[back to previous text]

Dr. Harris: I am grateful for the Minister’s words about amendment 297, in which she gave a clear defence of free speech and explained the duty for public authorities to protect it. That should send a message to universities in particular that no platform policies are acceptable. They should not infringe the right of lawful free speech, even for unpleasant organisations and individuals. That is especially true on campus when whom is deemed to be unacceptable is determined by some kangaroo court on the basis of who the National Union of Students or the local student union thinks should not be allowed to speak. Of course people are allowed to demonstrate. However, public authorities should not be involved in preventing people from speaking. They should allow people to speak, even if the police then listen carefully to what they say.
On amendment 249, I regret that I could not persuade the Minister to address the distinction, if there is one, between “disadvantages” in subsection (3)(a) and “needs” in subsection (3)(b). I accept her example about the importance of access to health services for hard-to-reach groups, some of which may share the protected characteristic of religion or might have poor access because of the manifestation of their religious beliefs. That puts them at a disadvantage and would automatically enable subsection (3)(a) to apply.
Amendment 249 would take out subsection (1)(b), which is the stem for the whole of subsection (3). I accept that it goes wider than just the question of needs. In respect of what a need is when it is not an established disadvantage, the Minister relied on the fact that local authorities and public authorities would have to determine whether there was a need that they ought to meet. As I said, my concern is about the expectation that needs will automatically be met. That causes a reciprocal expectation by public authorities that such needs, however unwarranted or however much they cause inefficiency—or what I have called balkanisation—ought to be met.
The assertion that Opposition Members—whether me or the hon. Member for Glasgow, East—think that there is widespread conflict between gay people and religious people is misplaced and creates a straw man. However, it is true that the nexus between religion and sexual orientation is being tested in case law. Another issue is the ability of employers to restrict the manifestation of religious belief in employment, irrespective of issues of sexual orientation. That is where the case law is. It is not unreasonable when debating the Bill to concentrate on where the problems are and not on where there is broad agreement.
Amendment 249 has not found favour. It might be too wide, so perhaps it would be more appropriate to table a narrower amendment at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 143 ordered to stand part of the Bill.

Schedule 18

Public sector equality duty: exceptions
5 pm
Lynne Featherstone (Hornsey and Wood Green) (LD): I beg to move amendment 281, in schedule 18, page 215, line 25, leave out paragraph 1.
To remove the exception from the age public sector equality duty so far as relating to education and public services for young people, such as children’s homes.
The amendment would remove the exception on age from the public sector equality duty so far as it relates to education and public services for young people, such as schools and children’s homes. We briefly discussed such issues when we considered an earlier provision. I expect that colleagues have received the briefing from Young Equals, but a survey carried out by the Department for Children, Schools and Families shows that 43 per cent. of 18-year-olds reported unfair treatment on the basis of their age. Three in 10 children under 11 felt that they had experienced age discrimination, and nearly two thirds of older teenagers said the same. Unfair treatment on the grounds of age was by far the single biggest example of discrimination, so I hope that I can use the amendment to probe the Minister about why schools and children’s homes have been exempted from the public sector equality duty.
I would have thought that under-18s have the same need, if not more, regarding the elimination of unlawful discrimination, the advancement of equality of opportunity, and the fostering of good relations. The way in which are treated at school colours the rest of our lives. If we are disrespected because of our age, we will grow up with a certain view. If we are treated with respect, that ethos has the possibility of staying with us throughout school life. That goes for the numerous relationships formed at an incredibly important time in a young person’s life, such as between children of different ages and between children and teachers.
Schools provide an amazing opportunity to work on intergenerational projects and to foster good relations between different ages, and between old and young. One of the most powerful events at my daughter’s school was when the older children were able to go into the class of the younger children and be their teachers for the day. Being able to form such relationships is crucial at that age, and respect for all ages is really important.
I was even more confused about the exemption of children’s homes from the public sector equality duty under schedule 18. One of the great problems facing children in care is being shifted around from home to home because they have reached the age limitation of the homes. That could affect 10 to 14-year-olds or 14 to 18-year-olds. The children are artificially moved on and that creates instability. It is a requirement of Ofsted to register, specifying by age the categories of children as a condition of the registration. That means that other children are precluded, which flies in the face of other legislation that favours keeping siblings together. If there are two siblings, one in the 10 to 14 age group, and the other younger or older, it will be impossible to keep them together if the Bill is enacted with such an exemption.
