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Lord Lester of Herne Hill: My Lords, I would not normally have interrupted, were the right reverend Prelate not likely to have to leave the debate. Is he aware that, on page 75 of the Bill, we have gone to great lengths to include an exception not only for genuine occupational qualifications but for charitable bodies and schools with a religious character? Does he accept that those exclusions are an attempt to secure a fair balance between his point of view and that of others?
The Lord Bishop of Winchester: My Lords, I am grateful for that question. Yes, I had noted that page carefully. In paragraph 13 of Schedule 2, the provisions are more closely drawn than in existing legislation. Paragraph 14(2) makes a close point, stating that the exclusion does not,
- "exclude anything done for a reason or reasons relating to any prohibited ground other than religion or belief".
1.50 p.m.
Lord Alli: My Lords, I am very glad to have the opportunity to speak in this debate. Like many other
speakers, I wish to thank the noble Lord, Lord Lester of Herne Hill, and his team for bringing forward this Bill. He deserves congratulations for taking on the task of producing such a comprehensive Bill on such an important subject.I cannot really move forward without saying a few words to the right reverend Prelate the Bishop of Winchester. I still find it amazing that Houses of God should find anti-discrimination legislation a difficult concept and continue to perpetuate a form of righteous discrimination. The principle of creating a level playing field of legislation for different areas of equality is an important one. I believe that no institution or organisation should be exempt from it.
Like all policy areas, the equality arena has its fair share of jargon. Noble Lords could be forgiven for not knowing the jargon for referring to different areas of equality—but they are called "strands". Issues relating to age discrimination are commonly referred to as "age strands", issues relating to discrimination on the grounds of sexual orientation are called "sexuality strands", and so on. Issues addressed by the current equality commissions—race, gender and disability—are often called the "old strands", and issues such as sexual orientation, religion and belief and age are called the "new strands". I hope that colleagues do not mind my providing a small glossary of terms, but I find it useful to be clear about the jargon used by experts in this area.
The principle behind the Bill is to equalise legislation across all strands, old and new—an overall principle which I support wholeheartedly. I do not intend to provide a detailed clause by clause commentary on the Bill, but shall focus on the question of equality policy that lies behind the Bill. I also propose to focus my input on areas where I have some expertise, including why business should welcome diversity and the importance of understanding equality issues that affect more than one strand.
To understand why the issue is important, we need look no further than a case currently under consideration by the Law Lords. School teacher Shirley Pearce faced horrific discrimination, including attacks on her person and at her home. She was targeted by pupils and colleagues when they discovered that she was a lesbian. The case has had significant publicity, not least because Ms Pearce was represented by no less than Cherie Booth QC. While we await the decision of the Law Lords, we can look back at the response that Ms Pearce received in Europe; namely, that the current mish-mash of equality legislation in the UK meant that if she had been harassed and the words, taunts and violence targeted at her had specified her race or gender, then she certainly would have had the protection of the law. As it is, because the taunts were about her sexuality, she is at best in a very grey area and may well, I suspect, have no rights at all. Can we really afford to waste the talents of so many in our society and leave them with so little protection when they are subject to such blatant attacks?
Clauses 22 to 30 of the Bill tackle the issue of stopping discrimination in the workplace on grounds relating to any of the strands. There is a common myth that business dislikes equality and campaigns against policies designed to see greater equality and diversity in the workplace. I believe that that is a vastly oversimplified view. What I think they resent are complex, unworkable and political arrangements that are commercially unfeasible.
Let us take as an example one of the "new strands", sexual orientation, which is the area that I probably know best. At the moment, there is absolutely no legislation enforcing equality of treatment or anti-discrimination against gay and lesbian people in the workplace. Such laws are coming into force and should be in place at the end of the year. At the moment, however, nothing is in place.
One might think that business would be dreading the introduction of such laws, but the reality is that many of them are taking sensible steps forward. In fact, businesses as diverse and successful as Barclays, BT, Credit Suisse, JP Morgan, IBM, Shell, Sainsbury's and Ford proactively sought to work with Stonewall in a scheme called Diversity Champions. They work with the sole aim of ensuring that their companies follow best practice in diversity policy. They believe that that is not only the right thing to do, but that it gives them a competitive edge and better knowledge of their marketplace. In fact, the other day, I noticed that the Treasury, the DTI and the Department for Work and Pensions have recently joined the scheme.
Perhaps I should be encouraged by the fact that the private sector is leading the public sector in recognising the carrot as well as the stick in equality policies. However, the Government are a huge employer. I remind my noble friends on the Front Bench that the Government need to continue their good work in pushing forward their own employees in this area.
I turn to Part 5 of the Bill, which sets out a framework for the establishment of an equality body dealing with the range of different strand issues. I am sure that many noble Lords know that the Government have said that they are minded to introduce such a body and have in fact just closed a consultation period on its possible form. I know that representative groups of the new strands are especially keen to see such a body established, as work in those areas currently relies on voluntary organisations and groups. I know that many of us are keen to hear the results of the consultation and the Government's plan for moving forward in this area. I believe that the creation of a single equality body is to be encouraged as it will provide the institutional support for both the new and old strands—as well as for individuals, such as the noble Baroness and me, who fall into more than one strand.
I am glad that the Government are addressing some of those issues and I urge them to keep them high on the agenda. It may interest the House to know that many of the major equality bodies, in both the old and
new strands, support the equalisation of legislation dealing with their respective areas of interest. However, what I think they would all concede is that we have not yet had a debate that has unpicked the detail of any new arrangement or engaged the public on the value of such a body. Nor do the public understand why it can be of benefit to all of us in society regardless of our background, age, race, colour, sexuality or belief. I urge all of those bodies to start that debate. Indeed, the single equality body that the Government are proposing may well be the grain of sand in the oyster that brings that forward.The last time that I spoke to a Bill brought forward by the noble Lord, Lord Lester of Herne Hill, was in January 2002. It was a Bill to pave the way for civil partnerships, for which I suspect that I shall be eternally grateful. I spoke of the plight of many gay and lesbian couples who wanted a more stable future. I asked the Government to look at the provisions and try to right a wrong that saw the loved ones of friends and colleagues having to sell their homes when their partner died. I ended by asking the Government to be compassionate and sensitive to those issues. I believe that they listened, and I am optimistic now. We will see movement on civil partnerships.
