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Lord Lester of Herne Hill: My Lords, I am grateful to the Minister. I wonder whether he would agree, however, that what I said is correct; namely, that industrial tribunals habitually find that dismissal on grounds of sexual orientation constitutes a substantial reason for rendering the dismissal not unfair and therefore, although he is right in saying that there are theoretical rights available for gay and lesbian employees, those rights in practice are illusory.
Lord Henley: My Lords, I would put it to the noble Lord that he is a much more eminent lawyer than myself. He will understand that it is open to an industrial tribunal in the appropriate circumstances to say whether or not such and such a dismissal is fair. If, for example, an employee had been at a workplace for two years and the employer said, "I am sacking you because I know what your sexual proclivities are--out you go", I think in those circumstances (obviously the noble Lord and I cannot speculate on what the tribunal might decide) it would be open to that tribunal to say that that was unfair because it would be so obviously unreasonable. I do not know of any individual cases, but I think the noble Lord would find that would be the case. I give way to the noble Lord, Lord McCarthy.
Lord McCarthy: My Lords, can the Minister cite one single case where a tribunal has decided that way?
Lord Henley: My Lords, I would obviously be able to address that question if the noble Lord could find a case where such a blatant piece of discrimination had happened, and where the individual employee had had the protection of two years' employment and so on. Obviously in that case that would be a matter I would be prepared to look at. I was explaining what I thought was a point of law. I think it is something that a tribunal could address under the existing legislation as I understand it.
I hope I may go on. In addition, as I was about to say, I would make the point that it is often forgotten that the Sex Discrimination Act does not single out homosexuals as a group who are prohibited from bringing complaints. Complaints of sex discrimination can be made by any individual. The noble Baroness, in promoting this Bill, obviously maintains that legislation is the best way forward, in particular by extending the scope of the Sex Discrimination Act. To reinforce this she relies, as did the noble Lord, Lord Rea, on the evidence of Stonewall, the Less Equal than Others paper, and the Social and Community Planning Research which, if one believes it, suggests that discrimination against homosexuals is endemic. We question whether that is a reliable conclusion. One could just as easily conclude that the findings highlight the diversity of opinion about homosexuals and homosexuality.
Despite what has been said to me about NACAB-- I think my noble kinsman will know what I think about some of the evidence put forward of an anecdotal nature
from NACAB in the past--no new evidence has been presented to support the contention of the noble Baroness that discrimination on grounds of sexual orientation is so widespread as to justify major primary legislation.We then move on to the points raised by the noble Lords, Lord Rea and Lord McCarthy. They pointed to the experience of other countries where homosexuals have protection against discrimination on grounds of sexual orientation. They argued that the United Kingdom is out of step with standards applied elsewhere and that as a result we are less civilised in our approach than, for example, our EU partners and New Zealand, which the noble Lord, Lord Rea, mentioned. To use the very words used by my noble friend Lady Miller last year, I understand that the argument is that standardisation of treatment between countries of different social backgrounds and traditions is a sensible policy objective. I have to say to the noble Lord that I think that is absolute nonsense. Obviously we should respect one another's traditions.
Earl Russell: My Lords, I should be most grateful if the Minister could indicate one place where any of us indicated that standardisation per se was an objective.
Lord Henley: My Lords, I do not think that my noble kinsman listened to me. I referred to what my noble friend Lady Miller said last year. That was quoted to me by the noble Lord, Lord McCarthy. I do not agree with the argument that was put forward last year. I do not believe that standardisation is a necessary policy to pursue.
We believe that we should respect one another's traditions, but we do not believe that there is any necessity slavishly to follow what other countries do. If they wish to give homosexuals protection against employment discrimination that is a matter for them. Her Majesty's Government believe that, subject only to our various international obligations, the United Kingdom should decide for itself whether to legislate in this area. In this area there is no obligation under EC law. Even when M. Jacques Delors was President of the Commission he said that the Community have no powers to intervene in respect of possible discrimination against sexual minorities.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. I agree that he is quite correct in saying that there is no European Community obligation in this area. That is because sex discrimination does not cover sexual orientation discrimination. However, does the Minister agree that the International Covenant on Civil and Political Rights, by which we are bound, contains in Article 2 and Article 26 a clear and unequivocal obligation upon the United Kingdom to introduce the necessary measures to ensure equality and equal protection before the law without any form of discrimination, and that there is a strong argument that we are in breach of that obligation, quite apart from the European human rights convention?
Lord Henley: My Lords, the first point I should like to pick up is that I was addressing the question of
whether the EC and the European Court of Justice had any position. I said the European Court of Justice, if the noble Lord, Lord McCarthy, would listen to me, which I do not think he is capable of doing. The noble Lord, Lord Lester, accepts that I am right on that point. The European Court of Justice would not have a place here.As to the noble Lord's other point, it is arguable what would be the outcome if the matter went to the European Court of Human Rights. Certainly, Her Majesty's Government believe that our case is a sound one, and it is one that we would be prepared to defend robustly in such a court should the matter go so far.
I shall not take any other interventions. I shall move on to the question raised by the noble Lord, Lord Henderson, about homosexuality in the Armed Forces. That is a point that was raised by other noble Lords. I have the greatest respect for the noble Lord, Lord Henderson. He and I are fellow Cumbrians. I first arrived in this House when the noble Lord was Clerk of the Parliaments. I also respect his knowledge of these matters from his wartime experience. I speak as one who had the honour to serve in the Ministry of Defence and has the greatest respect for those who serve in the Armed Forces, the Chiefs of Staff and all in the Ministry who advised us as Ministers. However, the position in relation to the Armed Forces is very different from that in the Civil Service, the diplomatic corps or, dare I say it, anywhere else. It remains our view that homosexuality is incompatible with the special conditions of service life. The conditions of military life, both on operations and in the service environment, are quite different from those in civilian life. To meet the demands of military operations service personnel must work together as a close-knit and effective team. They may be required to live in close physical proximity, often in single sex shared accommodation where personal privacy is extremely limited and to work under conditions of considerable stress. I believe that the need, therefore, for absolute trust and confidence between all ranks is essential.
The policy which was questioned in the courts only last year has been found lawful by both the High Court and the Court of Appeal. It is not the result of a moral judgment but rather of a practical assessment of the effect of homosexuality on military life. I have to say that we will continue robustly to defend that policy.
The Government seriously question whether legislation as suggested by the noble Baroness is always the most effective way to overcome entrenched prejudice. Again I have no qualms about quoting what my noble friend Lady Miller said last year. Protecting the interests of one particular group through legislation would lead,
- "every group, however small, and however narrow or partisan their cause [to conclude] that they, too [were entitled to] specific legal protection".--[Official Report, 14/7/95; col. 2019.]
I believe that this evening we have done justice to the debate on discrimination on grounds of sexual orientation. It has been interesting and informative. Not unexpectedly, the views expressed are much in line with those expressed in what noble Lords had to say last July. However, again I have to say that our position is quite clear. We deplore unjustified discrimination. We will continue to send out the message that it is morally unacceptable, uneconomic and inefficient. Homosexuals will be treated differently only when each individual overcomes his or her prejudice and treats others with due respect. Specific legislation to outlaw such discrimination is not the best way to make a change, nor, given prevailing public opinion, would it command the degree of public support necessary to be acceptable.
I will not, in the usual manner, oppose the Second Reading of the Bill, but Her Majesty's Government cannot give their support to it.
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