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Lord Wedderburn of Charlton: I am grateful to all those who have taken part in the debate. I appreciate that I did not deal separately with each amendment. I wish to reply to the discussion with three points. First, I would say to my noble friend Lord Borrie, "By all means choose words different from ours". The only difference between us is the state of the evidence, as it were, of what the employee is doing. Surely he would join us, and persuade the Minister to join us, in so framing the Bill as to prevent a manager from imposing a detriment or even effecting a dismissal before the employee has completed the acts which are necessary for his disclosure, albeit that it is down to everyone, or only to the two of them, that he has the intention and wish, or even made the attempt, to go a little way but has not yet fallen within one of those areas of dense prose in new Sections 43C and 43H. That is the challenge before us. I appreciate that my noble friend will really say, "If you find someone who is doing that kind of thing, either he is protected or he ought to be protected".

I make my second point to the Minister. Will he stir the stumps of his department to look out for him the judgment in Mennell v. Newell and Wright, as the argument he put forward is, by analogy at least to that judgment, exactly the argument which lost in that case? I never understand why people whose arguments have lost in a case do not take the advantage of being in the legislature to get their own way, as it were, and overrule the courts.

Thirdly, I agree with my noble friend Lord Borrie about "worker" and "employee". "Employee" is substituted in the relevant legislation where it is inserting something. The noble Earl, Lord Balfour, mentioned that. I hope that on reflection my noble friend can support our amendments. Given the time, I have in mind an occasion, which I have cited in writing elsewhere, on which Mr. Balfour, as he was then, in 1906 complained that Sir Charles Dilke and others, but Sir Charles Dilke especially, the grandmaster of trade union law at that time, were going on too long at four o'clock on a Friday afternoon in August. I do not wish to be the reason for that to happen. Therefore, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

Clause 2 agreed to.

Clause 3 [Complaints to employment tribunal]:

[Amendment No. 6 not moved.]

Clause 3 agreed to.

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Clause 4 [Limit on amount of compensation]:

Baroness Miller of Hendon moved Amendment No. 7:

Page 7, leave out lines 10 to 12 and insert--
("there shall be no limit on the amount of compensation that may be awarded by the tribunal."").

The noble Baroness said: Like the noble Lord, Lord Wedderburn, and the noble and learned Lord, Lord Nolan, I too, was unable to be here at Second Reading. But I and other noble Lords are aware that this Bill received considerable support from all sides in the other place, as well as in your Lordships' House where, unlike in the other place, it received a formal Second Reading debate. Indeed, Clause 4, with which this present amendment is concerned, was also not debated in Committee there.

The subject of the capping of compensation for wrongful discrimination caused concern on all sides of your Lordships' House during the debate on the Second Reading. It was expressed by the noble Baroness, Lady Turner of Camden, when she cited the difficult case of Maxwell v. BICC. It was expressed again by the noble Baroness, Lady Dean of Thornton-le-Fylde. Both were supported by my noble and learned friend Lord Fraser of Carmyllie. The noble Lord, Lord Haskel, said that the Government shared some of our concerns.

There is some inconsistency in the approach to this problem. Since the Government have said that they support this Bill, it is as much their responsibility as that of the noble Lord, Lord Borrie, to correct that inconsistency. As drafted, the Bill limits compensation to the amount payable under the employment rights Bill.

But this Bill is at least as much about sexual discrimination as it is about other cases of unfair dismissal or improper discrimination. In the Race Relations (Remedies) Act 1994, which I had the privilege of conducting through your Lordships' House, I pointed out the need for consistency between compensation for sexual discrimination and racial discrimination.

In the case of Marshall v. Southampton and South West Health Authority, the European Court of Justice ruled that a limit on the amount of compensation payable in sex discrimination cases is incompatible with Community law. As a result of that decision, the Sex Discrimination Act was amended by secondary legislation and the Race Relations Act was amended by the remedies Bill I have just mentioned.

There is a second inconsistency. The Government have just published their White Paper Fairness at Work. On page 16, paragraph 3.6 the Government announced,

    "The Government intends to abolish the maximum limit on awards for wrongful dismissal".

So important did the Government regard this announcement that they printed it in bold type. I cannot understand why, if the law is to be changed in any case, the Government cannot anticipate that change by carrying it into effect as regards the subject matter of this present Bill.

This is a probing amendment, and we on this side of the Committee and, I suspect other Members on both sides of the Committee, will be glad to learn of the

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views of the noble Lord, Lord Borrie, on this matter and no less important, those of the Government. I beg to move.