The Government whom I support have a great record on equality, and I ask my colleagues to listen once again. There are some valuable principles in the Bill. I hope that they will see it as a constructive move forward. In any case, I hope that they will rest assured that I shall continue to support them in this particular area.
I must end by again thanking the noble Lord, Lord Lester, for giving us this opportunity to discuss the Bill. His perseverance should be a lesson for us all.
1.58 p.m.
Lord Dholakia: My Lords, I add my thanks to those already given to my noble friend Lord Lester of Herne Hill for introducing the Bill. He has a distinguished record on human rights. He is a pioneer in the matter of anti-discrimination legislation in Britain. I have known him now for more than 35 years. He has been tireless in ensuring that race legislation is an unequivocal statement of public policy in this country. He is internationally respected on matters of rights, liberties and equality. He acted as an adviser on this issue to the former Home Secretary, the late Lord Jenkins of Hillhead. I have no doubt that the Minister will take serious note of his comments.
It is not in dispute that the United Kingdom has substantial anti-discrimination legislation on the statute book. In this respect, we are far more advanced than some of our European neighbours. Equality of opportunity is one of the core values of a civilised society. It has helped to build a strong, competitive and successful Britain. But this does not mean that our framework of anti-discrimination legislation could not be better. There is clear evidence that we still have a long way to go. Could we really say that we have achieved equality for all our citizens? Do women earn the same as men? Why are black men more likely to be
unemployed than white men? Why is society still uneasy when it concerns gay people who are constantly harassed during work and leisure? Have we really tackled the disadvantage suffered by disabled people?The race relations legislation was first introduced in 1965. It was followed in the 1970s with legislative measures to tackle sex discrimination. The Disability Discrimination Act 1995 is also on the statute book. Of course there has been progress, but it has been slow and cumbersome. Much of the early legislation on race introduced over 25 years ago needs drastic revision. We need a fundamental review to ensure that what we promote helps to make a difference to people's lives.
Barbara Roche MP has this to say in The House Magazine:
- "There is no point in just tinkering around the edges. What we need is a complete culture change in the way our workplaces and our institutions function".
I hope that this exercise of public consultation does not delay the need to replace the outdated, fragmented and unsatisfactory legislative framework that has been in existence all this time. This is not to underestimate the impact of existing legislation, but to accept that successive Governments have been reluctant to respond to many of the recommendations made by the Commission for Racial Equality in its frequent reviews of the race relations legislation. The commission's terms of reference entitle it to undertake this exercise. Of course, there are exceptions, such as the Race Relations (Amendment) Act 2000, but that was driven more by the Stephen Lawrence inquiry than any other factor.
It is not good enough to say that the Government have started to implement the employment and race directives or that there is draft legislation to outlaw discrimination at work on the grounds of sexual orientation and religion. This piecemeal approach does not assist in tackling discrimination and promoting equality in a strategic way. There is now almost a consensus that a single equality Act must be the starting point for the establishment of a single equality body.
Who in the 1960s could have believed that we would have legislative measures to tackle racial discrimination? History tells us why it was necessary to introduce the measures in the way that we did. The Race Relations Act 1965 was the gentle persuasion to prepare the public to tackle discrimination in public places. The Race Relations Act 1968 established the principle of conciliation as a means of tackling grievances based on race, colour, national and ethnic origin. The Race Relations Act 1976 was the start of a strategic approach to tackle institutional discrimination.
Over the years, the position of the black and ethnic minority communities has also changed substantially. We have the benefit of the latest census figures published by the Office for National Statistics. They show that in April 2001, 9.9 per cent of the population in England and Wales identified themselves as being from an ethnic minority. In London, 31.2 per cent of people identified themselves as being from an ethnic minority. We also have evidence published by the Cabinet Office in its report, Minority Ethnic Issues in Social Exclusion and Neighbourhood Renewal that 70 per cent of all people from ethnic minorities live in the 88 most deprived local authority districts compared with 40 per cent of the general population.
Further evidence tells us that in 1999, only 30 per cent of Pakistani pupils, 37 per cent of black pupils and 30 per cent of Bangladeshi pupils achieved five or more GCSEs at grades A-C compared with 50 per cent of white pupils and 62 per cent of Indian pupils. An African-Caribbean graduate is more than twice as likely to be unemployed as a white person with A-levels. African men with degrees are seven times more likely to be unemployed than white male graduates.
There has been a massive shift in Britain's demographic makeup. The pattern is constantly changing. We no longer talk about the first generation of immigrants. Primary immigration has virtually stopped. We are reaching a stage when most black and ethnic minority persons are born in this country. Despite this, it is safe to assume that discrimination occurs in all fields. Almost all research agencies and the Commission for Racial Equality have confirmed that. It is no good being squeamish about it. The minorities are entitled to the same standard of consideration, fairness and respect as anyone else. Can we be absolutely certain that they receive it?
Equality should never be undermined. In the final analysis, the emphasis in any policy determination should be the manner in which and the extent to which minorities' deepest feelings about their race, colour, national or ethnic origin are fully accepted within the community and by the policymakers.
Trends in race relations show that discrimination still persists at a very high level. Minorities are still to be found disproportionately among the poor, the unemployed, the homeless, those who have never worked, those who are stopped and searched, those in penal institutions, among the under-achievers in schools and as victims of racial harassment and violence. The fact remains that racism and racial discrimination is an everyday reality in the lives of many minorities. Geographically and economically they are still in the precarious position of being in the same place as was allotted to them when they first came here. But the most frightening aspect is the failure of many of our institutions to take into account the cultural diversity of our different communities.
I stress that, apart from minor tinkering, the Race Relations Act 1976 has been amended only once in 26 years. What is now required is the political wisdom appropriate to a multi-racial, multi-cultural and multi-religious society. We have waited almost 30 years, but now is the time to write a new chapter.
The race relations lobby need not worry about what is proposed in my noble friend's Bill. In Committee we shall have ample opportunity to deal with various aspects of the forms of discrimination that we need to confront and with the promotion of equality.
The Bill contains almost all the provisions that equality bodies want. Much work has already been done on such issues for which we thank not only my noble friend but also Professor Hepple, Mary Coussey and Tufyal Choudhury who did much of the ground work in producing the Bill. As I say, we have waited for 27 years for a major review. Now is the time to write a new chapter based on an equality commission encompassing all equality bodies.
