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Lord Faulkner of Worcester: My Lords, I am grateful to my noble friend for giving way. The figure that I quoted was supplied by the British Horse Society. It relates to accidents involving horses, not solely horse-drawn vehicles.
Lord McIntosh of Haringey: No, my Lords; presumably the figure includes hunting accidents, for example. I do not think that the legislation is intended to cover such cases. But those figures must be set against casualty figures for 2001 of 3,450 fatalities and 37,000 serious injuries. Every accident is one too many. We feel strongly about road safety. We have adopted a road safety strategy, with challenging targets for casualty reduction: a 40 per cent reduction in deaths and serious injuries by 2010, and a 50 per cent reduction in child victims.
The latest statistics show that, in 2001, we were on track to meet those targets. In support of the measures required to achieve them, we intend to introduce a range of primary legislation dealing with driver training and testing, drink and drug driving, and road traffic penalties. We will introduce it as parliamentary time permits. But, in the light of the figures that I gave, I hope that it will be understood why that is where our legislative priorities for road safety must lie.
Although we appreciate the noble motives behind the code of practice and, in accordance with convention, we would do nothing to obstruct the passage of the Bill through the House, we do not feel that we can give it active government support. I can, however, say one thing, which I hope will be helpful. The Highway Code has statutory recognition in Section 38(7) of the Road Traffic Act 1988, which provides that any failure to observe a provision of the code may in any proceedings for an offence be relied on to establish or to negative liability.
Although we are unable to support the Bill, we would be willing to consider any suggestion to include reference to the code of practice for horse-drawn vehicles in the Highway Code at the time of its next substantive amendment. We would have to be cautious, as we always are, in amending the Highway Code. But if such an amendment were accepted, it could provide the code of practice with the kind of additional authority that the noble Lord, Lord Beaumont of Whitley, seeks.
Lord Beaumont of Whitley: My Lords, I thank everyone who has taken part in the debate. I have received considerable support from the Back Benches and less-than-considerable support from the Front Benches. I sympathise very much with the Minister on
his family history, which appears to include a chapter of accidents. I expect him to be sympathetic to what I am trying to do.I was asked what "other public places" meant and why the Bill sought to apply there. A public place is not defined in the Road Traffic Act 1988 but is generally taken to be a place to which the public have access, whether as of right or subject to permission. By contrast, a road is defined in the Act as being subject to such access. As the public and horse-drawn vehicles and so on may come together in public places other than roads—for example, off-road parking areas—the Bill seeks to apply there. It would not apply to places where, for example, equestrian events took place, circus arenas, and so on, if access to the affected areas was not permitted to the public.
I was also asked why the Bill sought to apply to animals other than horses. It already does so in Northern Ireland. I imagine that the reason for that is the greater use of donkeys on the island of Ireland. These days, it had better include llamas, too. On the whole, donkeys are unlikely to take off and kill people in accidents, but llamas are very nervous. If the Bill progressed any further, such a provision would need to be included as we have done.
I shall try to respond in writing to noble Lords' other questions. If the Bill progresses further, I shall deal with their points in Committee.
It would not be a waste of your Lordships' time to take the Bill a little further. There would be three advantages. First, it would result in a measure on the parliamentary record dealing with all the amendments necessary as a result of the Second Reading debate. Secondly, there is always a chance that the department, having rethought the matter once, may rethink it twice. Thirdly, future legislation is not ruled out. When the Bill has improved, it might be useful, even if dealing with amendments to the various non-legislative measures about which the Minister spoke.
I commend the department for its intention to deal with the matter in some way. But there is a case for committing the Bill to Committee and putting it in a position where it would represent the considered wisdom of this House on what should be done. Therefore, I ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the whole House.
Equality Bill [HL]
12.47 p.m.
Lord Lester of Herne Hill: My Lords, I beg to move that this Bill be now read a second time. New Labour's 1997 election manifesto promised that, if elected to government, they would,
- "eliminate unjustifiable discrimination wherever it exists".
It is almost two years since the House debated my Unstarred Question asking what steps the Government were taking towards the comprehensive reform of anti-discrimination legislation. I explained that I shared the belief of the equality agencies, senior judges, independent experts and employers and trade unions that the time was over-ripe for the comprehensive, rather than the merely superficial, reform of that body of legislation. The approach of successive governments to the increasingly complex, opaque and anomalous state of the legislation has been piecemeal and minimalist. It has involved adding new layers of legislation in bits and pieces, be they to implement European Community law, to introduce half measures on disability discrimination, or, now, to give effect to the new but restricted EU equality directives.
There was widespread recognition during that debate, on 25th April 2001, of the pressing need for a single equality Act. In her reply, the Minister, the noble Baroness, Lady Blackstone, was kind enough to say that I had,
- "made a powerful case for grasping the opportunity for comprehensive reform".