At present, a children’s home could get into trouble by taking in siblings of a younger age than that specified. Moreover, older children seem to have less favourable treatment in the commissioning of child care. Commissioners are likely to make sure that an appropriate placement is found and to take extra care for a younger child because sometimes, when cost is a dominant factor in the decision-making process, the needs of an older child are rated as less important.
As for fostering good relations between people of all ages, I cannot understand why the Government do not believe that the exemption will be of particular benefit, because it relates to something that is absolutely essential in the provision of important care. Research shows the particular importance for children in residential homes of relationships with not only the staff, but other children and young people. When the ages are more varied, children benefit from exposure to older youngsters acting as role models. The current arbitrary age restrictions prevent what I would regard as completely natural and beneficial age integration.
I will be interested to hear the Minister’s response. I do not know whether the provision existed in legislation before I was in politics, but if it has something to do with removing the bad influence of older children so that younger children will not be exposed to what teenagers and older children get into, I would think that things should be the other way around. There is more of an onus on young people to behave better when they are given support and looked up to by even younger ones. If they are off in a group on their own, they might be encouraged to get into all sorts of things when they do not have the responsibility that comes from being looked up to by siblings or younger children.
Perhaps the Government are saying through the exemption that such young people are not supervised and cannot be trusted to live in a situation similar to that of a normal family, which can include children of all ages. There is no exemption for families relating to an age range among siblings. On that basis, I ask the Minister to respond to those issues. Why have the Government sought to exempt the provision of education to pupils in schools, and of benefits, facilities and services to pupils in schools and children’s homes? I look forward to her response.
The Solicitor-General: Let me make it clear that the equality duty will require the vast majority of public authorities to think about how they can advance equality for people of all ages, including children, when designing policies and delivering services. For instance, that might involve ensuring that swimming pools and leisure centres are accessible to children, or considering whether bus services cater adequately for children. Although the prohibition on age discrimination in the provision of goods and services does not cover under-18s, children will still benefit from the proactive duty in clause 143.
However, we do not think that clause 143, in so far as it relates to age, should apply to the exercise of functions relating to education and services to pupils in schools, and accommodation and services in children’s homes. Schools are based on the premise that children need to be treated differently according to their age, ability and aptitude. Advancing equality of opportunity for children of different ages makes much less sense than advancing equality of opportunity for children of different races or sexual orientations, for boys and girls, or for disabled children. That is where the focus should be.
The hon. Lady gave an example involving children’s homes and siblings being split so that a 13-year-old could not go into the children’s home that started at age 14 and a 14-year-old could not stay in a children’s home with a 13-year-old sibling. However, her example makes exactly the opposite point. The arbitrary right to insist on placing a child of inappropriate age in a facility that provides for children of a different age, on the grounds that age inequality provisions apply, is exactly what we want to avoid. We want the child to be put with its sibling if it is good for the child to be with its sibling and the environment is acceptable, and not to be if it is not. That would be a decision taken on the basis of the welfare of the children, not an arbitrary test of age discrimination or advancing equality of opportunity for children of different ages. With great respect, the hon. Lady damages her own argument with that particular example.
Concern has been expressed by the hon. Lady and others that not having an age-related duty for under-18s in schools and children’s homes means that nothing will be done to tackle some older children’s problems accessing child protection services or being safeguarded, but those are functions of a local authority, and the duty applies to local authorities. The examples that I have heard are usually found to relate to functions of local authorities or other bodies, which are all covered. All that the exception covers is the actual environment of the care home or school. I know of no concrete examples so far of any mischief that has arisen from the duty not being in place, so we do not think that we will put it in place—in fact, we are quite sure that we will not.
Lynne Featherstone: I thank the Minister for her response. I think that we have a basic disagreement about the benefits of promoting opportunities for different ages and that we will not see eye to eye. I understand some of her rationale, and I will reflect on what she said. For the time being, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Dr. Harris: I beg to move amendment 298, in schedule 18, page 215, line 41, leave out
‘, race or religion or belief’
and insert ‘, nationality’.
