability, as these amendments seek, but in relation to ethnicity and religion as well. I see no reason why that principle should not be written into this part of the Bill.

I will give one example from my own professional experience. I acted for the European Roma Rights Centre in the famous case that went to the House of Lords. The Government were sending an immigration officer to Prague airport to prevent Roma asylum seekers getting on planes to come to this country to seek asylum. It was being done on a racial, ethnic basis. There was a similar exception in the existing Race Relations (Amendment) Act to that which we find in paragraph 17. It was then discovered that there was, as was held by the House of Lords, an unlawful, racist policy operating in relation to immigration control. The Minister was forced to withdraw his or her authorisation of the policy before the case was decided.

We have heard a lot about religion so far today, and I am delighted that the Lords spiritual are here in force. I ask rhetorically: how can it be right, for example, that an immigration officer can refuse someone entry clearance or leave to enter in relation to religious or belief-related discrimination? Article 9 of the European Convention on Human Rights protects manifestation of religious belief as a fundamental right. Article 14 protects it “without discrimination”. It seems to me that there will be litigation if the powers under paragraph 18 are exercised. There are also very serious problems on disability.

For my part, I support the amendments in the name of the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe of Idlicote, but I believe that the general principle of proportionality—that you pursue a legitimate aim, and that the means employed are no more than necessary to achieve the aim—must apply to the exercise of all of these powers. I look forward to an assurance from the Minister that that will be the case.

My Lords, currently paragraph 16 of Schedule 3 provides a limited exception to the prohibition on disability discrimination in Clause 29 in respect of certain decisions taken by the immigration authorities. The inclusion of this exception was required because there is no longer a specific justification in the disability provisions of the Bill for differential treatment on the grounds of protection of such things as health and safety and the rights and interests of others, as is currently the case under the Disability Discrimination Act. Amendments 58ZB, 58ZC and 58ZE would remove the current requirement that these exceptions can be used only when it is necessary for the public good, and replace it with a standard proportionality test.

We are resisting these amendments because the effect would be to widen, rather than to narrow, the circumstances in which this exception could be used—which was, I suspect, the noble Lord’s intention and was mentioned by the noble Baroness, Lady Warsi. When drafting this exception, the wording was chosen very carefully. It is anticipated that the main purpose of this exception will be to enable a public health protection policy which allows people to be screened for infectious diseases and potentially refused leave to enter because they have such an infectious disease. That is what happens at the moment, as noble Lords will know, in the case of TB, for example.

However, this is not exclusively what it is about. For example, under the Mental Health Acts, the mental health review tribunal has the power to recommend the removal of a person from the UK for the wider public good. In the main, the tribunal will also be concerned with whether removal would assist the subject—that is, be in their best interests. In addition, some passengers on arrival at ports or airports can behave in a manner that raises concerns about the state of their mental health. A port medical inspector may be required to examine an arriving passenger and, in some instances, will recommend refusal of entry to an individual on the grounds that they may pose a risk to the wider public or themselves. This exception ensures that these practices remain lawful.

As currently drafted, the exception can be used only when it is necessary for the public good. The concept of necessity imposes a high threshold for the immigration authorities to meet. Any action must be not only desirable or one of a number of means of achieving the aim; it must be the only way to achieve a certain result or effect. In comparison, allowing any action to be taken if it is proportionate to do so is a weaker test. For example, a decision to refuse entry to the UK of a foreign national with a contagious illness would be considered necessary only when other less stringent measures would not protect the public—for example, imposing a condition such as the need to undergo treatment or to remain in quarantine for a set period. By comparison, removing the same person from the UK could be considered a proportionate way of protecting the public, as long as it could be shown that these less restrictive means might not be as effective. These amendments would also remove the further limitation of the exception imposed by the public good requirement. This would mean that action could be taken for whatever end, provided it is in furtherance of a legitimate aim.

Amendment 58ZD would also remove the public good requirement. The exception could be used to justify any action provided it was necessary; obviously, we do not think that would be right. The effect would be, again, to widen the scope of this exception and allow the immigration authorities to refuse foreign nationals who are disabled permission to enter or remain in the United Kingdom for any reason, provided it is necessary to do so.

We believe that we have got the balance right by imposing the higher threshold of requiring any action taken to be necessary to protect the public good. When including an exception in the Bill, our intention was to ensure that the UK Border Agency would continue to deliver its immigration and public protection duties, but also to ensure that it is not able to take any action that it is not currently permitted to take. We think that the current drafting of the exception achieves this.

I refer to a point raised by the noble Lord, Lord Ramsbotham, about compliance with Articles 2 and 3 of the ECHR. The noble Lord is mistaken to say that immigration authorities would be permitted by this exception not to comply with their obligations under the Human Rights Act, including Articles 2 and 3 of the convention. They are subject, like all other public authorities, to the provisions of the Human Rights Act and this exception, like any other provision of domestic law, can only be used in a way that is compatible with the overarching rights in the convention.

The noble Baroness, Lady Howe, asked whether this exception would be used to refuse a disabled person permission to enter because of the potential cost It is not the intention to refuse leave to enter or remain to a disabled person who meets the requirements of the immigration rules—it would not be relevant, certainly not relevant on the basis of cost—or indeed, to seek to remove someone with a disability because they are receiving NHS care.

The noble Lord, Lord Ramsbotham, raised the issue of HIV/AIDS and asked whether the exception would be used as a means of refusing permission to enter or remain in the country to those with HIV/AIDS. The answer is no. Prospective migrants are not currently required to declare their HIV status or undergo HIV testing, and it is the Government’s policy that HIV testing in the UK is available on a voluntary and confidential basis. Having HIV or AIDS is not in itself grounds for refusal under the immigration rules and there are no plans to change this.

The noble Lord, Lord Lester, raised the issue of religion and belief exception. There are indeed individuals whose religious beliefs are so extreme that it would not be desirable for them to enter or remain in the UK where their presence is not conducive to public good or is undesirable. The immigration authorities would be concerned about the behaviour of such individuals, but in practice it can be difficult to make a distinction between belief and behaviour. We would want the immigration authorities to be confident that they can exclude individuals in such cases without having to fear an allegation of discrimination.

The noble Lord also spoke about the race exception being broader than other exceptions. The race exception is broader because, by the very nature of immigration work, a large number of our policies require differential treatment on the grounds of nationality; notably, nationals from the EU member states benefit from freedom of movement into the UK compared with those from non-EU countries. There are, however, many other occasions where immigration authorities may need to differentiate on the grounds of nationality. For example, immigration officers give extra scrutiny to entrants of a particular nationality if there has been evidence of immigration abuse by people of that nationality. Disability and religion or belief exceptions are narrower because they are intended to operate only in very particular circumstances—for example, the public good.

I thank the Minister for her explanation. We will come back to this on Report, but I just ask her to reflect on what I am about to say. The test of necessity for public good is a classic example of a test of proportionality. If the Minister is saying that the amendment is not necessary because that test is satisfied for disability, I would agree. However, the same problem arises for religion, and the conducive-to-the-public-good test is not the same as the test of necessity for public good or proportionality. As far as race is concerned, the Minister’s response is that you need to discriminate on the basis of nationality in immigration control. I agree, but this exception does not cover nationality, it covers “nationality or ethnic origins”, and “ethnic” means race.

My point is that there ought to be a common standard regulating the exercise of these controls on the basis of the principle that the means must be justified as well as the end. Therefore immigration control must be exercised proportionally. If that is not accepted by the Government, they will get a heap of trouble on religion under the European Convention on Human Rights. Could the Minister please reflect on that before Report?

I absolutely undertake to reflect on that issue. The noble Lord has made a very interesting point.

Returning to these amendments, I would like to provide further reassurance. The UK Border Agency’s use of these exceptions is subject to monitoring by its chief inspector. In addition, all policies and decisions taken by the immigration authorities are already subject to the provisions and safeguards in the Human Rights Act.

The noble Baroness raised the issue of guidance. Guidance instructions to immigration staff are available in the public domain, including via the UK Border Agency’s website, in order to provide transparency in relation to the activities of the immigration authorities.

For the reasons outlined above, I ask the noble Lord to withdraw Amendment 58ZB and not to press Amendments 58ZC and 58ZE, and I ask the noble Baroness not to press Amendment 58ZD.

I am grateful to the Minister for that explanation. Having read the debate in the other place and the Solicitor-General’s attempts to convince the House of her response, I am not surprised that at the end of our debate there is a great deal still to consider, not least with regard to what has been said by noble Lords on the Floor of this Chamber. The noble Baroness, Lady Warsi, the noble Lord, Lord Lester, and my noble friend Lady Howe have all raised points which I should like to go away and consider, possibly in consultation with the Minister. I do not believe that this is an issue that we can just pass; in the light of what has been said this afternoon, we need to consider it seriously and bring it back on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 58ZB withdrawn.

Amendments 58ZC to 58ZE not moved.

Amendment 58A

Moved by

58A: Schedule 3, page 143, line 2, at end insert—

“Part 5AMarriageGender reassignmentA person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in reliance on section 5B of the Marriage Act 1949 (solemnisation of marriages involving person of acquired gender).”

My Lords, my right reverend friend the Bishop of Winchester has had to return to his diocese and so is not in his place. He apologises and has asked me to move this amendment, which stands in his name.

The purpose of the amendment is essentially to preserve an aspect of the existing law enacted by Parliament as recently as 2004. Within the overall scheme of the Bill, the issue at stake may seem minor but it raises the possibility of the law coming into head-on collision with some religious conviction.

In short, the amendment preserves the effect of an exception for Anglican clergy in England and Wales provided for in the Gender Recognition Act 2004. That exception permits, but does not require, a member of the clergy of the Church of England or the Church in Wales to decline to conduct the marriage of a person who is of an acquired gender.

The Church of England does not have a settled position on gender reassignment but respects and upholds the conviction of its clergy who would not, as a matter of conscientious conviction, be able to solemnise marriages where one of the parties had an acquired gender under the Gender Recognition Act 2004. When that Act was passed, a specific provision was inserted into the Marriage Act 1949 so that a priest of the Church of England or the Church in Wales, who would otherwise be under a legal obligation to solemnise the marriages of his or her parishioners, was not obliged to solemnise the marriage of a person if he or she reasonably believed that the person’s gender was an acquired gender under the 2004 Act. That was consistent with established practice in legislation dating back to 1857, when the first legislation on judicial divorce provided that a member of the clergy did not have to solemnise the marriage of a divorced person.

In 1907, provision was made so that clergy who had a conscientious objection to doing so could not be required to solemnise matrimony in the case of the marriage of a man to his deceased wife’s sister. Other examples include provision contained in the Matrimonial Causes Act 1965 in respect of the remarriage of divorced persons, and provision contained in legislation dating from 1986 and 2007 relating to marriages between persons who would previously have been within the prohibited degrees of kindred and affinity.

There is, then, a consistent line here, which is that Parliament has not sought to impose statutory requirements on the clergy that are contrary to their religious convictions and obligations.

Under the Bill, solemnising matrimony would amount to either the provision of a service to the public or, if not, the exercise of a public function. Without the exceptions that this amendment provides, a member of the clergy who declined to conduct a marriage because one of the parties had an acquired gender would be acting unlawfully.

It will either amount to discriminating against the person by not providing the person with a service, or alternatively would infringe the prohibition on doing anything that amounts to discrimination in the exercise of a public function. We understand that the absence from the Bill of an exception for Anglican marriages is a drafting oversight rather than a deliberate policy change. This being so, we hope that the amendment can be treated as a matter of tidying up a loose end in the Bill and that the Minister will be able to accept it.

Amendment 58A concentrates on the Church of England and the Church in Wales, because at the point of placing the amendment, the legal advice to the Government Equalities Office was that marriages solemnised by non-Anglican ministers in England and Wales, and religious marriages in Scotland, were not at risk of being caught by the wording in Clause 29 regarding service to the public, facilities and public function. We understand, however, that the legal advice since then has developed, with reference to the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No. 2) Order 2005, No. 916. Hence the amendment of the noble Baroness, Lady Gould, which is welcome. However, we also look for an assurance that the Minister is satisfied that the amendment will fully achieve what it has been designed to achieve. I beg to move.

Amendment 58B

Moved by

58B: Schedule 3, line 8, at end insert—

“(2) A person (A) whose consent to the solemnisation of the marriage of a person (B) is required under section 44(1) of the Marriage Act 1949 (solemnisation in registered building) does not contravene section 29, so far as relating to gender reassignment discrimination, by refusing to consent if A reasonably believes that B’s gender has become the acquired gender under the Gender Recognition Act 2004.