- "We recognise the arguments for a single equality framework incorporating a single equality commission, but we have to think about how such a framework would be constructed in practice".—[Official Report, 25/4/01; col. 1448.]
Since that debate, the Government have failed to grasp the opportunity for comprehensive reform, but they have not been idle. They have published draft regulations to implement the EU race and framework employment directives, with a period for public consultation that was completed at the end of January. They have consulted about proposals to create a single equality commission. Soon, they will lay before Parliament the actual regulations on sex, sexual orientation, race, religion and belief, and disability. A consultation on draft age discrimination regulations will be delayed for another year. That legislation will not come into force until December 2006. The Government intend to introduce primary legislation to strengthen the law on disability discrimination by October 2004. Meanwhile, in Northern Ireland, where there is already a single Equality Commission, the Government are working actively to introduce a single Equality Bill. Most regrettably, there is no sign that the Government are working in the same way to introduce a single Equality Bill for Great Britain. So much for joined-up government and joined-up legislation.
One problem with such hectic activity is that, by introducing yet more piecemeal legislation, the Government will add even greater incoherence to an already incoherent body of anti-discrimination law. Another problem is that, by rejecting the use of primary legislation to implement the equality directives, the Government will hobble the legislative powers of Parliament to create a coherent, accessible and user-friendly legislative framework that, in the words of the new Labour manifesto,
- "tackles unjustifiable discrimination wherever it exists".
- "A radical overhaul of our anachronistic and clumsy equal pay law is long overdue".
Yet another problem with the Government's short-sighted vision is that, by seeking to create a single equality commission without a single Equality Act, the Government will put the cart before the horse. How much better it would surely be to have, as they have in the Republic of Ireland, unified equality legislation administered by a new-style and professional Equality Authority. That concept of a different kind of equality commission is included in the Bill. A single Equality Act, overseen by a single equality commission, provides a more effective way of dealing with multiple or cumulative discrimination.
Whenever I attempt to persuade Ministers to grasp the opportunity for, in the words of the noble Baroness, Lady Blackstone, "comprehensive reform", I am told that the Government lack the resources to grasp the nettle at this stage. I find that excuse unconvincing. When I worked with Roy Jenkins at the Home Office in 1974 on what became the Sex Discrimination Act and the Race Relations Act, we were in a minority government, facing a well organised opposition. Yet, we managed to develop a radical and imaginative legislative policy in only a few months and to introduce two major Bills within two years. We were able to do so because Roy Jenkins and his colleagues willed the end and gave sufficient priority to finding
the means. What is now lacking is not the resources in the Civil Service but the political will to devote those resources to this urgent and challenging task.The Bill has been introduced to fill the vacuum and to meet a pressing need. It is the product of four years of careful work, with generous support from the Nuffield Foundation and the Joseph Rowntree Charitable Trust, to whom we owe a debt of gratitude. Professor Bob Hepple QC, together with Mary Coussey and Tufyal Choudhury, carried out an independent expert review under the auspices of the Centre for Public Law and Judge Institute of Management Studies in the University of Cambridge. The review evaluated UK anti-discrimination legislation and made proposals to develop an accessible legislative framework to promote equal opportunity policies and to spur compliance with those policies. The review team conducted targeted case studies and interviews and published consultation papers. The report was published in July 2000 and was the subject of a consultative conference.
Next, a Bill was drafted by a former parliamentary counsel, Stephanie Grundy, on the basis of the findings of the Hepple report. It was published for further consultation in July 2002. The draft Bill was substantially revised in the light of comments from a wide range of individuals and bodies, including each of the three existing commissions. We hope that it will commend itself to the House and will be supported, at least in principle, by the Government. I wish to express my admiration and gratitude to all those who contributed to the project and to my indefatigable support staff at the Odysseus Trust, who are here today.
The Bill may seem long and complex, but it is more concise and less complex than the existing anti-discrimination legislation and the proposed new equality regulations. When the Hepple report was published, there were no fewer than 30 Acts, 38 statutory instruments, 11 codes of practice and 12 EC directives and recommendations concerned with discrimination. Since then, there have been even more.
The Explanatory Notes that we published describe in detail the structure and content of the Bill. I shall attempt to put the Bill in a nutshell, and I hope that noble Lords will forgive me if I do so as briefly as I can. Part 1 outlines the Bill's purpose and general principles. Three principles run like a golden thread through the Bill. The first is that the Bill is not to be construed as permitting or requiring any step that involves levelling down. Steps towards equality should involve improvement for the whole workforce or customer base. They should not worsen conditions for anyone.
