John
Penrose: The Minister is giving a full explanation. Can I
test her with another example, to ascertain whether I have understood
the provision correctly? I keep on referring to Saga, because they have
been active in providing examples for us. From what I understand so
far, if a Saga holiday was being advertised and a 30-year-old applied
to go on it, under the Minister’s first example, Saga would not
be able to say, “No, you can’t come.” However,
under her second example, it might be able to say, “No, you
can’t come because we operate a system where all the booze is
free and there is an open bar policy on our holiday.” That
statement would be based on a set of assumptions, based on evidence
that people in the older age range tend to drink much less than those
in the younger age range, and that would materially impact on the costs
of providing the holiday. Is that the sort of example that she feels
would fall within the rules that she has just laid
out? 2
pm
The
Solicitor-General: That is a weird example. If the hon.
Gentleman has the brochure for holidays where the booze is all free, we
will distribute it among participants in the Committee. I know what he
means: if there is some justifiable reason why the whole costing
process, the availability of accommodation or, in some cases, the fact
that Saga sometimes has clergy going along, is worked out on the basis
of an age group, it might be justified. Rather than picking on examples
and defining how I think they will play out, it is better to allow the
imminent consultation to deal with that.
None the
less, let me clarify as best I can, at the hon. Gentleman’s
invitation, the other ways in which it is possible to have single-sex
services perfectly legitimately. Privacy and decency, or biological
differences, might justify single-sex services or facilities. The Sex
Discrimination Act 1975 specified services such as refuges for victims
of domestic violence: generally, women would want to go to a refuge
that was women-only if they were escaping from a violent man; men,
because there are male victims of domestic violence, would probably
want to go to some special provision. But one can see the point of
that.
Another
example is referral centres for victims of sexual assault—again,
such people tend to want to be in their own gender company. Other such
services are: health care treatments that affect one sex, such as
treatments for ovarian cancer or prostate cancer; the probation
service; women offender reduction plans; and projects that provide
support for fathers. Since services funded for parents of both sexes
are taken up significantly more by mothers than fathers, specific
services for fathers could be provided to meet that
need. The
exemptions in part 6 of schedule 3, about separate and single-sex
services, set out circumstances in which either separate services for
the sexes, or single-sex services, can be lawfully provided. In every
case, the limited provision of such a service must be a proportionate
means of achieving a legitimate aim. Therefore, such services should
meet a legitimate need, and they could be open to challenge if they do
not. Finally,
the restriction could be aimed at enabling those of a particular sex to
overcome a particular disadvantage, or to rectify their
disproportionately low involvement in a particular activity. We will
discuss that
later when we come to part 11 of the Bill, but I refer to the positive
action provisions. An adult education class about car maintenance that
was limited to women—I do not think up these
examples—might be lawful, although I would not go on it.
Furthermore—this is the weaker example, I think—it would
be entirely lawful under positive action provisions to launch a cookery
class limited to men, perhaps because there is a disproportionate
presence of women in cookery. I am not sure that that is a good
example, but I think the hon. Member for Forest of Dean can see the
point. I guess that the car maintenance example is the best. If
participation in an activity is disproportionately low, a provider can
target a specific group to raise its participation. We will consider
that in more detail under part 11 of the Bill, but it is appropriate to
mention now as one of a list of ways in which single-sex and
single-strand services can be supplied. One can make similar points
about restricting services on the basis of other characteristics. For
example, a local sports club that did not have many disabled members
might want to have an open day aimed exclusively at disabled
people.
The other
strands have specific exceptions as well. The consultation about age is
important in crystallising as best we can—consensually, we hope,
among service providers and age campaigners—all the possible
exceptions that are likely to be necessary regarding the prohibition of
age discrimination in the provision of goods and services under clause
190.
