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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.
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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.
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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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