Lynne
Featherstone: I want to ask the Minister whether she feels
the commission has a very good point in introducing a legitimate aim
test, because, as my hon. Friend helpfully said, this is where we were
not that
long ago in relation to gay men and lesbians in the armed forces, and
that now seems like something from the distant past. Perhaps this move
forward—the introduction of the legitimate aim test—will
also take its place in the advancement of discrimination
law.
Mr.
Harper: I just want to respond to the intervention of the
hon. Member for Oxford, West and Abingdon on the hon. Member for
Hornsey and Wood Green. The hon. Gentleman is quite right: that issue
was in my mind when I looked at this exemption, and in particular at
the four protected characteristics that are allowed to be used. I asked
myself, “Could any of those, to my mind, legitimately affect the
combat effectiveness of the armed forces?” I was thinking of the
protected characteristics of sexual orientation when I read that,
thinking back to that case.
I would not
be so open as just to say, “Oh, we should leave this up to the
Army or one of the other branches.” I absolutely think that
Ministers should probe and take responsibility for such questions, and
they should challenge military commanders on whether something
genuinely does affect combat effectiveness. It is one of the benefits
of this place—it has schemes such as the armed forces
parliamentary scheme, in which a number of Members take
part—that we get the opportunity to visit operational theatres
to talk not just to senior Army, Navy and Air Force officers, but to
the men and women in the front line, as well as those back at
home. Such
things keep us well informed and enable us to challenge existing
practice and question whether something is justified. However, when it
comes to the defence of our country, for which the Government have to
take responsibility, such things should probably be left to those
responsible for that task in Parliament. If they fail to do that or do
it badly—as we can perhaps agree they did in the case of sexual
orientation—they should be held to account politically. I am
just always very nervous about allowing judges to make decisions that
may damage our armed forces’ operational
effectiveness.
I know the
Government have great concerns about the recent ruling on human rights
law applying to the battlefield, and they are thinking about whether to
appeal that case. This is simply what I say. It is not that I support
the armed forces discriminating; it is about who the decision makers
should be on these particular grounds. There are other exemptions in
this schedule—for example, the security services, the Secret
Intelligence Service, GCHQ and parts of the armed forces. They are
exempted from clause 27 completely for that very reason: not because
they should be able to go on discriminating, but because we think it
proper that those decisions should be made by Ministers, who are
responsible to this House for the security of our nation. That is the
proper place for those decisions to be made as far as the armed forces
are concerned.
The
Solicitor-General: If I may say so, the hon. Gentleman has
made some good points about who should take the decisions, and about
not mixing the need for a limited exception for this purpose with its
abuse, as exemplified by the cases that subsequently secured equality
for people with different sexual orientations and enabled them to be
fully involved in the military.
This measure
is not intended to be a licence to discriminate. I do not know if this
factor will help, but we are bound by European Community law to
reassess
periodically occupations from which women are excluded, for instance, to
decide whether there is any justification, in the light of social
development, for maintaining the exclusion, and we must notify the EC
of such reassessments. The Ministry of Defence is assessing its policy
governing women serving in close combat roles; on 26 May it announced
that it would be examining whether it is still appropriate to exclude
women from such
roles. 3
pm The
position is therefore not static, and it is not a repetition of
something that has, I accept, appeared on the face of it to give rise
to discrimination in the past. It is a fairly narrowly framed exception
that exists, as the hon. Member for Forest of Dean said, to enable
generals to take decisions when they need to, rather than being
second-guessed by judges. None the less, the test is set in terms of
the necessity to ensure the armed forces’ combat effectiveness.
We cannot exclude the possibility that at some point, a woman or a
person who has had gender reassignment may well bring a case to court,
so that they can secure their entitlement more quickly than the reviews
allow for in terms of combat
effectiveness. Let
us not muddle something that appears at the moment still to be
necessary to guard the efficacy of our armed forces with any licence to
discriminate, nor impute to the armed forces any intention to do so. I
back that up by saying that the issues are kept under review. For the
time being, we invite the hon. Member for Hornsey and Wood Green to
withdraw her
amendment.
Lynne
Featherstone: I have listened carefully to the Minister,
and I am reassured inasmuch as the situation is not static. Things do
move on and change. Women may bring cases if they want to serve on the
front line. It will be interesting to see whether a general who makes
such a decision does so on the right grounds or the wrong ones. That
will eventually be tested, but for the time being, I beg to ask leave
to withdraw the
amendment. Amendment,
by leave, withdrawn.
