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Dr. Harris: The hon. Gentleman raises a fair point that these are very wide exemptions and he seeks, by probing their elimination, to question the justification for the Whip. I think that he is right to do that. The critique is that the exemptions are too wide, not that the restrictions on them that apply to other organisations, such as religious organisations, are too narrow. When Liberty urged the Committee to probe the Government on those points, I do not think that it had in mind that the religious exemption for discrimination should be widened. I think it had in mind my interpretation, which is that the exemptions are too wide.
I look first at the application of paragraph 1 of schedule 3, which is about section 27 and regards discrimination where services apply and the provision of those services to “a function of Parliament” and
“a function exercisable in connection with proceedings in Parliament.”
It goes on to explain:
“Sub-paragraph (1) does not permit anything to be done in contravention of that section to or in relation to an individual unless it is done by or in pursuance of a resolution or other deliberation of either House or of a Committee of either House.”
The amendment would omit the whole of paragraph 1 and that could be quite tricky.
What examples do the Government seek to reserve other than the right of Parliament to legislate? Of course we recognise that we cannot have legislation in normal statute that prevents Parliament from legislating as it wishes. However, in terms of the way that the House functions, is it right for there to be unjustified discrimination? Surely if something happens in the House in order to make it run efficiently, it would be possible to justify that discrimination.
For example, if it was felt necessary to make people who wanted to secure a seat in the Chamber for the rest of the day attend prayers, even if they did not wish to participate in them, that could be objectively justified. Excluding the way that Parliament works from the law, prevents anyone from challenging that provision and requiring an objective justification for the fact that in order to retain a seat—unless they can fill in a pink card to demonstrate that they have been on a Select Committee or another Committee, and could not be there for prayers—they must attend prayers. At least people are not forced to go along with the prayers if they are not of that religion, but I do not think that there are many places where adults are expected to sit through prayers against their will in order to secure a service. It is not a big deal, and I have not sought to highlight it as such, but it is an example of where if such a measure can be justified, it should be justified.
The issue goes even wider. There are some local councils that seek to introduce prayers, for example, as part of their proceedings. A parish councillor in Devon, Councillor Boughton, was referred by his council for disciplinary procedures for refusing to participate in prayers, even though he was not religious. He preferred to listen to his iPod during prayers and the other councillors felt that was a breach of his conduct. People might feel that that was wrong, but if people elected to public office are expected to do something and do not want to because they do not share that religious—or any other—view, they should not, then, encounter barriers that prevent their full participation.
The amendment to schedule 6 is also quite apposite because the exemption is extremely wide and it is not clear why. I hope the Minister will explain the justification for such a wide exemption. To say that life peerages and honours do not have to be objectively justified when they might appear to be discriminatory seems peculiar given that that is a route in this country to status, access to power and—arguably—to some special privileges. It is reasonable, then, to ask for them to be subject to the need for justification if questioned, rather than having a carte blanche exemption. The hon. Gentleman has done a service on behalf of Liberty in identifying how wide these exemptions are.
The Solicitor-General: Amendment 39 would remove the exception for parliamentary functions from the prohibition on discriminating against harassing and victimising a person when exercising a public function—it would make Parliament liable for all of that.
The exception is designed to protect Parliament’s historic privilege to regulate its own internal affairs. Both Houses of Parliament are exempt in their entirety—totally—from the prohibitions on discriminating in the exercise of a public function. The exclusion from coverage here is much more tightly drawn than the hon. Gentleman has been perfectly happy to live with until now. The exclusion will effectively apply only where the action in question has been the subject of some form of deliberation of either House. It is about parliamentary functions and is not a blanket exception. It does not, for instance, allow the parliamentary restaurant or shop to discriminate on the basis of race, religion, belief, and so on. Nor can someone be refused access to the House of Parliament on the basis of any protected strand; it is limited and applies only where needed. I can see no valid reason for removing it. We have all lived happily until now with a far wider exception.
Dr. Harris: The Minister has been helpful in clarifying that this is a narrowing and that is welcome. However, she is happy, but it is not necessarily the life of the third party ever to be happy in this place. [Hon. Members: “Ah!”] Thank you. I am grateful for voice of sympathy, which Hansard will record.
When it came to the parliamentary pension scheme, which is otherwise over-generous, it retained—as with other public sector pension schemes—discrimination in survivors’ benefits for same-sex couples. It was a struggle for me, and others, some years ago, to get that to change. I do not see why things like that—which were, I fear, the subject of a resolution—should not have even had to have regard to discrimination thinking. It pre-dated rules on civil partnerships, and so on. However, had we had those rules, it would not have had to abide by them and that would have been a loss. I hope the Minister recognises that it has some relevance, even where it is the subject of deliberation.
The Solicitor-General: The position, however, is much better under the Bill than it has been historically and I have said all I can about that.
Amendment 40 would remove the exception about preparing, making, approving or considering primary legislation and some forms of secondary legislation. The exception goes hand in hand with parliamentary functions, as it is about protecting the constitutional principle of sovereignty. It is in current legislation, and it is important because it allows legislation to be debated and made, which, for entirely legitimate reasons, may have a differential impact on people with particular protected characteristics. If it was not there, we would have difficulty legislating to introduce new maternity benefits, for example. However, that does not mean that public bodies do not have to consider the differential impact on various groups before legislation is introduced. But I am sure that that point is pretty plain.
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Amendment 41 would bring within the meaning of personal or public office holders, political office holders and persons who are either being considered for, or have already been awarded honours or dignities by the Crown, giving them protection under clauses 46 to 48 of the Bill.