Gender reassignment: Scotland(1) An approved celebrant (A) does not contravene section 29, so far as relating to gender reassignment discrimination, only by refusing to solemnise the marriage of a person (B) if A reasonably believes that B’s gender has become the acquired gender under the Gender Recognition Act 2004.

(2) In sub-paragraph (1) “approved celebrant” has the meaning given in section 8(2)(a) of the Marriage (Scotland) Act 1977 (persons who may solemnise marriage).”

My Lords, I rise to tidy up another piece of the Bill, following the right reverend Prelate. I very much appreciate his welcome of this amendment, and I also welcome his. The purpose of the amendment is to allow those who give consent to solemnisation of marriage the facility not to solemnise marriages involving those they suspect of having acquired their legal gender under the Gender Recognition Act 2004, without facing a discrimination claim involving gender reassignment under the Bill; and to recognise that the Anglican Church is not the only denomination that solemnises marriage.

There is no doubt that the Gender Recognition Act 2004 was a landmark piece of legislation that allowed transsexual people to be finally recognised in their true gender. Since it came into force, well over 2,300 people have taken the opportunity to gain a gender recognition certificate. However, it has to be recognised that this situation might not be accepted by all. Surely it is a sign of a healthy and mature society that we can recognise someone’s true gender while also recognising that some people of faith—who undertake the important duty of solemnising marriage—may not accept that a man or woman can change gender under law, due to their religious convictions.

As the right reverend Prelate indicated, this issue was recognised during the passage of the Gender Recognition Act, which amended the Marriage Act 1949, to provide clergy of the Church of England and clerks in the Church in Wales with a clause that releases them from their obligation where they reasonably believe one of the parties is marrying in his or her acquired gender. The right reverend Prelate, in his amendment, rightly recognises that this facility should continue and that the Bill should not put that into any doubt by exposing those who take advantage of it to claims of discrimination.

Amendment 58B ensures that celebrants in Scotland and those of other faiths in England and Wales who solemnise marriage should have the same facility. The position of religions other than the Church of England and the Church in Wales also need to be clarified, in case there is doubt that the Bill inadvertently alters their position.

The amendment also deals with people who give consent for marriages to be held in particular buildings—registered buildings under the Marriage Act 1949. Marriages cannot be solemnised in a registered building,

“without the consent of the minister or one of the trustees, owners, deacons or managers thereof, or in the case of a registered building of the Catholic Church, without the consent of the officiating minister thereof.

This permission is given on an individual basis. When permission is refused because the officiating minister reasonably believes that a party to the marriage has transitioned from one gender to another, the amendment ensures that that would not be unlawful discrimination.

The amendments are intended to preserve the status quo, and I hope that they will be supported. I beg to move.

I share and endorse the comments of the noble Baroness, Lady Gould, on the welcome importance of the Gender Recognition Act 2004. I seek clarification of the position with regard to Scotland, as the issue has been raised by the principal clerk to the General Assembly of the Church of Scotland. There is a difference in as much as Schedule 4 to the Act makes specific provision for the Church of England, which is reflected in the amendment of the right reverend Prelate the Bishop of Winchester, as moved by the right reverend Prelate the Bishop of Southwark. No such equivalent provision was made for Scotland in Schedule 4 to the 2004 Act. There is a difference in that in England there is a duty on the party of the clergy whereas in Scotland there is not the same duty with regard to agreeing to a solemnisation. It is only at the point of solemnisation that it is a public function and the decision on whether to solemnise could arguably be a religious function.

I also understand that this would be a matter for the Scottish Parliament, given that marriage law is a wholly devolved matter. However, under Schedule 5 to the Scotland Act 1998—in Part II, Head L2—equal opportunities is a reserved matter. There could conceivably be a dispute over where the boundary lies between the competence of the Scottish Parliament and the competence of Westminster, but ultimately that would be a matter for the courts. It would be helpful if the Minister could indicate whether, if a similar protection were given to clergy in the Church of Scotland or other denominations within Scotland, it would be fully within the competence of the Scottish Parliament to legislate.

In view of what the right reverend Prelate the Bishop of Southwark, said about the way in which legal advice has developed, I had better quickly declare my interest as a practising solicitor and the other entries in the Register. I am not sure what has happened, as the whole purpose of the Bill is to clarify and consolidate. Reading across the amendments that are being put forward, there is an attempt to make sure that everyone understands where they will stand and whether the status quo is being changed in any way. A lot of our debates will be about that. The world outside wants clarity, which is certainly the message that I have been receiving loud and clear from so many different lobbies.

Oversights can occur with lawyers from time to time, though I suppose that in this case it might be the parliamentary draftsman who is to blame. Although I bear my fair share of the blame, so far as Scotland is concerned, I think that the noble Lord, Lord Wallace, is right: we just need to know what effect the provisions will have. I thank the noble Baroness, Lady Gould of Potternewton, for continuously trying to clarify exactly what is happening. We await with great interest an answer to the question of whether it was indeed inadvertence or whether there was some other motive behind it. If so, the Committee deserves a full explanation.

I think that the present provisions are related to what was referred to rather politely as an “underdevelopment” of the legal advice, because it has been developed since. It was due to an idea that providing the services of a celebrant of marriage was not exercising a public function. Until now the law has regulated this and there is no doubt that it is a public function in England, Scotland and probably also in the other jurisdictions in the United Kingdom.

I also feel certain that this is a matter of equal opportunities and therefore well within the competence of the UK Parliament. I have no doubt that it would be possible to get the agreement of the Scottish Parliament insofar as there should be any risk in that respect, but I think that putting the provision in the Bill is perfectly competent, and I hope the Government share that view.

I will speak to both Amendment 58A and Amendment 58B, but before I do, may I say to the noble Lord, Lord Hunt, that our job in this House is to test Bills, to test whether they work and to seek clarification of them, and therefore all our discussions are going to be about, does this work, does it do what it says it is going to do, do we think it will work and, occasionally, have we forgotten to put something in that might make it clearer? It is not a question of forgetting, actually; it is probably a question of a test that was done before it even reached the Floor of the House, where we tested it and found that, perhaps, it did not do quite what we intended.

Amendment 58A seeks to make clear that a clergyman of the Church of England, or a clerk in holy orders of the Church in Wales, will not be subject to a claim for discrimination on the grounds of gender reassignment when acting in accordance with Section 5B of the Marriage Act 1949. Section 5B allows a clergyman or clerk of the established church to refuse to solemnise a marriage if he or she reasonably believes one of the couple to have gained their legal gender under the Gender Recognition Act 2004. The 2004 Act was passed to provide transsexual people with legal recognition in their acquired gender. Under that Act, legal recognition of a person’s new gender follows from the issue of a full gender recognition certificate by the gender recognition panel. Legal recognition of the new gender has the effect that, for example, a male-to-female transsexual person is recognised for all purposes as a woman in English law. On the issue of a full gender recognition certificate, a person is entitled to a new birth certificate reflecting the acquired gender and is able to marry someone of the opposite gender to his or her acquired gender.

The 2004 Act therefore amended the Marriage Act 1949 to provide clergy of the Church of England and the Church in Wales, who are under an obligation to solemnise the marriages of parishioners, with a clause that releases them from this obligation if they feel unable to solemnise the marriage of a person recognised in the acquired gender. The rationale of the relevant provision, Section 5B, is that a minister should not be obliged by law to act against their personal religious conviction on this matter. This provision is only necessary for clergy of the Church of England and the Church in Wales because they alone among denominations have a legal obligation to solemnise the marriages of their parishioners. This amendment seeks to make it clear that a person acting in accordance with Section 5B will not be liable to a claim for discrimination on the grounds of gender reassignment.

Although the Bill is not intended to cover this situation, we do agree that as a result of the Bill’s broader protections for people who are undergoing or have undergone gender reassignment, there is a risk of claims being brought unless an exception such as this is put in place. Consequently, we are happy to accept the right reverend Prelate’s amendment.

For Amendment 58B, a similar rationale applies. Although there is no legal obligation on religions or denominations other than the established church to solemnise marriages, those who solemnise marriages in those religions may also have personal religious concerns about conducting marriages involving people who have undergone gender reassignment. Currently they are able to refuse to solemnise marriages involving such people without any risk of a claim for discrimination. However, as with the established church, the Bill may raise questions as to whether any such refusals might give rise to claims for gender reassignment discrimination. We have always been clear that the Equality Bill's extension of protection from gender reassignment discrimination should not interfere with the current position whereby people conducting religious marriages are not required to conduct a marriage where they reasonably believe that a person has undergone gender reassignment.

With this in mind, we agree that the position of religions other than the Church of England and the Church in Wales needs to be clarified, in case there was doubt that Part 3 inadvertently alters the position. We are therefore grateful for this amendment. In England and Wales, it will allow those, such as Catholic priests, who consent to the solemnisation of the marriage of a person in a registered building the same facility as clergy of the established church to refuse to marry people who have undergone gender reassignment without facing a claim for discrimination, as described by my noble friend Lady Gould. In Scotland, it will allow what it refers to as “approved celebrants” to decline to solemnise a marriage for the same reason. It defines approved celebrants by reference to the Scottish legislation: the Marriage (Scotland) Act 1977.

The word “reasonable” worries me. My experience is that what is reasonable to one person is often not reasonable to another. Who will decide what is reasonable? How will that be implemented?

“Reasonable” is a legal expression that will be used as a test should this come to court. We are trying to clarify the Bill to make it clear that we would not expect the clergy who are mentioned in these amendments to be vulnerable to claims for discrimination. In Scotland, these amendments will maintain the status quo once the Bill is in force. As the noble and learned Lord, Lord Mackay, said, these amendments are within the competence of the UK Parliament as this is discrimination law, not marriage law. I hope that that helps the noble Lord, Lord Wallace.

However, these amendments should not be seen as discriminatory against transsexual people. They do not add anything new; nor do they remove anything. Transsexual people have rightly gained the ability to be legally recognised in their acquired gender. As in other situations, however, this is an area where the Bill should strike a balance. In striking that balance, we agree that, as under current law, people of faith who have the ability to solemnise marriages should not be forced to go against their strongly held personal religious convictions.

Having taken this into consideration, the Government are very happy to accept and support Amendments 58A and 58B.

Amendment 58B agreed.

Amendment 58A, as amended, agreed.

Amendment 58C

Moved by

58C: Schedule 3, page 145, line 11, at end insert—

“Part 6ATelevision, radio and on-line broadcasting and distribution(1) Section 29 does not apply to the provision of a content service (within the meaning given by section 32(7) of the Communications Act 2003).

(2) Sub-paragraph (1) does not apply to the provision of an electronic communications network, electronic communications service or associated facility (each of which has the same meaning as in that Act).”

This amendment needs to be considered together with Amendments 113 and 114, which were tabled by the noble Baroness, Lady Warsi, and which are designed to have a similar effect.

Their origin is the concerns expressed by the BBC and Channel 4 that the Bill could result in inappropriate interference with the editorial independence of broadcasters and so have a negative effect on the range and depth of programming. This was forcefully expressed to the Government, and I agreed to table amendments, originally together with the noble Baroness, Lady Howe, with that in mind. The drafting was not ideal, and the drafting of my amendment reflects a great deal of assistance I received, if I am allowed to say so, from the Government and their advisers. It has been agreed with the broadcasters.

The problem refers back to the kinds of problems to which the noble Lord, Lord Alton, referred. For example, if broadcast content is caught by the provisions in the Bill, the broadcasters were concerned that complaints about programming could be brought that might create double jeopardy for broadcasters, since those issues are already dealt with by the designated broadcasting regulators: Ofcom and the BBC Trust.

The sorts of examples—I do not want to multiply any more stupid examples—that came to mind were a claim of race discrimination on the basis that the broadcaster’s dramas over a period of time had featured too few non-white people; or because they had shown a film that was thought to be offensive to a particular ethnic group; or a claim of sex discrimination on the basis that a programme was degrading to women; or a claim of race or religious discrimination in relation to a decision to broadcast a film offensive to white people or white Christians, in circumstances where it would not have broadcasted a film offensive to non-white people or to Muslims; or a complaint in relation to a scheduling decision over what was broadcast in Holy Week, or on the Sabbath, or during Ramadan.

The noble Lord, Lord Alton, if he were here, would be glad to know that in the view of the broadcasters, those are not just theoretical threats. They have given as an example the West Midlands Police complaining to Ofcom that Channel 4’s “Undercover Mosque” might have included material likely to constitute an incitement to racial hatred; or a group called the English group arguing that a programme called “The Seven Sins of England”, which discussed anti-social behaviour from a current and historical perspective, was racist against the English. There was even a complaint, though it is not in the public domain, that “Carols from King’s” included an incitement to racial hatred against Jews, because it included the Christmas gospel, John, chapter 1, verses 1 to 14, and the words:

“He came unto his own, and his own received him not.”

