Mr.
Harper: Just the ladies, I
suspect.
Lynne
Featherstone: I do not know what is in the gents, but the
ladies have adult-size hand dryers and child-size hand dryers. That is
very good practice, as such thinking incorporates children in the
provision of goods and services. That should rightly apply to a range
of public
services. One can go
on endlessly thinking of instances, but I shall not hold the Committee
up too long with my examples, as they are not exceedingly brilliant.
Should a car hire firm offer to provide car seats for
children, not just because that is good business, but
because it is the law? Obviously, that is good practice and good
business, but there is an issue about provision, including in the
private sector. Restaurants or instructions are probably the most
common examples. Should we think about how to write the instructions on
the use of a fire extinguisher, so that a child could use it? Although
such things are not necessarily common occurrences, they can involve
the provision of public
services. I
understand the concerns about cumbersome exemptions, but my
understanding is that the Australian Age Discrimination Act outlaws age
discrimination in a range of areas beyond employment. That Act is able
to set out the differences without them becoming cumbersome and
burdensome. Young Equals—I am sure that we have all received one
of its briefings—is convinced that those concerns can be
overcome by robust legislation. I, too, will be interested to hear the
Minister’s response about how we might improve our inclusion of
children into society and the protections in respect of goods and
services under this part of the
Bill. Clause
26(1)(b) will remove the exclusion of married and civil partners from
the goods and services provisions. Our amendment 156 would put that
protection right back. I want to explore whether the Minister really
has no evidence whatsoever, even on the hypothetical example of a gay
bar or club excluding those who are members of a civil partnership
because it does not want to admit couples. The amendment is intended to
probe the Minister’s thinking, to find out why the Government
have removed those two technical characteristics from the provision of
goods and
services. John
Penrose (Weston-super-Mare) (Con): It is a pleasure to see
you in the Chair, Lady Winterton.
I shall speak
to amendments 196 and 197, which I hope are complementary to amendment
10, which was moved by my hon. Friend the Member for Forest of Dean.
These amendments serve to round out an earlier stage of the debates
that we had on Tuesday, when I asked the Minister for reassurance about
whether targeted promotional and marketing activities that involve
companies aiming their goods or services at particular groups of people
would remain legal, as they always have been. The Minister was able to
give some fairly solid and comprehensive reassurances that that was
perfectly feasible, providing things were done in a positive rather
than a derogatory
way. This
pair of amendments seeks to probe the Government’s thinking not
on market targeting, but on market access. In our debate last Tuesday,
we talked about companies such as Club 18-30, which seeks
to
provide holidays to people of a particular age range, or Saga, which
seeks to provide holidays to people at the other end of the age range.
We clarified that it was perfectly appropriate to target promotional
materials at people in the appropriate age range without fear of legal
problems. The
follow-up, perhaps slightly harder, question concerns Club 18-30
targeting its promotional materials at people who are 18 to 30, then
getting an application from someone who is 50 to go on one of its
holidays. Can the company turn down that person on the basis of age?
Equally, if Saga gets an application to go on one of its holidays from
someone who is 30, is it appropriate—legal—for the
company to turn it
down? This
does not just apply to the travel industry. The insurance market has
been much discussed. A number of organisations have made submissions
saying that evidence shows that it is harder to get some kinds of
insurance if one is older. Interestingly, Saga has come up with some
additional evidence that, although not all insurance companies provide
insurance to people who are at the top end of the age range, there are
a number of companies, including Saga, that do. According to
Saga’s research at least, in well over 90 per cent. of cases,
people who had been initially turned down by their normal
insurer—presumably because of age—were able to find
insurance elsewhere. Therefore, although the individual insurer that
they were using might have been unwilling to allow access to their
products, or was willing to allow them access only at a much higher
price, they were not completely shut out of the insurance
market.