Lord Haskel: The noble Baroness is quite right that we featured her point in the Fairness at Work White Paper. Perhaps it would be helpful if I explain what is proposed on compensation in the White Paper.

The first point to make is that the Government have proposed, in the Fairness at Work White Paper, to remove the limit on compensation for unfair dismissal cases, which currently stands at £12,000. The existence of this limit means that some individuals may not be properly compensated for their losses. That point was made by the noble Baroness, Lady Turner, and others at Second Reading. We believe the removal of the maximum limit will help ensure that all workers are properly compensated. I am sure that all noble Lords will welcome that proposal.

The White Paper also invites views on removing limits on special awards under Section 125 of the 1996 Act. It is the Government's suggestion that compensation under the Bill should be based on special awards, which already involve a higher level of compensation. The White Paper acknowledges that limits may deter some people from exercising their legitimate rights, which I believe, is one of the points the noble Baroness is making.

These proposals would make the amendment unnecessary, since both the compensation for detriment under this provision and the compensation for unfair dismissal which it must not exceed will be based on the individual's loss and will not be limited. I believe that that deals with the point raised by the noble Baroness about sexual discrimination.

Perhaps I may make clear at this point a misconception which may arise about the Bill. Although we have talked about the Bill affording protection to workers and encouraging a greater degree of co-operation and openness between employers and workers, the Bill also affords protection to all people working in companies, from shopfloor to director level. I know that that approach has been welcomed by all sides.

Lord Borrie: We are glad that the noble Baroness, Lady Miller of Hendon, has raised this matter. It enables me to remind the Committee that when the Bill was going through another place a consultation was undertaken in which 85 per cent. of those consulted, including all the key bodies such as the CBI, the TUC and the professions, agreed that there should be no ceiling on the limit of compensation. One is delighted that the Fairness at Work White Paper has indicated the Government's proposals, as outlined by my noble friend Lord Haskel, and that they take full account of the responses of interested parties.

I welcome this proposal for two reasons. First, compensation for one's loss will reassure many relatively well paid workers that they are adequately protected. As such, it will help to ensure that the Bill's

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potential as a check on malpractice will apply in all kinds of workplaces, whether in the industrial belts or the City of London.

Secondly, if the guarantee of a special award of at least £17,000 is removed, one can welcome the fact that there will be no risk that people will look for a whistle to blow. I hope that the noble Baroness will withdraw her amendment in the light of what my noble friend said.

Baroness Miller of Hendon: I thank the noble Lords, Lord Borrie and Lord Haskel, for their helpful remarks, in the light of which I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Unfair dismissal]:

[Amendment No. 8 not moved.]

Clause 5 agreed to.

Clauses 6 to 18 agreed to.

House resumed: Bill reported without amendment.

Sexual Orientation Discrimination Bill [H.L.]

2.33 p.m.

Baroness Turner of Camden: My Lords, I beg to move that this Bill be now read a second time.

This is my third attempt to introduce a Private Member's Bill to outlaw discrimination on the ground of sexual orientation, and to do so by extending the scope of the Sex Discrimination Act. In 1995 I failed because time was not available. In 1996 your Lordships adopted the Bill, but it failed to make progress in the other place. I hope that this will be third time lucky. Because of my background and interest I am most concerned about discrimination in employment, but this time the Bill goes a little further and covers the provision of goods and services and some other matters that I shall deal with later.

It is not always understood by the otherwise well-informed that the law as it stands does not afford any protection against discrimination in employment and other areas to homosexual men and lesbians. It is not unlawful to refuse to appoint people, to treat them less favourably, perhaps by demoting them, to pay them less or to dismiss them because they are gay or lesbian. Nor is harassing them or allowing other employees to harass them unlawful. As the law stands at the moment, these things happen to gays and lesbians and there is no remedy for them in law.

It may be argued that the situation has changed, that in today's world such events do not occur, that there is now greater tolerance, that there are well known role models and that in any event behaviour cannot be changed, bad though it may be in some cases, by legislating against it. Research shows that discrimination takes place and that it is a common experience. A report

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published by Stonewall indicates that 48 per cent. of its respondents have been harassed at work; 49 per cent. believe that they have to conceal their sexuality from those with whom they work; and 16 per cent. have faced actual discrimination at work. A survey by Social and Community Planning research confirms these findings. One in three heterosexuals said in a survey that they would be less likely to hire job applicants if they knew them to be gay or lesbian.

