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Lord Lester of Herne Hill: This amendment stands in my name too, and I should just like to say that I agree with every word of the noble and learned Lord, Lord Archer of Sandwell. We strongly support this.
Lord Cope of Berkeley: I go along with the thinking behind the suggestion of the noble and learned Lord, Lord Archer, but he did say that he thought it flowed from the Belfast agreement. My reading of the relevant bit of that agreement on page 16 is that an assessment of the impact of the actions of a public authority had to provide part of the scheme for carrying out the obligations which they are to be obliged to put forward. His new clause seems to me to go further than that in that every time there is an alteration in policy, as it were, or a new course of action being entered into, a further impact statement would have to be produced, as opposed to a modification of a scheme if it were a big matter requiring such a modification.
I also notice that the Government rejected earlier the proposal for impact statements in other circumstances, which was requested by the CBI in connection with the impact on companies of government actions. Those sorts of impact statements were rejected, but we wait to see what the Government's view will be on these sorts of impact statements.
Lord Dubs: In our March White Paper proposals and in the Good Friday agreement, equality schemes, prepared by public authorities and approved by the equality commission, were seen as a key means of implementing the statutory obligation to have due regard to the need to promote equality of opportunity.
In recent months there have been many suggestions for detailed changes to our ideas about equality schemes. Over the summer, my colleague, the Minister for Political Development, has discussed how to bridge the gap between the Government's position and these alternative suggestions. As a result, we propose to make changes which will reflect the noble Lords' new clause in several respects.
I have already mentioned the direct obligation on public authorities to prepare schemes. We also intend to bring forward amendments at Report stage which will make further changes. These are: a requirement on the commission to report on the promotion of equality of opportunity in its annual report, which will be laid before Parliament as well as the Assembly, and an expansion of the details of impact assessments at paragraph 2(2)(b) of Schedule 10 to include consideration of alternative policies, measures to mitigate adverse impact and monitoring the outcomes of policies after introduction.
The latter changes, together with the details of equality schemes already contained in paragraph 2(2) of Schedule 10 should match the most significant features of the noble Lords' new clause. These changes which we are proposing to the detail of impact assessments will be in the context of equality schemes
and policy assessment, to which we are bound by the agreement. I therefore invite noble Lords not to support the new clause.
Lord Archer of Sandwell: I am grateful to the noble Lord, Lord Lester, for his support. I think that possibly the noble Lord, Lord Cope, and I will not add to the debate if we embark on a discussion as to the construction of what the agreement said. I am cheered by the announcement which my noble friend has just made. I think he accepts that what is now being proposed, the impact assessment, is not in any way inconsistent with the schemes. In fact, as I understand it, he wants to make this part of the schemes.
I would add two factors to that. One is that it ought to be an on-going matter and not something which is incorporated in the schemes once and for all. The other--an essential constituent--is the matter of consultation: that it should be concerned with empowerment of the people and not something which legislators and others hand down from somewhere on high. I cannot at the moment assess whether what my noble friend proposes is going to contain those factors, because we have not seen the proposal. However, we look forward in hope, and "they can't hurt you for hoping", as someone once said to me. Meanwhile I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 61 [Discrimination by public authorities]:
Lord Dubs moved Amendment No. 159:
The noble Lord said: I beg to move this amendment formally.
On Question, amendment agreed to.
Lord Archer of Sandwell moved Amendment No. 160:
The noble and learned Lord said: With this amendment it may be for your Lordships' convenience to discuss Amendments Nos. 161, 163, 164 and 169.
Amendment No. 160, I may be told, is unnecessary. It is an amendment to deal with a situation where a public authority do not set out to discriminate against a particular person or group, but where they do something of which the inevitable consequence is discrimination. It is a necessary by-product of something done for a different reason. If they build public buildings to which the only approach is by a flight of steps, it may be said that access is by means of those steps whether someone is in a wheelchair or not. There is no discrimination. In fact the necessary consequence is to impose a disadvantage on persons in wheelchairs. If my noble friend replies that this is unnecessary because making discrimination unlawful is to make indirect discrimination unlawful, I think I can only add that this is not the view which has always been taken either in the courts or in debates in your Lordships' House and in another place.
If the Government intend to make indirect discrimination unlawful, then I ask rhetorically: what is the objection to saying so? Can it be that the draftsman has taken the words from Section 19 of the Northern Ireland Constitution Act 1973?--because those are certainly the words to be found there. But of course in those days people were not giving much thought to indirect discrimination. We have come a long way since 1973. Since then we have learnt a great deal about the forms which discrimination can take, so I hope that when my noble friend replies, his response will be a sympathetic one.
Turning to Amendment No. 161, the Government are well seized of the point that what everyone wants to be protected is the whole range of matters in respect of which in the past they have suffered discrimination. As my noble friend pointed out a short time ago, that is now the scheme of Clause 60. It is not clear why such provisions should not be in Clause 61 when we turn to the question of incitement.
As the noble Lord, Lord Lester, reminded us a few moments ago, last Monday we were told that the Government seek consistency. I believe that the burden is now on the Government to explain why there is inconsistency in this respect. It seems to me that further elaboration from me would not assist. I believe that the onus is on the Government to explain why inconsistency is permissible in this respect. I await the reply of my noble friend. I beg to move.
Lord Monson: I do not know whether this is the right moment to mention this point. When speaking to Amendment No. 154 the noble and learned Lord, Lord Archer of Sandwell, was sympathetic to those who might in due course want to add to the list of characteristics against which it should be illegal to discriminate, although he was not in favour of anything happening immediately.
I wonder what those additional characteristics might be. Is it envisaged that discrimination on the grounds of height and weight might be outlawed, as I understand it is in two or three American states? What about discrimination on the grounds of physical appearance, other than physical appearance relating to race or disability which is already outlawed? After all, discrimination on the grounds of physical appearance is also illegal in a couple of American states, and logically so if all other forms of discrimination are banned. Survey after survey has revealed that good-looking people, be they male or female, have a much better chance of getting a good job and being promoted than those who are less well favoured, if I can put it in that way. I understand that it has also been established that the life-time earnings of those who might fall into the category of good-looking people are at least 10 per cent. higher than the life-time earnings of those who are not in that category. It will be interesting to hear, when the noble Lord comes to wind up--
Lord Archer of Sandwell: I am grateful to the noble Lord for giving way. Before he sits down, perhaps I should make it clear that I was simply responding to a
Lord Monson: I am grateful to the noble and learned Lord.
Lord Molyneaux of Killead: I support the point made by the noble Lord, Lord Monson, and the noble and learned Lord, Lord Archer. That was exactly the point I had in mind. I think that it is not wise to have in legislation what you might call a closed list, for the very reasons given by my noble friend, Lord Monson. It would probably be bad draftsmanship to add an "etcetera". However, I think that we should not close our minds, not to the possibility but the probability, that we will be required to add to this list quite frequently in years to come.
Page 29, line 27, leave out ("discharging") and insert ("carrying out").
Page 29, line 29, after ("discriminate,") insert ("directly or indirectly").
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