The question
that we are asking in amendments 196 and 197 is what the
Government’s thinking is on where to draw the line. That is
important because the Government are seeking in later clauses—I
will not try your patience with them at the moment, Lady Winterton, as
we will deal with them later—to acknowledge that
there are examples of “good discrimination” and
“bad discrimination”, to use the terms already used by my
hon. Friend. In other words, the Government are seeking to take powers
to allow Ministers to declare things to be legal. That causes a great
deal of anxiety. Many companies are concerned that their goods and
services may be deemed to be illegal until the Minister gets round to
declaring them to be
okay. The
purpose of the amendments is to take the legal threshold back a step or
two to something that—I hope that the Committee will
agree—is just anything provided on the basis of public service;
surely, that should be provided universally. I also ask the Minister to
build up from that foundation and share with us the Government’s
thinking on what is an acceptable set of principles to distinguish
between good and bad differentiation on the grounds of age and
sex. In
the previous debates on market targeting, we mentioned insurance
companies such as Sheilas’ Wheels, which aims to provide
insurance to women. If Sheilas’ Wheels refused to give me
insurance because I am male, would that be illegal? What is the
Government’s thinking about the underlying principles? Other
examples were mentioned. Today, I can think of gay clubs that might
want to exclude heterosexual people. One might think of gyms that
operate women-only classes or sessions. There are lots of examples all
round.
Ms
Abbott: Some gay clubs have a big problem with drunk,
heterosexual women who insist on gaining entry.
John
Penrose: I could make many comments, all of which would be
wrong. I will therefore not make them. The hon. Lady illustrates the
point very well. It is important for us to explore the matter. I hope
that the Government can illustrate some of the principles that they
seek to
apply. The
Conservative party would like to make a couple of points to get the
debate under way. It is clear that there are examples of
characteristics that, although they may closely track age, could be a
legitimate ground for differentiation. In some cases, insurance is a
good example, because the risk for drivers’ insurance correlates
quite closely with age. Incidentally, it does not just rise inexorably
with age. It tends to start off very high for people who have just got
their driving licence in their late teens. It then drops, and when we
are all getting on a bit, it starts to rise towards the higher age
range. Interestingly,
insurance companies that specialise in the area point out that,
although the risk per mile travelled may go up as the miles travelled
by people who are in the 70s, 80s and 90s tend to fall steadily, the
combined risk may still be comparatively low. But that is a clear
example of a goods or service where it may be perfectly legitimate to
differentiate on the basis of age, as there is a genuine and evidenced
example of changing risk—insurance is, by definition, all about
risk. We need to have a view on that and understand it. Equally, I am
sure that Sheilas’ Wheels and others would argue that women
drivers have different risk profiles from men. That is the basis of a
lot of its business and allows it to carve out a profitable
one. 1.45
pm It
is vital to get such matters on the record, if we can, which is why I
am inviting the Solicitor-General to expand on them. The wording of our
two amendments is less important than giving such an opportunity to the
hon. and learned Lady. The amendments would merely take the basic level
of law back to that of providing public services. All members of the
Committee accept that, by and large, public services should be provided
to everyone. It is hard to think of one that should not be provided to
elderly people, but only to young people. For example, we want medical
care provided across all age groups. That is a convenient peg, a
starting point or a foundation stone on which I invite the hon. and
learned Lady to construct her tower of ideas and principles with which
I hope we can reassure several
companies. The
danger of saying that certain issues will become illegal unless and
until the Solicitor-General decides that they are not and uses some of
the powers in later parts of the Bill, is that enormous uncertainty
will be created in the minds of investors, management, staff and
potential customers of many of the companies whose businesses could be
affected. Depending on the hon. and learned Lady’s response,
additional amendments might be tabled later in our
proceedings.