We are talking about ordinary people in ordinary jobs. Role models, important though they are--I commend them for the assistance that many have given to the cause of gay and lesbian protection--are often in the kind of professions where there is an acceptance of the right of people to live their private lives as they choose. One has in mind particularly the theatre, the entertainment profession, the arts and--perhaps one can now say--politics. But the research undertaken by Stonewall is about very ordinary people doing ordinary jobs in offices, shops and factories. I have the results of some of that research. I refer to the case of a bartender who had been in that employment for two years. There was never any complaint about his work until a woman colleague asked him out and he refused. When she saw him with his male partner she wrote to the manager to complain about his being gay and therefore, in her view, a possible AIDS risk. He was dismissed. That was five years ago. He has been fighting his case through the courts ever since. The difficulty is that dismissal because of sexual orientation is not unlawful.

Next is the case of a man who worked as a cashier for five years. His supervisor found out by accident that he was gay. From then on he was constantly picked on even though before that there had been no complaint against him. He was later dismissed. He found another job only to be dismissed from that when an adverse reference was received from his previous employer. There is also the case of a nursing auxiliary who worked with disabled people for 15 years until he was recently dismissed. There were no complaints about his performance for the first 11 years but his problems began with the appointment of a new manager who made homophobic remarks and made a point of telling others that he was gay. False allegations were made against that employee and he was dismissed. He is now awaiting the results of an internal appeal. There are also very well documented cases of harassment and violence against individuals when their sexual orientation becomes known.

There is little doubt that there are strains of homophobia in our society and some of it is extremely vindictive. It may be argued that little can be done about behaviour but I disagree. For many years women endured inequality not only in pay but in treatment generally. Legislation, and women's willingness to use it, has changed all that dramatically. Although there are still problems they are nothing like those of 20 or 30 years ago. Remedies are available. Legislation has a powerful effect. Generally speaking, we are a law-abiding nation. If one tells a person that what he is doing is against the law he will pause to think. The chances are that he will stop it. Surely, it is unpleasant

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and unacceptable that individuals who carry out their duties at work quite properly should be subjected to bullying and harassment and have no remedy.

An increasing number of employers are now including sexual orientation in their equal opportunities policies. Most public sector employers have done so. I have here a list of leading employers who have now done so voluntarily. They include household names like Barclays Bank, Abbey National, Marks & Spencer, Boots, Glaxo Wellcome, Littlewoods, Sainsbury's, Shell and many others. They are good employers, but you do not need legislation to compel good employers to do the right thing. We have to make sure that others follow their good example and the way to do that is to give people similar protection in regard to sexual orientation, as already exists concerning gender and race discrimination.

My Bill also covers the provision of goods and services. Again, it is not unlawful to discriminate against lesbian women and gay men by refusing to supply goods and services to them. Stonewall has had reports of hotels refusing bookings. One hotel owner told a local paper, and I quote:

    "Everyone runs their business their way and I run the hotel the way I see fit. If it is made illegal, I would have to respect the law, but at the moment I can do as I like".

I should like finally to refer briefly to precisely what my Bill covers. Clause 1 inserts a new clause into the Sex Discrimination Act to make it unlawful to discriminate on the grounds of sexual orientation in any of the fields to which that Act applies: that is, employment, education, the provision of goods, facilities, services or premises. Clause 2 deals with interpretation and that defines sexual orientation by adopting the definition used in the New Zealand Human Rights Act, as meaning a person's heterosexual, homosexual, lesbian or bisexual orientation.

Clause 3 ensures that the provisions relating to sexual orientation discrimination do not apply to organised religions. This follows the exemption that already exists in the Sex Discrimination Act. Any decision to changes the Church's policy, or any religion's policy for that matter, would have to come within the Church itself rather than from Parliament. It is not covered by this Bill.

Clause 4 provides that local education authorities are under a duty not to discriminate on grounds of sexual orientation in carrying out their functions. Clause 5 amends the Sexual Discrimination Act so that the Equal Opportunities Commission can bring proceedings in respect of discriminatory practices resulting in unlawful discrimination on grounds of sexual orientation, as it can now in respect of sex discrimination and discrimination against married persons.

