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Lord Lester of Herne Hill: My Lords, we on these Benches warmly welcome the order. It gives effect to the White Paper, Partnership for Equality and to the recommendations made by the Standing Advisory Commission on Human Rights in Northern Ireland. It is an important step towards greater coherence in this area of the law; namely, the use of law to tackle discrimination. It brings the fair employment law into better harmony with sex discrimination and race relations legislation. It shows that it is perfectly possible to introduce comprehensive legislation to tackle the scourge of religious discrimination. It highlights the continuing anomaly that we do not have legislation of this kind in Great Britain. That means that Muslims are wholly unprotected under the law against religious discrimination, and Jews are protected only if they can show that they are members of an ethnic or racial group. We hope that it will not be long before that gap is filled. I know that it does not concern the Minister's department.

The measure also highlights another matter beyond the scope of the Minister's remit. I refer to the need for a single code of legislation tackling discrimination generally: a single equal rights code with harmonised powers of enforcement. The Government have taken an important step in creating an equality commission which allows harmonisation of strategic enforcement across the Irish Sea in Northern Ireland. That step needs to be taken in some form or other on this side of the Irish Sea as well.

The Minister said--and I entirely agree with him--that all unjustified discrimination, whether in the field of employment or elsewhere, should be unlawful. However, there is unfortunately still a completely anomalous gap in this order. I gave notice to the Minister that I intended to raise this matter yet again. I raised it several times during the debates on the Northern Ireland Bill, as did the noble Lord, Lord Cope. I am sorry that the drafting of the order seems to have ante-dated the debates on the Northern Ireland Bill and so, unless the Minister tells me differently, the problem has not been tackled.

Perhaps I may explain to the House the nature of the gap. I have to do it in stages. The starting point is Section 76 of what is now the Northern Ireland Act 1998, which makes it unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate on religious grounds directly. It does not cover indirect religious discrimination but only what is known as direct religious discrimination by public authorities. During the debates on the Northern Ireland Bill I raised the need to extend the concept of indirect discrimination to cover public authorities carrying out public functions. I pointed out that it was necessary to amend the Bill because of an unfortunate majority decision of the Appellate Committee of the House of Lords in a case called re: Amin, which is reported in 1983 2 Appeal Cases at page 818.

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That was a case involving the proper construction of Section 29 of the Sex Discrimination Act 1975, applying to the provision of goods, facilities and services to the public, a provision which is in identical language to Article 28 of the present order. A majority of the Law Lords, the noble and learned Lords, Lord Scarman and Lord Brandon of Oakbrook, dissenting, held that the reference in Section 29 to the provision of,

    "goods, facilities or services to the public or a section of the public",
concerned only marketplace functions performed by public authorities as though they were private persons. I believe that judgment to be wrong. I wish it had been tested by the Equal Opportunities Commission or by the Commission for Racial Equality in relation to a similar provision in the Race Relations Act, but it still stands in the law reports as good law.

The problem that it creates with relation to the present order can be explained in this way. Article 28 of the order uses identical language to that of Section 29 of the Sex Discrimination Act. It makes it unlawful,

    "for any person concerned with the provision ... of goods, facilities or services to the public ... to discriminate",
whether directly or indirectly. That is most welcome. It then gives examples of the facilities and services mentioned, one of which, in 28(2)(g), is:

    "the services of any profession, trade or business, or any local or other public authority".
Article 91(1), which deals with application to the Crown, applies the order to the Crown,

    "as it applies to an act done by a private person".
It is that language which was used by a majority of the Law Lords to narrow what is now Article 28 of the order by saying that, when Parliament refers to an act done by a private person, that means a marketplace activity and therefore cuts down the services provided by a public authority within the meaning of the equivalent of Article 28(2)(g) of the order.

There is the absurd consequence, first, that the Northern Ireland Act 1998, which we have recently enacted, covers only direct discrimination on religious grounds by a public authority and, secondly, that this order covers direct and indirect discrimination by a public authority in providing services and facilities, but, because of the decision of the Law Lords in re: Amin, it covers it only in relation to acts done by public authorities as if they were private persons. That is, if I may respectfully say so, totally absurd because a public authority is not performing private functions but public functions and, if anyone should be liable for direct or indirect religious discrimination, it is a public authority when it is discharging public functions.