The
Solicitor-General: Let me consider first the age
discrimination element in respect of children under amendments 10 and
196. Amendment 10 would extend the ban on age discrimination by those
providing services
and public functions to include children under the age of 18. It would,
therefore, generally require service providers and those exercising
public functions to treat children of different ages in the same way as
each other and in the same way as adults. Different treatment could
only avoid being unlawful discrimination if it was covered by an
exception or if it was objectively justified as a proportionate means
of meeting a legitimate
aim. Amendment
196 is more narrow. The scope of the ban would extend to children only
in respect of goods and services provided by, and on behalf of, public
bodies. Overall, the purpose of the Bill is to provide protection
against discrimination and ensure equal opportunities. Children will be
protected extensively, and it is important to make it clear that they
will be protected against discrimination on the grounds of race,
disability, sex, religion or belief, sexual orientation and gender
reassignment, and against harassment because of disability, race and
sex. The
Government have clearly put a lot of effort into considering whether
they should extend age discrimination, particularly in services and
public functions, to the under-18s. We concluded that there are better
ways in which to tackle problems that children and young people face.
Children’s organisations have presented a lot of examples of
services in which the needs of particular children or groups of
children do not always seem to be recognised or prioritised. For
example, they say that young carers might be overlooked, when their
needs are being considered, or young people’s access to public
space not given enough weight in planning decisions. There are also a
lot of anecdotal examples of children not being treated
well. We
take such problems very seriously, but we do not consider that age
discrimination legislation is the best way to deal with them.
Discrimination law is not an appropriate way to resolve priorities of
resource allocation or better ways of using the resources in
children’s
services. Although
no one has asked me to, I should like to take the opportunity to pay
particular attention to children who are carers. Clause
26(1)(a)—this seems almost like an exception, but it is how the
Bill works and it is a good thing—has the effect that children
who are carers will benefit from the association protection by
reference to the person for whom they are caring. When an under-18 is
caring for a disabled person, he or she will be equally entitled to
protection in respect of access to, and supply of, goods, facilities
and services on account of association with that disabled person, as
any adult carer. A child who is caring for an older person will also be
protected from discrimination by association with that older person,
despite the child not coming within the age discrimination ban. That is
an important point, and will reassure the carer community. Whether or
not they had already thought about the problem, I am sure that
they would have done so in due course. I hope that that is
clear. Returning
to the generality of younger people, we feel that extending age
discrimination to children as children could have negative
consequences. The analogy made by the hon. Member for Forest of Dean
about age discrimination at the top end, makes that point. Broadly
speaking, no age discrimination should be allowed at the top end.
However, there will be a need for an exception, so that pensioners in
Redcar can continue to have cheap fish and chips from private
providers, for
example, or so that they can continue to have their equivalent of the
freedom pass from public service providers. I am sure that there will
be exceptions in due course of the kind that the hon. Gentleman
mentioned in relation to insurance. Sometimes, there will be an
actuarial justification for an increase in premium or whatever. We will
have a body of outlawed discrimination with some
exceptions. With
children, it works the other way round. Nobody would see any need to
distinguish between the way they treat a 72-year-old and a 77-year-old,
but they would want to treat a two-year-old and a seven-year-old quite
differently. They would not want to have to objectively justify that
treatment on each occasion because it was unlawful age discrimination.
Obviously there would be differences. If one was providing play for
those two age groups, there would be differences in levels of
supervision, kinds of play, educational inputs, health protection and
so on.
In a sense,
the emphasis goes the other way with young people. There are more
exceptions, rather than a core of age discrimination legislation that
one is able to point to in order to say that something should be
banned. Justifiable different age-based treatment of children is
widespread, and is fundamental to the provision of services to meet
children’s needs at all ages. It would be fabulously complex to
try to provide exceptions in the law to ensure that all that kind of
treatment was exempted with clarity, and the provisions of those
exceptions would be very important.
One can
defend the different treatment of children of different ages on the
grounds that it is objectively justified. That is fine, but it is a
long process to have to go through, and the fear is that it would be
massively complex, with the negative possibilities that I have
mentioned. Certainly in the private sector, having to go through that
entire process would be likely to have a chilling effect on the
provision of services for children.