John
Penrose: The Solicitor-General is being very helpful. In
her closing remarks, will she make some comment about the
Government’s expected timetable for developing the principles
for the age-related discrimination exceptions? She has elaborated an
impressive, carefully-thought-through and fairly sophisticated set of
exceptions for many of the other strands of discrimination—those
that have been around for some time—but we are much further back
in the process on age, as I think she was saying. It is important that
companies making hitherto legitimate business-based decisions and
distinctions based on age know that they will not have to reconstruct
their business models completely at an early point. It would be to the
advantage of everyone, particularly the companies and their customers,
if the Government clarified those principles at an early stage, ideally
before Report or, in any event, soon thereafter. That would reduce the
level of commercial uncertainty and uncertainty for the staff and
customers of those
firms.
The
Solicitor-General: I understand the hon.
Gentleman’s point and we will be consulting on that. Let me find
the timetable so that I can explain as clearly as possible. The
consultation document is almost complete, so it will be published
soon—this week or next week, I hope. The consultation will
continue until the end of September. We are looking to bring
regulations to this House in 2010 and are aiming to enact the law in
2012. The consultation process will iron out those problems because
many business suppliers and the age charities will be
involved.
John
Penrose: I thank the Solicitor-General for that
clarification. For the record, may I make sure that I heard her
correctly—that regulations to define the
exceptions required to continue trading will be brought in before Royal
Assent, so that companies trading on the basis of age do not
subsequently discover that their practices are technically
illegal?
The
Solicitor-General: We do not have to bring everything in
on Royal Assent or immediately afterwards. We could make sure that the
timing is correct so that we do not put anyone at a disadvantage. We
will be consulting on regulations in 2010, so the consultation as a
whole—what is in, what is out, what is a legitimate example and
what is not—starts now and continues until September.
We will consult on regulations when we have crystallised
where they should be. This is a new area—the hon. Gentleman has
made that point clearly—and it is a complex area. It is easy to
get things wrong and to disadvantage the people we mean to help. We
will consult on the regulations again in 2010 and aim to bring in the
law in 2012. We will have it all complete before anybody can be put at
a disadvantage by being, as the hon. Gentleman put it, technically
unlawful. We
are discussing everything other than health and social care. The NHS
and the social care sector have their own process in place; a pilot is
already under way in the south-west to see how the NHS will cope, how
much the proposal will cost, and how it will work with age
discrimination law. That is running parallel to the passage of the Bill
and we hope to have a report on that by October this year. It should
point the way forward for the NHS. That is not what the hon. Gentleman
refers to, but I should make it clear that there is a different process
in
place. We
will definitely consult on whether the holidays targeted at a
particular age group by Saga should be allowed to continue under an
exception. The provisions in part 3 are intended to ensure that, as the
hon. Gentleman said, people receive fair and unbiased treatment when
they buy goods and services.
I am sorry
for giving such a lengthy response. Age discrimination, children and
the question of how the provisions relate to the supply of goods and
services are key areas. I hope that Conservative Members are satisfied,
and that the amendment will be
withdrawn.
Mr.
Harper: I am grateful for the explanations
given by the Solicitor-General. Amendment 10, which I spoke
to, was essentially a probing amendment. She has clearly
laid out the Government’s thinking, which is broadly
similar to our own, but it is good to get on record why the provisions
in part 3 exclude those under the age of 18. She gave a comprehensive
reply to the amendments to which my hon. Friend the Member
for Weston-super-Mare spoke, making clear the details of the
consultation and the fact that the relevant part of the Bill will not
be brought into force before the regulations making clear
the exceptions are in place. Given those
assurances, I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Amendment
made: 60, in
clause 26, page 19, line 8, leave
out subsection (3).—(The
Solicitor-General.) This
amendment is consequential on amendment 90.
Clause
26, as amended, ordered to stand part of the
Bill.
Clause
27Provision
of services,
etc.
Dr.