It is good to have these examples, because it livens up Hansard a great deal. Those complaints are, as the broadcasters have pointed out, costly and vexatious, and they can have a chilling effect on programme makers. As the Bill allows for subjective tests about harassment to some extent, that again has caused some worry. I will not go on, but those are the kinds of concerns which gave rise to my amendment, which has an objective similar to those with which it is grouped. I beg to move.

My Lords, I was very interested to hear the speech by the noble Lord, Lord Lester. As he knows, we have tabled similar amendments to Schedule 18, to exclude people involved in the public broadcast of programmes from having to abide by the provisions of the public sector equality duty. As the noble Lord has explained, the main aims are to ensure that the content of programmes being broadcast by public service broadcasters should not be inappropriately regulated.

I am sorry to interrupt, but I did not point out, as I should have done, that my amendment is concerned with Section 29, and services, not the public service duty, which I think is dealt with separately.

That is quite correct. The amendment tabled by the noble Lord, Lord Lester, would mean that a broadcaster would not fall foul of the provisions regarding discrimination, as he has just explained, as laid out in Clause 29, which is headed, “Provisions of goods and services”. Amendment 113, which I now speak to, would mean that the persons involved in commissioning, content, and broadcast of programmes, would be excluded from those groups who have due regard to the public sector equality duty. Amendment 114, in the names of my noble friends, would mean that any function connected with these activities would also be excluded.

We on these Benches think that it is wrong to include the content produced by public service broadcasters under the provisions of the Bill. The risk is that there would be inappropriate control and interference with their editorial independence, which could risk damaging the creative process, of which we are all very proud in this country, and may risk artificial constraints being placed on the range and depth of programming. I am sure that the whole House would not want to encourage that.

In another place, we received assurance that the Government completely agreed that the public sector equality duty should not apply to the commissioning, content and broadcast of programmes. As I understand it, the Government have produced a new website— I carefully researched this website, which has been fully populated of late, particularly yesterday—we have yet to come to those amendments— but I could not see any amendment about this matter. Will the Minister point me in the right direction to find these exclusions? If we are still waiting for them to be drafted, could we have some idea of what timescale is involved?

My Lords, I am glad to notice that the noble Lord, Lord Lester, has made an exception to his general policy not to legislate against ridiculous examples by seeking to do it here. These amendments are highly desirable; but is the position of those who take part in the programmes protected? I will not add to the ridiculous examples, but there was a case of someone taking part in a programme who was investigated by the police on the ground of what he had said by way of his religious views about a certain aspect of social life. The position of those who take part in a programme, as well as the authorities which produce the programme, requires to be clarified. This may protect them also, but I am not certain of that.

My Lords, I second the amendment in my name and that of the noble Lord, Lord Lester, and I thought that he put the case brilliantly. All the examples given illustrate clearly how important it is to get this right. As the noble Lord, Lord Hunt, said, and as I understood it, there was an intention for the Government to take on the task of putting down an amendment. So I am surprised that all this time has gone by with nothing happening. I hope that a hitch has not occurred, because this provision is crucial. On the cost of the licence fee, I do not think that we want the licence fee, instead of paying for making programmes, to pay compensation to whoever is making complaints about the way in which they have been portrayed. I very much hope that the Minister will reassure us.

My Lords, I, too, support the noble Lord, Lord Lester. I am glad that he has converted at last to the possibility that idiotic cases could be dealt with. However, his example from “Carols from King’s” was from John, chapter 1, verse 11 and not verse 14. That said, I do not know whether I want to go a long way with the noble and learned Lord, Lord Mackay, about people appearing on programmes and expressing views which could be an incitement to religious and racial hatred. The law protects us from that side, and I would be more content to leave this issue where the noble Lord, Lord Lester, has left it.

My Lords, Amendment 58C will provide an exception for broadcasters, such as the BBC and Channel 4, from the services and public functions provisions in Clause 29. This is intended to ensure that claims for discrimination, harassment and victimisation cannot be brought in relation to the broadcasting and online distribution of a contents service, as defined in the Communications Act 2003.

We agree with noble Lords opposite. It was never our intention that anything in this Bill should undermine the editorial independence of these broadcasters. The noble Lord, Lord Lester, has made an eloquent case for the exception, and we understand the concerns that have been expressed by the broadcasters themselves. The examples which have been cited—the ludicrous examples—demonstrate the problems that exist, as well as livening up our proceedings. In the past, the legislation has left it to the courts to decide whether the content of broadcasting output is a public function. Our view has always been that it is not. However, despite this view, we understand that the broadcasters are being forced to spend large amounts of resources dealing with complaints of discrimination. More importantly, we understand that the threat of a successful discrimination case being brought against them in the future has a chilling effect on broadcasters when they are considering commissioning programmes concerned with difficult, challenging and sensitive matters relating to race, disability, et cetera.

This chilling effect can in turn deny the viewing public the opportunity to see controversial programmes that are an important means of prompting public debate. We have therefore concluded that including an exception for the broadcasters in the Bill in respect of the broadcasting and online distribution of content could provide certainty and ensure that the concept of editorial independence is protected. We are therefore happy to accept the amendment tabled by the noble Lord, Lord Lester, and the noble Baroness, Lady Howe of Idlicote, and I thank them both.

Amendments 113 and 114 are amendments to Schedule 18, paragraph 4. These amendments would except from the scope of the equality duty any person involved in the commissioning, content and broadcast of programmes, or any function in connection with the commissioning, content and broadcast of programmes. These amendments are identical to amendments tabled and debated during the Committee in another place. As then, the Government oppose these amendments because they are unnecessary. We have made clear on a number of occasions our intentions for the public service broadcasters and the equality duty in letters to the Director-General of the BBC in a Named Day Question answered by the Secretary of State for Culture, Media and Sport, and during Committee in another place, both of which are recorded in Hansard. I also responded to this point at Second Reading.

Our policy is that the duty should not apply to the broadcasting and output functions of the public service broadcasters. Editorial independence for broadcasters is a long-standing government policy and one we are committed to retaining, as our acceptance of the previous amendment has just shown. However, it is important that we list the BBC, Channel 4 and S4C in Schedule 19 and we will do so at the same time as we amend the rest of the list. When we list them in Schedule 19, we will explicitly exclude their broadcasting and output functions. Clause 149(4) makes it clear that if a body is listed in Schedule 19 in respect of certain specified functions, the duty will only apply to those functions.

There are no amendments from the Government that will appear on, as the noble Lord says, because we are having informed discussions with a wide number of public bodies about whether they should be included, including the BBC. We are working closely with the BBC and other broadcasters to define exactly what functions need to be excluded in order to respect editorial independence.

In due course, we will bring forward secondary legislation so that noble Lords will have an opportunity—

I am following of course what the noble Baroness is saying, but it would be helpful to get some idea of timescale. As I understand it, she is saying there is no need for amendments to primary legislation because we will deal with this through secondary legislation, but I think we are not going to be able to share what is proposed until some later stage. It would be very helpful if some sort of time could be put on when we shall see the result of these discussions, please.

I am told later this year. I cannot give a timescale. What I will try to do is come back to noble Lords in writing with more ideas—notwithstanding the fact that we are speaking to the various bodies involved—about the sort of things that we will be considering in secondary legislation so that noble Lords have more substance about the things that we will be proposing in due course.

Let me explain why listing broadcasters in Schedule 19 is preferable to setting out an exclusion. It is important to list these bodies in Schedule 19 because it means we can be clear about what functions of those broadcasters are subject to the duty and which are not. For instance, by listing the broadcasters we can be clear that certain functions such as those in connection with employment of its workforce are included. If we relied on the public functions provision of Clause 148(2) together with the exception for the commissioning, content and broadcast of programmes, then it would not be clear what other functions were subject to the duty. Indeed, some would argue that the employment of its workforce, for instance, would not be covered. That lack of clarity has been unhelpful to the broadcasters in the past, and we are in discussions with them to make sure we are clear on that for the equality duty.

The noble and learned Lord, Lord Mackay of Clashfern, and the right reverend Prelate, asked whether people who appear in broadcasts will be subject to the duty. Programme participants are not providing a public service and therefore are not excepted, but it is unlikely that they can be thought to be discriminating. Any comments giving rise to an accusation, for example—and I am grateful for the answer coming to me from the Box—of racial hatred would be covered by other legal remedies, but that is something that I would wish to clarify in writing. It is a matter that I have some concern about as well and so I would wish to put this in writing to clarify it in my own mind as well as for noble Lords. I ask the noble Lords to withdraw Amendments 113 and 114.

We are delighted that the amendments standing in my name and that of the noble Baroness, Lady Howe, have been accepted, and I am sure the broadcasters will be as well. On that point, I need to deal with two serious issues: first the teasing by the noble and learned Lord, Lord Mackay of Clashfern, of the charge of inconsistency. He said, as I understood it—and I have to deal with this very serious matter right away since it is so important—that he was glad that on this occasion I was legislating to deal with the silly and ludicrous examples. But why this really matters on this occasion is because of the chilling effect upon freedom of speech and broadcasting which the ability to bring those complaints under the Bill would have. That is why it is important to deal with the chilling effect and why the amendment is so important.

The second and equally serious matter is that I am accused of misquoting the Bible and the Book of John. It is probably my poor enunciation. As a boy who went to a bad state school in my early years it is probably the disadvantage of that. I thought I said John, chapter 1, verses 1 to 14. If that is wrong, then I blame the BBC. It is very sad that the BBC does not know its Bible. That is the problem with a secular society that does not know its own Bible properly.

The problem with the public sector duty is that it is vital that broadcasters are included because of diversity, for example, and because they are committed by Ofcom’s code and other provisions to full equality. As I understand it, they are not objecting to being included in the public sector duty and it is simply a question of negotiating in the right way. They are in consultation, which I am sure will lead to the correct result.

As to the individuals taking part in programmes, they are not providing a service to the public within the meaning of Clause 29 by participating in the broadcast. They are not performing a public function by doing so and, if they defame, incite to hatred or commit any other civil or criminal wrongdoing, they will be liable for doing so. I hope that that gives some assurance. We are not covering that; we are covering the editorial independence and judgment of the broadcaster. For all those reasons, I again thank the Minister, and the Box, and sit down.

Amendment 58C agreed.

Amendment 59

Moved by

59: Schedule 3, page 145, line 17, leave out paragraph 30

My Lords, the amendment is tabled in order to ask the Minister why there is a need to replicate provisions in the Disability Discrimination Act. Perhaps she can inform the House of the reasons for this exception.

Baroness Thornton: My Lords, Amendment 59 proposes the deletion of paragraph 30 of Schedule 3 which, at present, disapplies Clause 29—“Provision of Services, etc.”—in Part 3 of the Bill in relation to transport by air in the context of disability discrimination and I am happy to expand on the need for this part of the Bill.

The Bill does not make it lawful to discriminate in the provision of services on board aircraft. Part 7 of Schedule 3 provides exceptions with regard to services and public functions only in relation to disability discrimination. The exemption with regard to disability is justified because a specific European regulation protects disabled air passengers against discrimination. European regulation 1107/2006 made it illegal for airlines to refuse to carry disabled and less mobile passengers, and airlines have to give assistance to all people of reduced mobility, including blind people. The EU regulation is directly applicable to the UK.

The enforcement regime is provided by means of a regulation contained in statutory instrument 2007/1895. Aviation is an international business and, as such, it makes sense to make rules on aviation issues internationally. We have a good new European law which has only recently come into effect in the UK. We therefore consider it unnecessary to change the current position whereby air transport services are exempt from the services provisions of the Disability Discrimination Act. Indeed, it would be inappropriate to do so. The existing law will apply to aircraft in respect of all strands other than disability, where European law applies. Therefore no amendment is necessary.

The amendment appears to be based on a misunderstanding, although I realise that it is a probing amendment. In seeking to delete paragraph 30, the amendment would delete the carve-out in paragraph 32, which is made in favour of European regulation 1107/2006, and this would be wholly inappropriate.

A disabled British passenger travelling by air in Europe knows that under the European regulation he or she is entitled to the same level of assistance in all 27 countries of the European Union and we do not want to damage that position in any way. It would be insufficient to rely only on domestic legislation in this area. To do so would result in different strands applying in different countries and would give little reassurance to disabled passengers travelling abroad in Europe. I ask the noble Lord to withdraw the amendment.

Amendment 59 withdrawn.

Amendment 60 had been withdrawn from the Marshalled List.

Amendment 60ZA

Moved by

60ZA: Schedule 3, page 146, line 19, at end insert—

“( ) But provision by virtue of subsection (1) may not amend this Schedule—

(a) so as to omit an exception in paragraph 1, 2 or 3;(b) so as to reduce the extent to which an exception in paragraph 1, 2 or 3 applies.”

