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Lord Molyneaux of Killead: In the unavoidable absence of the noble and learned Lord, Lord Archer, we discussed the parallel amendment.
Lord Archer of Sandwell: I am grateful to the noble Lord for allowing me to intervene. I am not absent.
Lord Molyneaux of Killead: It was at an earlier stage. I then expressed general agreement with the thrust
of both amendments. However, perhaps we should provide some mechanism for adding to the list further groups which come to our notice rather than to have to produce legislation.
Lord Dubs: Perhaps I may first clarify the question asked by the noble Lord, Lord Cope, about the different groups covered. Clause 60(1)(a) and (d) indicates groups additional to religion, political opinion, race and gender. The noble Lord will note that the other four are covered there also.
Perhaps I may say this to the noble Lord, Lord Molyneaux. We have a number of groups here. The possibility of adding others to them does not immediately appeal. Unless there is good argument--at present we are dealing with the specific proposals in the Bill--I would not wish to be tempted to go into further categories.
Perhaps I may deal with the substance of debate on the two amendments. Amendment No. 154, in the name of my noble and learned friend Lord Archer and my noble friend Lord Morris, proposes an exemption from the statutory duties under Clause 60 for affirmative action measures. We do not believe that this is necessary. The statutory obligation requires that a public authority should have due regard to the need to promote equality of opportunity. Promotion of equality of opportunity is not therefore an overriding consideration but must be set alongside other considerations such as the need to reduce disadvantage. The obligation relates to equality of opportunity, not equal treatment, so it is hard to see an incompatibility between it and addressing disadvantage among women, travellers or people with disabilities. The amendment also poses certain difficulties of interpretation as we would have to see to what extent an individual was disadvantaged because of his or her membership of a social group, or disadvantaged merely for normal economic reasons.
The Government are fully committed to tackling disadvantage wherever it is found through major policies such as targeting social need, recently relaunched. The statutory obligation under Clause 60 will not constrain or hamper such initiatives.
Amendment No. 162 is a similar exception for affirmative action in relation to Clause 61. I do not wish to pre-empt later discussion of that clause. Amendment No. 162 is closely bound up with Amendments Nos. 160 and 161, but extends the scope of Clause 61 to cover indirect discrimination and will also extend its scope of action beyond religion and political opinion. We shall explain subsequently why we think that Clause 61 should remain restricted to religion and political opinion. The Government do not envisage circumstances in which public authorities should be able to discriminate directly on the ground of religious belief or political opinion even if their intentions are honourable. Such an amendment would, however, be necessary if we were proposing to extend Clause 61 to cover indirect discrimination.
An exemption for affirmative action measures would become necessary in relation to indirectly discriminatory effects. Again the relationship between
that amendment and indirect discrimination will be dealt with shortly. As we do not propose to extend Clause 61 in that way, there is no need to include an exemption for indirect discrimination motivated by a desire to redress disparities between the two communities.I hope that in the circumstance the noble and learned Lord will feel able to withdraw the amendment.
Lord Cope of Berkeley: I apologise for coming back to the Minister. My question was not whether the other groups fell within Clause 60. I realise that they do. The noble and learned Lord, Lord Archer, explained that he had taken the wording from Clause 60. My question was whether those groups were covered by the equality commission's functions defined in Clause 59 by reference to the functions of the existing four bodies. I am not sure whether all those functions are covered by existing bodies, and hence by the new equality commission.
Lord Dubs: My understanding is that the functions of the bodies in Clause 59 do not cover all the groups covered by Clause 60. However, the new, additional responsibility of the equality commission is to oversee the new statutory duty on public authorities. That new statutory duty covers all the groups listed in Clause 60.
Lord Cope of Berkeley: I am grateful to the Minister for setting that out. I understand that as regards sexual orientation the new equality commission will have responsibility for ensuring that there is no discrimination within public authorities, but will have no authority in that regard relating to private bodies or individuals.
Lord Dubs: Yes, that is my understanding. The legislative basis for the four component bodies does not include sexual orientation.
Lord Monson: Will the Minister clarify the ban on discrimination on grounds of political opinion? Does it cover the expression of every political opinion, however extreme or bizarre? Let us suppose that during the course of an interview a job applicant mentioned that in his opinion not nearly enough people had been killed in Omagh. Would someone be running foul of the law if they declined to put that individual on the short list?
Lord Dubs: I am reluctant to discuss such a hypothetical example. I would have thought that such an opinion would sit uneasily with the functions of almost any job. My understanding is that political opinion means adherence to a political party. I need to take further advice because I am not too confident about my answer. If I am wrong I shall write to the noble Lord.
Lord Archer of Sandwell: I am grateful to all Members of the Committee who have participated in the debate. I say to the noble Lord, Lord Cope, that Clauses 60 and 61 impose duties on public authorities and are not directly concerned with the equality commission. The duties imposed on public authorities
embrace a whole spectrum of those rights. Exactly what will be the interface in practice between the public authorities and the equality commission is a matter on which my noble friend is much better qualified to pronounce. I hope that the noble Lord is clear about why I included the list within the amendment.I am sorry that the noble Lord, Lord Lester, and I did not have an opportunity to discuss the amendments. We both had other commitments and events overtook us. I readily confirm what I should have said at the outset; that I am grateful to Professor McCrudden for this amendment and many others. I attempted to pay that debt of honour in our debates last week. He could speak for himself if he were a Member of your Lordships' House, but I must try to speak for him. I accept the point made by the noble Lord, Lord Lester, that there ought to be some concept in our ultimate text about proportionality or necessity. Certainly, I would not go to the stake for my amendment as opposed to his. There may be opportunities for us to discuss the matter further before the Report stage.
As regards the point made by the noble Lord, Lord Molyneaux, I shall be the last to seek to deny power to anyone to add to the list of rights which we are seeking to protect. However, I understand his point that we may not wish to rush into everything at one leap.
I turn to my noble friend's reply. It is not the first time in the long years I have been in this Palace that I have heard a member of the Government say, "We wholly agree with the purpose of these amendments, but they are not necessary". I can say only that I remember the early 1980s when in a similar situation we had long debates on whether such words were necessary. At that time, when someone took affirmative action, people said, "Look, you are doing something for him which you are not doing for me". They said that majorities had rights as well as minorities, and of course they have. If we fail to clarify the matter now there will come a time when we bitterly regret it. It will not be the first time a Government have had to say, "It is a pity we did not get it right at the outset".
I do not believe that we can take the matter much further in the course of this debate. I hope that between now and Report it will be possible to discuss it again.
Lord Dubs: Perhaps I might be permitted to clarify a point made by the noble Lord, Lord Monson. "Political opinion" has been interpreted by the courts in Northern Ireland to mean "legitimate political opinion"; that is to say, non-violent political opinion. That is a court interpretation which I did not have to hand earlier.
Perhaps I might comment on the points made by the noble Lord, Lord Cope, and my noble and learned friend Lord Archer, concerning the duties imposed on public authorities under Clause 60. The equality commission monitors and approves quality schemes put forward by public bodies to give effect to their duties under Clause 60, but it also has a role in hearing and determining complaints against a public body on these matters.
Lord Archer of Sandwell: I am grateful to my noble friend for that clarification, as I am sure is the
noble Lord, Lord Cope. I will study carefully what my noble friend said, as I always do. I hope that in return he will look closely at the example which I gave and, perhaps with his advisers, consider whether it might give rise to future problems. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
5.15 p.m.
Lord Archer of Sandwell moved Amendment No. 155:
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