Lynne
Featherstone: I beg to move amendment 159, in
schedule 3, page 153, line 9, at
end insert— ‘(1A) In
assessing risk in sub-paragraph (1)(a) a blood service cannot make an
assumption of risk that relies on all people of a protected
characteristic sharing the same
risk.’. This
amendment makes clear that blood services cannot use blanket
assessments of risk based on people of a protected characteristic, such
as their sexual orientation, sharing the same level of
risk. I
am sure that everyone in this room believes that protecting the safety
of the blood supply must be the first and most important concern in
terms of who should be able to give blood and who should not. The
problem is that at present, we assess who may or may not give blood on
a precautionary basis. We are allowed to consider the collective risk
of a group, rather than the behaviour of an individual. The
Bill’s purpose is to protect groups of people from both direct
and indirect discrimination. I believe that the ban on gay people
giving blood, for example, needs to come under scrutiny so that we can
understand better whether that discrimination contravenes the purpose
and meaning of the Bill.
Personally, I
cannot see how a blanket ban can not be discriminatory. If I were a gay
man in a monogamous civil partnership and wanted to give blood, I would
not be allowed to. If I were a sexually active straight man, I would.
Surely there is a case for the safety of the blood supply’s
being based on an individual’s behaviour and the consequential
risk of that behaviour, rather than eliminating a whole
group. I
was talking only yesterday to a gay man who had gone to give blood when
he was younger, but only after he had given blood was he shown the form
asking whether he was a homosexual and whether he had had sex. He said
that he was so humiliated and upset that he lied. It is appalling for
someone to be put in that position.
The amendment
tests the very core of the meaning of discrimination. If we are to
blanket-ban blood donation by gay men, as is currently the case, we are
inevitably discriminating against one of the protected characteristics
—sexual orientation. As I understand it, there are 450 rules
guiding donor selection and there are two levels of protection. One is
in the first category, which is the selection of “safe”
donors; the second is the testing of the donations.
Regarding gay
men, the leaflet explaining why certain groups are not acceptable for
donation refers to specific behaviours—rather than the fact of
being gay—that place men at an increased risk of HIV infection.
I could go into what they are, but I would rather not. We are told that
research shows that allowing gay men, as a group, to donate blood would
increase the risk of infection of the blood supply. However, the
problem is that that refers to the totality of risk in a group that
includes people who are not careful, who have had many sexual
encounters and who bring the risk level up in the blood collected from
that group. There is no distinction within that group between men who
behave in that fashion and men who are monogamous and
careful. One
great iniquity is that a heterosexual person who consistently puts
themselves at risk of exposure to HIV, for example, is not given a
lifetime ban on giving blood, whereas a gay man who has had protected
sex just once is given a lifetime ban. After two years of review,
Stonewall has now changed its position, having given the greatest care
to issues associated with risk. Risk is a key issue for blood supply,
but Stonewall has come to the genuine belief that exclusion should be
expressed in terms only of risky behaviours, not sexual
orientation.
The national
health service says that sexual behaviour is its reason for exclusion,
not sexual orientation. Nevertheless, only gay men who are virgins are
allowed to give blood. Surely it is time to introduce a more
sophisticated model and change the current restrictions to reflect
behavioural risk on an individual basis, rather than having a blanket
ban on a group. That might give better protection because there is
relatively little investigation into, or inhibition on, those who are
not homosexual.
Current
practices in Spain, Italy, Australia and New Zealand place no lifetime
ban on gay men. I believe we should follow their lead. The Anthony
Nolan Trust has recently lifted its ban on bone marrow donations by gay
men. The Bill offers an opportunity to begin that process of change
from blanket bans to a system based only on the risk that an
individual’s behaviour poses. I would welcome the
Minister’s views on what I have
said.