The second principle is that promoting equality may require more than treating different individuals in the same way as each other and may require the accommodation of difference. That applies first and foremost to disability discrimination. There are other areas where true equality may require different treatment, such as special provision made during pregnancy, or a relaxation of uniform requirements to allow a Muslim schoolgirl to wear a headscarf.
The third principle is that the need to correct disadvantages that arise from discrimination may require the taking of special measures. That does not mean crude measures involving reverse discrimination. Such measures would undermine the principle of equality itself. The Bill recognises that measures are sometimes necessary to overcome past discrimination and to promote equality of opportunity. Provided that such measures are proportionate to their legitimate aim, they enhance rather than diminish the principle of equal opportunities based on individual merit.
Part 2 outlines measures to target particular behaviour or arrangements. It describes the conduct that is unlawful because it involves discrimination, harassment or victimisation. Direct discrimination is unlawful if it is done for a reason relating to one or more of the prohibited grounds. In addition to the existing grounds of sex, race and disability, the Bill also covers discrimination on the grounds of age, gender reassignment, religion or belief and sexual orientation. Family status, marital status and pregnancy are specified as grounds in their own right, in addition to sex.
Part 2 also defines the fields in which the provisions apply. The Bill goes much further than the government regulations in that it applies to a variety of contexts, including not only employment but also education, the provision of goods and services, public authority provision and the disposal of premises. The definition of indirect discrimination has been clarified and made consistent, and has been applied to disability discrimination.
Part 2 also explains how individuals and the equality commission may take action to enforce the law. The existing legislation focuses mainly on eliminating discrimination by means of investigative and legal processes. The Bill seeks to tackle discrimination more proactively and in a less adversarial way, without imposing unnecessary bureaucratic burdens. Its focus is on encouraging voluntary compliance wherever possible.
Part 3 contains general measures to facilitate general progress towards equality. It requires bodies exercising functions of a public nature to have due regard to the need to eliminate discrimination and promote equality of opportunity. It also requires large employers to carry out periodic reviews of the composition of their workforce and their employment policies and practices. If a review indicates that there may be failings in terms of equal opportunities or equal pay, they are required to draw up proposals with a view to bringing about change.
Part 3 also imposes positive duties on employers, service providers and providers of education to make reasonable adjustments for people with disabilities. This recognises the central importance of this free-standing duty in the Disability Discrimination Act in enabling equality of opportunity for people with disabilities.
Part 4 establishes the equality commission for Great Britain to combat discrimination and to promote equality of opportunity. Clause 40 contains provisions
designed to ensure that the commission combines expertise in the different areas and does not create a hierarchy of rights in allocating its resources strategically. The commission would replace the Equal Opportunities Commission and the Commission for Racial Equality.The Bill recognises the distinct position of the relatively newly established Disability Rights Commission and allows it at least three years from the coming into force of the Act to join the new equality commission.
Part 5 deals with enforcement. Legal proceedings would be brought by way of an individual complaint or a complaint by the equality commission. Part 5 also provides for strategic enforcement action to be taken by the equality commission itself. Where enforcement is necessary it needs to be fair, effective and flexible. To that end, the Bill encourages complaints to be resolved, wherever possible, through conciliation rather than through formal tribunal hearings; and adopts, where the commission is taking enforcement action, a measured approach. Thus, after investigation, the commission may request an undertaking from an employer that it desist from acting in a discriminatory way, and, if that is not given, issue a compliance notice. It may also, in its own name, make tribunal applications alleging unlawful conduct.
There is a parallel with this approach in the provisions for workforce reviews and employment equity plans. We intend that employers would undertake these voluntarily, that failure to do so would not be actionable as such, but might be taken into account by the commission when discharging its functions, or by a tribunal in relevant proceedings, and that any dispute about such reviews or plans may be referred to the Central Arbitration Committee. In taking this flexible approach, we have sought to meet the concerns of employers and others who fear that providing additional individual enforceable rights would inevitably create a flood of litigation. The clear intention is that it should not do so.
Part 6 deals with miscellaneous and supplementary matters. The powers for the Secretary of State to make regulations require amendment to meet the recommendation by the Select Committee on Delegated Powers and Regulatory Reform that the affirmative procedure should apply. Part 6 incorporates eight important schedules. The definition of disability in Schedule 1 is significantly broader than the Disability Discrimination Act, and implements the task force recommendations. For example, a registered blind or a partially sighted person will be deemed to be disabled; a person with HIV will be deemed to be disabled from the point of diagnosis.
Schedule 2 contains the various exclusions which must be interpreted in accordance with the general principles in Part 1. The most important general exclusion is the genuine occupational requirement exception which would, for example, allow a theatre company to advertise for a child actor to play a child's part. The remaining schedules contain miscellaneous provision which I do not need to deal with at this stage.