Clause 6 extends exemption for charities conferring benefits on persons of one sex only to charities conferring benefits on certain sexual orientations only where this restriction on their work is contained in a charitable instrument. Clause 7 covers sexual discrimination in terms and conditions of employment. I should perhaps point out that this would not cover pensions, because the Equal Pay Act does not do so. It

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is possible that in order to do this an amendment is required to the Pensions Act 1995. I personally would be in favour of that, but that is another argument and it is not covered by this Bill. Finally, the Bill does not apply to Northern Ireland because the Sex Discrimination Act does not apply directly to Northern Ireland. An order in council would be required to extend it.

This is a simple Bill, designed to protect vulnerable people. One can only imagine the stress that discrimination causes to many people who simply want to live quietly and unobtrusively and to get on with their lives. It is now illegal to discriminate on grounds of sex, race or, in Northern Ireland, on religion or political belief. It is also, with some qualifications, unlawful to discriminate against people with disabilities, yet discrimination in relation to sexual orientation remains perfectly legal.

I recently received a letter when it became known that I was intending to introduce this Bill again. I will quote from the letter:

    "I am writing to urge you to encourage and persuade fellow Labour Members and other Members to press the Minister not to let the Bill you are presenting fall by the wayside again. How long do gay men have to wait before there is a start to undo 100 years of bigotry, persecution and injustice? ... "

Before I sit down I should perhaps make it clear that this Bill has nothing to do with the argument about the age of consent. That is a different issue which is being currently debated in the other place, and no doubt we shall have the opportunity of dealing with that in due course. Furthermore, as regards the Armed Forces, my advice is that if those were to be included, it would have to be stated in terms in the Bill, and it is not. Again, I believe that it is a matter which has to be debated in another place.

As I said earlier, this is a simple Bill designed to remove continuing injustices in the field of employment and in other fields. I commend it to the House. I beg to move.

Moved, That the Bill be now read a second time.--(Baroness Turner of Camden.)

2.40 p.m.

Earl Attlee: My Lords, I am grateful to the noble Baroness, Lady Turner, for the careful way in which she explained the purposes of her Bill. Ever since I began attending your Lordships' House five years ago, the noble Baroness has been pre-eminent, both on the Opposition Front Bench and now when she raises important issues from the Back Benches.

If any noble Lord is tempted to divide the House, I shall be inclined to vote Content, or at least to abstain, not in support of the principles of the Bill but rather following the conventions of the House. It is well known that an intention to divide the House should be foreshadowed by a suitable amendment to a Motion on the Order Paper.

I have an interest to declare since I command a REME recovery company in the Territorial Army. It is possible that the Bill may adversely affect the TA and the Regular Army. I have not yet checked the 1975 Act.

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It may be that the services enjoy some exemptions. The noble Baroness covered that point. However, it may be necessary to consider suitable amendments to ensure that the status quo does not change as regards the services. It may affect recruiting. Parliament and this House would then be able to address this thorny issue at the next quinquennial review of the Service Discipline Acts in a few years' time.

In a masochistic way, I slightly regretted that no noble Lord tabled a suitable amendment for debate during the time of the last review. I recall briefly touching swords with the noble Earl, Lord Russell. I know that any such debate would have been a real challenge to me. But I fully accept that the services need to reflect the society they seek to protect. However, at the same time I have to remind your Lordships that servicemen and women may be called upon to perform duties and to take action that a civilian would never be expected to do. I do not think that now is the right time to explore that argument further. Other noble Lords have more important contributions to make.

We in this country have made good progress with the promotion of equal opportunities both by using legislation and by changing public attitudes. But perhaps an equally serious form of discrimination is ageism, where employers make it clear that an older applicant would be unlikely to succeed or would be excluded from any consideration for employment. Obviously the noble Baroness's Bill is not a suitable vehicle for that issue. Nonetheless I suspect that it affects a larger proportion of the population than her Bill seeks to protect.

My final point is this. All areas of administration use acronyms to describe legislation. We have the HSAW (the Health and Safety at Work) Act. In the military we have RFA (the Reserve Forces Act) 1997. The noble Baroness will be familiar with TUPE. Perhaps the noble Baroness should look at the initial letters in the Short Title of her Bill.

2.48 p.m.

Lord Addington: My Lords, I originally put my name down to speak to the Bill because I considered it a vehicle for raising an issue referred to at an all-party disability group on Tuesday. It related to secondary discrimination: people from the gay community who happen to have disabilities.

I shall return to that point briefly in conclusion. Since further noble Lords will speak in the gap, I shall speak briefly to support the Bill. This is an issue relating to basic human rights. In these circumstances one is tempted to misquote Martin Luther King. He said, "The law cannot stop somebody disliking me, but it can stop them lynching me".

