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Mr. Harper: The amendments relate to whether the Bill will affect those involved in broadcasting. Committee members will have had a brief from the BBC, Channel 4 and S4C outlining their concerns about whether they will be caught under the Bill’s provisions. They have made it clear that they are committed to equality of opportunity and diversity and they recognise that, despite the progress they have made, they need to do more. They also mention the diversity pledge they have made, which is a commitment by broadcasters, independent production companies, in-house producers and suppliers to introduce measurable steps to improve diversity.
BBC, Channel 4 and S4C have said that the Bill aims to streamline the law and strengthen equality legislation, that it talks about the public sector equality duty and that it is about the positive duty to promote equality, which will apply to all their functions, unless some are specifically excluded. They are concerned that the Bill will result in inappropriate interference with their editorial independence, thereby having a negative effect on the range and depth of their programming—from news and current affairs to drama—and limiting their ability to make challenging content. They have made it clear to Government that functions relating to the commissioning, content and broadcasting of programmes and other output should be excluded from the positive duty to promote equality and from the non-discrimination provisions.
Broadly speaking, that is what amendments 192 and 193 would do—at least, I think so. Amendment 192 would amend schedule 18, adding to the list of persons exempted from the public sector equality duty those
“involved in the commissioning, content and broadcast of programmes.”
Amendment 193 would amend the same schedule, adding to the list of functions that are exempted from that duty
“a function in connection with the commissioning, content and broadcast of programmes.”
The three broadcasting organisations have explained why this issue matters. They think that if the Bill applied to their content, they would effectively have complaints brought against their programming via the EHRC. That would create for them what they call double jeopardy, because they think those issues are already dealt with by existing broadcasting regulators: Ofcom and the BBC Trust.
The broadcasting organisations suggested two main types of action that might be brought: an action by a member of the audience who objects to a particular aspect of output as discriminatory; or an action by a person who has a closer relationship with the broadcaster—for example, a participant in a show, the subject of a documentary or an interviewee. Examples they have given in the brief include a claim of race discrimination on the basis that, over a period of time, their dramas featured too few non-white people; a claim that they were showing a film that was thought offensive to a particular group; a claim of sex discrimination on the basis that a programme was degrading to women; and a claim of indirect discrimination, in that output generally contained a disproportionate amount of material offensive to a religious group. They said that some of those complaints would not succeed, but even so, just dealing with them would have an impact on time and resources. They also said that it would have an inevitable chilling effect on the creative process.
The broadcasting organisations made the point that if people do not like the content of their programmes, they can already complain via Ofcom or the BBC Trust, and that in the Communications Act 2003 Parliament decided that the process involving Ofcom or the BBC Trust was best placed to supervise and make judgments about programme content and balance. The organisations want the Government to make it clear that they do not intend that functions relating to the commissioning, content and broadcasting of programmes and other output should be covered by the Bill’s proposed duty to promote equality or its non-discrimination provisions.
I asked the Secretary of State for Culture, Media and Sport what
“discussions he has had with the Minister for Women and Equality on the likely effects of the provisions of the Equality Bill on the commissioning, content and broadcast of television and radio programmes.”
In a written answer that I received on 9 June, he replied:
“Officials from my Department and from the Government Equalities Office have had detailed discussions about any effect that the Equality Bill may have on the commissioning, content and broadcast of television and radio programmes. The Government policy is that the new equality duty should not apply to the commissioning, content and broadcast of programmes.”—[Official Report, 9 June 2009; Vol. 493, c. 824-5W.]
From my point of view, that is a helpful answer. That may be what the Government intend, but I reread the Bill and the schedule, having received that assurance, and I am not entirely clear that the Bill does what Government policy wants it to do. Given that the Secretary of State has set out what Government policy is, is the Minister comfortable that the clause and schedule as drafted adequately deliver that intention? Alternatively, can the Bill be improved, either by my two amendments—accepting that they themselves may be improved—or by tabling alternative Government amendments on Report to ensure that the Bill delivers that policy intention? That is what I am looking for from the Minister.