The Bill has already received widespread support outside the House. We hope that it will be widely welcomed in this debate. I am most grateful to so many noble Lords for indicating that they want to participate today. Inevitably, there will be disagreement about some of its provisions, and of course the Bill is capable of improvement. But we hope that there will be a wide consensus as to the need for a single Equality Bill that tackles the main types of unjustifiable discrimination, creates a coherent, user-friendly and non-bureaucratic framework, and encourages voluntary compliance with the principle of equal opportunity without discrimination.
We seek to provide an effective means of redress for a large number of our fellow citizens—women as well as men; the disabled as well as those without disability; the older as well as the younger generation; ethnic minorities; those who have a religious faith and those who do not; and everyone, regardless of their sexual orientation. Those parts of British society will find powerful voices during this well-attended debate.
The eminent Victorian parliamentary counsel, Lord Thring, once said that razors are made to cut and Bills are made to pass. This Bill has been made to pass. Last and most important of all, we continue to hope that the Minister will tell the House that the Government intend to support the principles of the Bill and to give a high priority to preparing a single Equality Bill of their own for Great Britain, to match what they are already doing for Northern Ireland.
Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)
1.10 p.m.
Lord Ashley of Stoke: My Lords, I thank the noble Lord, Lord Lester, for giving the House this opportunity to discuss discrimination which, unfortunately, is still rampant in our society to a far greater extent than many people are prepared to admit. I congratulate the noble Lord on an excellent presentation of a fine Bill. It deserves warm support. I support the Bill strongly, although he is right to say that there will be disagreement because I do not endorse it all by any means.
The general thrust of the Bill's proposals should be uncontroversial because there is a clear and obvious need for ensuring a consistent standard of protection from discrimination whether it be on grounds of disability, race, sexuality, age, gender or religion and belief.
Although the Government say that they have not yet decided on the question of a single, unified commission, I believe that that is their intention. If so, it is essential that they look first at the mass of legislation which will drive the commission's work. I am sure that no one will argue with the statement of the noble Lord, Lord Lester, that legislation is not uniform. It is widely "un-uniform". To establish a unifying discrimination commission without first unifying the discrimination legislation is like building a house on disparate foundations. If the foundations
are not secure, the whole structure is vulnerable. A unified legal framework is essential before any unified commission starts work and this Bill will provide it. It will tidy up the administrative mess which has, quite understandably, grown over the years.Clarifying and simplifying our equality laws is a valuable step forward. No one gains from confusion, but clarifying these laws will benefit individuals, organisations and companies. It seems to me to be a matter of common sense that one should pursue that course of action. Yet a Minister, Barbara Roche, told the All-Party Disability Group that she is not persuaded of the relative merits of a single equality Act. She said that her concern was that the Government would spend a lot of time working on a single Act, only to see another European directive introduced which would make it necessary to amend it again.
But the possibility of a European intervention applies to many fields and on that reasoning we should take no legislative action over a very wide area for fear of some new directive. Clearly, that is an impossibly restrictive mode of conducting our affairs. I urge the Government to think again and I hope that they will. I am delighted that my very good friend, the noble Lord, Lord McIntosh, is replying to the debate and I am sure that he will do so in his usual constructive manner, although not necessarily accepting all our points.
Although the anti-discrimination legislation across all fields is not perfect, I am most familiar with that related to disability. This Government have a good record on disability and by no stretch of the imagination can the noble Lord, Lord Lester, be justified in calling them half measures. That was a gross over-statement. The legislation introduced by this Labour Government has been most progressive and constructive and it is warmly appreciated by disabled people.
I and many others were pleased with the early achievement of imposing obligations not to discriminate against disabled people—which was fine so far as it went. But now we emphasise the respect for human rights and a positive obligation to eliminate discrimination and promote equality of opportunity. That elimination and the emphasis on human rights is a key to progress. I know that the Government are conscious of current shortcomings, and their proposed new disability Bill is very welcome. It will add to their fine record. But as yet we have neither the timetable nor the detail of its content.
This Bill joins in the task of upgrading disability legislation, although I am aware of concern about some major omissions. The establishment of a joint standing committee to consider detail in conjunction with the views of those familiar with disability will be most welcome. I hope that my noble friend Lord McIntosh will consider that course.
Such a committee could also usefully consider the single commission proposal. The Government are consulting on its possible structures. One structure, leaving the Disability Rights Commission as a separate commission, is proposed in the Bill and was
admirably explained by the noble Lord, Lord Lester. I appreciate the efforts that have been made by the noble Lord, Lord Lester, and his colleagues to acknowledge the special position of disability, but I believe that this is not the right response. I hope that the noble Lord will think again. Rather than pursue his Bill in that way, disabled people require inclusion and not exclusion. The disability interest must be there from the start or it risks being a poor relation. I cannot speak for the Disability Rights Commission, but I believe it too supports that view.However, I personally favour the federal structure for the unified commission proposed by the disability rights commission. The disability perspective demands a "strand specific" structure. Disabled people are understandably concerned that their much valued Disability Rights Commission may be swallowed by a single commission.