2.9 p.m.
Lord Rix: My Lords, I welcome the opportunity provided by the noble Lord, Lord Lester of Herne Hill, for this dry run of comprehensive equal treatment legislation. The noble Lord and his advisers deserve our warmest congratulations.
I should begin by making my usual declaration of interest as father and grandfather of disabled persons, and as President of the Royal Mencap Society. Like many others in your Lordships' House, I suppose I ought also to declare the interest of being an older person. I shall stop short of claiming ethnic minority identity as a Yorkshireman. Yorkshiremen have not tended to see themselves as a victimised minority.
In general, I welcome a good deal of this Bill, not least because it addresses the concerns about possible loss of the Disability Rights Commission by retaining that commission for the first three years of the new arrangements. In effect, the Bill preserves the existing disability rights legislation more or less intact, and extends to disabled people the benefits of a wider equality strategy. There are incidental advantages for those who, as well as being disabled, have one or more other characteristics that might attract prejudicial discrimination. This seems to me in principle the right approach in the shorter term, if we are to have early equality legislation. However, I am not absolutely persuaded that death by absorption for the Disability Rights Commission is necessarily right in the longer term.
I want to take the opportunity to pay tribute to the DRC for seeking to include people with learning disabilities fully in its disability rights agenda. I couple that tribute with a tribute to people with learning disabilities such as Eva Rank Petroziello as a commissioner and Simon Cramp, a Mencap trustee and a member of the commission's learning disability group, for the role which they have played. It is all too easy to perceive disability in terms of physical and sensory impairment—with the very visible symbols of wheelchairs and white sticks—and to ignore intellectual disability. It is also all too easy to forget that, particularly among children and older people, disability is commonly multiple disability.
The noble Lord, Lord Lester, has shown himself to be sensitive to concerns that a new unified equalities approach might be premature, given that
implementation of disability rights is still being phased in; and to concerns that disability might be overshadowed by sex, ethnicity, and age—to say nothing of the more esoteric conditions giving rise to possible prejudice such as gender re-assignment. I remain concerned about the longer term. In other countries which have followed the path of integrated equalities working, there have been ongoing arrangements for a distinctive identity for the disability dimension. In other words, disability has featured as a distinctive area of business, with its own senior leadership, its own dedicated staff, its own agenda for action and its own statistics.The Bill as it stands seems to envisage retention of the DRC followed by abolition, with no ongoing separate identity for the disability dimension. This is despite the fact that, as close scrutiny of the Bill reveals, disability is different both in being, on the odd occasion, a legitimate ground for discrimination and in requiring positive measures to be taken to overcome the disabling effects of impairment—effects which the rest of us impose.
I encourage the Government, either today or if and when it is the Government's turn to legislate, to lift the curtain of the dark a little, and to give some encouragement to the hope that in the longer term, as well as in the shorter term, there can and will be specific recognition for disability discrimination and the means of addressing it. Those who laboured for 20 years to secure what we have would be sad to see that disappear for the sake of an alleged greater but certainly more amorphous good.
I suspect that my other concerns are more easily addressed, as this government-Bill lookalike, if I read it aright, seems to address them in part already. Significant improvements in disabled people's lives have been possible because organisations and institutions have adopted policies and practices that promote the interests of particular groups of disabled people. As I understand the Bill, it encourages broad disability strategies on the part of public services and employers and, within that, allows for policies and practices that favour particular groups of disabled people.
Thus Mencap can continue, as its constitution requires, to favour people with learning disabilities, including those who have additional disabilities. As stated by the noble Lord, Lord Lester, an advertisement seeking a child actor for a child's part would be lawful. If my interpretation is correct, employers and public authorities concerned to get the less than 10 per cent level of employment for people with learning disabilities up to the more than 30 per cent employment rate for disabled people generally could also exercise some selectivity among disabled people if they so wished.
I shall venture on to more sensitive ground. The debate is a good opportunity to air some rather delicate issues. Someone with a learning disability, such as my daughter, who needs personal intimate care might have a preference that such care should be provided, whether in their own home or in a residential
home, by someone whose gender and sexual orientation they personally find reassuring rather than threatening. They might have preferences based on ethnicity or religious identity. There is always the potential for a clash between the law on discrimination, as it affects the employers of care staff, and the personal choices of individuals with disabilities as to who provides their personal care.I am inclined to the view that people whose disabilities tend to limit their choices quite severely, and who are heavily dependent on others for very basic things, probably ought to have the right to choose their carers. After all, there is no law that overrides our personal rights to decide who we let into our house.
I note in passing that one of the criteria for a housing and support arrangement being accepted as supported living rather than residential care is the right to decide who enters one's own house and room. That of itself seems to imply that the individual can override equality legislation by exercising personal choice. I would be sorry to see that same right denied to people with severe disabilities living on the residential care side of that rather unclear dividing line between residential care and supported living.
Finally, like a traveller in an antique land unearthing surprising things in the sands, I came across paragraph 36 of Schedule 2, which is in Part 5 of the schedule. It is probably not the section of the Bill to which the noble Lord, Lord Lester, most frequently turns in the wee small hours. I think that the provision, apart from clearly reinforcing the demand for incapacity benefit legislation south of the Border, provides a rather sweeping denial of consumer rights to any disabled person whose intellectual capacity has been called into question.
That is not wholly new, but I would welcome early rethinking of it by the Government, to ensure that fair treatment in buying essentials such as food, equipment or a roof over someone's head cannot be put at risk by the discriminatory doctrine that they lose their consumer rights if it is suspected that they might not shine in an IQ test. It is already apparently more difficult for people with learning disabilities to hold bank accounts, so it seems likely to be more difficult for them to handle their own benefit money when bank accounts become a sine qua non of direct receipt of social security benefits and tax credits.
Like one of those impressive sailing ships that I recall seeing gathered in the Thames for the round-the-world race, this impressively large and in some aspects elegant new Bill is embarking on its legislative journey. I wish it well. However, I fear that it is carrying so much sail that it is likely to sink without trace before it reaches Gravesend. Even if it joins Davy Jones in his locker, I see every possibility that those who construct the official version will have a great deal to learn from the Bill and our debates on it. On that basis, I welcome it, if only transitionally. At worst, how can you tell that you do not like Blackpool until you have seen it?
