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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