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 18Public
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.
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