The
Solicitor-General: Essentially, the amendment is not
necessary, because the Bill prohibits blood services from excluding
people who share a characteristic, unless there is
evidence “from
a source on which it is reasonable to rely”
that donation presents
a risk to the public or to the individual donor. The Bill also requires
that refusal, even if grounded on that evidence, to be
“reasonable”. The
issue is not just about gay people. Blood services sometimes need to
exclude all people who share a protected characteristic from giving
blood. For example, the EU requires blood services to refuse donations
from people who are HIV-positive, and HIV-positive is a disability in
the Bill. Therefore, it is not just about gay men. However, an issue
about them has been raised. Let me see if I can deal with it as well as
possible. In
the explanatory statement for the amendment, the hon. Lady suggests
that sexual orientation is an example of a protected characteristic
that would be covered by the amendment. However, I am told that blood
services do not ask questions about sexual orientation—there has
never been a blanket ban on people who share a protected
characteristic, either of homosexuality or bisexuality. Lesbian and
bisexual women, who share the characteristic, are not banned from
donating on the grounds of their sexual orientation, nor are gay or
bisexual men who, as she put it, are virgins, who have not had sex with
another man. Excluding everyone who identifies as gay would be
unnecessary, and it would be unlawful, so it is not a blanket ban in
that sense. There is no evidence of people presenting a risk just
because they are
gay. The
hon. Lady raised the issue in a bit of detail, so let me deal with it
in detail, in all fairness to her. The policy, which is to exclude men
who have had sex with men from donating, is in place because the blood
services have an ethical duty of care towards recipients for the sole
purpose of protecting public health by minimising the risk of
transmission of HIV in particular. My information is that men who have
had sex with men are at higher risk of carrying such viruses. A review
of the evidence on risk-based sexual behaviour will begin in
July. Men
having safer sex with men was touched on by the hon. Lady. While safer
sex through the use of condoms reduces the transmission of infection,
it does not eliminate the risk. Men who have sex with men are found to
be disproportionately represented among the small number of
HIV-positive donations identified. Epidemiological evidence in the UK
also shows that there has been a significant increase in other sexually
transmitted infections that can be blood-borne, such as hepatitis B and
syphilis, among men who have sex with
men. The
hon. Lady’s answer to that—I understand why—would
be to assess each donor’s risk individually. However, blood
services advise that there would be a large number of practical
problems. For example, it would not be feasible in a blood donation
session to take a detailed sexual history from an
individual—apparently 7,000 people per day, which is excellent,
give blood, so that would be impractical. The blood services need to
use broad categorisation for donor
selection. The
hon. Lady referred to other countries having reversed their
policies.
Lynne
Featherstone: I understand the practical difficulties, but
they are not that difficult. I do not see why they cannot apply to
anyone’s behaviour, in terms of how many partners one has had in
the past year and whether one uses protection. I do not understand why
that would be such an impossibility, given that one has to fill out a
form anyway and it is simply a matter of which questions are on the
form.
The
Solicitor-General: That is what the blood services say and
I accept what they say. To take a detailed sexual history to decide the
risk of 7,000 people a day, one could not simply ask one sector; one
would have to ask everyone, to be clear. That seems to be pretty well a
definition of
impossibility. The
hon. Lady talked about other countries, so let me nod in the direction
of that as well. A review of our policy of refusing donations on the
ground of sexual behaviour is planned to start in July. The scientific
advisory committee that advises the UK Health Departments on blood
safety will begin a review of the risks associated with sexual
behaviour. The fact that the review exists shows that there is already
a rigorous process in place to make sure that donation criteria are
based on current and reliable evidence. It will welcome engagement with
the public, with stakeholders and Members of Parliament. In October,
there will be a public meeting about the review, and that would be a
more appropriate forum for hon. Members to raise their
concerns. In
particular, the amendment will not do. The need for it is perhaps
usurped by the presence of that review and, as I described, the issue
is wider. It is necessary, for instance, to be able to refuse donations
from people who are HIV-positive because of the obvious risk, and they
are disabled, so we cannot allow the
amendment. 3.15
pm
Lynne
Featherstone: I have listened to the Minister, and of
course there are other categories and groups that pose a risk, and HIV
is one of those. Much of the HIV in the haemophilia community, and the
risk posed by the blood supply, which has been huge, was actually
caused by the Government’s unwillingness to move fast enough to
protect them. That is very unfortunate. We can all balance risk in this
area. I will withdraw my amendment and contribute to the review, but
the issue needs to go further.
I do not
totally accept what the National Blood Service says about how difficult
it is to take a detailed sexual history. People lie, as I described in
respect of the gentleman I was talking to yesterday, because of the
situation that they are in. Regardless of background, a form is filled
in. It does not take long to fill in a form with one’s sexual
history. It is not too detailed; it is not a list of the names
of everyone a person has slept with over a lifetime. But it considers
the risk posed by the number of people and whether they have practised
safe
sex. As
the hon. Member for Glasgow, East reminds me, having given blood the
first time and qualified as a blood donor, most donors are repeat
donors and therefore it would not be a case of completing a form every
single time, other than updating the sexual history. It is not a long
process and donors have to do it, anyway. I simply
say that it is an issue that needs much further debate. I am not wholly
persuaded by the Minister, but I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
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