Mr. Boswell: I rise briefly in support of my hon. Friend. It is appropriate to remind the Committee that I am a vice-chairman of the all-party BBC group, although that is not material to the comments I shall make.
I want to begin by reinforcing what has already been said. Of course, the BBC, to some extent exceptionally among public service broadcasters, is in effect a taxation authority, through its operation of the licence fee, for a very substantial sum—just under £3 billion annually. Indeed, in our earlier exchanges about Ministers exercising quasi-judicial functions and the Solicitor-General’s assurance that the Government thought they had covered the coterie of potential prosecutors, I was almost tempted to say that the BBC prosecutes for failures to pay the licence fee. It is the nearest to a public sector body that might have been covered by the discussion. Without commenting further, she might reflect on that before she responds. There is no doubt that the BBC, unless and until the arrangements for public service broadcasting are changed—they are controversial, as she will know—has a public function.
My second point—occasionally people can wax lyrical and seek to extend protection into areas where it is not appropriate—is that the BBC is an employer. Many of the functions it discharges are, as I understand it, quite properly within the remit of the Bill. I see the Solicitor-General nodding. I do not have a problem with that, and I understand that the BBC also does not have a problem with it. However, the point that my hon. Friend rightly homed in on—the integrity of editorial independence—is serious because clearly, nobody wants to claim that their editorial independence has been subverted, and provisions are already in place for regulation and receiving complaints. I cannot see a strong case for seeking to intervene in such things through the Bill when provision is made elsewhere.
None of that is to say, and nobody is saying, that the BBC and other media or public service broadcasters are walking away from the discrimination pledge. If I recall correctly, I was there when Mark Thompson, who was then leading Channel 4 rather than the BBC, led on the pledge. It is quite right that we should have it. The issue is simply the form in which any disputes are resolved, and I think my hon. Friend has performed a service to the Committee in the researches he has done, and by receiving assurances from the Department for Culture, Media and Sport. I hope that he will receive assurances from the Solicitor-General now.
The Solicitor-General: Our intention is exactly as set out by the Secretary of State for Culture, Media and Sport. We have also written to the director general of the BBC, but let me again make it crystal clear that we have no intention of encroaching on the independence of public service broadcasters. The duty will not apply to the broadcasting and output functions of the public sector—public service broadcasters, whose editorial independence we are committed to retaining.
We will therefore list the BBC, Channel 4 and S4C in schedule 19 when we amend it to put the rest of the list in. When we do so, we will explicitly exclude their broadcast and output functions, which will make the situation clear beyond peradventure. As was said, they need to be in schedule 19 because they have other functions that it is entirely appropriate to cover by the equality duty.
Mr. Harper: I am grateful to the Minister—that is what I was seeking. She rightly says that the broadcasters do not resile from the fact that the duty should apply to other aspects of their role, such as employment. That is why the amendment was focused specifically on “commissioning, content and broadcast”. Given her assurance about what the Government are going to do to make it explicit that the duty applies to broadcasters in general but not to those particular functions, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 pm
Mr. Harper: I beg to move amendment 278, in schedule 18, page 216, line 34, at end insert—
‘(aa) a function in connection with membership of the House of Commons;’.
I hope to make some remarks that might have been included in a stand part debate and to address the exclusion of the House of Commons from the public sector equality duty. My probing amendment would provide a safeguard. It allows me to raise the exclusion of a Member of Parliament who has been sectioned from membership of the House of Commons under section 141 of the Mental Health Act 1983. I tabled a new clause on the matter, but I will not dwell on that because it was not selected for debate.
I want to consider what would happen if the public sector equality duty was applied to membership of the House of Commons. It states that bodies should eliminate discrimination and “advance equality of opportunity” between persons who share a relevant protected characteristic and persons who do not. In relation to membership of the House of Commons, that would mean that Members of Parliament who had mental health problems should be treated in the same way as those who had a physical medical condition, but that simply is not the case at the moment.