2.19 p.m.
Lord Ahmed: My Lords, I, too, thank the noble Lord, Lord Lester of Herne Hill, for introducing this Bill in your Lordships' House. The noble Lord has a unique experience and expertise in the field of equality and race relations. Indeed, he has been at the vanguard of this field in the United Kingdom, marking the introduction of much-needed legislation at a time of great multicultural change in the society of the UK.
I am delighted to be able to support the noble Lord in his current endeavour to redress the balance of the long-standing discrepancies in equality legislation for all sections of our society. When we look for equality, it is important to ensure that all members of society feel included and that all feel that the laws are for the benefit of everyone. Everyone should come within the remit of equality. Gender, race, disability and ethnicity should no longer be a hindrance to the aspirations of members of these sections of the community.
Two years ago, I introduced a Private Member's Bill in your Lordships' House on religious discrimination because I felt that our laws were inadequate to deal with Islamophobia and anti-Muslim feeling. Since September 11th, there have been increased attacks on Muslim communities and places of worship, extending even to attacks on the Sikh and Hindu communities. Although I am delighted that the Race Relations Act 1976 covers Sikh and Jewish communities—and for good reason—unfortunately it does not cover Muslim, Hindu or even Christian communities from religious attacks from the fascists in our society.
There are also anomalies in the law. In Northern Ireland we have religious discrimination laws but they do not extend to mainland Britain. Although the employment directive from the European Union will try to spread values of equality to all religious groups, including Muslims and, specifically, women who wear the hijab headscarf and men who have beards or dress differently, employers would not be able lawfully to discriminate against that.
Nevertheless, the real problem that we face in our multicultural societies all over Europe is the pervasive, unspoken mindset of institutional prejudice against different groups. We also have to face the narrowness of reporting of religions from the media and ignorant comments from our own politicians.
Perhaps I may clarify that. There is little doubt that the mass media are greatly influential in shaping the parameters within which minority groups are viewed by, and discussed in, the indigenous community. That was confirmed in the report of December 1999 of the Equality Commission for Northern Ireland. Differences between communities and the images perpetuated in the media continue to cause friction in the community at large. That is comparable to the Muslim community in the UK these days, which is experiencing the demonisation of its religious, cultural and traditional practices by a media culture which is reactive and narrow.
I accept that there are a few groups that call themselves Muslims and fight under the banner of Islam, but other groups in Judaism, Christianity and
Hinduism also use religion as an excuse to gain their political ends. For example, the Vishva Hindu Prashad, or VHP—a Hindu nationalist right-wing party—is responsible for the massacre of Muslims in Indian Gujrat, as well as for the destruction of churches and the murder of Christian leaders in Gujrat. Similarly, the SPLA in south Sudan is a broadly Christian organisation fighting an Islamic regime in the north. Yet they are not labelled or ostracised as Hindu or Christian terrorists. I have said in your Lordships' House that ETA, the Basque separatist movement in Spain, or the Tamil Tigers in Sri Lanka are not defined by religion but by their political aims.But it is with regret that every organisation which fights for the right of self-determination for the Muslim community or which fights an army of coercive occupation in Palestine, Kashmir or Chechnya is then referred to as Islamic terrorists. Those sentiments are then spread to our communities here in the UK with fear, suspicion and loathing, and that strengthens the propaganda of the right- wing fascists who attack Muslims, Jews, Hindus or whoever. However, unfortunately, since September 11th, the concern has been on the Muslim community.
The troubles in the North in 2001 were the result of under-achievement, deprivation, social exclusion and high unemployment; but sadly this situation was exploited by the BNP who viewed and related it as Muslim criminals on the loose, who are responsible for the social problems in our society—an easy scapegoat to account for the fallacies of the structure of the institutionalism of discrimination in the UK.
I would like to thank the Government for providing an independent report produced by Derby University regarding religious discrimination. I want to express my concern that not enough progress has been made in this area to accommodate discriminated groups in our society today. I also want to thank the Nuffield Foundation and the Rowntree Foundation for their Cambridge University Hepple report, referred to by the noble Lord, Lord Lester.
I welcome the Bill in that it widens the prevailing framework of anti-discrimination legislation that deals only with exclusions based on the grounds of sex, race and disability. The Equality Bill seeks to encompass religious and ageist bias as well which ensures that individuals will not be discriminated against on the basis of their personal differences. The Bill also intends to co-ordinate, to modernise and to extend established arrangements under a number of different enactments, as well as integrating the principles of the new Article 13 in the Treaty of Amsterdam. I welcome Part 3 of the Bill which will require bodies exercising functions of a public nature to have due regard to the need to eliminate discrimination and to promote equality of opportunity.
Furthermore, the proposed unified equality commission which will amalgamate the Equal Opportunities Commission and the Commission for Racial Equality, will provide a more focused, coherent
body examining discrimination charges. Could the noble Lord, Lord Lester, clarify to what extent the body would have a statutory enforcing power to direct tribunals to implement their compliance notices once issued?Also I welcome the positive duties that employers are encouraged to take in order to effect policies to achieve fair participation in the working environment. Where there is under-representation of certain groups, it is necessary to encourage the participation of the excluded members by creating an environment that is open and conducive to the needs of those people. I ask the noble Lord, Lord Lester, a question with reference to Part 4 of the Bill, which relates to the obligations in employment—that members of groups are defined with reference to colour, race, ethnic or national origins, sex and disability. However, that excludes religious groups as a group seeking to achieve equality. As religion transgresses racial and social groupings, it is vital that that is also accounted for, as the potential is there to affect another stratum of society. Could the noble Lord clarify the position of such a group regarding employment representation?
In conclusion I wish to reiterate the importance of reassuring the victimised sections of our society who are facing the brunt of ignorant racism in its broadest sense. It is essential that the Government acknowledge that they are concerned about the welfare of all their citizens here in the UK and that in order to protect their rights, they have a recourse available to them. In many ways the Government have commendably tried to address these pressing issues, but have achieved only a piecemeal solution to the underlying problems facing these sections of society.
Sometimes criticism is the cost of conviction for leaders, but the badge of honour upholding the universal, transcendent values of equality and even-handedness should be seen to shine and guide this Great Britain to a more peaceful path.
2.29 p.m.
