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The Earl of Lauderdale: My Lords, before the noble Earl sits down, perhaps I may say to the noble Earl that I used the term "wrongdoing" in a rather general sense. Of course he is quite right that "criminal" is the word I should have used.

Earl Russell: My Lords, I thank the noble Earl for that.

Baroness Miller of Hendon: My Lords, some of your Lordships will be aware of my own endeavours over many years to secure the advancement of women in public and political life. It is therefore with personal confidence that I can confirm to your Lordships that my party is opposed to any form of discrimination, whether it be on the grounds of race, religion, sex, age or, indeed, on the grounds of sexual orientation.

On 14th July 1995 when I wound up for the then Government on the Second Reading on one of the previous Bills on this subject introduced by the noble Baroness, Lady Turner of Camden, I said that we did not believe that legislation was the most effective way to overcome entrenched prejudice.

I said I believed that such legislation amounts to a form of coercion to conform and would add another piece of legislation to an already overregulated society. I added that we preferred instead to explain

In some ways it is embarrassing to be quoting from my own speeches, but I shall do so again, because in the same debate I said that protecting the interests of one particular group through legislation sends a signal to every group, however small and however narrow and partisan their cause, that they, too, could be candidates for specific legal protection.

My views on that aspect have not changed. I believed then that the burden of proving the need for legislation rests on those who are making the case that we ought to have legislation. I still believe that that case has not been made. I doubt whether the case will ever be made that we will be able to persuade a majority of the public to

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accept that legislation--and I emphasise the word legislation--is the way to deal with this difficult and sensitive matter. However, if the majority of your Lordships disagree with me, there is one caveat that I should like to add.

The previous Acts prohibiting discrimination on the grounds of race and sex have undoubtedly provided a remedy for those who have been unfairly or improperly treated for those reasons. There can be little doubt that because of the sanctions that the Acts imposed the law has also protected untold numbers more by inhibiting any such improper and distasteful conduct. Yet, on the other side of the coin, they have also generated a culture of litigiousness which has resulted in a number of cases which really should never have been brought. It is all too easy for someone who has been refused a job or passed over for promotion or has not received a raise to allege that it was on some grounds of discrimination. In some cases it is simply due to the inability of the so-called victim to recognise either his own lack of qualifications or the superior qualifications of the persons with whom he was competing.

There is also the problem that there is no risk, because the tribunal does not award costs against the loser, however frivolous the claim or however flimsy the defence. The costs incurred by employers, both in terms of money and managerial time in fighting unjustifiable claims, are a considerable burden. This means that the complainant might just as well launch speculative proceedings in the hope that the nuisance value will encourage the respondents to settle. Some of the well publicised and ludicrous cases that have been reported in the press that ought to have been thrown out by the tribunals but were not may very well also be a factor. Then there have been the astronomical and wholly disproportionate damages that have been awarded in some cases, damages far in excess of what the victim might have received if he or she had suffered some severe injury in an accident.

Again, I should like to remind your Lordships that it was I who piloted the Race Relations (Remedies) Act 1994 through your Lordships' House, so there can be absolutely no question of my being personally opposed to the award of proper and reasonable damages in cases of wrongful discrimination. So the caveat I wish to enter is that I hope that the good intentions of the Bill will not be spoiled, should the Bill ever reach the statute book, by providing yet another source of ill-conceived claims. I hope that those responsible for administering the Bill, if it should become an Act, will do so with discretion, by rejecting out of hand the more improbable claims and thus discouraging others from launching similar implausible claims. I hope when it comes to awarding damages that the tribunals in all cases of unfair dismissal, on whatever ground, and in cases of improper discrimination, also on whatever grounds, will bear in mind that their function is to compensate the victim for his loss and his humilation, his mental suffering if you will. It is not their function to award punitive damages.

If I may indulge myself for the last time in my speech, I should like to quote what I said in 1995: we believe that people should be dealt with on the basis of their

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individual merits and their qualifications, and solely on those grounds. My noble friend Lord Henley is not here today, but on the second occasion that the noble Baroness, Lady Turner of Camden, introduced her Bill, he said:

    "We deplore unjustified discrimination. We will continue to send out the message that it is morally unacceptable".--[Official Report, 6/3/96; col.406.]

I was very pleased to hear what the noble Lord, Lord McCarthy, and the noble Earl, Lord Russell, said in answer to the difficulty mentioned by the noble Lord, Lord Moran. I understand his concern--we all share that concern: I am sure that the noble Baroness, Lady Turner, shares that concern--about children in children's homes. But paedophilia has nothing to do with the Bill. I have read many cases of dreadful things happening to children in children's homes which were definitely done by heterosexual men and not homosexual men. So I really do not think that we should introduce that kind of idea into this Bill.

This is the third attempt of the noble Baroness, Lady Turner, to introduce this Bill in one form or another. I believe that her persistence certainly deserves full marks and, if I may say so, my congratulations. I hope that she will not mind if I say to her that we shall most certainly not oppose this Bill at Second Reading, but that it is not one that should be included on the statute book because we do not believe it is a matter for legislation.

3.30 p.m.