My Lords, Schedule 3 currently contains a power for a Minister of the Crown to make an order varying, removing or adding to the exceptions to the services and public functions provisions in Part 3. This power is necessary to allow changes to be made in response to unforeseen circumstances and is subject to the affirmative procedure.

When we considered this power, the Delegated Powers and Regulatory Reform Committee recommended that it should not be used to omit or reduce in scope any of the exceptions in paragraphs 1 to 3 of Schedule 3. These are the exceptions to the functions of Parliament—the preparation, making, consideration or approval of legislation—and the functions of the courts. Given the particular constitutional significance of these exceptions, it was considered more appropriate that they be removed or reduced in scope only by primary legislation in order to allow full parliamentary scrutiny. After consideration, we are happy to accept this recommendation. The amendment will amend the scope of the power accordingly and I hope noble Lords will support it. I beg to move.

My Lords, perhaps I may ask the noble Baroness if there was ever any intention to use this part. I am not sure why it was put in the Bill in this way and I do not think the noble Baroness has explained that. Can she confirm what comes under the heading of “Parliament” in this context? Which parts of the workings of the Palace would be included if there was ever any such intention? I was going to ask all kinds of questions but I shall cut back on the amount of time. It would be helpful if the noble Baroness could clarify the background to all this. Most of us strongly agree with the committee’s recommendation.

My Lords, the power as a whole is necessary to allow for new and unforeseen circumstances that may affect what counts as the provision of services or the exercise of a public function. It also allows for any future policy change on the exception of air transport services from the disability provisions, enabling the exception to be varied or removed as appropriate. Such a need is recognised in existing legislation.

The noble Lord asked what we mean by the “functions of Parliament”. As I understand it, it is to do with the preparation, making, consideration or approval of legislation—for example, debating, legislating and other proceeding—but not the parliamentary shop. It relates to the proceedings in the House, including debates and so on. I cannot enlighten the noble Lord any further at this instance.

Amendment 60ZA agreed.

Schedule 3, as amended, agreed.

Clauses 30 to 36 agreed.

Clause 37 : Adjustments to common parts in Scotland

Amendment 60ZB

Moved by

60ZB: Clause 37, page 20, line 25, leave out subsection (1)

My Lords, the amendment seeks to leave out subsection (1) of Clause 37, which gives Scottish Ministers the powers to make regulations to provide that a disabled person can make relevant adjustments to common parts in relation to some residential premises in Scotland. Amendment 136ZC seeks to leave out the relevant regulations from Clause 202, which refers to the powers exercisable by Scottish Ministers.

The Minister will be aware that we tabled these amendments to probe the Government’s thinking about why such a substantial power was delegated to Scottish Ministers. This was a concern raised by the Delegated Powers and Regulatory Reform Committee in its second report, to which we have already referred. This report stated that the clause had introduced quite a considerable reform because the Disability Discrimination Act 1995 is a reserved matter under the Scotland Act 1998. In response, the department produced a very helpful brief which stated that equal opportunities remains a reserved matter under the Scotland Act and reserved matters are outside the legislative competence of the Scottish Parliament. Under this Bill, despite equal opportunities remaining a reserved matter, on the policy in relation to common parts it has been considered necessary to give to Scotland the power to make regulations where it sees fit. This is, I understand, partly because the regulations would need to fit into many areas of devolved law—such as property law, contract and civil justice.

This document appears to answer many of the questions left unanswered in the Explanatory Notes. Can the Minister inform the House of the consultation and discussions which were had with the Scottish Executive? For example, can she share with us the intention of the Scottish Ministers regarding using this power? The document states that the various limbs of the power are necessary to ensure that the process for Scotland will contain the same main elements as are provided for in the English and Welsh process. It would be interesting to be made aware of whether the Scottish Ministers’ intention was to use them in the same way. I beg to move.

Amendment 60ZB would remove a power conferred on Scottish Ministers that would permit them to establish a distinct process by which disabled people could gain consent to, and have made, disability-related alterations to the common parts of residential accommodation in Scotland. The noble Lord, Lord Hunt, is right that we are trying to reconcile the different legal framework in Scotland. I am happy to explain further.

The Delegated Powers and Regulatory Reform Committee in its second report of Session 2009-10 said:

“The House may wish to invite the Government to justify in more detail the delegation to Scottish Ministers of this substantial power”.

The Solicitor-General sent the Government’s response on references to the Equality Bill in its second report to the committee. It includes a detailed memorandum on the case for the power in Clause 37. This memorandum is now included in Appendix 2 of the committee’s third report of Session 2009-10. It is my sincere hope that the reply and the memorandum will satisfy any residual concerns over the power in Clause 37.

This power is necessary to ensure that disabled people in Scotland have similar rights to those in England and Wales. Clause 36 and Schedule 4 create a framework for enabling certain disabled tenants and other occupiers of property to have alterations made to the structure of the common parts of that property. This is the case where such alterations are a reasonable way to reduce or avoid the disadvantages experienced by the disabled person using the common parts. Examples of the kind of alteration that fall into this category are the fitting of a stairlift to enable the disabled person to go up and down stairs, providing a ramp for entry and exit to the property, or the widening of a doorframe to allow a wheelchair through. Measures such as these can make all the difference to a disabled person’s ability to get out and about.

Making similar provision in Scotland is not straightforward, for three reasons. First, in terms of devolution powers, this subject is at the interface between a reserved matter—discrimination—and a devolved one—housing law and the landlord/tenant relationship, where that exists. Secondly, land law in Scotland is very different from that in England and Wales. Particularly relevant to the Scottish power is the fact that is it common to have joint ownership of common parts in Scotland, which does not arise in England and Wales. Thirdly, these difficulties are compounded by the fact that the Scottish Parliament has already passed legislation giving some tenants in Scotland the right to make alterations for similar purposes to those in Clause 36. In those cases, tenants already have a process in place to facilitate making alterations.

The power in the Bill is needed because Scottish legislation cannot cover two specific situations. These are when a landlord wishes to give consent to his tenant but the work cannot be undertaken because he does not own the common parts, and when disabled owner-occupiers cannot undertake the work themselves because they need the consent of other joint owners. In these cases there will be no provision to ensure that disabled people are able to undertake the necessary alterations to enable them to use the common parts of the property. It would have been possible for the Equality Bill to have made provisions solely in relation to these two situations, but that would have left tenants wishing to make an alteration to have to consult two different sets of legislation—Scottish legislation in relation to seeking their landlord’s consent, and the Equality Act in relation to the consent of other joint owners of the common parts. This would make an already complicated process even more difficult and discourage many disabled people from seeking consent. Of course, throughout this process we have been discussing this with our colleagues in Scotland who understand the complications very well.

It was decided, therefore, that in these specific circumstances the best way to protect Scottish disabled people not covered by the Scottish law was to grant Scottish Ministers the power to make regulations to remedy the gaps in their legislation so that all the provisions that the disabled tenants and owners need are in one place, thus helping to facilitate the use of these provisions. Through Clause 37 we are also providing for Scottish Ministers to consult a Minister of the Crown before making the regulations, and for the regulations to be subject to affirmative procedure in the Scottish Parliament. This is considered the appropriate level of scrutiny, given that the provisions made under the power will have an impact on property rights and, by virtue of Clause 199, will be capable of amending primary legislation.

In answer to the noble Lord’s question about consultation, this was done by request from Scottish Government officials and disabled people in Scotland, who recognised that this was an issue that we needed to address. I trust that noble Lords will agree that the provision in Clause 37 will significantly benefit disabled people in Scotland by ensuring that they, like disabled people in England and Wales, can benefit from improved access to the common parts of their premises. I hope that explanation has gone some way to reassure the noble Lord.

This is an excellent provision in so far as Scotland is concerned, and I congratulate the Minister on her accuracy in expressing the difficulties that exist in this particular area of the law in Scotland. I am just wondering why Scottish Ministers must consult a Minister of the Crown. I suppose it is something to do with co-ordination.

The noble and learned Lord is correct. It is to do with co-ordination to make sure that we marry the wording used in both countries so that there are no gaps or conflicts.

Amendment 60ZB withdrawn.

Clause 37 agreed.

Clause 38 agreed.

Schedule 4 : Premises: reasonable adjustments

Amendments 60A to 60D not moved.

Schedule 4 agreed.

Schedule 5 agreed.

Clause 39 agreed.

Clause 40 : Employees and applicants: harassment

Amendments 61 to 63 not moved.

Clause 40 agreed.

Clauses 41 to 52 agreed.

Schedule 6 agreed.

Clauses 53 and 54 agreed.

Clause 55 : Employment service-providers

Amendment 64

Moved by

64: Clause 55, page 36, line 14, at end insert—

“( ) An employment service-provider must not ask for details of an applicant’s health or disabilities before an offer to which subsection (1) applies has been made, except in so far as is necessary to make reasonable adjustments to the selection process.”

My Lords, we now turn to the much discussed provisions regarding pre-employment inquiries and their place within the recruitment process. As the Minister will know, we on these Benches believe that employers should not be permitted to make use of pre-employment health-related questions which are not directly relevant to the candidate’s ability, in particular for the job for which they have applied.

We were therefore delighted that, in another place, the Solicitor-General took on board the concerns that we had in this respect and stated that,

“I am engaged with the issue and am impressed by the arguments”.—[Official Report, Commons, Equality Bill Committee, 18/6/09; col. 374.]

That is language that I would love to hear much more from the Government in this place. Nevertheless, we were disappointed with the new clause which the Government brought forward in response to our worries. For this reason, we have retabled some of the amendments which were discussed in another place.

Amendments 65 and 66 would mean that an employment service-provider would not be able to ask any questions about health or disabilities as they would apply to arrangements made about the provision of the service, except as it was necessary to make reasonable adjustments to the selection process. Amendments 66 and 67 would apply the same proviso to the clauses dealing with trade organisations.

We have also tabled an amendment to remove Clause 60, which, as I have mentioned, the Government inserted on Report in another place, because it does not go far enough. Further to this, we have tabled alternative Amendments 69 and 136A, which cover the issues more adequately and which I hope mean that we will now have a debate during which we find a solution that is more acceptable to all concerned.

Clause 60 goes some way towards addressing our concerns regarding pre-employment questions around health or disability. We are very grateful for the efforts made in drafting the new clause. As the Explanatory Notes state:

“This provision will deter employers from asking questions and therefore opportunities for direct discrimination in recruitment”.

It will do this by making it easier for an applicant with a disability to take their case to a tribunal if they feel that they have been discriminated against in the application process. The inquiries, however, are not strictly prohibited. I think I am right in saying that it is hoped that easier access to a tribunal, where the case can be made on the very existence of a pre-employment questionnaire and where the burden of proof is on the employer, would act as a strong enough disincentive to employers.

However, the crucial issue here is not just to make the tribunal process easier but to make it much more difficult for employers to ask health or disability-related questions in the first place, before a job offer is made. This is why the Disability Charities Consortium has stated that while they,

“welcome the Government’s efforts to restrict the use of disability-related questions”,

the provision needs much,

“strengthening in order to act as an effective deterrent”.

Mind, the National Aids Trust, Rethink, the Royal College of Psychiatrists and the Terrence Higgins Trust have also made it clear that they,

“regret that the new clause does not go as far as prohibiting pre-employment inquiries altogether”.

There are many reasons to bemoan the Government’s new clause, which, while it is a welcome movement on the issue, addresses the issues only in a limited fashion. The Disability Charities Consortium has pointed out that it would take a very confident person with a disability to claim that they knew that the only reason for which they had not been selected for the job was their disability. I am sure that we have all in our time experienced the dejected feeling which comes from being rejected for a job for which we have applied. Would most around this Chamber acknowledge that that gives a pretty severe knock to one’s confidence? In this position, there is a great risk that a disabled person, or a person with a mental health issue or HIV, may not have the confidence or may even feel that it would be arrogant to claim that the only reason for which they did not get the job was discrimination.

Furthermore, I am aware that there is considerable stress involved in taking a case to tribunal, in particular where it has to be acknowledged that it will be very difficult to prove the case conclusively one way or the other. The Disability Charities Consortium recognises the merits of the shift of the burden of proof so that employers must demonstrate that they did not use the question to discriminate. Nevertheless, the person with disability still has to take the case to court, and questions about disability in relation to employment are not as clear cut as those about, for example, marital status. The latter are easily defined as discrimination, but the former could be counted as having some relevance for the job. We are therefore entering a very tricky area and we do not think that the Government have come far enough forward on it. I wait to hear from the noble Baroness on this point.