We are not quite at that level but we are asking that people should be allowed to earn their living without being discriminated against because they find someone sexually attractive. That is what the Bill is about. If we discriminate against people because they have lustful thoughts then perhaps a young man who works in a shop during the summer months when women wear slightly

5 Jun 1998 : Column 644

more revealing clothes should be banned. Are we going to carry on down that road? I do not believe so. It is absurd.

We are talking about making it a legal right for someone to be employed without discrimination. As the noble Baroness said, those with high levels of skill or who are in demand are generally able to fight off discrimination. However, those undertaking more mundane tasks or who are more vulnerable are open to it. I hope that the Bill will receive an unopposed Second Reading and will be placed on the statute book. There is no reason why it should not be.

Perhaps I may use the debate to flag up an issue relating to the same sex oriented community, to use appallingly politically correct language. It was suggested at the meeting I mentioned earlier that that community should look to those within it who are disabled because they are feeling increasingly isolated. No attention is being paid to them because of the amount of political energy required to pass legislation such as we have before us today. A gay or lesbian person in a wheelchair is out of the mainstream. That leads to mental problems and feelings of isolation. They are in the mainstreams of neither monitory groups nor of society as a whole. I hope that people from that community will take that point on board and put it on their shopping list of things to be dealt with.

I hope that the Bill reaches the statute book, when it will no longer be necessary to deal with such problems. They fly in the face of natural justice. Surely, there are better things we could be doing with our time than arguing against natural justice.

2.53 p.m.

Lord Annan: My Lords, it is clear that on Fridays an unusual loquaciousness seizes the House. Therefore, I shall say simply that it is 33 years this summer since I had the honour of becoming a Member of your Lordships' House. I made my maiden speech on the Sexual Offences Bill. For the first time, it became legal for consenting adults to have homosexual relations. For that reason, I support the noble Baroness today. She and the noble Lord, Lord Addington, said everything that needs to be said about the reasons why the Bill is necessary. Employers are presented with three temptations: first, in deciding not to appoint people whose sexual orientation they do not like; secondly of demoting or dismissing them; and thirdly, of paying them less. All those points were admirably dealt with by the noble Baroness in her opening speech.

She referred also to the more difficult issue of harassment. She gave some very good examples of the way in which that occurs. She said that it is sometimes argued that we cannot change public opinion; people have these hatreds of those who are gay and those who are lesbian; but what are we to do about it? Surely one must simply put up with it. The noble Baroness gave the most admirable example in calling upon the historic record of the women's movement to show that public opinion can change and can become more tolerant.

However, I have one word of warning; namely, that tolerance exists on two levels. First, there is the tolerance which some people who do not like gays or

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lesbians should show on the matter. However, there is the other side of tolerance, which is that those who are gay or of a different sexual orientation ought, in their employment, to take care that they do not ostensibly, willingly and arbitrarily offend those with whom they work.

It is very understandable that someone who "camps it up" in his work may well find that his colleagues do not like it because their clients do not like it. Let us take, for example, the case of the transvestite. I know and like certain transvestites and I am not at all surprised when I find myself addressed by them in the morning in male costume, but find them in "full fig" in the evening, wearing makeup and skirts, enjoying themselves. I enjoy their company, too.

However, if one were in a business relationship and the person with whom one was having a business relationship with appeared in the morning as a male but, in the afternoon, suddenly appeared as a female, it is possible and understandable to argue that that could perhaps sway one's judgment. I think it wrong that such judgment should be swayed, but all that I am saying is that there is room for tolerance on both sides. When I say that, I have in mind in particular the outrage that occurred on Easter Day when the sermon of the most reverend Primate the Archbishop of Canterbury was interrupted.

I should like to make it as clear as I possibly can that the objects of the noble Baroness are admirable and that they should be endorsed by the House.

2.57 p.m.

The Earl of Lauderdale: My Lords, I understand that another of my noble friends proposes to speak in the gap, so I shall confine myself to speaking for just a few minutes. Like my noble friend Lord Attlee, I am one of the admirers of the noble Baroness, Lady Turner, who moved this Second Reading. Indeed, she is a great model of courtesy, conduct and kindness in the House. However, I am sorry that she has identified this Bill with something which seems, on the face of it, to be part of a campaign by the gay community to legitimise itself in the face of opposition. Moreover, she has done so by way of a Private Member's Bill to amend statute law which has been with us for 25 years.