Disability leads to discrimination problems that can be fundamentally different from those arising from race and sex. It cannot be tackled by attacking only prejudice, important though that is. Adjustments of one kind or another are also required and the concept of "reasonableness" is fundamental.
Disability is much less understood than, for example, race and sex, and unfortunately it is less easily tolerated. All too readily it fuels latent prejudice if legislation, monitoring and remedies are weak. Major input by disabled people is essential to tackle that prejudice effectively. That is one of the great strengths of the Disability Rights Commission. Weakening it would be very damaging to the interests of disabled people.
The Disability Rights Commission is doing splendid work but it is still a relative babe compared with other discrimination bodies. It needs time to grow and consolidate to fulfil its great potential. Submerged within a single commission, it could well be neglected—as indeed disability has been neglected for centuries. It is for those reasons that any new unifying body needs to have a federal structure. There are too many distinct disability issues to be accommodated by a single functional amalgamation.
I have a thousand more comments to make, but I shall not do so now because I believe in relatively short speeches. I am conscious that so many of my colleagues on all sides of the House are anxious to speak. I hope that the factors I have put forward will be taken into account by my noble friend. I am sure that he will consider them. I wish Godspeed to this fine Bill.
1.18 p.m.
Baroness Buscombe: My Lords, I thank the noble Lord, Lord Lester of Herne Hill, for introducing the Bill and enabling this debate on the important issue of equality. The noble Lord should be congratulated on introducing a Bill which, as we have heard, represents four years of hard and thoughtful work and which sets out to provide a single framework for eliminating discrimination and promoting equality between different people, regardless of racial or ethnic origin,
religion or belief, sex, marital or family status, sexual orientation, gender reassignment, age or disability. It is a tough and noble assignment!I cannot confess to being as knowledgeable on this subject as the noble Lord, Lord Lester, but I will do my best to outline our position succinctly and with clarity. We can agree with many of the points the noble Lord has been making in his criticism of the current legislation. The Government have indeed failed to grasp the opportunity for comprehensive reform. Yes, there is much activity in this field. However, it is piecemeal, lacks clarity and, as such, can act as a powerful deterrent to many who are confused as to their rights and responsibilities under this very delicate area of the law.
The Bill is comprehensive and, with the principles outlined by the noble Lord, Lord Lester of Herne Hill, with regard to the need for change, I cannot believe that anyone would argue for the status quo. That said, we must proceed with caution and take care to ensure that the new provisions are the best that they can be for everyone, including those who have to implement the changes and provisions as well those who will benefit from them.
Turning to the Bill itself, I shall touch upon only some of the many issues covered. We support the principles set out in Part 1, Clause 1, together with the notion that legislation should be in place before we establish a single equality commission. The commission would bring together the bodies that currently oversee the law of discrimination, the Equal Opportunities Commission and the Commission for Racial Equality, with, I understand, the chance of the Disability Rights Commission joining within three years.
The benefits of such a commission are obvious. One united body could be a much stronger force for equality and the changes needed to achieve it. For a person facing multiple discrimination issues, a single body would provide more effective support, and promoting equality as a whole would be easier.
However, we must be careful about how these bodies are combined. The aforementioned bodies themselves have expressed reservations about how this will be done. The noble Lord mentioned the example of Northern Ireland, where a single equality commission was established in 1999. But many have commented that this has not been a huge success. It appears to concentrate too much of its time on internal reorganisation matters and there has been much criticism that it has lacked sufficient focus and has ended up fighting over money.
Although in favour of a single commission, the Disability Rights Commission argues strongly for an Act before a commission. In its briefing note of last year it stated that this order of development was needed—and here I am repeating very much of what was said by the noble Lord, Lord Ashley of Stoke—to,
- "ensure high and consistent standards of protection across all the forms of discrimination covered by a new body. Otherwise any new body will be lumbered with a legislative mess and 'hierarchies of equality', seriously weakening its internal cohesion and external credibility".
The Equal Opportunities Commission also touched on this point in its briefing for the Bill. The principle that equality should not be achieved by levelling down but by levelling up also finds favour on these Benches. It is a well-documented fact that women are still not earning the equivalent salaries of men. It is thought that the figure lost over a lifetime is, on average, between £50,000 to £250,000. It is clear that something needs to be done about these depressing statistics.