There is the further difficulty that at least part of the problem is to do with the fact that if people with a disability know that questions may be asked, they might be put off applying for a job in the first place. Part of the problem, therefore, is not addressing cases which have arisen but the general perception held by many people with a disability—or to go further than our amendment, people with HIV or a mental health problem—that they will be severely disadvantaged in the job market if they are questioned about this issue.

A recent Rethink survey of more than 3,000 mental health service users showed that half of respondents felt that they had to hide their mental health problems, and that as many as 41 per cent were put off even applying for jobs because of the fear of discrimination by employers. This evidence is further underlined when one sees that the employment rate for people with mental health illness is just 13.3 per cent. I suppose that this is perhaps not surprising when looked at in conjunction with the survey of employers by the Chartered Institute of Personnel and Development, which showed that more than half of respondents would not even consider recruiting from the “core jobless” group, which includes people with drug or alcohol problems, a criminal record or a history of mental health issues. We therefore need a clear and unequivocal signal that this is not acceptable. As Clause 60 stands, this is not the case.

We have therefore tabled Amendment 69, which would go much further by making it much more difficult for employers to use pre-employment questionnaires in relation to disabilities. There would of course be cases where this is necessary; our amendment allows inquiries for the purposes of “reasonable adjustments” for the interview process, an anonymised written question to allow monitoring of disabled people, and for the purposes of positive action. The prohibition will not apply either when a question is necessary to ascertain whether an applicant would be able to perform a specific employment function. Against that background, I look forward to the Government’s response.

We have also tabled Amendment 136A in this group, to give enforcing sanctions to the Equality and Human Rights Commission. The sanction would have a wide scope and give the EHRC a power to take action against employers without there being a need for a direct victim, which would allow redress for system breaches of the law. The sanction can therefore be used by the EHRC to send out a clear message to employers about their actions. However, it is also a sanction limited to use by the EHRC only and is not an additional sanction for individuals.

It was rightly pointed out in another place that there were no enforcing sanctions to add the weight of the law to our provision. I believe we have remedied this and I hope that is going to encourage a positive response from the Government. We acknowledge that, as it stands, Amendment 69 only addresses questions to do with disability and not health. As we have just been discussing, there is clearly a case for including health questions under the prohibition as well as those relating to disability. This is partly because, as we have seen in previous debates, the definition of disability can cause difficulty for those with mental health issues in particular. Furthermore, there is the issue of clarity, to which I referred earlier. It is difficult to separate a question about disability from a question about health. However, if both were covered, this would give businesses a simple direction and the flexibility to ask the questions that they need to and avoid those which they do not.

I say to the noble Baroness, the Chancellor of the Duchy of Lancaster, that I understand that we are going to have our photograph taken together. Excuse me for stressing this, but I am so thrilled that we now have such a senior Member back as chancellor. I am a previous holder of that great title. If I am allowed to digress for a moment, the noble Baroness may discover that she is now about the most senior person. When attending Privy Council she will take precedence over all the people in the Cabinet. If I am allowed to mention this, I remember the noble Lord, Lord Heseltine, standing at the head of the queue, waiting to go in, and I slipped gently in front of him. I shall never forget that. Anyway, I am not supposed to refer to things like that.

I mentioned a little earlier that the Government set up a new website, At the eleventh hour, and I really do mean that, only yesterday, we were shown that the Government had published amendments that appear to take many of these concerns on board. If that is the case, we are delighted that the Government now at last see the problems with the clause that they inserted into the Bill at Report stage in the Commons. These amendments seem to address our core concerns—they specifically prohibit health-related questions except under prescribed circumstances until a job offer has been made and, also, as our amendments did, they include a strong sanction from the EHRC.

We welcome these amendments and their intentions. However, given that they were tabled at the last minute and although I did try to work a 24-hour day yesterday—much to the chagrin of my family—I have not had the opportunity to go through them in minute detail. We are going to accept these amendments for now, as we believe that they go a very long way to meeting our concerns. However, I hope that the Minister will accept that there may be outstanding issues in them which will require further scrutiny at a later date.

In responding to these amendments, can the Government say whether there are any other outstanding issues that they are still considering and whether we can expect further amendments? It may be an opportunity, as I so rudely referred to the new website, for us to be given some idea of what further amendments are going to emerge from the Government over the coming days. I beg to move.

My Lords, I am a little shocked by the noble Lord’s speech as I had thought that being a Privy Counsellor and speaking on Privy Council terms involved a high degree of confidentiality and secrecy. What I have just heard seems to me to be a breach of those terms and also the most unwelcome reference to the seniority of the noble Baroness the Minister. I am not sure that it should not all be struck from the record.

However, I support the whole of the proper part of the noble Lord’s speech, which I found wise and compassionate and to the point. I agree with what he has said. I would like clarification on just one point that he made. One of his amendments is to give the power to the Equality and Human Rights Commission to deal with persistent discrimination even where there is no victim. I do not have the last Equality Act in front of me, but my memory is that the power already exists for the Equality and Human Rights Commission to be able to deal with persistent discrimination in the absence of a victim, the commission only doing so. I hope that that the Box and the Minister agree with that. Having said all that, we are shoulder to shoulder.

My Lords, perhaps I should speak to the government amendments now—and perhaps I should call the noble Lord my noble kinsman. It is getting terribly exciting. The government amendments were tabled on Friday. I recognise that that gives noble Lords very little time to look at them. However, as noble Lords will know, there has to be a clearing process throughout government. I apologise for the lateness of amendments and will try to give further notice in future. I shall speak now to Amendments 69A, 69B, 69C, 69D, 69E, 69F, 69G, 69H; 108R and 136ZD.

We introduced Clause 60 at Report in the other place to respond to concerns put to us by disability organisations. There was compelling evidence that disabled people are being discriminated against by having their initial applications rejected by some employers once they are aware of a person’s disability. In addition, and as the noble Lord said, the widespread use of pre-employment enquiries can act as a deterrent for some disabled people making applications for work.

RADAR told us that restricting the use of pre-employment enquiries,

“is probably the single biggest difference and improvement that could be made through the Equality Bill in relation to the employment of disabled people”.

However, disability organisations continue to have concerns and have told us that Clause 60 does not go far enough. Since Report stage in the other place we have had conversations with disability organisations about what might be the best way forward. This set of amendments strikes us as being the best way. There are numerous amendments, but I will be brief.

Amendment 69A makes it an unlawful act under the Equality Act 2006 to ask health questions of all applicants except in prescribed circumstances and so enables the Equality and Human Rights Commission to exercise its existing enforcement powers in relation to this issue. It seems to me that these powers might be exercised most beneficially were the EHRC to identify evidence of a systemic breach of Clause 60(1). Amendment 69A extends the period during which only permitted enquiries can be made up to the stage of making a job offer, whether conditional or unconditional, or selection to a pool of successful candidates where the person recruiting is not in a position to make a job offer for procedural or other reasons.

We were persuaded that this is a more appropriate stage in the recruitment process at which to allow questions because of the two new exceptions which I will describe. We believe this strikes the right balance between the needs of employers to find the best candidate for the job and applicants not to be asked questions about their health that are not relevant to the job. Amendment 69B would permit someone recruiting to ask questions to establish whether an applicant is able to undergo an assessment involving, for instance, participation in a group physical exercise or demonstration of an applicant’s ability to carry out a function that is intrinsic to working safely.

Amendments 69C and 69D would enable someone recruiting to ask questions to establish whether an applicant would be able to undertake an essential function of the job. In purely practical terms this makes sense. For example, a vacancy in a warehouse may require that the successful candidate be able to manually handle goods and operate a forklift truck as an essential function of the job. A person recruiting for work would want to establish that the successful candidate can carry out such tasks, with reasonable adjustments if necessary.

I shall not dwell on Amendments 69F and 69G, which offer interpretations of phrases used earlier in the clause, nor on Amendment 69H, which deletes a subsection now embedded in Amendment 69A.

Finally, the consequential Amendments 108R and 136ZD ensure, respectively, that only the EHRC can enforce the unlawful act described in Amendment 69A and add a contravention of Clause 60(1), or contraventions that relate to Clause 60(1), to the unlawful acts to which Section 24A of the Equality Act 2006 on supplemental enforcement powers applies.

This is a balanced and comprehensive set of amendments, which I am pleased to note has the support of disability organisations and the EHRC. The noble Lord cited the comments of many disability organisations on Clause 60 as it stands. Since we tabled the new amendments, however, Rethink, the mental health charity, has said:

“The government’s decision to introduce the amendment should put a stop to this discriminatory employment practice which deters so many people with mental health problems from applying for jobs. It could mark a turning point in equal opportunities”.

We understand that the National Aids Trust will be making a supportive statement on the amendments, and the Equality and Human Rights Commission has said:

“The Commission strongly welcomes the Government’s amendments to prohibit the use of pre-employment questionnaires, except in prescribed circumstances. We also welcome powers to take action in respect of organisations which contravene this prohibition”.

The noble Lord rightly said that disabled people should not be put off applying for jobs from fear of discrimination. We believe that the amendments that we are proposing today address those concerns and I have no hesitation in commending these amendments to the Committee.

It might be helpful if I responded to the noble Lord’s amendments—or do noble Lords wish to speak before I do? I shall speak to the amendments tabled by the noble Baronesses, and then there will be further debate if noble Lords so wish.

Yes, you have been promoted. This is an Equality Bill.

I suggest that Amendment 64, tabled in the names of the noble Baronesses, Lady Warsi and Lady Morris of Bolton, is not required, as employment service providers are already within the scope of Clause 60; and that Amendment 65 is not required, as we have no evidence that victimisation is an issue where pre-employment enquiries are concerned. Victimisation is about acting against someone because they have made or supported in some way action under the Bill, but we cannot envisage situations where the fact that they had done so would be revealed in questions asked about health in recruitment.

Amendments 66 and 67 would restrict the situations in which a trade organisation may make health-related enquiries when making arrangements for deciding who to offer membership to. We are resisting this amendment because we do not have any evidence to suggest that trade organisations make use of these types of pre-applicant enquiries. In addition, we have no evidence that when they do make these types of enquiries they use the information gained for discriminatory purposes. We therefore believe extending protection in this way is unnecessary. Should noble Lords have evidence to the contrary, it would be useful to have it.

Amendments 68, 69 and 136A cover similar territory and have similar objectives to the government amendments that I have moved. I would suggest that the government amendments do the job more thoroughly, if I may put it that way. But there are aspects of Amendment 69 that we do not agree with. We believe that it is unnecessary to legislate to require employers to specify why they are asking disability-related questions, how the information will be used and that there is no requirement to provide the information. We have ensured that the clause restricts opportunities for asking health questions to specified and legitimate circumstances. It is a matter of good practice if an employer wishes to clarify further the reasons why it is seeking the information.

We consider that it would be impractical to legislate to require information gained for health questions to be anonymised and kept separate from the application form. For example, small employers with no separate human resources department would not be able to anonymise disability-related information and keep it separate from interviewers. We believe that such a provision might be considered good practice and might be included in guidance and codes of practice on the Bill rather than in the Bill itself.

For those reasons, I respectfully request that noble Lords opposite withdraw their amendments, although I understand that there will be further debate on this matter.

My Lords, in the name of consistency, and because the word “reasonable” always worries me and because it appears in these amendments, I ask the Minister if I am right in thinking that, for instance—bearing in mind what she said when she raised a certain case about a warehouse a little while ago—if a man came along to apply for a job as a bus driver, it would be reasonable or right to ask him if he had any connection or ever suffered from epilepsy? There are cases like that, which one can think of clearly, which would be reasonable—not barring him on his own health grounds but because he might, in exercising the job, be a danger to others. I think I am right in thinking that what the Minister said would make it perfectly safe and that the public would not have to lose their protection against such questions.

Before the Minister answers that, perhaps she will agree with me that “reasonable” is used throughout legislation as a legal test, but as a matter of fact and degree. It depends on the individual circumstances and is context-specific, so Ministers cannot be expected to answer questions about specific cases as though they were courts.

As the Minister—indeed, the Chancellor of the Duchy of Lancaster—has said, these amendments have been widely welcomed by disability organisations including RADAR. However, RADAR raised a couple of areas in which it felt that further clarification would be helpful. I hope that the Minister did not cover these points in her long and complex presentation—although it was eminently lucid. I apologise to her if she has touched on them already, but I do not think that she did.

First, RADAR asks what the intention is behind subsection (3) of Amendment 69A, which says that asking about health is not itself a contravention of a relevant disability provision but that relying on the information given could be. It is believed that it is to do with ensuring that disabled individuals can claim discrimination only if they have actually suffered less favourable treatment. It should not restrict the EHRC enforcement power, but it would be helpful if the Minister could give us clarification on that.

Secondly, RADAR would welcome clarification about the extent of the exemption in Amendment 69C, which permits employers to ask questions if it is necessary to establish whether the applicant,

“will be able to carry out a function that is intrinsic to the work concerned”.