I know that I am perhaps not taking a very popular line, but I am not interested in that. I am all for equality of treatment; indeed, so are we all. However, subject to our support for equality of treatment, we also recognise that there can be such things as wrongdoing. When there is wrongdoing and it is proved fairly in a court of law, you put the wrongdoer behind bars. There is nothing discriminatory in that; it is the decision of society as a whole.

My complaint about the gay/lesbian campaign is that it runs counter to the heterosexual tradition not only of society in general but of supporters of nearly every religion one can think of. When the Question is put, I shall shout "Not Content", although I accept that I should have tabled a Motion on this matter. However, this week I have been busy with other matters.

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A point that is not generally recognised is the strong medical evidence that homosexual acts undertaken by men and boys are dangerous to health and that anal intercourse is physically damaging and is prone to lead to disease. The use of condoms makes no difference as regards safe sex. There is no such thing as safe sex in this regard. The anus is not meant to be used in this way. A body of expert medical evidence supports the view that I am expressing in a rather clumsy way. I am sorry that I cannot support the Bill of the noble Baroness, whom I greatly admire. As I said, I shall shout "Not Content" at the appropriate time.

3.1 p.m.

Lord Moran: My Lords, as I am speaking in the gap I shall make one brief point. However, it is an important one. Society has no responsibility more important than that of looking after children. Consequently nothing that we do in Parliament is more important than to seek to protect children. Children are of absolutely fundamental importance and they should always be at the top of our agenda.

As your Lordships know, a good many children in this country are being brought up in children's homes. They are defenceless and vulnerable. As we all know, recently there has been a number of serious and well publicised scandals in England and Wales relating to child abuse in children's homes. I believe we were all greatly shocked by those scandals. It is unfortunately the case that these homes have been, and are being, targeted by some homosexuals who want to infiltrate them in order to abuse the children. That is not only a worrying development in itself, but some of those homosexuals may carry AIDS, in which case they will pass a death sentence on many of the children they abuse.

There are real dangers in all this. I was encouraged to read in yesterday's Hansard a Written Answer of the noble Lord, Lord Williams of Mostyn, to the noble Baroness, Lady Young of Old Scone, concerning child protection measures. The noble Lord, Lord Williams of Mostyn, stated,

    "the Government are setting up an interdepartmental working group of officials to consider additional safeguards to prevent those who are unsuitable from working with children ... The group will also consider whether further measures are necessary to protect 16 and 17 year-olds who may be vulnerable to abuse by those in a position of trust, such as carers, teachers and leaders of organised residential activities".--[Official Report, 4/6/98; cols. WA 51 and WA 52.]

It is greatly to be welcomed that the Government are addressing that problem. However, this matter does not involve only known sex offenders, but also those who have not been convicted of an offence but who have a homosexual orientation and who seek to infiltrate children's homes. I believe it would be irresponsible, and indeed unforgivable, for us to prevent local authorities--I believe this Bill would do that--from refusing jobs to those who apply to work in children's homes whom they believe, or suspect, may have designs on the children in those homes.

For that reason, I shall support the noble Earl, Lord Lauderdale, in opposing the Bill. I very much hope that the Opposition parties will oppose it as a matter of principle. It does not seem to me that the Bill divides

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up into finite, small points that can be considered in Committee. It is a question of one single aspect and either you agree with it or you do not. Personally, I do not.

3.5 p.m.

Lord McCarthy: My Lords, I must be brief as I am speaking in the gap. I am bound to say in passing that this is not a Bill about paedophilia. It is about discrimination at work. That is what we are addressing.

The noble Baroness has twice previously produced a similar measure. The then Opposition supported those, but they were opposed by the Government, who advanced a number of reasons. They said it was not really a problem; it was not a sufficient problem to warrant legislation; that existing legislation covered the matter; and that if we passed such a measure it would merely lead to more and more legislation in relation to more and more minority groups. They said: we are not the French, the Italians or the Swedes, who may have had such legislation for years; we are the English. I hope that the noble Baroness will not trot out any of the tired old arguments that we heard from the previous government on both occasions in the past.

There are only two arguments that the Government can make. One is that this is not a perfect Bill. The other is that all these provisions are embraced in future legislation relating to fairness at work. The argument of the character in "The Lady's Not For Burning", that it's all got to be done at the proper time, and this is not the proper time, does not fit.

