Mr.
Boswell: The Solicitor-General has just used an
interesting phrase, which I think makes the point that I am going to
make. She was talking about discrimination being driven out of the
health service. I did not want to interrupt her on account of the
timetable, and I accept her explanation of why it will take some time.
However, it is worth remarking to the Committee that whereas, as she
has rightly said, age discrimination is good in certain contexts and
bad in others, in my dealings with Age Concern and Help the Aged and
with the interests of older people, it would be seen almost universally
as a negative in the health service. In that area, although the issues
are complex and sometimes expensive, it is very important that public
policy moves
on.
The
Solicitor-General: I agree that it is very important that
policy moves on. Just because I cannot give a definite date by which we
can say, “It’s gone” does not mean that we are not
starting now. Obviously the inquiry in the south-west is intended to be
painstaking and careful and is designed to look at where the problems
are, with a view to being able to drive them out more systematically.
Even though the date for the ban coming into force is 2012, that does
not mean that we are not starting. Public authorities are concerned to
drive age discrimination right out from now. We hope that in business,
too, the consultation process can throw light where light needs to be
thrown. It may be that there is discrimination going on now that no one
intends and that has no real purpose. We would hope that, even before
the legislation comes into force, merely throwing light on its presence
might help to persuade business to drive it out, again on the ethical
model of how consumerism works these days, rather as I cited when we
were talking about gender pay—they would want to look better for
discriminating
purchasers. The
discussion was interesting. I hope that I have been able to give the
hon. Gentleman the answer to his new questions, which were slightly
different from the ones posited in the amendment. If I have not, I am
sure that he will tell
me.
John
Penrose: I am happy to say that the Minister has, and on
that basis I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Lynne
Featherstone (Hornsey and Wood Green) (LD): I beg to move
amendment 206, in clause 190, page 135, line 23, at end
add— ‘(5) All orders under
this section shall be made within six months of Royal
Assent.’. The
purpose of this amendment would be to limit the time available to
Ministers of the Crown to make orders detailing the exemptions to the
general principle of non-discrimination on the basis of age in the
provision of goods, facilities and services.
We have
touched on some of the issues that I am about to raise. The problem is
that although I can see exactly what the Government are trying to do,
that does not necessarily assuage the fears of older people that,
should the strong powers be unlimited in terms of time, if the
amendment does not pass then it is possible that some of the good
things intended in the Bill will never come to pass. Governments of a
different hue might put off the implementation of this brave and
welcome step by the Government to end health discrimination in terms of
age. The
fear is that any Minister at a future date could come to Parliament and
ask for an exemption to the general and very good rule on
non-discrimination on the basis of age. The problem with that is that,
whatever the current hue, the Opposition are unlikely to be able to
challenge the Government successfully, meaning that an order would
pass. Clarity on the timing is not yet there, although the Government
have gone a long way with their consultation paper in trying to
reassure older people. I seem to be representing the fears of older
people—Age Concern supplied the briefing and thinking behind
this measure—as opposed to the business community and the
arguments that we heard regarding the first amendment to the clause.
Older people are fearful about the sort of discrimination that they
have suffered from—as the Solicitor-General said, there have
been 750 representations from that one sector. They are right to be
concerned and they fear that without a commencement date, that
discrimination will be brought back in through the back door, and this
might all have been for naught.
3
pm I
hope that the Solicitor-General will clarify how the provision could be
used for some of the issues that might warrant exemption, as it is hard
to think of a legitimate aim other than that of saving
money—that is the big elephant in the room, particularly
regarding health. There are already powers in the Bill that allow
justifications and exemptions to the general provision of
non-discrimination on the grounds of age. Clause 13(2) says
that direct age discrimination could be justified if it
is “a
proportionate means of achieving a legitimate
aim”. I
should have thought that that covered many of those cases that, as the
hon. Member for Weston-super-Mare said, are good age discrimination
rather than bad. Clause 153 allows for more favourable treatment
relating to age that increases participation, where that more
favourable treatment is proportionate—again, that is good age
discrimination.
It is obvious
why we tabled the amendment. The first use of such a power would have
to take place within a reasonable period of time from the commencement
of the Bill, and we thought that six months was reasonable. In effect,
that would be a commencement date.
How can the
Solicitor-General reassure older people about ending discrimination?
People can come to Parliament and lobby me—and hon. Members from
all sides, I am sure—whether that is about insurance or health
provision. I hope to be able to reassure older people that their fears
are unwarranted and I look forward to the Solicitor-General’s
response.
The
Solicitor-General: With great respect to the hon. Lady, we
will not be relying on her to reassure people at all. We regularly meet
Age Concern and the age lobby. I think that they are on our stakeholder
body for this matter and have been closely involved. I have met them at
least twice during my involvement with the
Bill.
Lynne
Featherstone: I know how closely the Government have been
working with all the older groups. They have listened carefully to
those groups and have taken the brave and bold step of bringing age
into the anti-discrimination law. Nevertheless, I would be remiss if I
did not raise the sort of concerns that remain outstanding among that
body.