The explanatory document does not deal with this matter. In paragraph 17 it correctly says that the article mirrors the existing law relating to gender and race relations and extends the anti-discrimination legislation into such areas as the services of, inter alia, a local or public authority, but it does not deal with the re: Amin gap.

I raised this matter during the debates on the Northern Ireland Bill and was ready to move one of several amendments. I raised it on 26th October on the third day

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of Committee (at columns 1748-49 of Hansard) and again on Report on 17th November (at columns 1212-14), the Minister having intervened (at column 1211). The Minister referred to the fact that the order would cover goods, facilities and services. I asked whether that protection against discrimination would apply to public authorities as well as to private bodies, having referred to the re: Amin gap. I said:

    "Perhaps I can have clarification on that".
The Minister replied,

    "the answer is yes".
I replied to that:

    "that is a most welcome announcement by the Government. It seems to me to fill an important gap. I express great appreciation and beg leave to withdraw the amendment."--[Official Report, 17/11/98; col. 1214.]
I would not have done that without that assurance. Unless I am much mistaken, the situation is that I was induced to withdraw an amendment on an unequivocal statement made by the Minister that this gap would be filled in the present order. It has not been filled. Therefore, although the Minister says that all unjustified discrimination, whether in the field of employment or elsewhere, should be unlawful, about which I agree with him, there is one kind of unjustified discrimination in the field of services and facilities--namely, where provided in a public capacity by a public body--which is not unlawful and which will not be unlawful under this order; and nor will it be unlawful under the Northern Ireland Act. That is completely absurd. More than that, it is inconsistent with our international human rights legal obligations.

Perhaps I may explain. For example, Article 1 of the First Protocol to the European Convention on Human Rights guarantees the right to property, including the allocation of, or refusal to allocate, public housing by a public authority. Article 2 of the same protocol guarantees the right to education, including allocation of educational opportunities in state-funded schools. Article 14 of the convention covers indirect as well as direct religious discrimination in relation to the allocation of public housing and educational opportunities in the public sector. So under the European Convention on Human Rights the United Kingdom is obliged to provide effective remedies for religious discrimination, direct or indirect, by public authorities whether in the field of housing or education. We are not fulfilling that commitment in this order or in the Northern Ireland Act.

Having had notice, I hope that the Minister will be able to deal with the matter in his reply. I have raised this matter on many previous occasions as it is very important. Unfortunately, when the Human Rights Act comes into force, someone will bring a case of alleged discrimination in the field of education or housing in the public sector. Remedy will not be obtainable under this order as it stands unless the case of re: Amin is reversed. It may be that in some future case it will be reversed. If so, the problem I have raised will no longer arise. However, as it stands, if re: Amin is good law and this order stands as it will today, we shall be failing in our duty under international human rights law and the Minister will fail to achieve his laudable objective of

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making unlawful all unjustified indirect as well as direct discrimination in providing goods, facilities and services for the public in Northern Ireland.

I apologise for having taken a long time on this explanation but I have done so because I wanted to make it intelligible to noble Lords who are not lawyers so that they understand why it is quite an important matter. I ask the Minister to indicate whether he agrees with that there is a gap caused by the case of re: Amin and what measures the Government intend to take to close that gap. Surely they cannot intend that there should be a gaping whole in the scheme of protection in this admirable measure.

Perhaps I may add one further comment in favour of the measure. The powers of monitoring; the duties imposed on employers and the powers of the Equality Commission are far stronger than anything in the sex discrimination, race relations or disability discrimination legislation. I very much hope that the powers of the commissions, if they are to remain separate on this side of the Irish Sea, and the powers in Northern Ireland of the Equality Commission will be harmonised so that we have the highest common factor of enforcement which is contained in this order. That highest common factor owes a great deal to Mrs. Thatcher's government who, in amending the Fair Employment (Northern Ireland) Act in 1989, gave the commission, as it became, much stronger powers than have been given to the other commission. This is not, therefore, a politically partisan matter. I congratulate that previous government on taking that important step in 1989. With those important caveats we welcome the order, but very much hope for clarification.

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