Mr.
Harper: I checked part 6, but it did not seem to exclude
earlier parts of the Bill. It will be helpful if the Minister can
clarify whether clauses 19 and 27 apply to schools. If they do not, and
she then writes to us, we can have a discussion when we get to part 6.
I wanted to check, because if the clauses do apply to schools, it will
be helpful when we are thinking about tabling amendments. I think the
Minister may now be in a position to answer.
The
Solicitor-General: Clause 26(2)
states: “This
Part does not apply to discrimination, harassment or
victimisation...that is prohibited by Part 4 (premises), 5 (work)
or 6
(education)”. We
need to travel on to part 6 to look at issues around
education.
Dr.
Harris: I plead partly guilty to the charges laid down by
the Minister. I said that I thought that amendment 232 could
have been grouped with the other amendments to clause 24. I think that
you and your colleagues, Lady Winterton, chose to group it separately
because it raised separate issues, such as the distinction between
private and public services—the Minister has made no comment on
that—and the definition of a public authority. In respect of the
last of those, I am happy to have the debate whenever the Minister
feels it is appropriate. I would be grateful if she or one of her team
could indicate when she feels it is appropriate for the Opposition to
raise that issue. I would like to do that when she wants—I have
no desperate desire to do it now or out of order. I understand that
point. I
regret the Minister stating that the Government are not making a
distinction in the Bill between the provision of services privately and
the delivery of services of a public nature. That is something that we
shall have to debate when we deal with the exceptions, where I believe
that there is cause for that distinction to be made. Although feeling
half guilty, I make no apology for raising the point—given that
the amendment was separately grouped in order that I could do
so—that there ought to be that distinction. At some point we
need to cover the definition of a public authority. The question that
comes to mind is if not now, when? We shall work to find out when that
might be.
I beg to ask
leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
27 ordered to stand part of the
Bill. Clause
28 ordered to stand part of the
Bill.
Clause
29Interpretation
and
exceptions Question
proposed, That the clause stand part of the
Bill.
Dr.
Harris: I note that subsection (4)
states: “A
public function is a function that is a function of a public nature for
the purposes of the Human Rights Act
1998.” I
may not have caught up with what is going on, but if that is not an
opportunity to probe the question of the definition of
“a function of a
public nature for the purposes of the Human Rights Act
1998”, I
do not know what is. It seems to be an open
invitation. I
shall not repeat most of what I have already said. Let me give the
Committee time to find page 21—the explanatory note does not go
into the matter in great detail, but it is a real issue. When
is “a
function of a public nature for the purposes of the Human Rights
Act” is
a question that has tied up our courts, to an extent the Government and
certainly the Joint Committee on Human Rights for a long time. There is
a solution in respect of health care, which has been recognised and
accepted after a great deal of struggle—not least on the part of
the hon. Member for Hendon (Mr. Dismore), who struggled long
and hard to find a vehicle to solve that. The matter should be
clarified in other areas as
well. For
example, there is the question of academies, a delivery of education
that their sponsors have argued is not covered by the definition of a
public authority, or is differentially covered, depending on what the
academies are doing. That is but one example, given the variety of ways
in which public services are now delivered—in fact, through
private and voluntary organisations in ways that were probably not even
considered when the Human Rights Act 1998 was drafted. The issue is
substantive and it would be of real benefit for the Government to set
out whether they think that where we are with the YL case is where we
want to be in equality legislation—at least in so far as they
are willing to make the distinction between public and non-public
functions in equality law, which I accept is not as great as the number
of occasions on which I should like to make that
distinction. I
have made my point and I look forward to the response. I hope it will
be now, but if elsewhere, I am happy to be directed to another part of
the
building.
The
Solicitor-General: I am sorry, Lady Winterton, if I have
been chattering too
much. The
clause is interpretative and supplementary to clause 27, setting out
meanings of public functions—provision of a
service—largely replicating the position under existing law but
bringing various diverse points together in one place for ease of
reference. We have expressly linked the definition of “public
functions” in the Bill to the Human Rights Act to provide, in so
far as legislation can, clarity and consistency across the two pieces
of legislation. We have also made it clear that the reference to
providing a service covers services provided by both public and private
organisations. That is important because we do not want to apply
different requirements to organisations that are providing essentially
the same service, simply because one is publicly funded and the other
is not.