While it is agreed that employers should be able to ask questions related to the physical and mental requirements of the job, it is not thought that that needs to involve questions about disability or health. For example, for the post of a PE teacher, a school might ask applicants to demonstrate that they are physically fit enough, but it should not ask whether they have any specific impairments or health conditions that would limit their suitability for the job. Likewise, the post of a political adviser will demand the ability to cope under pressure. I am not sure how many political advisers have to do that, but there you are—it may be that sometimes they do. Again, it is thought that applicants may be asked for evidence of how they have coped under pressure in the past, but they should not be asked whether they have had bouts of depression, for example. An applicant for the post of pilot might have to show a minimum number of flight hours to demonstrate their physical capacity to do the job—for example, being able to see the flight instruments or communicate with the flight tower—without the need for specific questions about their sight or hearing. It may be that, in responding to these questions, the Minister will also be able to deal with the point raised by the noble Baroness, Lady Knight of Collingtree, about epilepsy. Anyway, I would be extremely grateful if the Minister could take these points on board in her wind-up.

My Lords, I also strongly welcome the Government’s amendments, again—I had better not make it a habit. I was going to ask for clarification on two points, but I think they have been covered by the noble Lord, Lord Low, so I will leave it and await the answers.

I too feel very strongly about this amendment, having gone through many interrogations from interview panels in the past. I would love to spend the time telling noble Lords stories of some of the questions I have been asked—your toes would curl—but another time.

My Lords, I did raise this issue at Second Reading as chair of the Independent Advisory Group on Sexual Health and HIV, and I was particularly concerned about the question for people who suffer with HIV. My noble friend said that the National AIDS Trust would be putting out a report very quickly; I have received e-mails from it in the last two days telling me how wonderful the Government are. It is absolutely delighted with the change, and says that it really appreciates what the Government have done to address the concerns that it and mental health organisations have raised, following the original Clause 60 that was carried in the House.

I have to say that I read it and, until I got a proper briefing, I was not sure exactly what the Government had done, because it is very complex. Nevertheless, it appears that there is a need to genuinely congratulate the Government on the new amendments which will ensure that the new Clause 60 prohibits the use of pre-employment health questionnaires. Obviously, this is a significant improvement on the original wording. There is no doubt that prohibiting these questionnaires will have an enormous impact. For those with disabilities, particularly stigmatised conditions such as HIV, the very presence of pre-employment health questionnaires can be enough to deter someone from carrying on with an application. Therefore, the Government’s amendments today are an extremely welcome step forward which I genuinely believe will remove one of the barriers to disabled people entering the workplace.

I am grateful to noble Lords for their welcome of the government amendments, which have been crafted to respond to some of those toe-curling stories. I have not heard these from the noble Baroness, Lady Campbell, but we have heard similar stories from other people which have made us determined to address these issues.

The noble Baroness, Lady Knight, spoke of the word “reasonable”. As the noble Lord, Lord Lester, said, it is a legal term which is used constantly in the courts. It would not be proper and it would be impossible for me to define the term “reasonable”. The noble Baroness cited the case of a bus driver with epilepsy. I should reassure her that if one has epilepsy one is not allowed to have a driving licence, so that is relatively easy to answer. I understand that that is the case because I have family members who have epilepsy and who are not allowed—

There is a time factor—I beg your pardon—of one year after the cessation of fits. I think in that case it would be a relevant question for people to ask.

The noble Lord, Lord Low, mentioned subsection (3). The interpretation that he suggested is correct: subsection (3) means that asking about health is not of itself an unlawful act, but relying on the answer to act in a discriminating way may well be. The EHRC’s enforcement powers are unaffected. I hope that that clarifies that point.

On that point, it is clear that the clause makes it admissible to ask questions about health but that employers may not rely on the information derived from the answers. Does that mean that the applicant will have to have suffered less favourable treatment before the questions will be inadmissible?

No, I do not think it does mean that applicants have to have received less favourable treatment before the questions are admissible, but I might well return to that shortly.

I turn to the extent of questions. Any questions asked must fall within the specified exceptions. In particular, only questions which are required to carry out an essential aspect of the job would be permitted. In relation to the examples that I cited earlier about a forklift truck driver, only questions which related to his or her ability to use heavy-lifting equipment and to drive the forklift truck could be asked. Therefore, a question on one’s mental illness from a previous time would probably be inadmissible.

I come back to some of the questions from the noble Lord, Lord Low. There are valid reasons for each of the permitted situations. We believe that we have achieved a balance between allowing inquiries in legitimate circumstances and limiting scope for abuse. Employers who make precluded inquiries and then use the information to reject candidates from further consideration, or for employment, will be liable to challenge at a tribunal. The tribunal could decide on whether, in acting in this way, the employer had contravened the relevant employment provision of the Bill. We believe that this will be a deterrent to employers in the way in which they gain new staff.

I am grateful to my noble friend Lady Gould, not only for raising this along with other noble Lords on Second Reading, but also for the endorsements that she brings to the Committee. I return again to the secondary questions from the noble Lord, Lord Low. The applicant would have to have suffered discrimination in order to make a claim, but in any event the commission could enforce the ban on such questions. I hope that makes sense.

The noble Baroness mentioned an answer to the noble Baroness, Lady Knight of Collingtree, on the question of “reasonable”. The truth is that “reasonable” is an ordinary English word. It is not a legal term invented by lawyers. When lawyers framing laws cannot think of detailed criteria by which actions should be judged, they speak of “reasonable” as the best test that can be used, but it is the ordinary meaning of “reasonable” in the English language that applies.

I am grateful to the noble and learned Lord for clarifying that point. Clearly, it is a usual use of the word. It is a word that is used in the courts, but it is with the normal use of the word that we should interpret these clauses.

I am very grateful to the noble Baroness. My noble and learned friend has explained not only that “reasonable” is an ordinary English word, but that it is the role of courts to interpret words—ordinary words, every word—under our doctrine of stare decisis and ratio decidendi. It is a long time since I learnt all this. Parliament should not impose on the courts the use of the word “reasonable” when it is an excuse for not having reached a decision. I thank my noble and learned friend.

Does the noble Lord accept that when you have issues that involve a spectrum of choices as a matter of fact and degree, ranging from what is clearly unreasonable to what is reasonable, you have to decide them on a case-by-case basis? The courts do that all the time in all kinds of contexts. Therefore, we should not tease Ministers with vexing questions which the courts might have to answer, nor criticise them for putting in a well-known ordinary word that is used in legislation in those contexts.

This was no criticism. I clarify to the noble Lord that I was merely explaining in a way that I hoped might satisfy my noble friend. I have great difficulty in understanding the relationship between the noble Lord, Lord Lester, and me. As a solicitor I normally instruct the barrister—although not enough, he says. Anyway, I am very grateful to him.

On a not entirely serious point, the word “reasonable” is entirely reasonable if correctly spelt. It is not correctly spelt in subsection (3) of the proposed new clause introduced by Amendment 69.

I think this is a resignation issue for me as international chairman of the English Speaking Union. I did not think I needed a judicial opinion but I got one. I greatly respect the noble and learned Baroness.

This has been a very helpful debate. I thank the noble Lord, Lord Low, the noble Baroness, Lady Campbell of Surbiton, for the points that she made, and the noble Baroness, Lady Gould of Potternewton, who added some very important points.

Finally, to continue my dialogue with the noble Lord, Lord Lester of Herne Hill, may I explain that I was not breaching any privy counsellor terms? I was merely describing the queue outside the Privy Council, not the proceedings within it. That would be outrageous, although it has not stopped some people writing about such things in their memoirs. I have yet to enter that fray and I hope I never will.

I thank the noble Baroness the Chancellor of the Exchequer—

I was just checking. The noble Baroness nodded when I said that. Perhaps there is a reshuffle going on. I remember when, as a Minister, I was talking once when a note was passed to me that said, “You have been moved to another department”. There is only one true Chancellor, created in 1396, and that is the Chancellor of the Duchy of Lancaster.

I say a word of thanks to the various organisations that have taken up these issues so well and explained them to us. I hope many of them will now scrutinise the amendments of the noble Baroness with the same degree of clarity that they have scrutinised mine, just to make sure that we have got this right.

For the record, in response to the noble Baroness, Lady Knight, on the question of epilepsy, I am not entirely sure what the situation is. I would not want to mislead noble Lords so I will write to the noble Baroness and put a copy of the letter in the Library of the House.

To add to all the arguments that have swirled around on “reasonable”, I am told that what is objectively reasonable in any particular circumstances depends on the particular facts.

The noble Baroness has not made it clear whether the photograph referred to by her and the noble Lord, Lord Hunt, was taken inside or outside the Privy Council.

I am not sure that the noble Baroness and I could be part of the same Privy Council. I understand that there is to be a very important occasion when all present and past Chancellors of the Duchy of Lancaster will be photographed with Her Majesty the Queen. A similar occasion happened nine years ago, in which I was proud to participate with several other noble Lords.

I will just say “thank you” again. We will scrutinise further but, in the mean time, I beg leave to withdraw the amendment.

Amendment 64 withdrawn.

Amendment 65 not moved.

Clause 55 agreed.

Clause 56 agreed.

Clause 57 : Trade organisations

Amendments 66 and 67 not moved.

Clause 57 agreed.

Clauses 58 and 59 agreed.

Amendments 68 and 69 not moved.

Clause 60 : Enquiries about disability and health

Amendments 69A to 69H

Moved by

69A: Clause 60, page 40, line 10, leave out subsections (1) to (4) and insert—

“(1) A person (A) to whom an application for work is made must not ask about the health of the applicant (B)—

(a) before offering work to B, or(b) where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work. (2) A contravention of subsection (1) (or a contravention of section 110 or 111 that relates to a contravention of section 60(1)) is enforceable as an unlawful act under Part 1 of the Equality Act 2006 (and, by virtue of section 119(8), is enforceable only by the Commission under that Part).

(3) A does not contravene a relevant disability provision merely by asking about B’s health; but A’s conduct in reliance on information given in response may be a contravention of a relevant disability provision.

(4) Subsection (4A) applies if B brings proceedings before an employment tribunal on a complaint that A’s conduct in reliance on information given in response to a question about B’s health is a contravention of a relevant disability provision.

(4A) In the application of section 135 to the proceedings, the particulars of the complaint are to be treated for the purposes of subsection (2) of that section as facts from which the tribunal could decide that A contravened the provision.”

69B: Clause 60, page 40, line 33, at beginning insert “establishing whether B will be able to comply with a requirement to undergo an assessment or”

69C: Clause 60, page 40, line 35, at end insert—

“(aa) establishing whether B will be able to carry out a function that is intrinsic to the work concerned,”

69D: Clause 60, page 40, line 42, at end insert—

“( ) In subsection (5)(aa), where A reasonably believes that a duty to make reasonable adjustments would be imposed on A in relation to B in connection with the work, the reference to a function that is intrinsic to the work is to be read as a reference to a function that would be intrinsic to the work once A complied with the duty.”

69E: Clause 60, page 41, line 6, leave out from “the” to third “to” in line 8 and insert “references in subsection (1) to offering a person work are, in relation to contract work, to be read as references to allowing a person”

69F: Clause 60, page 41, line 8, at end insert—

“( ) A reference to offering work is a reference to making a conditional or unconditional offer of work (and, in relation to contract work, is a reference to allowing a person to do the work subject to fulfilment of one or more conditions).”

69G: Clause 60, page 41, line 20, at end insert—

“( ) An assessment is an interview or other process designed to give an indication of a person’s suitability for the work concerned.”

69H: Clause 60, page 41, line 25, leave out subsection (11)

Amendments 69A to 69H agreed.

Clause 60, as amended, agreed.

Clauses 61 to 63 agreed.

Clause 64: Relevant types of work

Amendment 70

Moved by

70: Clause 64, page 43, line 17, leave out “colleague” and insert “comparator”

My Lords, I shall speak to government Amendments 72, 75, 78, 79, 93, 94, 95 and 96 as well, alongside Amendments 71, 73, 74, 76 and 77 in the name of the noble Lord, Lord Lester.

These amendments are to do with the way in which comparisons are made in equal pay cases and with the material factor defence to equal pay claims. I shall turn first to Amendments 70, 72, 93, 94, 95 and 96 to Clauses 64 and 79, which concern equal pay claims, and then say a few words on Amendments 71, 73 and 74. These amendments are all about how comparison is to be carried out in equality clause claims under the Bill.