However, it is hard to see how levelling up will be achieved in practice. My greatest fear is that employers faced with this option may refuse to employ women at all—pleading disproportionate burden—no matter how much legislation we pass on this point, especially at the top of organisations and in the City, which is already a tough environment for women. We must ensure that employers still feel that they have a choice over what to pay and that they reward staff according to ability and commitment.
This fettering leads me on to another point in the Bill which seems to leave employers' hands somewhat tied. Clause 29 concerns workforce reviews. These extensive reviews are to be followed up by "employment equity plans" which seek to ensure that businesses have the correct number, or rather quotas—because it seems to amount to that—of groups.
I can see many problems with this well-meaning device. First, I am concerned about to whom it will apply. The Bill defines "designated employers"—those who will have to carry out these reviews—as those designated by the Secretary of State by order. The criteria for selection are that the business must have 10 or more workers. But we are concerned about the other criteria for becoming a designated employer. Surely this cannot mean all businesses with 10 or more workers. That would place an extraordinary burden on small business in this country. The Department of Trade and Industry statistics inform us that at the start of 2000 there were an estimated 3.7 million businesses in the UK. Of these, 99 per cent had less than 50 employees.
Secondly, I am concerned that once the reviews have been carried out and the employers find, as almost certainly many will, that they do not have the correct number of representatives for all groups, they will find themselves in a rather invidious position. Their "employment equity plan" would have to extend to,
- "each employment equity group in respect of which there is under— representation",
It is clear that it will be much easier for those in urban cities to comply with these requirements. However, I fail to see how those in small rural areas of,
for example, Yorkshire and Cornwall, could possibly hope to have a workforce complete with a full shopping list of all the representative groups required.I am also concerned that this kind of clause will create problems in the workforce, with colleagues believing that a worker from a minority group has been hired or promoted merely because he or she belongs to such a group, even if this is not the case.
I well recall when working as a lawyer for a major British clearing bank in the early 1980s in New York, the problems that we faced because we were trying, with every will in the world, to enforce quotas. Our task was to employ and promote more women, ethnic minorities and Vietnam veterans. It seems that the latter were being discriminated against on the ground that they had failed to win the Vietnam war on behalf of their fellow citizens and so were in disgrace. That proved a real shock to me at the time. It also showed that new classes of individuals can emerge which necessitate a degree of flexibility in our approach to anti-discrimination law. Our quest to employ more of certain groups within the bank created an enormous amount of resentment—unfortunately, lasting resentment—often through negative under currents, among the workforce as a whole.
There are further points in this area, particularly in relation to employment. While we fully recognise the importance of protecting the vulnerable and accommodating the needs of those who need special arrangements in order to work, we are concerned about the word "arrangements". It is extremely broad.
In essence, there has to be a balance between the rights of an individual and the rights of the group with whom that individual interacts. While I accept, for example, the need for pregnant women to have special arrangements with regard to their, albeit temporary, condition—and here I speak from personal experience again—those arrangements should not place an undue burden upon fellow employees. In many cases it simply is not viable merely to go out and hire additional support. In other words, we must take care to ensure that we are not promoting the needs of the individual at the expense of the remainder of the workforce.
I note that in relation to "protected areas of activity" there is reference to the management by any persons of a members' club. I draw your Lordships' attention to this point in particular, noting that we had a debate on this issue in your Lordships' House yesterday when we were considering the Licensing Bill. Once again we made it clear that we want to support the breaking down of all forms of discrimination to protect the rights and dignity of the individual. We are indeed against any form of discrimination, victimisation or harassment and welcome the opportunity—particularly given that we in the Conservative Party are often misunderstood on the subject—to say so.
The proposal to introduce a comprehensive Equality Act deserves serious consideration. I look forward to hearing the Government's response to the Bill today.
1.29 p.m.
Baroness Greengross: My Lords, I, too, add my congratulations to the noble Lord, Lord Lester, and his team. They have made an enormous effort to produce a workable and admirably drafted Bill to deal with this most important issue.
Discrimination against groups of people because of characteristics or traits that they cannot usually help, disown or remove is iniquitous and harmful to society at large. I shall restrict my remarks mainly to age discrimination. This form of discrimination is particularly virulent and widespread, mainly because it is largely unrecognised by the people who perpetuate it. That includes older people themselves, who often feel that they have to stand down in favour of younger people. In many cases, that is mistaken, because chronological age is an extremely unreliable factor by which to judge people. If we judge them on their ability in terms of the labour market, on their competence to do a job or, in other fields, on their rights to receive goods and services to the same level as other groups in society, we see that this is an issue of fairness and justice, not merely one of equality.