We have also
used the clause—this does have some relevance—to make
clear that the liability is therefore limited to that under part 5,
when people are simply arranging for services to be provided by a third
party to their employees. They should not then be regarded as a service
provider. The employees would be regarded as a section of the public in
relation to the third-party provider. The relationship between them and
the third-party provider would be governed by this part, but that is
not actually central to the point the hon. Member for Oxford, West and
Abingdon raised.
Schedule 2
sets out reasonable adjustments and how they apply in relation to
providing services and exercising public functions, and schedule 3 sets
out exceptions to the prohibitions in the clause. I think at the core
of the hon. Gentleman’s concerns are public functions in the
Human Rights Act, rather than some of the other bits I have referred
to. I can tell the hon. Gentleman that concern is not confined to my
hon. Friend the Member for Hendon, nor is there a struggle over the
issue. I was on the Joint Committee for Human Rights long before he was
and we produced a report trying to probe how best to define public
functions. I do not think it is putting it too bluntly to say we were
slightly taken
aback by the way the court defined what a public function was, first of
all in the case of Heather v. Leonard Cheshire Foundation and
again in the case of YL. Public
functions are not specifically defined in the act, which instead speaks
of functions of a public nature. Things that would be considered to be
public are law enforcement, immigration and local authority revenue
raising and collections. Public authorities provide public services
such as leisure and day care centres, as well as carrying out
non-service public functions such as law enforcement and revenue
collection. If the activity falls into the category of providing a
service to the public it will be covered by the provisions making it
unlawful to discriminate in the provision of goods, facilities and
services. If the activity is not caught under those provisions, it will
be captured by the public functions provisions. What is important is
that all the activities of public authorities are subject to the
prohibition on discrimination unless there is a specific exception.
That is helpful as I can be.
The
Solicitor-General: The hon. Gentleman is probably going to
ask me a question I was just about to answer, but please carry
on.
Dr.
Harris: I would be pleased if I did because I accept that
I am sometimes wide of the mark.
In the list
the Solicitor-General gave, I am particularly interested in the
provision of welfare services for vulnerable people such as the poor,
hungry and homeless. Would they be covered even if they were delivered
by a private or voluntary organisation, or as part of welfare services
but funded privately through charity as part of a public
authority’s organisation, in which case, a safety net would
apply and the Government would say “no it is okay, that exists
to look after them”? Although the hon. and learned Lady may not
always wish to make the same distinction as I do, if certain
organisations are delivering those services there is a greater need to
protect vulnerable service users than when purely commercial services
are provided to paying customers who have more of a choice. That is the
area I am seeking to probe.
The
Solicitor-General: Of course, we do not have control over
the courts. However, we are of the opinion that private bodies
exercising functions of a public nature that are not covered by the
service provisions will be subject to the public function provision set
out in the Bill. An example would be Group 4 running a prison; it is
carrying out a function of a public nature that is not considered to
constitute the provision of a service. Accordingly, under the Bill,
that activity would be subject to the requirements of
non-discrimination in the exercise of a public function which is not a
service. That is the broad definition and I hope it is helpful. It is
better than it might be.
Dr.
Harris: I know we should not have this debate now.
However, it may help the Minister know my concern: what if a prison
service was being run by a religious organisation? There is no
injunction, and there is a big exception in schedule 23 for a religious
organisation to
harass through unwanted proselytisation. I accept that it is not their
intention to harass; I do not want to be misunderstood—I am
using the term in its legal sense. A religious organisation might want
to provide that welfare service only to people of its own religion so,
because of the entitlement to discriminate, the issue does
bite. I
do not expect the hon. and learned Lady to deal with such matters now
because we can deal with them under schedule 23. However, I want her to
acknowledge that without the distinction carried through to
schedule 23 about what is a service in the exercise of a
public function—about which we are in agreement—there
will be the worry that vulnerable people, captive people or those who
rely on a service may suffer because of the nature of the organisation
that is delivering it. We must bear it in mind that that is not in the
control of Parliament at any given stage. It is a point for later, but
I wanted to flag it up
now.
2.30
pm
The
Solicitor-General: On the hon. Gentleman’s specific
point, I wish to make it clear that welfare provision is considered to
be a service. The same protection applies whether the service is
provided by a public or a private organisation, but the public body
that commissions the service will have to ensure that it is provided to
all. That is by way of an addendum. I am sure that we shall examine the
relationship between public bodies and contracted-out services later. I
hope that the hon. Gentleman is satisfied that it is wider than he
probably thought that it was. That being the case, I propose that
clause stands part of the
Bill. Question
put and agreed
to. Clause
29 accordingly ordered to stand part of the
Bill. Schedule
2 agreed
to.