Clauses 64 and 79 are intended to maintain the effect of current law, so that a person seeking to make an equal pay claim must use a comparator of the opposite sex, whose pay is the responsibility of the same person. The comparator must be a real person doing the same or similar work, or work that has been found to be of equal value. Amendments 70, 72, 93, 94, 95 and 96 are intended to ensure that doubt is not cast on relevant case law, particularly the case of McCarthy v Smith, which established that a comparison can be made with the predecessor in post. It was not our intention to rule out such comparisons. We agree an amendment should be made, and have brought one before the House with the intention of making clear that these kinds of comparison will still be permitted.

There are, inevitably, differences of approach between our drafting and that of the noble Lord. We consider that it is important that the link between the wording in Clause 64 and the definition of comparator in Clause 79 is maintained to ensure that it is clear how comparisons can be made under this part of the Bill. We believe the concept of comparator is well understood and more appropriate in the equal pay context. The noble Lord has also included in Amendment 74 a direct reference to the effect of the case of McCarthy v Smith, while we have not done so. Amendment 74 states specifically that comparisons are “not restricted to work” that is done “contemporaneously”.

While I fully understand his wish to make this clear on the face of the Bill, I hope that the noble Lord will understand why we are reluctant to attempt it. That case was brought under Article 141 of the Treaty of Rome, with which our own legislation must be interpreted compatibly. This means that whatever wording we use here, that effect will in any case be maintained. The danger of attempting to make that effect clear on the face of the Bill is that we do not know its boundaries. There is a risk, therefore, that providing new words in domestic legislation—even words as apparently straightforward as those used by the noble Lord—could lead to further complexity as that case law develops.

We think it is better not to attempt to codify the point in the way the noble Lord has done, although we hope that the changes we have made, and what I have said, will satisfy him that the effect of the McCarthy case will be maintained. We will also make the point clearer in the Explanatory Notes. I hope that that is also reassuring, and I look forward to hearing the views of the noble Lord and of the Committee.

I now turn to government Amendments 75, 78 and 79 and to Amendments 76 and 77 in the name of the noble Lord, Lord Lester. These follow helpful debates in the other place about amendments laid to what is now Clause 69, which my right honourable friend the Solicitor-General indicated on Report that we would consider. Doubt was expressed as to whether our wording required an employer to be able to justify a material factor, which is an indirectly discriminatory effect.

I believe that there is broad agreement about what is needed. The material factor defence to an equal pay claim should be able to succeed where the employer shows that the factor on which he relies to explain the difference in pay is real and not a sham; that it is not directly discriminatory; and that if the complainant brings forward evidence that is indirectly discriminatory, the employer can show that reliance on the factor is nevertheless justified and proportionate. That is the position now and that has always been our intention for this clause. We have, as promised, considered the clause again, and have laid Amendments 75, 78 and 79 so that it clearly achieves this result.

For example, if an industrial chemist is paid more than a biologist by an employer, although the work is found to be work of equal value, a difference in pay would have to be justified where it had a disproportionate gender impact—perhaps because chemists were mainly men and biologists were mainly women. The employer would need to provide evidence to show why there were pay differences, such as a skills shortage requiring recruitment at a higher rate of pay and his defence would succeed only if he could show that the pay differential was a proportionate means of recruiting people with the requisite skills.

The wording of our amendment and that of the noble Lord, Lord Lester, is different but we believe the effect to be substantially the same. I hope the noble Lord agrees that our amendment will achieve the desired results. On that basis, I would be grateful if, in due course, he would consider withdrawing his amendment and supporting the Government’s amendment. I beg to move.

My Lords, I am very grateful to the Minister; I shall endeavour in a single speech to speak to all these amendments, including Amendments 71, 73, 74, 76 and 77 in my name. I will try to do this in a way that explains to those who are not lawyers the context of what we are talking about.

The Equal Pay Act 1970—Barbara Castle’s Act—was enacted before we joined the European Community. It limited the right to claim equal pay restrictively to cases where a claimant compares her work and pay with those of a worker of the other sex working in the same employment. That is still the position today, and under the Bill, but it does not accurately reflect the wider comparison to which workers are entitled under EU equality law. There is a mismatch between what the law says and what EU law requires.

When the Sex Discrimination Act 1975 was enacted, it did not affect that aspect of the Equal Pay Act, but it allowed claims of discrimination in employment to be made where the employer treats a woman employee less favourably than he treats, or would treat, a worker of the other sex. In other words, a sex discrimination claim in employment does not require an actual comparator, where, but for her sex, the claimant would have received the same benefit as a man, actual or hypothetical. But, read literally, the Equal Pay Act rules out any hypothetical comparison at all.

Clauses 64 and 79 are intended to maintain what the Government consider to be the effect of current law, so that a person seeking to make an equal pay claim must still use a comparator of the opposite sex whose pay is the responsibility of the same person. The comparator must be a person doing the same or similar work, and must, as the Minister said, be a real and not a hypothetical one.

Domestic legislation, however, such as the Equal Pay Act and the Sex Discrimination Act—and now this Bill—must be read and given effect in accordance with EU equality legislation, which is broader. That is made quite clear in the current version of the equal pay directive, which deals with other matters too. Article 33, as is normal under directives, requires the United Kingdom to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by a particular date—the idea being that domestic law should state what EU equality law requires. There is an obligation to notify the Commission and so on.

The first problem, as the Minister said, is that, read literally, the Equal Pay Act and, until now, the Equality Bill do not permit a woman to compare her work and pay with those of a man previously employed in the same undertaking. An example is the Wendy Smith case, in which I appeared many years ago. She was a manageress in a pharmaceutical firm and there was only one job, so she could not compare her work and pay with those of her predecessor, who was a man. Lord Denning and co decided that the case should go to Luxembourg because there was a mismatch between what the Equal Pay Act said and what the Court of Appeal realised was required under EU law—namely, that you should be able to compare your work and pay with those of a male predecessor. I tried to persuade the court that this should include the hypothetical comparator but it said that that was too broad. However, you must be able to compare your work and pay with those of your predecessor or successor.

My Amendment 74—I think that this is still one of the few issues of contention between me and the Government—would state in the Bill the true position. It is not suggested by the Minister that it does not state the true position, and it is not said that it is not required by the judgment in McCarthy Ltd v Wendy Smith, but in my view, when a ruling of the Luxembourg Court was interpreted and applied by the Court of Appeal, it is not satisfactory to leave the matter to ministerial statements, explanations, Explanatory Notes or codes or whatever. The law needs to provide employers and employees with legal certainty, which is meant to be one of the main purposes of the Bill. Therefore, I very much hope that this open-minded Minister will at least agree to take away Amendment 74 and consider whether, in compliance with our EU obligations, it should be accepted on Report, when I shall certainly bring it back. That is the first problem.

The second problem is that Clause 64 as it stands is even narrower than Barbara Castle’s Equal Pay Act—what is known in the trade as “regression”. In Clause 64 the drafter has managed to use “colleague”. It requires that the claimant be employed on work that is equal to the work that a “colleague” of the opposite sex does. The word “colleague” is not appropriate for someone who is not working contemporaneously with the claimant. A person cannot be a colleague if he or she no longer works there. That is why my Amendments 71 and 73 substitute “person” for “colleague” and why the government amendment substitutes “comparator”. I am perfectly happy to accept “comparator” rather than “person”; there is no difference.

The amendments simply ensure that the Bill echoes the Equal Pay Act. However, as I said, they do not give effect to the ECJ’s judgment in McCarthy Ltd v Smith, which is why I still respectfully insist that Amendment 74 is needed to make it quite clear that the references to the work in Clause 74 are not restricted to work done contemporaneously by the claimant. This is an important area where the Government have done something creative. I greatly welcome that, so I shall move on. However, it is important that we understand what is going on.

Where a sex equality clause will not operate because there is no actual comparator with whom a claimant can compare his or her pay or other terms, Clause 71 commendably enables the person who is treated less favourably than another—by being paid less because of the claimant’s sex—to bring a claim for direct sex discrimination using a hypothetical comparator. By way of explanation, if the noble Baroness, Lady Howe, wished to bring an equal pay claim but could not do so because there was no actual comparator, then if there were direct discrimination, which explained why she was paid less than she should be, she could bring a direct sex discrimination claim under Clause 71. That is good and new. However, Clause 71 does not enable a claim of indirect sex discrimination in relation to pay to be brought where there is no actual comparator. In my view, that is not compatible with EU law, although I accept that the circumstances in which EU law does or does not require an actual comparator are not clear. That is why I shall not press that point: it is not fair to expect the Government to operate on the basis of unclear law. I gather that there may be a case that deals with that point.

There are other bits of unclarity. For example, EU law talks about not only the same establishment but the same service, and it is not absolutely clear what is meant by “service”. I shall not continue with this legal analysis, so, to cut a long story slightly shorter, I agree that, where the Government have dealt with the problem of “colleague”, replacing it with “comparator”, that seems to be absolutely fine.

I think that the Government’s amendment on the so-called material factor defence has the same effect as mine. I naturally prefer my own drafting but I am not so stupid as to think that it must prevail over the Government’s drafting, which achieves the same effect.

In all other respects, I am grateful to the Government for what they have done. However, I insist that Amendment 74 should be included. That change should have been made when all those years ago Lord Denning’s Court of Appeal said that what is on the face of the Act does not represent Community law. That is when it should have been amended under the European Communities Act. It was not but we now have an opportunity to do so, unless my amendment is defective in not stating the law correctly, in which case I shall happily look at an alternative on Report.

I thank the Minister very much for the explanation of her amendments, which we welcome. I look forward to her response to Amendments 76 and 77 tabled by the noble Lord, Lord Lester of Herne Hill, because we need clarity here.

I should like to say what a pleasure it was to hear the noble Lord, Lord Lester, setting out as clearly as ever these very important matters and how they should be brought up to date. In particular, he made a very strong case for Amendment 74. I hope that the whole area of direct discrimination and indirect discrimination, which seemed to rule our lives in the early years at the Equal Opportunities Commission, when I was very happy to be the deputy chairman, has moved on and that it has been helped by European law. Let us make certain that we take advantage of this Bill to do just that. I am only rather sorry that the noble Lord, Lord Lester, has decided to move back from the area that he is not quite certain about. Now would seem to be the time to tighten up this area, not least when we have a very receptive Government, who seem to be extremely keen to help and accommodate as many as possible of the amendments that we are trying to put forward.

I entirely agree with the substitution of comparator for colleague. The fact that it has been changed from “colleague” to “comparator” is a bow to Amendment 74 tabled by the noble Lord, Lord Lester. There is no doubt that the essence of Amendment 74 is in fact the present law. It was the subject of judicial decision a long time ago, imported in effect from the European law by which we are bound. It is right to make clear in our law—now that we have an opportunity of revising it—that this is the position. The drafting is a matter that Lord Lester has devoted himself to, and it looks to me to be perfectly reasonable—if I may use that expression—but the Government may have some criticism of that. I understood the noble Baroness to say that we had better stick to the present law, as it is in the statute. There is a lot of sense in that, because whenever you change the law, lawyers immediately find an opportunity for further argument.

However, this is a different situation—although this is not at present in the statute, it is present in our accepted law, and has been for a long time. Therefore it is right that in this case the change should be made. I do not think it will provoke new litigation, because the point has been settled some considerable time ago as being the terms of European law. I think European law was clear on this point, although on other matters—as the noble Lord, Lord Lester, said—it is not clear, although we should not venture into that area. Where European law is clear, and our courts have applied it, I would have thought that it was wise to put it in the statute.

I thank all noble Lords who have participated in this brief debate. The noble Baroness, Lady Morris, said that she looked forward to the Government’s response to Amendments 76 and 77 from the noble Lord, Lord Lester. I included that when I dealt with government Amendments 75, 78 and 79—I said that the wording of our amendment, and that of the noble Lord, Lord Lester, is different, but we believe the effect to be substantially the same, and that our amendments have the desired effect. Therefore, we would prefer our amendments to Amendments 76 and 77. I have heard very clearly what noble Lords—especially the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern—have said about Amendment 74—

I welcome the clarity that this debate has brought, and I welcome the clarity that the noble Lord has encapsulated in Amendment 74. I am pleased to say that the Government will accept the noble Lord’s amendment. We are indeed a listening Government.

The noble Lord, Lord Lester, also raised the question of hypothetical comparisons, and why they are not required in equal pay cases. We have allowed direct discrimination claims in Clause 74, where no equality clause applies but there is some evidence of discrimination. There is no such obvious gap in relation to indirect discrimination in pay, although we acknowledge that it is a very complex issue. If a woman can find a male comparator—just one comparator is enough—doing like work, work rated the same or work of equal value, there is an equality clause claim. If there is no such comparator, it is not possible to make a claim under the equality clause provisions alleging indirect discrimination in relation to contractual pay, so it is suggested that we should allow hypothetical comparisons.