The amendment probes why the language in this part of the schedule is as it is, even if it is historical. The provision deals with exercising of immigration and nationality functions. Clause 143 will have effect as if subsection (1)(b), which I will not discuss further, did not apply to the protected characteristics of age, race, religion or belief.
5.11 pm
Sitting suspended for a Division in the House.
5.25 pm
On resuming—
Dr. Harris: I want to probe this part of schedule 2. The amendment has two functions. The first function is to explore why religion and belief are included in the exemption. Perhaps we might disagree for the same reason that we disagreed on the direct discrimination exemption. The Committee will remember that we had a debate about why one needs to keep out religious extremists. One cannot justify doing so simply on the basis of indirect discrimination, given the views that they express. I do not know whether the inclusion of religion and belief mirrors that, or whether there is another reason, such as rules to do with the immigration of imams and so on. It does not seem logical just to exempt religion and belief, since the immigration authorities would have to have a good reason and justification for taking action against someone whose immigration status is threatened because of a particular manifestation of their religion or belief.
The second function is to ask why the provision applies broadly to race, which includes colour, nationality and ethnic origins, and why it does not simply refer to nationality. One can understand why nationality needs to be exempted from a positive duty, since it is exempted, understandably so, from the discrimination legislation. It seems strange that there should not be a positive duty to ensure that immigration services are provided equally on the grounds of colour, given that people of colour—ethnic minorities—may face difficulties in dealing with the immigration service that other people with immigration issues who are white Australians or Americans are not as likely to face. The onus is on the immigration service to have regard to its need to deal with that, so it would be unfortunate if all references to race were taken out of a positive duty in respect of immigration. I would be grateful for the Minister’s clarification of those two separate points.
The Solicitor-General: We do not believe that the amendment is helpful. Extending the duty to have due regard to the need to advance equality of opportunity on the grounds of race, religion or belief may not always be compatible with the UK Border Agency’s functions to provide effective immigration control that is consistent with Government policy and with public safety.
The Bill will permit the UKBA to differentiate between people on the grounds of ethnic or national origin, or of religion or belief in particular circumstances. Such circumstances do not occur frequently, but, when they do, it might not always be possible to say that due regard had been taken to the need to advance equality of opportunity. We would not want to open up a new avenue of costly and time-consuming challenges against the Government.
For example, the UKBA has a policy of excluding from the country individuals whose so-called religious beliefs are so extreme that it would not be in the public interest for them to enter or remain. We would not want to open ourselves up to a hopeless challenge from a representative of an extremist group who suggested that, by excluding him, the UKBA was in breach of its obligation to have due regard to the need to advance equality of opportunity. None the less, it is important to make it absolutely clear that immigration policies will continue to respect the fundamental religious freedoms that are protected by the Human Rights Act.
The times when the UKBA would want to differentiate on grounds of ethnic or national origin are even more rare, and there has been no ministerial authorisation under section 19D of the Race Relations Act 1976 that would permit differential treatment on those grounds since 2002, but we cannot rule out a crisis abroad occurring at some stage in the future, when we may need to bring certain groups to this country for protection but not others of the same nationality. In such rare emergency situations, it may not be possible to have due regard to the need to advance equality of opportunity.
The exception is not designed to be a blank cheque to permit the immigration authorities to evade their responsibilities. It is there so that, when necessary, they can exercise their essential functions in these respects without the possibility of a challenge, and to ensure that the important new equality duty that we are creating is not misused and brought into disrepute by those who seek to frustrate the immigration system.
5.30 pm
Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): I listened with interest to the Solicitor-General. I do not want to detain the Committee, but I am curious about why we are allowing skin colour, which is part of the race strand, to be a means by which the immigration service may discriminate. The Solicitor-General has not had my experience, but almost every black professional has experience of being singled out by immigration authorities, whether in this country or elsewhere, purely and solely on the grounds of skin colour. When they discover that someone has a British passport or even that they are an elected official, they back off—[Interruption.] Yes, it has happened to me. Black people are singled out because of skin colour. I listened to the Solicitor-General, but she did not explain why the immigration authorities need to be able to discriminate against people on the basis of their skin colour. It causes considerable bad feeling among people who otherwise do not interact with immigration authorities.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 1 July 2009