Baroness Thomas of Walliswood: My Lords, I am sure that no one will be surprised if, in speaking to the debate today, I speak partly to the agenda of sex discrimination. The great value of the Bill is that it covers all forms of discrimination. My responsibility on these Benches is women's issues, although the noble Lord, Lord Rix, has reminded me that as I age my eyes do not work as well as they used to and I am becoming arthritic.
I was for some time the chair of the Associate Parliamentary Group on Sex Equality. Even before the publication of the Hepple report, the group had begun to discuss the creation of a single equality body because we knew it might be in the offing. Most of us were doubtful about, or even positively opposed to, the idea. We had some of the same fears of diminished service from a commission serving interests other than those of women, that the noble Lord, Lord Ashley, expressed with respect to people with disabilities.
Gradually, over several months of presentations and discussion, most of the members had the same experience as I did. Almost without argument, we more or less independently arrived at the conclusion that the idea had merit.
Recently, the Government consulted on the subject of a single equality body. The group, under its new chair Julie Morgan, sought and obtained advice and opinions from quite a wide range of people, including practitioners in the legal minefield of the existing rafts of equality legislation.
Again it became clear that members of the group were in broad agreement that a single equality body should be set up in the context of a new equality Act. Furthermore, many felt that an important element of that Act should be the duty on employers not just to avoid discrimination but positively to promote equality among their workforce. I would be amazed if a similar approach had not been taken by many other organisations consulted by the Government.
Now we have a Bill before us which does both things: it modernises and broadens the coverage of equality legislation within a single Act, and it provides for the establishment of an equality commission to encourage its implementation and to enforce it. Perhaps I may pause to make a point in answer to the one made by the noble Baroness, Lady Buscombe. One of the reasons why the Irish equality commission is having some difficulties is that it is not backed up by a single equality Act.
I, for one, very much welcome my noble friend's initiative in bringing forward the Bill. I appreciate that it is the fruit of many people's work, not least that of my noble friend himself. It is clear from the material that has reached me that not all the organisations consulted on the draft Bill are entirely satisfied with the Bill before us today. However, I trust that their concerns can be alleviated in Committee.
Our existing legislation, in advance of its time when first passed, is showing its age and needs not merely amendment but a thorough overhaul. The various existing Acts have different impacts. I think I am right to say that only the Race Relations (Amendment) Act provides for a duty upon public employers to promote equality. That new duty resulted from the determination to drive out institutional racism which followed the Lawrence case.
The question arises as to whether other types of discrimination, against women, for example, do not also derive from cultural assumptions and stereotypes which may be endemic within places of work. Is that not also a form of institutionalised discrimination? The Bill responds to that problem by putting all forms of discrimination on an equal footing and by including larger private employers within the legislation.
In addition, it includes prohibition of discrimination on some grounds that have never before been included in legislation. Several noble Lords have spoken vividly and interestingly on that subject. Under the Bill, discrimination on the grounds
of pregnancy, marital status, family status and gender reassignment are treated equally with, and not merely as a part of, sex discrimination.Therefore, a major result of the new Bill, if it were enacted, would be greatly to simplify the present situation that obtains whereby a lawyer trying to assist a client must first determine the ground on which to make a claim that discrimination has been suffered. That is rendered more difficult because the area of activity in which the discrimination has been suffered must also be considered. At present the choice of ground or area affects the ease or difficulty of proceeding. In future, all strands—I am grateful to the noble Lord, Lord Alli, for enlightening us about the use of that word in this context—will be treated equally.
Another strength of the Bill is its definition of direct and indirect discrimination, harassment, victimisation and other unlawful acts contained in Clauses 9 to 17. Many people have commented to me on the length of the Bill, but much of that length, including these clauses, renders the intention and force of the Bill wonderfully clear. Surely that is an admirable quality in legislation, rather than the reverse. The Bill helps us to define an important aspect of our civil rights: the right to equal treatment in several crucial aspects of our daily lives, such as employment and the sale and purchase of goods and services.
The other day, the phrase "political correctness" was used in your Lordships' House following a question that I raised on the number of women non-executive directors. The phrase both annoyed and saddened me. I lived for a total of almost six years in communist countries and know exactly what political correctness is—the opposite of an interest in, and determination to ensure, equal civil rights for all. It is sad that a concern for equal treatment is sometimes regarded askance by the British, who tend to claim that a sense of fair play is peculiarly British.
Enlightened self-interest is also involved. Equal access to education is important to society, because ill-educated and alienated youngsters are a breeding ground for criminal behaviour. Companies, local authorities or government departments that do not give women an equal possibility of rising to posts that match their ability lose the full contribution of that ability. Can it be sensible to behave as though all the skills that this country needs are located in the bodies and brains of white, able-bodied, straight men of so-called working age? No, my Lords. The Bill is not desirable for its "political correctness". It is not even desirable solely in the pursuit of justice and equal treatment for all, although my noble friend has spent much of his life in the pursuit of those objectives. It is also desirable because it carries forward a process that, among many other benefits, will contribute to the general well-being of society and the progress of this country.
I hope that the Government will now renew their earlier interest in a new approach to equality legislation. It would be far more fruitful than the mere creation of a new equality commission, trying to
administer existing legislation, could ever be. I do not wish to threaten Ministers, but I remind them that my noble friend has had considerable success in the past in bringing forward-looking and difficult legislation to this House in the form of a Private Members' Bill and seeing it eventually adopted by the Government.2.39 p.m.
Baroness Prashar: My Lords, I pay tribute to the noble Lord, Lord Lester of Herne Hill, for introducing the Bill. His commitment to equality and perseverance to ensure that we have comprehensive anti-discrimination legislation on the statute book is admirable and an example to us all. Characteristically of the noble Lord, his Bill is, as we heard, the product of four years' careful and thorough work that he and his team initiated by setting up a review and ensuring that there was wide consultation on both the review and the draft Bill.
As someone who has been involved for nearly three decades in promoting equality, I welcome the Bill and applaud the principles and the approach that underpin it. I hope that the Government will grasp the opportunity that the Bill presents. It offers an effective way of tackling discrimination on all accounts and promoting equality in the 21st century. The Bill will help to end the history of poor performance to date. It will enable prevention, rather than cure, to be the basis for dealing with discrimination and inequality. It will rectify the system, which is old and out-of-date and does not reflect higher contemporary expectations. The Bill will deal with dissatisfaction with outmoded legislation, fragmentation and inconsistencies between separate anti-discrimination regimes and separate commissions.