We do not accept that a hypothetical comparator is possible in relation to an equality clause claim—you cannot have equality of terms with someone who does not exist, and we do not think European law requires us to attempt to do so. So the remaining issue is whether we should allow indirect discrimination claims to be advanced in relation to contractual pay—where equality clause claims are not possible—as we have done for direct discrimination. We do not see how an indirect discrimination claim could in practice succeed in circumstances where an equality clause claim is not possible. If there is no man in the same employment doing work of equal value, or the same work, any claim must logically be based on evidence derived either from work done in a different employment, or work of avowedly different value.

An indirect discrimination claim may proceed only if the circumstances are not materially different—Clause 23—and we consider a difference of employer or of kind of work as a materially different circumstance. We consider that it would not be possible to construct a suitable hypothetical comparator on the basis of such evidence, which would prevent an indirect discrimination claim being advanced. If we were wrong about that, it is nevertheless very likely that the same difference of employment or of work would be found to justify the difference in pay. More harm than good, in terms of new cases that would ultimately fail, would arise from legislating to make such claims possible in cases where they are not now.

I thank the noble Baroness, Lady Howe, the noble and learned Lord, Lord Mackay, and the Government for accepting the reason for Amendment 74. I do not want to detain the House for more than just a few moments, to explain why, first, I have not pushed the hypothetical comparator for indirect discrimination, but why I think that the Government’s approach, as just stated, is too narrow.

I have not pushed it is because although the textbooks indicate that there may be no need for a hypothetical comparator, in the sad life I now have, I spent half the weekend looking at all the cases, and came to the conclusion that I could not honestly stand up here and say it is quite clear that there is no need for a comparator in indirect sex discrimination cases involving pay. However, first, I do not believe that applies where the attack is on a whole system of general application, rather than an individual case. Let me give a couple of examples. I did a case some years ago in the House of Lords where there was a challenge to the Employment Protection (Consolidation) Act 1978, which said you had to work for more than 16 hours a week to get employment benefits. The EOC argued that hit women disproportionately, and that there was no objective justification. The Secretary of State, the right honourable Michael Howard, said that was not so. The Law Lords, led by Lord Keith of Kinkel, unanimously held that there was clear indirect sex discrimination in the requirement to have to work full-time in order to get employment benefits, under European Community law. It was in no way necessary in that case for individual woman W to show, as a part-timer, that she was comparing her work and pay with individual male M. The attack was on the system of general application, and it was completely irrelevant whether the particular woman could find an actual comparator—what mattered was whether the system as a whole had adverse, disparate impact on women, and could not be justified.

That example is already in the casebook. There the claimant was not a woman, it was the Equal Opportunities Commission, but it could now be the Equality and Human Rights Commission. The same I think applies with collective bargaining. Imagine a case like the speech therapists’ case, that Baroness Turner will remember, since she and I were—in our different ways—involved in it all those years ago. The speech therapists’ case involved mainly women comparing their work and pay with hospital pharmacists, mainly men, at the relevant grade and with clinical psychologists. It is true that Pam Enderby was able to point to a particular man who was a hospital pharmacist and a particular man who was a clinical psychologist. The basis of the case when it went to Luxembourg and came back was that there was a systemic indirectly discriminatory problem—not a directly discriminatory problem—that required the pay systems to be changed to eliminate the indirect discrimination.

In such cases when the attack is on a pay system of general application, whether statutory or otherwise, EC law allows the claim. The really difficult question is whether it goes further. I believe that a case is pending in an employment tribunal that is probably on its way to Luxembourg, so I do not think that it is fair to ask the Government to legislate on that. However, I would like the Government to think about what I have just said. They may say what they like about their view but if I were right it would lead to more litigation.

Amendment 70 agreed.

Amendment 71 not moved.

Amendment 72

Moved by

72: Clause 64, page 43, line 19, leave out “colleague” and insert “comparator”

Amendment 72 agreed.

Amendment 73 not moved.

Amendment 74

Moved by

74: Clause 64, page 43, line 19, at end insert—

“(2) The references in subsection (1) to the work that B does are not restricted to work done contemporaneously with the work done by A.”

Amendment 74 agreed.

Clause 64, as amended, agreed.

Clauses 65 to 68 agreed.

Clause 69 : Defence of material factor

Amendment 75

Moved by

75: Clause 69, page 45, line 32, leave out from “factor” to end of line 34 and insert “reliance on which—

(a) does not involve treating A less favourably because of A’s sex than the responsible person treats B, and(b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim.”

Amendment 75 agreed.

Amendments 76 and 77 not moved.

Amendments 78 and 79

Moved by

78: Clause 69, page 45, leave out lines 39 to 41

79: Clause 69, page 46, line 1, leave out “(2)” and insert “(1)”

Amendments 78 and 79 agreed.

Amendment 80 had been retabled as Amendment 57ZA.

Clause 69, as amended, agreed.

Clauses 70 to 72 agreed.

Clause 73 : Maternity equality clause

Amendment 80A not moved.

Clause 73 agreed.

Clauses 74 to 76 agreed.

Clause 77 : Discussions with colleagues

Amendment 80B

Moved by

80B: Clause 77, page 49, line 31, leave out from “that” to end of line 33 and insert “purports to prevent or restrict the person (P) from disclosing or seeking to disclose information about the terms of P’s work is unenforceable against P in so far as P makes or seeks to make a relevant pay disclosure.”

I wish to move government Amendment 80B, speak to government Amendments 81A, 81B, 82A, and refer to Amendments 81 to 86, tabled by the noble Lord, Lord Lester, which are similar in purpose. The Committee will note that my noble friend the Leader of the House has added her name to Amendment 86, which is necessary to complete the effect of the government amendments.

These amendments are to Clause 77, which is intended to ensure that contractual clauses which seek to prevent employees disclosing details about their pay to one another cannot be used to prevent such disclosures, and so to conceal disparities in pay which are discriminatory on grounds of sex, or indeed on any of the other protected characteristics. The clause has been widely welcomed, and was welcomed by all parties in Committee in the other place. Generally speaking, it seems likely that disclosures of this kind will be made to fellow employees, which may include trade union representatives, but may also include advisers not within the same organisation.

Our intention is that all disclosures of information about pay that are directed towards finding out whether differences exist and which are related to a protected characteristic can be made freely and without sanction by the employer. This will encourage greater transparency, enabling challenges to employers that discriminate in relation to pay. The clause already provides protection where a discussion about pay is between individuals—colleagues—who are in the same employment. However, concern was raised in the other place and by the Joint Committee on Human Rights that we may not have allowed sufficient protection, for example, by allowing disclosures about pay details to be made to trade union representatives.

Although that was our intention, we have accepted that the Bill should put this beyond doubt, and so we brought forward these amendments to ensure that the clause is wide enough to protect that situation as well. The amendments change the clause so that it no longer applies only to discussions about pay with a colleague; it applies to any disclosure of information about pay which the employee can show had the necessary purpose—that of finding out whether or to what extent there is a connection between pay and possession of a protected characteristic.

As a result, if the employee approaches a trade union representative who is not also a colleague, any disclosures made in the context of that conversation will be protected. The right to disclose your pay is of limited use, however, if you do not also have the right to ask colleagues about theirs, so the amendments also make clear that a secrecy clause which purports to prevent an employee simply asking a colleague about their own pay also cannot have effect. In particular, if a trade union representative who was in the same employment could not ask colleagues if they were willing to tell him or her what they were paid, in order to look into the question, the task would likely be fruitless. This amendment makes it clear that he or she can do so.

The amendments also make clear that making or seeking to disclose information about pay, receiving such information and seeking the disclosure of such information from a colleague are all protected acts for the purposes of the prohibition on victimisation in Clause 27, so that if action is taken against the employee for doing any of those things, they have a remedy through that clause. The protection extended by these amendments is not all-encompassing. It is not intended, for example, to protect disclosures to competitors aimed at obtaining a better offer. The important effect of the clause is to focus the protection on disclosure of information about pay aimed at uncovering any pay discrimination to help expose pay inequality affecting individuals.

We have taken seriously the concerns that have been expressed about this clause, and I hope that the Committee will agree that the wording of the clause, as amended, better expresses our intent, so I ask the noble Lord to not move his amendment, and agree to ours. I beg to move.

I advise the Committee that if this amendment is agreed to I will not be able to call Amendment 81 because of pre-emption.

I am grateful to the Minister, who has given me a lot to think about. My amendments are probably too broad in that they would have allowed disclosure about pay to anyone, including hated journalists. I can see why that might be objectionable.

Can the Minister clarify whether a trade union representative would include a trade union official officer representative of another union? Let us take the speech therapists’ case—speech therapists are in one union, hospital pharmacists are in another and clinical psychologists are in another, and there are big arguments about the absence of equal pay. Would the government amendments allow the information on the discussion of the pay of each of the three groups to be fully disclosed to the trade union representatives of each of those three unions, all within the National Health Service and all dealing with the same cluster of pay issues? Or is it contemplated to be confined only to your own trade union representative, in which case Pam Enderby could talk only to the MSF trade union representative and not to the representative of the other unions?

Yes, it would include representatives of the other unions as the noble Lord has described. The aim is to uncover pay discrimination in order to expose pay inequality affecting individuals, so the trades unions of those related occupations would be covered as well. That is my understanding.

I thank the noble Baroness for this amendment and for what has been said in support of it by my noble friend, because, of course, disclosure is a very important point if you are dealing with differences in pay. We all know that there is a lot of concern about the differences in male and female pay, and we cannot move forward on that unless we have complete disclosure and the protection of people who participate in such a disclosure. The amendments proposed by my noble friend cover that, and I am very grateful for them.

When this clause about discussion with colleagues was discussed in another place, we put on record our absolute support for it and I reaffirm that support from these Benches. We believe it to be absolutely right that employees should be protected from employers who would seek to impose any sort of pay secrecy clause; this should not be condoned in any way as it could be a method of trying to cover up pay inequalities in the workplace. The Bill allows discussion to take place between an employee and a colleague, or a person who used to be a colleague.

The amendments tabled by the noble Lord, Lord Lester of Herne Hill, would widen this still further to include any person at all. This would certainly increase transparency, particularly in circumstances in which, for example, an employee was too nervous to talk to someone at their place of work. Nevertheless, there could also be concern that it perhaps widens provisions too far, as the noble Lord, Lord Lester, graciously acknowledged. For instance, would that mean that an employee could discuss pay information with a competitor of their company or an outside group with a vested interest in using this information improperly? We want to ensure that companies are called to account for any gender inequality in their pay programmes. Nevertheless, it would not be desirable for companies to be damaged as an unintended consequence of legislation that is designed to ensure so much good.

I am having slight difficulty in understanding Clause 77, because the word “colleague”, to me, would assume somebody working alongside, or at least in the same employment. I do not understand how that could include a trade union official who is not, or has not been, a colleague. Can the Minister explain that? She said a while ago that this would perhaps include somebody who was a trade union official working in an allied industry, but not necessarily as a colleague working in the same industry. I am not sure that “colleague” would take you as far as the Minister seemed to say the Government were expecting to go.

I support these amendments. It may be that the noble Lord, Lord Lester, has not yet quite clarified whether he can go as far as he originally thought, but reading the Bill as it was and the amendments as they have been tabled, there is certainly a need to expand the number of colleagues and non-colleagues—relevant people that you can have discussions with. I very much support that side of it, although I must say that it would be nice to know, perhaps on Report, when the noble Lord, Lord Lester, has had a further look at his original thoughts, whether he can come back with an even wider choice.

I thank both noble Lords for what they have just said. My proposal goes too wide, there is no doubt about that, but I am worried about the point raised by the noble and learned Baroness, Lady Butler-Sloss. The word “colleague” does not seem to me apt to include a trade union official from another union, albeit a union concerned with bargaining for the terms and conditions of that area. Since I think it is common ground that the Government intend to cover that, I wonder whether it would be appropriate to bring this back on Report, thinking about the word “colleague” and what might go in its place to deal with trade union officials and other interested persons.

Our amendment removes “colleague” except in relation to a request to another colleague to discuss pay. I refer noble Lords to Amendment 81B:

“Page 49, line 34, leave out from ‘A’ to ‘whether’ in line 36 and insert ‘disclosure is a relevant pay disclosure if made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out’”.

We think this covers the issue of “colleague” and also the issue of different trade unions and trade union representatives.

I think the only restriction is that it has to be a relevant pay disclosure. In other words, it is with a view to applying the equal pay provisions. I think that there is a lot to be said, at first sight, anyway, for the Government’s interpretation of this, that it is not restrictive except in so far as it is directed towards trying to deal with an issue of equal pay.

Amendment 80B agreed.

House resumed. Committee to begin again not before 8.37 pm.