I feel that legislation is necessary—certainly in the field of employment, because older people need to participate. They provide a resource to our society which is largely under used. If we take into account the new longevity and healthy life expectancy, we have a fast-growing group of people who are an under-used and very capable resource—which we need. Many older people want to continue to work. As we know, pensions are not as secure as they used to be. People's expectations are unlikely to be met without such legislation. In addition, the dependency ratio has changed: there are fewer children. There are small jumps in the birth rate, but overall it is fast declining.
In the past few years companies have used their pension scheme surpluses to downsize, always getting rid of older employees first, because this did not show on the P&L account. It was an easy and cost-effective method. But now, things are changing. I hope that with the help of this Bill they will change for the better.
Furthermore, organisations such as the Employers Forum on Age, which I was privileged to help establish, have demonstrated the value of age diversity in the workforce. They have shown conclusively that older workers tend to stay in a job longer. This must be set against the high cost of recruitment and retention of staff. Therefore, equal opportunities for vocational training for older workers are essential. Although people think that it is not worth getting into, if you employ someone of 60, that person will stay for five years, whereas someone aged 20 is likely to leave in 18 months to two years. So there is a built-in advantage in employing older people. Many older people are reliable and loyal to the company for which they work. They have a great deal of experience and expertise which can be balanced, together with their knowledge of the history of the company, against some of the innovative—and essential—characteristics of young employees.
A further fact to be considered is that 40 per cent of the population is now over 50; over half will be over 50 by 2020; but only about two-thirds of people aged 50 to 65 are in full employment now.
The Government have taken some steps to tackle age discrimination and have helped to raise awareness. But the current code of practice—the result of government activity in response to the Bill supported by Age Concern which was promoted by Linda Perham in another place in 1998—is not legally binding. It has, I am afraid, been rather ineffective.
Now, we have the EU directive, which means that age discrimination in employment and vocational training will be unlawful by 2006. But this is still very narrow. It does not include other areas where age discrimination is still rife: in education; in financial services; in consumer affairs; and, above all, in NHS services, where I am afraid it still exists. I am sure that other noble Lords will talk on that subject with enormous expertise. That is why the Bill is necessary.
The noble Lord, Lord Lester, has been extremely even handed. For my purposes, he could even go further in some areas of the Bill, but he has made a great effort to accommodate the difficulties that the Government will face. Combating or abolishing age discrimination, even in employment, is complex and difficult. I acknowledge that. But we have to take the bull by the horns. Enormously positive things could come out of this Equality Bill—for example, a single equality commission.
The Bill makes discrimination due to age unlawful in all protected areas of activity. To deny someone a service or employment simply because of their age is wrong. If we introduce a single equality commission—which I favour—we have to take into account the worries, particularly of people in the field of disability, that their cause, or indeed some of the others, may be diluted. If the Bill becomes law and does dilute any of those areas, and discrimination is still apparent, then it will not be working properly. We must make sure that that does not happen.
A single equality commission will have a great job to do. At present, if I felt that I was being discriminated against, it could be on a huge number of grounds—it could be on grounds of age or gender, I could be a lesbian, and so on. There are many areas where no one would be able to advise me of the best path to take to combat the discrimination. I should have to go to each area of a commission to find out which was the best place for me to go. A single equality commission which could point people to the right department or sector would be very helpful.
We have to take these issues on board now. My long-term wish would be for age neutrality or age irrelevance to replace age as a criterion which is largely used against people. We can usually substitute other factors for age. If we cannot see well enough to drive, the problem is our sight, because many older people can see well enough to drive; so it is better to concentrate on that aspect rather than on someone's age. There is a whole list which I have no time to mention now but which would take all these areas of life into consideration.
I feel that it is long overdue that we take on board age discrimination in its wider sense, across our lives. I very much hope that the Bill will succeed.
1.38 p.m.
The Lord Bishop of Winchester: My Lords, I, too, appreciate the work of the noble Lord, Lord Lester, and his colleagues in bringing so large a range, both of existing legislation and of legislation that may be desirable, within the compass of a single Bill and under the oversight of, and served by, a single commission.
First, I must confess that I have an engagement later that I have to keep. Before deciding whether to add my name to the list of speakers, I took what two or three days ago was the best advice from the Whips' Office. I fear that my judgment on the basis of that advice may prove to be wrong. Only a further hour and a half or so will prove whether that is the case. I apologise to the noble Lord, Lord McIntosh, and to the House if it proves necessary for me to leave before the end of the debate.
The matters within the Bill's purview—the safeguarding of basic human rights, the promotion in society of the dignity, equality, safety and respect of all its members—are indeed of fundamental importance. They are of such importance that it will be necessary for the Government, and for all of us, whether in another place or in this House, to ensure that the bringing of all these disparate strands within the purview of a single commission does not bring some loss of focus on the individual strands, and does not enforce a misleading or distracting homogenising approach.