The current legal complexity makes it harder for employers, particularly small employers, to comply with legal obligations. It hinders victims of discrimination in their attempts to get redress, and it renders compliance with legal obligations too dependent on the willingness of individuals to take action. At present, the main initiatives for tackling discrimination and promoting equality tend to be piecemeal, reactive and separate from each other. There is a need to create a new culture of inclusiveness that, while taking account of differences, will encourage integrated approaches, as envisaged in the Bill.
Sharing common ground will encourage links between groups facing discrimination and, at the same time, help to focus the attention of employers and service providers on the need for an integrated and comprehensive approach. It will encourage cross-fertilisation. Furthermore, the Bill will make it easier to deal with cases of multiple discrimination: all will enjoy the same rights. At present, to whom should a gay, black woman born in 1940 in Africa turn, when she fails to gain employment, even though she is the most qualified and most suitable applicant, or, after gaining a post, must leave it because she experiences a hostile environment? Just determining the basis of such discrimination could be a puzzle within a puzzle.
Was she discriminated against because of her sex or sexual orientation? Perhaps it was the colour of her skin or her religious affiliation. Perhaps her employer or other employees harassed her because of her age or her country of origin. At present, such an individual will not receive the kind of assistance and justice that she deserves. If we adopt the Equality Bill, all individuals in this country—regardless of sex, race, colour, ethnic or national origin, belief, disability, age, sexual orientation or other status—will be protected from unlawful discrimination.Time has moved on. Discrimination and exclusion are more complex and covert than they were three decades ago. To eliminate discrimination and promote equality, we must place greater emphasis on changes in the culture and ethos of organisations and significant changes in institutional practices and policies. My experience of working with and within organisations has convinced me that we need a new legal framework that will help to make equality central to the whole range of public policy debates and organisational practices and reduce the risk that equality issues will be sidelined. The Bill would provide such a framework.
In that context, I welcome the provision for participation by interest groups, employers and service providers in the development of equity plans to promote equality. That would mean getting employers and service providers to take on greater responsibility and get involved directly in decision making. It would represent a shift away from the adversarial approach to one that is participatory and involves everyone. That is precisely the culture change needed in order to make progress. The change will not happen without the legal framework proposed in the Bill.
Finally, I regret that the Government have entered into consultation about the desirability of a single equality commission without reviewing the case for a single equality Act—the logic of which I do not follow. We need to learn from our experience of the past 35 years and develop a modern approach. Different regimes and inconsistent legislation sometimes contributed to unnecessary special pleading by different groups and fragmentation. That runs counter to the Government's desire to create an inclusive society. A single equality commission, without a single equality Act, will not improve matters. In my view, a single equality Act is an important aspect of the aspiration of the Government to build a cohesive society. Indeed, it will be a missed opportunity if the Bill does not receive the support that it so richly deserves.
2.45 p.m.
Lord Borrie: My Lords, the noble Lord, Lord Lester of Herne Hill, has a long and distinguished record in the field of human rights and has long been an ardent advocate of the ethical and practical value of anti-discrimination legislation. I recall first meeting the noble Lord in the mid-1970s when he was an adviser to Roy Jenkins, the Home Secretary. The noble Baroness, Lady Howe of Idlicote, and I were founder members of the Equal Opportunities Commission, set up under the Sex Discrimination Act 1975. In 1976, the
Race Relations Act followed. Whatever difficulties we see in that legislation now, they were certainly marvellous examples of anti-discrimination legislation in their day. Much of the credit goes to the noble Lord, Lord Lester.I, too, believe that it is right to create one commission to replace the separate bodies, subject only to the telling and important remarks made today by the noble Lord, Lord Rix, and my noble friend Lord Ashley of Stoke. It is right to reform the tangled web of legislation and to seek a broader scope so that it covers other forms of discrimination, including age, religion and gender assignment, along with the older strands—as my noble friend Lord Alli described them. I wish the Bill well at Second Reading today.
I especially welcome the Bill's proposal to extend present anti-discrimination laws to age, particularly, but not exclusively, in the realm of employment. As an aside, I hope that there is no significance in paragraph (3) of the Explanatory Notes which states that the Bill provides:
- "a single framework for eliminating discrimination and promoting equality".
More seriously, as the noble Baroness, Lady Greengross, reminded us, in 1999 the Government produced their code of practice on age diversity in employment. The Government's recent Green Paper on Working and Saving for Retirement sets the standards for non-ageist approaches to recruitment, training and development, promotion, redundancy and retirement. Apparently, there has been considerable improvement in practice although, as possibly expected, not so much with the small and medium-sized enterprises who are said to be less aware of the code and less aware of the benefits to employers of carrying out the practices that the code suggests. The evidence is that employers with age-diverse workforces enjoy lower staff turnover, lower absenteeism and have workers with higher levels of motivation, commitment and efficiency.
Praise can be given to firms such as B&Q, which have no retirement age, and to Tesco, where one in six of the workforce is 50-plus. Quoted in the Green Paper is a 72 year-old, who said:
- "I'd been turned away by one supermarket who said their upper age limit for drivers was 70. I responded to a flyer advertising for delivery drivers for Domino's who said age did not matter and they have given me a chance".
The noble Baroness, Lady Greengross, touched on the fact that if employers do not want to be ageist, they are none the less often stuck with pay and pension structures which make it financially more attractive to replace older people with younger workers. That may create a disincentive to older people to reduce their hours before retiring fully.
Flexible retirement, allowing the opportunity more gradually to move from full-time work to full-time retirement, should be more readily available and would be widely favoured. I believe the Government are developing proposals to outlaw age discrimination in employment and vocational training by December 2006, as the noble Lord, Lord Lester, reminded us. To some of us, that seems a long way away. Although that is required by EU directives, would it not be a good idea to jump that gun?
I want to express anxiety about the intervention of law in the matter of discrimination, and in particular discrimination between men and women, in the employment field. In a current case before the Employment Tribunal, a man is claiming to be discriminated against because his employers expect him to wear a collar and tie and his female colleagues are subject to less exacting requirements. I understand that elsewhere women workers complain because they are expected to wear a dress or skirt while the men are allowed to wear trousers.