Such a law
could also undermine the equality duty, which we will come to in due
course. As everyone knows, public bodies will consider and address the
age-specific needs of young people under that duty. A playground for
toddlers, an adventure playground for older children or a reserved area
for teenagers to congregate in, could all be part of a plan to meet the
needs of young people under the equality duty. The concern that such
things might have to be justified against a challenge by those who fall
above the age limit for the toddler park or below the age limit for the
teenage place, might discourage authorities from providing such
facilities. We do not want them to be discouraged; we want them to be
actively encouraged and that is what the public sector duty is about.
If the measure is applied only to public bodies, clearly it would not
have the same chilling effect on the private sector. Amendment 196 is
narrower, but we still do not think that it would be an effective way
to improve children’s lives. We still fear that public provision
might be chilled.
We do not
believe such a proposal to be the way forward, although we do not
slight children or treat them as less valuable than adults. The Bill
has an important contribution to make to the quality of
children’s lives and it generally protects children from
discrimination in the same way as adults. The new equality duty will
support a better understanding of the services that are needed by
children of all ages. That sets out as best I can why the Government
decided against the amendment.
I turn now to
amendment 156, which concerns extending protection from discrimination
to marriage and civil partnerships with regard to the provision of
services and the exercise of public functions. The same
argument—that there is no evidence that such protection is
needed—applies. I have already said several times that there is
not much evidence that any protection is needed on the grounds of
marriage or civil partnership. Although there is still some residual
discrimination to be challenged in the employment field, we found no
evidence of it anywhere else. We shall outlaw only what we need to, and
no more.
Amendment 197
is clearly not intended at face value, because it would limit the
application of part 3 of the Bill—on services provided by, or on
behalf of, public authorities—in so far as it relates to sex.
Private sector organisations would therefore be free to discriminate
against women, men, or whatever, which has been unlawful since
1975—talk about regression. I know that the amendment has been
put forward to test the points that the hon. Member for
Weston-super-Mare has raised and that it will not be pressed.
Amendment 197
is a probing amendment to draw out debate on how the Bill deals with
services that are justifiably delivered on a restricted basis to people
who have a particular protected characteristic. The starting point must
be that limiting access to particular goods or services on the basis of
a protected characteristic—for example, sex—is, as a
general rule, unlawful. However, there are situations in which
businesses and public sector organisations might legitimately wish to
restrict access to a service to people of a particular sex, and the
Bill provides for that in a number of ways. First, only women, or only
men, might need the service. For instance, it is obviously not
discriminatory for the NHS to provide cervical cancer screening to
women. That is expressly provided for in paragraph 24 of schedule
3.
It is also
acceptable for a service provider to continue to provide a service in
such a way that is commonly used only by people with a particular
characteristic. That is addressed in paragraph 27 of schedule 3. For
example, men usually use barbers, while women usually use hairdressers,
although I think that is rather an old-fashioned example. Unisex salons
are increasingly common—it says “unisex saloons”
on my note, which is an encouraging thought for a drink later on.
Barbers are not required to offer female hairdressing services.
However, if a woman were to ask for a grade 2 haircut, which I assume
is very short, the barber could not refuse to do that for her, unless
there was some reason, or it was impractical to do so.
Secondly, a
business can apply a restriction which adversely impacts on those of a
particular sex and so is potentially indirectly discriminatory, but
which can objectively be justified as a proportionate means of
achieving a legitimate aim. For instance, if a baby group met only
during the daytime, on a weekday, fathers, who have limited paternity
leave and who, statistically, are more likely to be working full time,
would be likely to find it more difficult to go to that group with
their children. That would put them at a disadvantage compared with
mothers. However, such a practice could be justified for various
reasons, including demand, need, staffing and costs. Accordingly, the
limited access for men, so long as it was justified objectively, would
not amount to indirect discrimination.
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