If the Bill is not perfect, then let us amend it, transform it, change it. Let the Government tell us now what they want to do. The Bill could be totally transformed. To say that it is not perfect is not an argument. To say that it all has to be gone into at the proper time is also wrong. We do not know when the proper time is. This is an immediate problem affecting a large number of people, and this Bill is a way of dealing with it. Therefore, I hope the Government will accept the Bill.

3.8 p.m.

The Earl of Halsbury: My Lords, my reason for speaking in the gap is that I did not think it would be possible for me to respond to the many lobbies from educational and religious establishments, and so on. Only at the last moment did I find myself free to attend this House. My view is that the trouble with homosexuals is that they are exhibitionists, and they should keep quiet about it. For that reason, if the noble Earl, Lord Lauderdale, chooses to divide the House, he will not lack a Teller.

3.9 p.m.

Lord Monson: My Lords, like my noble friend Lord Annan, I, too, strongly supported the decriminalisation of private homosexual activities 33 years ago, at a time when it was a somewhat unfashionable and unpopular cause. However, it is a mistake to regard this Bill as a natural progression from that legislation. Wolfenden

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gave homosexuals the freedom to be themselves without fear of being sent to prison, while this Bill deprives those who find certain practices repugnant of their freedom to make a choice as to whether to associate with, let their houses to or employ people. The noble Baroness has introduced the Bill with her usual skill and sincerity. However, there are others who believe with equal sincerity that coercive political correctness has gone quite far enough.

As my noble friend Lord Halsbury indicated, if people behaved with discretion, as they did in a more civilised age, and kept their sexual proclivities to themselves, the problem would scarcely arise. An employer or potential employer might have a vague suspicion that someone was inclined in a certain direction, but that would normally be the end of the story. It is when people shout their sexual orientation from the rooftops that the problem arises. I concede that there are hard cases; the noble Baroness mentioned a couple of moving examples. However, as we all know, hard cases make bad law.

The Bill would, for example, force a family with teenage sons to employ a homosexual gardener or handyman. It would force an elderly and fastidious widow to employ a lesbian housekeeper against her will. The Bill goes further than the previous Bill in that it extends to the provision of services. It would force individuals posted abroad for one or two years to let their houses to people whose intimate practices they found--justifiably or unjustifiably--abhorrent.

For the first time in history, it will become illegal to advertise for a married couple. Such an advertiser could face a fine of up to £5,000 by virtue of lines 18 to 22 inclusive on page 1 of the Bill in conjunction with Section 33 of the 1975 Act, which is de facto incorporated into the Bill. Illegal to advertise for a married couple: think about that, my Lords!

3.12 p.m.

The Lord Bishop of Wakefield: My Lords, I welcome part of the intention of the noble Baroness, Lady Turner, in this Bill, and I certainly share her concern about discrimination. I welcome the words of the noble Lord, Lord Annan, about the unfortunate events in Canterbury Cathedral on Easter Day.

I do not believe that homosexual orientation is necessarily a fixed state. It is well known that many people are attracted to members of the same sex at certain stages in their life but not at other stages. I therefore do not believe that sexual orientation can be legislated for in the same way as gender. As I understand it, it is the equal treatment between men and women, irrespective of their gender, that is the basis of the Sex Discrimination Act 1975. Since sexual orientation is not an issue of gender, it should not, in my view, be included within the definitions of the Act as here proposed.

I am conscious of the fact that I am speaking in the gap. Perhaps I may turn to three clauses that may raise issues of potential conflict for the Church, church schools and religious charities. Clause 3 amends Section 19 of the Sex Discrimination Act so that it would not

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be illegal to discriminate against ministers of religion in a job situation which is limited to one sex or sexual orientation so as to comply with the doctrines of the religion. However, Section 19 does not extend beyond the minister of the Church, so that employment of other staff--for example, youth workers, who are clearly in an influential position, particularly over young people who are at an age when their sexual orientation may be uncertain--would be outside the exclusion of doctrinal belief. It seems to me that churches and other faith organisations would possibly be forced to employ those who did not conform to their religious beliefs on sexuality. I should like clarification from the noble Baroness on that point.

As we have already heard, Clause 4 amends Section 23 of the Act so that a local authority may not discriminate on the grounds of sexual orientation in the way that they carry out their education functions. Clause 4(2) amends Section 25(1) so that it will read,

    "a body to which this subsection applies shall be under a general duty to secure that facilities for education provided by it, and any ancillary benefits or services, are provided without sex discrimination or sexual orientation discrimination".