Harris: I beg to move amendment 232, in clause 27,
page 20, line 12, at end
insert— ‘(8A) Subsection 8
applies only where the provision of the service is
not— (a) carried out by
a public authority; (b) carried
out on behalf of a public
authority; (c) carried out
under contract to a public authority,
or (d) otherwise carried out in
the exercise of a public
function.’. This
amendment extends protection against harassment on grounds of sexual
orientation and religion or belief in relation to part 3 (where
exercising a public function). Harassment is defined in a more limited
way. I
discussed the amendment earlier, so I will not repeat the justification
in respect of harassment. It was important to separate out public
services from other services, because that is what I wanted the
harassment provisions to cover. But it is useful to take the
opportunity to raise a slightly separate point raised by the amendment:
why do the Government not propose a separation between public services
and non-public services, and a definition of public services? I will
explain what I mean by that.
The
justification for proposed new paragraph (a) was dealt with under the
harassment clause, so I will not repeat that. But the argument that
there should be a specific definition of public services and that they
should be separated out from other services—commercially
delivered services—is an important point that the amendment
probes. There
is a long-running issue about what exactly a public service is. When it
is delivered by a commercial organisation under contract to a public
authority, or where its nature is public but it is privately purchased,
or where its nature might be private or public but it is publicly
purchased, as in care homes, there is a long-running controversy about
how we can get our courts to understand that the intention in the Human
Rights Act 1998 was to ensure wider coverage.
The worry is
that simply referring to services and the exercise of a public function
will not cover everything that we need to cover. Although the
Government might not see the need to make such a distinction between
public services and others generally, when it comes to schedule 23 some
of us will argue that, for example, the exemptions provided for
religious organisations to discriminate in the delivery of services
ought not to exist to the same extent when delivering public services.
I will not talk about those now, because we will debate them later. But
there is an argument for a separation between public services and
non-public services.
Even if the
Solicitor-General does not see the need for the amendment, and does not
see the need to have the demarcation where I might wish to see it, I
would be grateful if she said whether her understanding is that
services carried out in the exercise of a public function should also
extend to categories under proposed new paragraphs (a), (b) and (c) in
my amendment. We are grateful for the Government’s efforts in
tackling the problem of the YL case in health care. However, does the
Solicitor-General believe that the same should apply by extension in
discrimination law? In many instances,
article 14 cases will be brought in relation to the meeting of other
rights under the Human Rights Act 1998. It will be useful for equality
law to recognise the same reach of the public services obligation as
human rights law. The amendment
is purely probing at this point, given that half of its justification
is gone. I hope it gives the Government the opportunity to set out
their thinking, as it is—I speak as a member of the Joint
Committee on Human Rights—a particular interest, or obsession,
as some might say, of that Committee, to ensure that public services
are covered where they need to
be. 2.15
pm
Mr.
Harper: I have one question for the Minister, to clarify
something, which I hope will save us some time later. I want to check
that education and provision of schools are included in the provision
of services. Given that clause 27
states: “A
duty to make reasonable adjustments applies to...a
service-provider”, will
the duty apply to schools? Will the duty in clause 19(5),
relating to the need to provide auxiliary aid also apply to schools? I
ask that rather convoluted question because there is a concern about
schedule 13. An organisation has asked us to table an amendment to that
schedule because it says that the requirement for a school to provide
auxiliary aid does not currently apply. From reading clauses 19 and 27,
it seems that schools would have to do so. If that is the case, we will
not need to trouble ourselves with an amendment to schedule 13, which
will save us some time later on. I would be most grateful if the
Minister could answer my
question.
The
Solicitor-General: The hon. Member for Oxford, West and
Abingdon said this morning that he would not pursue the matter because
he thought it was tied up in the earlier discussion about harassment.
He has managed to have a debate about an amendment that would add
harassment to the Bill, and not at all about public authority and its
definition. There is a time in the Bill when we will talk about how we
define public authority and public functions, but it is not now. I will
deal with the issues when the time is right. It is up to the hon.
Gentleman either to withdraw the amendment or press it to a
vote.
We have not
made the distinction between public and private services in the primary
legislation on race relations and sex discrimination. Both are covered
in the same way in the
Bill. On
schools, I hope that the hon. Member for Forest of Dean finds it a
satisfactory answer when I say we need to go to part 6, where education
is completely covered. If he does not, I will write to him about the
actual point he raises.
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