Schedule
3Services
and public functions:
exceptions John
Mason (Glasgow, East) (SNP): I beg to move amendment 39,
in
schedule 3, page 150, line 6, leave
out paragraph 1. Parliament
is exempt from the ban on discrimination, harassment and victimisation
in the exercise of its public functions. This amendment would remove
that
exemption.
The
Chairman: With this it will be convenient to discuss the
following: amendment 40, in schedule 3, page 150,
line 14, leave out paragraph
2. Parliament’s
legislative functions are exempt from the ban on discrimination,
harassment and victimisation. This amendment would remove that
exemption. Amendment
41, in
schedule 6, page 169, line 15, leave
out paragraphs 2 and
3. Political appointments,
honours and peerages are exempt from the ban on discriminating against
office-holders. this amendment would remove those
exemptions. Amendment
50, in schedule 18, page 216, leave out
lines 21 to 24. The Commons,
the Lords, the Scottish Parliament and the Welsh Assembly are exempt
from the public sector equality duty. This amendment would remove those
exemptions.
John
Mason: The amendments are broadly probing provisions. I
want to hear the Government’s explanation of some of the
exemptions under the Bill. Clearly, we all accept that there are areas
where it would be inappropriate to apply discrimination law—or
to apply it fully—because it could have harmful side effects. I
know that people will sometimes say things like, “Equality is an
absolute and there can be no exemptions,” but the reality is
that we can and should apply equality and discrimination law
pragmatically and flexibly because different considerations apply in
different cases. If we do not, the Bill would be very short indeed and
would simply say, “Discrimination on these grounds is
prohibited,” and we would let the courts work it
out. Of
course, even the act of selecting which grounds are protected places
limits on equality, and clearly people could be discriminated against
on a number of issues that are not included. There are limits on
exemptions in equality law. Paragraph 1 of schedule 3 exempts
Parliament. Paragraph 2 exempts legislation. The functions of
Parliament, including the Committee and the process of preparing,
making or considering a Bill, whether of this Parliament, the Scottish
Parliament or the National Assembly for Wales, are not bound by the
strictures of equality
law. The
exemptions may make perfect sense, but I wait to hear from the Minister
what they protect against and their purpose. If their purpose is to
stop people making mischief, bringing endless legal claims and tying up
Parliament in endless litigation, that would be a bad thing. However, I
note that the exemptions are total, broad and unrestricted. They do not
contain the sort of hoops through which people have to leap if they
want to obtain the benefit of other exemptions for any of the other
strands. New
clause 15 would have a similar effect, and I must admit that I have
some sympathy for it. However, we seem to be inconsistent in allowing
continuing discrimination by some organisations, but not others.
Paragraphs 2 and 3 of schedule 6 exempt political appointments, honours
and peerages. Again, I understand why the Government want to maintain
the freedom to make important appointments without being tied up in
litigation over allegations of discrimination. The Prime Minister may
not be able to get rid of a Cabinet Minister simply because he had
clever lawyers who claimed that his dismissal was related to a
protected ground. Furthermore, I observe that religious groups and
others feel the same way about appointing youth workers and pastoral
workers. Amendments
39 to 41 draw attention to the exemptions. Amendment 50 would exempt
the two Parliaments and the Welsh Assembly from the public sector
equality duty. It is a broad exemption. I shall not say
anything more about it, but I think that I have made my point. I could
have tabled probing amendments to paragraphs 21 and 22 of
the schedule, which exempt insurance, but we accept that the insurance
industry needs some protection. The exemptions are pretty
comprehensive. I understand the need for that, although like other
exemptions, the details and the limits might be subject to debate. I
hope that the Minister will give us a full explanation and
justification for each of the exemptions, because the subject of
exemptions is an important one.
There are a
lot of exemptions, and some of them are very broad. Therefore, we must
not say to the Churches—as the Solicitor-General appeared to
suggest when we heard
evidence from them—that there is something unusual or shocking
about wanting exemptions, or something wrong with wanting to ensure
that those exemptions are wide enough. We go into great
detail in protecting the insurance industry, sport and so on, so surely
we can give our attention to protecting
everybody’s freedom. The danger
the Government face is that by allowing broad exemptions for their own
activities, but insisting that exemptions for religious groups, and
others, should be as narrow as possible, people will conclude that
there is one rule for the Government and another rule for everybody
else.
| 