The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, like the noble Baroness, Lady Miller, I wish to pay tribute to my noble friend's longstanding, energetic and knowledgeable commitment to equal opportunities in general and to her championing of this cause. I agree with her that it is a cause very well worth fighting for. I also wish to acknowledge the important role which has been played, and continues to be played, by Stonewall. In the 1995 debate on the previous Bill of the noble Baroness, Lady Turner, one noble Lord referred to Stonewall as the most moderate and most intelligent of lobbying groups which recognises the changes of culture in our society and the pace at which they are taking place. It still deserves that accolade. The position of the Government--which is not to support the Bill--is not taken lightly, given its valiant supporters. The reason that the Government are unable to do so has nothing to do with the arguments made against it by speakers in the gap.

The equal opportunities movement in this country is a vibrant one, I am glad to say. For instance, the Institute of Personnel and Development is leading a campaign among employers and personnel professionals intended to promote a positive approach to equal opportunities in the round, including sexual orientation, and to bring out the skills and experience of all employees. The Government welcome and endorse that campaign. I am delighted that more and more employers, including the Government themselves, and 75 per cent. of all health services have equal opportunities policies which specifically include sexual orientation.

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During our presidency of the European Union, Ministers have repeatedly said that, in order to create a Europe which is "inclusive", we must promote equality of opportunity in education and training and at work. That means combating discrimination and promoting access to employment and equality of opportunity; and providing security at work, while remaining adaptable enough to respond to economic change. It was for these reasons, and because we deplore unjustified discrimination of all kinds, that a very early action after the election was to negotiate the Amsterdam Treaty, containing the new Article 13 which gives the Community new powers to oppose discrimination on much wider grounds than the existing one of sex.

The Government's position is clear. Our manifesto reads,

    "The country's attitudes to race, sex and sexuality have changed fundamentally. The Labour Party's task is to combine change and social stability ... We will seek to end unjustifiable discrimination wherever it exists".

That remains our firm intention. I am very aware that in comparison to discrimination on grounds of sex, race and disability, there is a gap in the protection that we offer some individuals.

Let me remind the House of some government activity. The Government's legislation giving further effect in our domestic law to the rights in the European Convention on Human Rights law will emphasise the positive rights of individuals, with all their varying characteristics, and is a historic initiative.

We have changed the UK's immigration provisions so that same sex partners in established relationships have a right of entry and then of settlement after another year together. We look forward to the new treaty powers in Article 13 being put to good use when all member states have ratified the treaty, bearing in mind that we will have to proceed by unanimity.

The Government have stated their intention to repeal Section 28 of the Local Government Act 1988 as soon as a suitable legislative opportunity arises. Section 28 was introduced to ensure that local authorities did not intentionally promote homosexuality, publish material with that intention or promote the teaching in their schools of the acceptability of homosexuality as a "pretended family relationship". The section has been widely perceived as discriminatory and we believe that it serves no useful purpose.

As regards homosexuality in the Armed Forces, the Government have committed themselves in the course of this Parliament to reviewing the position. We will take account of the weight of the evidence, of the UK's laws and of the views of the European Court and of the Armed Forces themselves. The review will start with the position agreed in the last Parliament and will look in detail at the findings of the thorough survey which was undertaken by the MoD in 1995-96. A way forward will then be established.

The Government have agreed that there will be a free vote on whether the age of consent for homosexual sex should be equalised at age 16. This could be debated at the Report stage of the Crime and Disorder Bill if a Beck-Bencher tables such an amendment.

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I would also like to remind the House that the new White Paper, Fairness at Work, proposes reducing to one year the length of time which an employee must be in work before gaining protection from unfair dismissal. It his hard to imagine circumstances in which an industrial tribunal would find sexual orientation fair grounds for dismissal.

I hope that, having assured your Lordships of the Government's genuine concerns, I may now give the reasons why we are unable to support the Bill. First, your Lordships are aware of the importance that this Government place on the family and on the need to consider how all our policies impact on the family. We recognise the central value of the family and marriage, but also acknowledge that there are other forms of partnership and other ways of bringing up children which are also valid. For generations, marriage has provided for millions of people a strong and stable base for the bringing up of children in a rapidly changing world. This is not to deny, however, that there are strong and mutually supportive families and relationships outside marriage. This Bill goes to the heart of that issue. It invites us to treat same-sex couples as the equivalent of a family unit, which leads logically to treating all mixed-sex unmarried couples as the equivalent of a family unit. What we must do is tread a careful path between taking account of social reality and at the same time ensuring that we do not undermine the family.

Secondly, I come to one of our major concerns. The Bill would outlaw not just direct, but also indirect, discrimination on grounds of sexual orientation. This could mean that it would be unlawful for anyone covered by the Sex Discrimination Act--not just an employer--to apply to someone a,

    "requirement of condition which is such that the proportion of people of a homosexual or lesbian orientation who can comply with it is considerably smaller than the proportion of people of heterosexual orientation who can comply with it".

In every case, applying such a condition would be in principle unlawful. The burden of proof would be on the defendant to prove that it was objectively justified.

No one can be sure what "requirements or conditions" this Bill would make unlawful in principle, but perhaps the most obvious one is marriage. It would become unlawful in principle to base any treatment or benefit on the fact that someone is married. This is a massive change from the present. In the employment field, for instance, currently the SDA specifically allows an exemption so an employer may recruit a married couple. This Bill leaves it unclear where that exemption would end up. Looking much more widely than work, I am advised that it might even be that favouring married couples would be held to be direct discrimination and therefore incapable in law of being justified.

In its judicial capacity, your Lordships' House has ruled that there is direct discrimination if, but for her sex, a woman would have received the same treatment

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as a man. It might be said that but for their sexual orientation a gay or lesbian couple would have the right to marry. This raises serious and important issues.

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