The
Solicitor-General: I am not being in the slightest bit
critical. The hon. Lady was saying that she would reassure those
people, and I wanted to make the point that they are in pretty
permanent communication with us already, and we will seek to reassure
them. She makes the all-conquering point that what she calls a
“brave and bold step” has been taken. There is the
political will to stamp out age discrimination, but we must not do
haste at the cost of accuracy. It would not suit Age Concern either if
we did that. Therefore, I have set out the
timetable. The
hon. Lady’s timetable is, frankly, unrealistic, and I invite her
to consider that since we have made this step and declared our
political will to ensure that the measure is passed, age bodies can be
reassured. If it was said that we could only ever regulate once within
six months of Royal Assent—we may need to amend things later
anyway—that would be a foolish amendment for me to accept. She
will have to be satisfied—the age bodies probably
are—with our clear declaration that we will make this happen as
quickly as we can.
Lynne
Featherstone: I thank the Minister. The intention and
political will are there, but we fear that the same political will may
not always be driving the measure. That is what lies behind my
amendment.
Mr.
Harper: My hon. Friend the Member for Weston-super-Mare
made it clear that we support the principle of eliminating age
discrimination. We welcome the approach that the Government have taken
in the consultation document. The timetable that the Minister has laid
out is sensible. The important thing is that she has made it clear that
the commencement of the outlawing of the discrimination is tied with
the exemption, so that both of those come into force at the same time.
That is reassuring, not only to businesses but to those who will
benefit from those exceptions. I see nothing that would stop any other
Government from following a similar
programme.
Lynne
Featherstone: It is heartening if a member of the
Conservative party is saying that there will be no resiling from
anything, and that they will support the measure regardless of whether
there is a change of Government. Is that what the hon. Gentleman is
saying?
Mr.
Harper: Yes. The Minister’s timetable is sensible:
it allows proper consultation. The danger with the hon. Lady’s
amendment is that it is rather tied and does not
allow for that proper consultation to take place. The timetable outlined
is a workable, sensible one, and will give us a proper
chance—both outside this place and within it—to consult
and debate the detail, which is eminently
achievable.
Lynne
Featherstone: My anxiety was that such a proposal might
never come to fruition, but both sides of the House have reassured me
about that. I am therefore happy to take the Minister’s
reassurance, and I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 190
ordered to stand part of the
Bill.
Clause
191Harmonisation Amendment
proposed: 31, in clause 191, page 136, line 4, leave out
‘thinks’ and insert ‘can
demonstrate’.—(Mr.
Harper.) Question
put, That the amendment be
made. The
Committee divided: Ayes 8, Noes
10.
Division
No.
6] Foster,
Michael Jabez (Hastings and
Rye)Question
accordingly negatived.
Question
proposed, That the clause stand part of the
Bill.
Mr.
Harper: Briefly, I
hope— [Interruption.]
Mr.
Harper: Thank you, Mr. Benton. I hope that all
members of the Committee can remember what the amendment is
about—it seems so long since we debated it. I listened carefully
to the Minister’s response when we were debating the
matter—she characterised it as thinking in a public law kind of
way, I think. I still thought that it was worth pressing the matter to
a vote, but given that we now have the clause as it is, I shall
cogitate on some further amendments to table on Report to put some
controls on how the Minister uses the power. On that basis, I am
comfortable to leave the clause as it
is. Question
put and agreed to.
Clause 191
accordingly ordered to stand part of the
Bill. Schedule
24 agreed to.
Clause
192Crown
application Question
proposed, That the clause stand part of the
Bill.
Mr.
Boswell: Briefly, the clause relates to Crown immunity. I
simply wanted to invite the Solicitor-General to take note of certain
concerns. While there has been a welcome practice in recent years under
different Governments of gradually extending the range of the
application of the law and minimising the amount of Crown immunity or
exceptions, some areas remain. In the Bill, they include bits that were
in the clauses debated, such as security services. I think there are
good reasons for doing that.
All I would
like is for Ministers, individually and collectively, not to stand pat
on what is excepted for ever, if it ceased to be appropriate to except
it. Moreover, I would like them to encourage their colleagues who
administer those services with necessary exceptions, to, wherever
possible, act in a way that is consistent and congruent with the Bill,
notwithstanding their exceptional status. That should apply to, for
example, the employment rights of people in the security services, as
the Minister knows. I would comment on its—possibly negatively,
in relation to the Conservative Government of the day—being a
matter of great controversy in relation to GCHQ. I am just saying that
as far as possible—that is for Ministers to judge, and we must
leave some judgments for them—we should have things in the open.
Where we cannot, and there are good reasons for that, the Government,
as the employer and otherwise, should, if humanly possible, act within
the spirit of the legislation, even if they are exempted by
statute.
The
Solicitor-General: The hon. Gentleman makes a fine point.
In so far as I am concerned, that is how the Government will proceed,
and I hope that the rest of the Government will
agree. Question
put and agreed to.
Clause 192
accordingly ordered to stand part of the Bill.
Clause
193 ordered to stand part of the Bill.
Schedule
25 agreed
to. Clause
194 ordered to stand part of the
Bill.
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