Schedule 6 defines what constitutes a personal or public office under the Bill, largely replicating existing law and provides that political office holders and recipients of dignities and honours conferred by the Crown are not personal or public office holders under the Bill. The kinds of posts listed, such as offices of the House held by Members of it, are not the kinds for which discrimination law would be an appropriate remedy. They are political matters, which are subject to political concerns and can be raised in a political setting if there is any unfairness, rather than in an employment tribunal, which would be an odd place to raise them.
People considered for, or awarded honours or dignities may be protected from discrimination, victimisation and harassment through the provisions applicable to the performance of public functions under part 3 of the Bill. But the conferral of honours and dignities does not amount to employment, and any claim in respect of that is properly addressed by the county courts, as is already the case under the majority of existing discrimination legislation. We think that it is right to maintain—but we have also tried to harmonise—the existing approach, and I hope that we have succeeded.
Amendment 50 would remove the exception for the House of Commons, the House of Lords, the Scottish Parliament and the National Assembly for Wales from the requirements of the equality duty. It is the same point—it is important, in constitutional terms, for our legislative bodies to be free to debate matters and pass laws without being obliged to give due regard to the need to advance equality and foster good relations every minute of the process. I think the General Synod is also a legislative body, but the amendment stops short of removing the exception for that.
I also point out that the House of Commons has not only an equality scheme, but an equality and diversity scheme—since that is a major interest of the hon. Member for Glasgow, East—on which we will be consulting shortly. This establishment and the House of Lords take equality and diversity seriously, but their constitutional function needs to be protected in the way that I have I said.
John Mason: I thank the Minister for explaining her position in some detail, and I appreciate the logic for the different exemptions. Some of the public think that Parliament has got a little bit out of touch with reality in recent months, and that is something that we will probably have to come back to at some stage. Parliament has a constitutional role, but the idea that we might move, at some stage, towards a written constitution, and Parliament might be slightly constrained in what it can do, might not altogether be a bad thing. None the less, with the reassurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lynne Featherstone: I beg to move amendment 162, in schedule 3, page 151, line 14, at end insert
‘to the extent that the discrimination is a proportionate means of achieving a legitimate aim.’.
This amendment imposes the ‘legitimate aim’ test when armed forces want to treat a person detrimentally.
The amendment would impose a legitimate aim test when the armed forces wish to treat a person detrimentally. There are situations where people will not be able to undertake their duties, in cases of disability, for example, which would affect combat effectiveness and is relevant. Not every disability would be prohibitive, perhaps. Obviously flying or driving would be problematic for someone with impaired sight, but there may be disabilities that would not automatically be listed in that category that would result in the opportunity to take part in a suitable form of combat being denied. Perhaps it would be better to have a legitimate aim test that could assess, on a case by case basis, the appropriateness or not of discrimination and whether it is justifiable.
The Equality and Human Rights Commission suggested that their broad position on all exceptions is that they would have to be fully compliant with European law and therefore should be subject to the requirement of being a proportionate means of achieving a legitimate aim.
Mr. Harper: I can see what the hon. Lady is saying. There are two things that I would say to that. First, I do not think it is right to assume that just because clause 27(6) would not apply to the armed forces that that automatically means they are going to discriminate. The reason for the exemption reflects who we want to make the decisions, whether it is the chiefs of staff or the Secretary of State for Defence or whether it is a judge.
With the recent case of applying human rights legislation to the battlefield we have seen the great difficulties that may be caused to commanders on the front line when their very difficult decisions are second-guessed by a judge. That really is the argument; it is not about whether the armed forces discriminate or not, it is about the decisions they make and who ultimately makes them. This is not about the armed forces wanting to discriminate, but about how they make judgements on combat effectiveness.
The schedule does not cover all strands of discrimination, only the four that can reasonably be seen to have some bearing on whether an individual would affect combat effectiveness. It is about whether we want those decisions ultimately to be taken by Ministers, who are accountable to this House, or judges. That is the question.
Lynne Featherstone: I understand the point the hon. Gentleman is making, but those four strands—age, disability, gender reassignment and sex—might be the basis for discrimination. If the commander in the battlefield were to make those decisions, they might be based on such discrimination and not totally on combat effectiveness. That is the reason the EHRC wants to introduce a legitimate aim test to this schedule. Were there to be a commander in the field who was biased in any way, for example on gender reassignment—a woman who has become a man totally—how would it be determined whether that decision was genuinely taken on combat effectiveness or a longstanding bias? Not necessarily at that moment, but later in the court.
Mr. Harper: The problem is that as soon as the exemption is removed, all commanders in the field making decisions, whether they are making them for good reasons or bad, are potentially subject to being dragged into a court and being second-guessed by a judge sitting in London, even though those decisions might be made in very difficult conditions. That is the problem; it is not about whether those decisions are right or wrong. I am simply arguing that the armed forces have policies to encourage, for example, those with disability—the area I know best—to the extent possible, but those decision are ultimately best taken by the Secretary of State for Defence, who is accountable to this House, rather than giving them to a judge.
Lynne Featherstone: I understand the point, but I think we have to disagree on it. Those decisions should be subject to a higher order than that moment on the battlefield. Ultimately, it may be a right decision, but in terms of law and protection it is totally in order to expect there to be a legitimate aim if discrimination is to be justified. That is what this amendment seeks to do.
Dr. Harris: The argument put by the hon. Member for Forest of Dean is one that was used a lot by the armed forces when resisting the end of the ban on gay and lesbian soldiers serving in the forces. They said it was a matter for commanders or that it was about combat effectiveness, but they never provided evidence of that. The argument was used that this should not be dealt with in the courts—that it must be a matter for the Army itself. I think they were wrong and they recognised they were wrong on that ground, and in the end the European Court forced Parliament to act. The point my hon. Friend is making is analogous to that—it may not ever not be justified, but a justification ought to be given at some point.
 
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