Perhaps I am letting my imagination run away with me, but there could be a case of a man complaining that he is required to wear trousers while a woman is not. But my question, which is serious, is: are such claims apt for solemn dispute with all the paraphernalia of lawyers, judges or tribunal members? Surely, there should be a balance between the demands of an employer as regards hours of work, conditions of work and suitable clothes that employees should wear—no doubt properly negotiated with the relevant trade unions—and also the equal treatment of men and women.
These are times of changing sartorial habits, whether between sexes, different ethnic groups or just between individuals. I query whether we want the law to be even more involved with increasingly extreme, if not absurd, claims of discrimination being brought before our courts and tribunals.
The noble Lord, Lord Lester, will not be surprised to know that I am extremely doubtful about his desire to push anti-discrimination law even further into the realm of private members' clubs through Clause 6(1)(f) and Part 7 of Schedule 2, tucked away but none the less of significance, in his Bill. The subtle distinctions to be made in his Bill between single-sex clubs and other clubs in the Bill are more appropriate for discussion in Committee, but I want to make a general point. The law should not trespass into the home—or the extension of one's home, which is how I would regard most members' clubs—and the law should not be used to intervene in people's social behaviour. If it does, statutory provisions may have to be excessively subtle, complex and difficult to interpret and I suggest that some of the provisions to which I have referred fall into those categories.
Finally, I refer to the lecture of the noble Lord, Lord Lester, in 2000, which became known as the St Thomas More lecture. In it he claimed that, 30 years on from the Race Relations Act 1968, the moral legitimacy and practical value of equality legislation was widely accepted and understood. I certainly agree. But when
in the same lecture the noble Lord, Lord Lester, referred to the views of Lord Radcliffe in 1968, which were highly critical of the introduction of the law into the field of race relations, the noble Lord, Lord Lester, seemed to accept Lord Radcliffe's view that at that time anti-discrimination was novel, controversial and lacked political consensus.Today, in my view, some of the more extreme applications of anti-discrimination law, including its extension to private clubs and its involvement with social life, lacks political consensus and is a case of one area of legislation too far.
2.56 p.m.
Lord Addington: My Lords, when you find yourself 13th on the speakers' list, the only thing you can say is "Where does the bad luck fall? On those who have to listen or on those who have to speak?".
To cut to the chase, the Bill and the aims behind it are good. Discrimination of any kind—whether it is against the disabled or on sexual or racial grounds—is a violation of people's human rights, their dignity and the way they operate. It is absurd to create huge barriers, other than on practical grounds.
What are those practical grounds? First, there is the ground of tradition and the context in which we look at these issues. Traditions are generally invented or re-invented every 50 years. It has been 20 or 25 years since we started the process, and I suggest that we can now start a new tradition by bringing together all the anti-discrimination bodies.
Secondly, there is the ground of practicality, which was raised by the disability lobby, with which I am strongly connected. As the noble Lord, Lord Ashley, pointed out, disabilities are complicated by their diversity. The needs of someone in a wheelchair are different from the needs of someone with, for example, my own disability, dyslexia. Different disabilities affect people's lives in different ways. In certain situations, a disability will not impinge on a person's life style. In other situations the disability can become a total barrier—for example, when a dyslexic has to write down something quickly or when someone in a wheelchair is confronted by a flight of steps. The knock-on effects of these situations are complicated. It is difficult for people to understand these problems and to follow the logic from one point to another.
As the legislation covering discrimination on the grounds of disability was the last to arrive—and if ever there was a painful birth it was that of the DDA; I shall never forget the affair of the two Scots—it needs to be taken forward further. It is still a small and leaky ship. The Disability Rights Commission is a useful body which is growing in strength. Indeed, my noble friend has acknowledged that it has not yet reached its full growth. He believes that it will take at least three years before the commission is able to diversify and operate at its full potential. But it is a practical way forward.
Much of the Bill builds on good practice and on other pieces of legislation—my noble friend nods in agreement. Therefore, my noble friend faces the great
problem that the disability field at present is not as it should be. I cannot help but feel that if we follow this approach through and attempt to achieve an overall commission that pays proper attention to disability matters, becomes experienced in this area and begins to know how to think, we shall take matters further. We shall have the support of other groups in going forward. That is what we want.I have one question about the equality commission. What proposals does my noble friend believe should be added to the Bill to make sure that it has the required amount of knowledge and expertise across all these fields—disability is the one with which I am mostly concerned—so that we have the means of making sure that matters are pushed in the right direction? At present, the Disability Rights Commission has a large number of disabled people working for it who know what they are talking about. If they do not know about a particular field, at least they know that there are areas about which they need more knowledge—areas where they are not experienced and where it will not have occurred to them that discrimination takes place. An answer from my noble friend on that point would remove one of the question marks.
I have pushed long and hard to try to make sure that all these types of activity are gathered together. I have harassed various Ministers on this issue for several years. We are trying to create a process that will stop discrimination generally across society, which will bring all these areas together—provision that works effectively, so that we can look to one body, or reform one Act, and get on with the idea of fully enforceable civil rights. At present, we waste a great deal of parliamentary time, and our own time, on these matters. I hope that this Bill or a similar provision will soon mean that we are able to take on more positive issues, not be eternally defending positions in an attempt to make sure that certain groups are not restricted in their ability to take part in society in their fullest capacity.
3.2 p.m.
Baroness Howe of Idlicote: My Lords, I must declare an interest as the first deputy chairman of the Equal Opportunities Commission. Indeed, it seems only yesterday that, with the chairman of the EOC, the noble Baroness, Lady Lockwood, we were interviewing potential staff for the commission, which was due to begin its work on 29th December 1975. I remember finding it mildly amusing that the civil servant allocated to be our chief executive and to help us with that task came from the Ministry of Defence.
