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. 2.45
pm 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.
| 