While there are certainly common principles, the 10 grounds first set out in paragraphs (a) and (j) of Clause 1(1) raise their own distinct issues in relation to the Bill's purpose. As expressed in the first words of that Clause, the purpose is,
- "to facilitate both the promotion of equality and the elimination of unfair discrimination".
It is not axiomatic that identical investigation and enforcement powers are needed for, and will be appropriate for, each of the 10 "grounds". More important—but also, I recognise, more arguable and controversial—is the suggestion that some of the 10 "grounds" may be more fundamental than others. At some points, there may continue to be legitimate argument from decent, law-abiding people, whose respect for the law the Government should not lightly put at risk, that some discrimination is not only not "unfair", but actually proper and necessary according to the tenets of their faith.
Considering the list in Clause 1 from that standpoint, grounds (a), (b), (c) and (g) are unequivocally to be welcomed. Ground (d), "family status", may need some explication. None is offered in Clause 4, but I would guess that it falls into the same category. Grounds (f), (h) and (i) are also
straightforward and to be welcomed, although the Churches and faiths will want to consider carefully whatever legislation is eventually proposed on the pattern of a substantial number of clauses of the Bill, to ensure that the law of the land is not about to prevent them from conscientiously applying their own doctrines and beliefs, which in many cases have been held and practised for many centuries.The inclusion in the list of grounds in Clause 1 of gender reassignment and sexual orientation—the latter with further interpretation offered in Clause 4—in the context of the provisions of the rest of the Bill, is likely to raise a range of questions for Churches and faiths, if for different reasons. Gender reassignment raises significant questions for sports management bodies, too, but they must speak for themselves, when and as they wish to do so.
With regard to the ground of gender reassignment, I am well aware of the Government's commitment, expressed in the Lord Chancellor's Department's December Statement made in the light of the judgment of the ECHR in Goodwin and in anticipation of that of the House of Lords in Bellinger, to publish a draft Bill to give effect to the requirements of the former. Notwithstanding Goodwin's remarkable and regrettable inadequacies, I appreciate that it has the authority that it has and that the Government must take the appropriate note of it. Doubtless, that has also been the case for the noble Lord, Lord Lester, and his team.
I appreciate the grave effects of gender dysphoria upon those who suffer from it, and the deep distress and confusion that it causes them. I recognise that, for many such people, gender reassignment treatment, including surgery, has brought substantial relief and liberation. I understand how important it is for those living in a new identity that they should not continue to be subject to embarrassing and distressing questions that hark back to the identity in which they previously lived. I support them and their friends in wanting them to be relieved of those difficulties and constraints to the greatest possible extent.
That said and meant, however, it is also important that the Government and the noble Lord, Lord Lester, and his colleagues, recognise that fundamental differences of judgment remain in the medical profession about gender dysphoria and the treatments appropriate to it. There is a significant range of Christian opinion, and of opinion in other faith communities and more widely in society, which does not agree that the gender of any of us can be changed, whatever the Government's Chief Medical Officer or the Government themselves say, and whatever their Lordships say in their judgment in Bellinger.
With regard to ground (j), sexual orientation, I am sure that the noble Lord is aware of the extent to which, for many people now, their sexual orientation is explicitly a matter of their choice rather than one that they themselves understand to be intrinsic to their identity. He may also be aware that the Church of England, along with other Churches and faith groups,
is accustomed to draw a clear distinction between "orientation"—understood in terms of the interpretation in Clause 4 of this Bill—and "behaviour". We are now being advised that courts and tribunals are unlikely to recognise any clear-cut distinction along those lines in considering claims of discrimination brought under legislation that is pending. The effect will be that actions taken by the Churches to enforce their doctrines and beliefs in relation to sexual conduct will be rendered unlawful.In making these points, I am not challenging the principle that people who understand themselves as homosexual, or transgendered, should have full equality and protection before the law and the fullest freedom from prejudice, homophobic violence and unfair discrimination. However, it is crucial that legislation that properly seeks to ensure that equality should not—in my judgment improperly—encroach on the freedom and the right that religious organisations must have to set and enforce their own conduct rules in relation to those who work for them and represent them.
As the Minister and his colleagues know, the Churches and faiths certainly do not see those problems as insurmountable. Indeed, we have a commitment to the basic purposes of legislation of the sort that the noble Lord's Bill so remarkably seeks to codify within a single compass, and to contributing to the development of best practice in this most important area of the life of society. Our representatives are available to work with the Government's, and the noble Lord's, draftspeople, to help ensure that Churches and other faith-based organisations do not find themselves in the position where the law of the land intends to prevent them from conscientiously applying their doctrines and beliefs on moral issues.
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