If a Member of Parliament has a physical problem that prevents them from carrying out their duties, such as suffering severely from cancer, there is no legal way of excluding them from membership of this House. By and large, satisfactory arrangements have been put in place when Members have been physically unable to participate in their duties, such as Members from neighbouring constituencies taking up constituents’ cases and tabling questions, and their membership of this House has continued. However, the seat of a Member of Parliament who has a mental health problem can be vacated under section 141 of the 1983 Act if they are sectioned for a six-month period and a report is laid before the House. If the public sector equality duty applied to the membership of the House, that would not be allowed to stand.
I think that the Minister was in the Chamber when I raised this issue during last week’s Prime Minister’s Question Time. I mentioned that Alastair Campbell had talked about the specific issue when giving evidence to the Speaker’s Conference on parliamentary representation, which is considering how to make Parliament more representative and diverse. He has great experience of dealing with this issue and he stated that this would be a clear way of changing the law. What he said fits well with the public sector equality duty.
When I asked the Prime Minister whether he would change the provision in the 1983 Act, he said:
“Mental health is a serious problem and we should look at it with great care before we make any decisions, but of course I will look at what the hon. Gentleman says. I think he will understand that it needs the greatest of care.”—[Official Report, 24 June 2009; Vol. 494, c. 793.]
It certainly does. Will the Minister commit to consider this issue with a view to returning to it, preferably with amendments, on Report? It would be better if we dealt with this matter in the House of Commons because that is the body that is affected. However, it would be better to do it in the House of Lords than not do it at all.
The reasons behind the proposal are straightforward. I have never been one for reading out great chunks of “Erskine May” and I will not start now, but I will read a small section:
“Mental illness is a disqualification at common law. There is also, under section 141 of the Mental Health Act 1983...a statutory procedure for vacating the seat of a sitting Member of unsound mind.”
That relates only to those of unsound mind. It does not mention those who are physically ill, and that is the discriminatory nature of the current law. Given the way in which the process works, there is not even a requirement for somebody to assess whether the Member of Parliament is capable of doing their job. If an MP has been authorised to be detained, the Speaker would be notified. If, after six months, the specialists report that the MP is suffering from mental illness, and they are authorised to be detained again, their seat automatically becomes vacant. That seems to be discriminatory, and a number of organisations agree. The Royal College of Psychiatrists thinks that it is a discriminatory provision that gives the false impression that an MP cannot recover from a mental disorder. It also makes the point, which was raised by Alastair Campbell, that the provision has never been used. Nevertheless, it stated that it was
“a totemic piece of law, which ensures that discrimination exists at the heart of our democracy”
and it would like it to be removed.
What would happen if the public sector equality duty applied to the House of Commons specifically with regard to membership? If we think back to one of the previous clauses, we specifically tackled legislation that applied to political candidates, and there are provisions in the Bill for widening the diversity of candidates with regard to gender. If the Bill as a whole were applied to disability, and mental health specifically, that provision would have to go.
The Royal College of Psychiatrists welcomed the fact that I raised that issue last week during Prime Minister’s questions. It said that my amendment to the Equality Bill presented a
“significant opportunity for MPs to demonstrate to the outside world that discrimination against mental health has no place in parliament.”
As I have said, this is a probing amendment and I would like the Minister to take it away, look at it and come back, perhaps with a more elegantly drafted solution. Rethink, a mental health charity, pointed out that there is no such provision for physical illnesses. It said that mental illnesses and physical illnesses were both common and that people could recover from them and lead a full and meaningful life, and so should be treated in exactly the same way. Rethink supports a move to change the law and RADAR, the disability organisation, has welcomed the raising of this issue, as well as the change that would be implemented. There is a clear support for the proposal.
The final piece of evidence that I wish to cite comes from a report on mental health in Parliament carried out by the all-party parliamentary group on mental health. It was based on responses to a questionnaire that was sent out in February 2008 to all MPs in the Commons, all eligible Members of the Lords, and staff members. There were responses from 94 Members of Parliament, 100 Peers and 151 staff members—a pretty good response rate—and there were very clear findings. Of those who responded, 94 per cent. had friends or family who had experienced a mental health problem. That number was significantly higher than that found from a similar poll of the general public. One in five MPs who responded—they did not need to identify themselves—had some personal experience of a mental health problem, and two thirds thought that the fact that an MP would automatically lose their seat if sectioned under the Mental Health Act was wrong.
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