That sounds fine, but those two sections could be used to argue that teachers should give equal weight to sex education, promoting homosexual relationships as if they were of equal moral status to heterosexual relationships.

As it seems to me, there is part of an agenda underlying this Bill which is about promoting homosexual lifestyle as being equivalent to heterosexual lifestyle. I hope the noble Baroness will forgive me if I misread her underlying intentions, but if those are her intentions, then under God that is a position that I cannot accept. The two sections may be used not only to argue that teachers should give the matter equal weight, but also that it would apply to governors as well. I would value her clarification on that.

Finally, Section 6 and Section 43(2) of the SDA says that charitable benefits can legally apply only to persons of one sexual orientation as well as to those of one sex as currently provided for in law when specified in a charitable instrument. However, as I understand it, charities would not be excluded from the employment requirements of the Act and would be unable to refuse to employ individuals on the basis of their sexual orientation. That situation would be of great concern to some Christian and other religious charities which do not believe that homosexuality is compatible with Christian or other faith beliefs.

I hope that your Lordships will forgive me for taking some time in the gap, but I look forward to clarification from the noble Baroness on those issues.

3.15 p.m.

Earl Russell: My Lords, I am glad that we heard the case against the Bill in the gap. It is proper parliamentary procedure, as well as natural justice, that we should hear the case on both sides. I listened to it with a great deal of interest. I look forward to resuming the engagement with it in Committee and shall now briefly respond to some of the points that have been made.

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The noble Earl, Lord Halsbury, said that homosexuals are exhibitionists. First, that is conspicuously not true of a large number of gay people whom I know. Secondly, supposing it were true; I believe that most of us can think of some heterosexual exhibitionists--the names of Gallagher and Gascoigne come to mind among others. If one were to discriminate against exhibitionists, the profession of politics would suffer grievous loss.

The noble Lord, Lord Monson, argued that this was taking political correctitude too far. The basic principle of political correctitude is that we are all human. As soon as we start saying that we are all human "except", it does not matter what one puts under the word "except"; we are treading on a dangerous slope.

The noble Lord referred to the possibility of letting houses to people whose practices one might regard as abhorrent. If I let my house--and I have done so--I do not believe that I have any right thereby to know in what sort of sexual practices the people occupying it may indulge. It is none of my business. Provided they leave my house in good condition, as they found it, that is all--apart from payment of rent--that I can legitimately require of them.

The noble Lord, Lord Moran, on the subject of children's homes, raised an issue of great seriousness, but one which I do not believe to be germane to this Bill. Paedophilia is a crime. Everybody I know agrees with that proposition and I believe all the supporters of this Bill agree equally. But paedophilia comes equally in both sexual orientations. I believe it to be wrong in whichever sexual orientation it comes. When I attempt to restrict paedophilia and if I am convinced--as I perfectly well might be next time I listen to a serious discussion on the subject--that restrictions are not sufficient, then I shall consider extending them.

The noble Lord, Lord Moran, raised also the case of 16 and 17 year-olds in care. This is a serious issue. I understand what he was saying and agree with a great deal of it. But again, such abuse can happen within a heterosexual or a homosexual orientation. The abuse of positions of power in order to obtain sexual favours is in all circumstances wrong. It is something from which "straight" men are by no means immune. I would be reluctant to use that argument as an argument against employing "straight" men. One punishes the abuse of power and the use of force involved in inflicting unwanted sexual attentions persistently and repeatedly regardless of the sex involved.

The right reverent Prelate, having paid tribute to the principle of equal treatment, argued that there might be a danger of conferring equal moral status. We all have views about each other's moral status. Most of us, most of the time, have the wit to keep quiet about them. The world's religions have often had views--very passionate views--about the moral status of others among the world's religions. The Church of England is in a conspicuous and honourable place in having learnt that we must live and let live among different religions. I believe that exactly the same thing is true of sexual morals. There are a great many things that are done that I believe do not enjoy equal moral authority. But if I were prepared to legislate against everything that I think

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does not enjoy equal moral authority, I should take up a great deal more time of this House than I am willing to do.

The noble Earl, Lord Lauderdale, said that if you do something wrong you should be put behind bars. With respect, if you do something criminal you should be put behind bars. That is a very different proposition. To the suggestion that anyone who does something wrong should be put behind bars, I reply in the words of Hilaire Belloc:

    "Is it true? It is not true And if it were it would not do For people such as me and you Who pretty nearly all day long Are doing something rather wrong".

I am happy to support this Bill.

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