As the noble Lord, Lord Borrie, has said—the noble Lord was a much-valued first-time colleague on the EOC—the 1975 Act was largely crafted, or, as I would say, inspired, by the noble Lord, Lord Lester, who was at that time working in the Home Office as political adviser to the much missed Lord Jenkins. So the noble Lord, Lord Lester, the sponsor of this Bill, is not only a hugely respected international human rights lawyer,
but also, in the opinion of many people, including myself, the supremo of equality legislation as it has developed in this country.It is not surprising to find in the draft Bill much that I recognise: for example, the important duty to be given to the equality commission to promote equal opportunities as well as to enforce the law. There is, as well, what was in 1975 the novel and highly influential concept—now to be strengthened—of indirect discrimination. But equally, there is much that is new—for example, the subsequent incremental changes in UK law and the relevant EU directive, some of which, such as religion and age discrimination, are due respectively by 2004 and 2006. They are not with us yet, and one hopes that they will be hurried up. The Bill seeks to include almost every single form of unjustified discrimination which it is currently believed that legislation can help us to eradicate.
In the early days, the Equal Opportunities Commission, with its fairly limited remit by today's standards, faced a hostile reception. Most of those affected, such as employers, education authorities, or the providers of goods, facilities and services, had yet to accept that they could possibly be discriminating against women. The media, too—women journalists as much as men—were almost uniformly hostile.
Early on in that era, there were calls to amalgamate the EOC and the Commission for Racial Equality, but keeping the two commissions separate was certainly the most sensible route in those days. As between race and sex, there were distinct differences, both as to what needed doing and over priorities. At that time, with the Equal Pay Act 1970 and the recently passed Sex Discrimination Act 1975, equal opportunities for women seemed to have a higher profile than racial discrimination—although it could go one way or the other. Against that background, I remember arguing, as proved to be the case, that there was a positive merit in pressing for changes in attitude and practices that disadvantaged the female 50 per cent of the population because, when those changes were in place, it would be impossible to argue that they should not equally apply to discrimination against different ethnic groups. In other words, one might blaze the trail for the other.
We have proceeded incrementally, with considerable success for all parties despite the distance left to go. My prediction was that it would take 25 years or so before we saw any appreciable difference. It is easy to get impatient with the pace of change, and it is important to do so. However, we should not forget how much has been achieved, although some high-profile bastions, such as women on boards and women Members of Parliament, have yet to be stormed.
Even at a relatively early stage, people took the view that the time would come when only one commission would be necessary to oversee all anti-discrimination laws. With the plethora of EU directives in the pipeline and other areas of discrimination being recognised, now seems a sensible time to consider legislating for one Act of Parliament and one commission, both covering all aspects of unjustifiable discrimination.
I warmly offer the noble Lord, Lord Lester, my unqualified congratulations on the principles and objectives behind the Bill and on the Herculean efforts that went into its drafting. Even so, I confess that, like other noble Lords, I am uneasy about some aspects. I will air one or two of them, and hope that the noble Lord will be able to reassure me.
The Bill covers issues that are complex and vitally important to us all. I hope that the Government will agree to set up an appropriate committee to give us all further opportunities to ensure that we arrive at the right balance and answers.
First, I am concerned about the current trend of "giantism". People seem to believe that placing all aspects relating to promoting and regulating an industry under one giant umbrella—the one-stop shop approach—will result in a more efficient and less costly service for all. But will it? There are clearly some advantages to that approach, but is it not likely that some aspects will be regarded as more important, to the detriment of others? I am thinking of the huge Ofcom Bill, for example. Even while the Bill is under consideration, there have been debates about which of the two different aspects should be in the lead—the technological and economic responsibilities, or the content and quality of public service broadcasting and what is being communicated.
Where is the line to be drawn, now and in the future, between what is seen as justified and as unjustified discrimination? Considerable thought has been given to what does not qualify as unjustified discrimination, such as inequality of birth and individual circumstances, or, in sex discrimination, the existence of genuinely—and I underline genuinely—single-sex clubs and schools. As we heard, there are also individual arrangements for disability rights. It is clear from the evidence given and from the remarks of the noble Lords, Lord Ashley and Lord Rix, that those organisations are the least enthusiastic about having one commission. They are more in favour of something like a federation under one law, and a draft Bill would give them time to catch up.
What about issues that border on positive discrimination which, until recently, have been avoided in UK legislation? I am thinking, for example, of the concessions made in the recently passed Sex Discrimination (Election Candidates) Act. How does the Bill draw the line on that point? Could all-women shortlists be seen as unjustifiable discrimination, not least within human rights terms, against male would-be candidates? I am also thinking of the very early US case of Bakle.
As for age discrimination, like everyone else, I declare an interest. Surely one would think that a person's ability to do the job, rather than their age should be the deciding factor. However—I think that this is dealt with on page 75—the exclusions for justifiable age-based discrimination seem to depend largely on what is meant by,
- "objectively justified by a legitimate objective".
Another concern is the provision for updating the Bill if what is currently seen as justifiable discrimination becomes generally accepted as unjustifiable. I return to the example of the hard-fought, but only half-won, battle within the Church of England for women priests. I should add that—as was obvious from yesterday's Answer to the Question from the noble Baroness, Lady Perry—the position on women bishops is even less clear. However, it is clear that single-sex employment will still be allowed for other religions that have not yet—but, who knows, may still—move that far.
Although it may be right to await a more general approach to some forms of discrimination before including them within the legislation, are there not other forms that could and should be tackled in the Bill? One example is the different retirement ages for men and women. Although that issue was initially outside the Sex Discrimination Act, now that the ages have been equalised, should the actuarial profession still be allowed, as part of a retirement policy, to pay a lower lump sum to a woman whose salary and length of service are the same as those of a man, based purely on the women's generally higher life expectancy? Should not that exemption now be seen as unjustifiable discriminatory practice and included in the Bill as no longer lawful?
My next point concerns the commission's proposed powers, many of which reflect the duties of the three existing commissions, including the vitally important duty to promote non-discriminatory practice. The ability to conduct formal investigations—which are in my experience more useful as a threat than in practice—is also retained. However, I should be grateful for further clarification on whether the commission's proposed powers are, in every field, to be greater than those currently available; and, if so, in what respect.
I turn to a not dissimilar point. The Bill proposes one Equality Bill and one commission. However, if that is accepted, will there be any overlap with the Human Rights Act and/or conflicts between the rights imposed by that Act and the intended anti-discrimination rights to be conferred in this Bill? If so, does that matter?
Finally, I revert to an issue I mentioned earlier. Surely this is appropriate and urgent business for the Government to undertake as a means of fulfilling their 1997 election pledge, as the noble Lord, Lord Lester, pointed out, to eliminate unjustified discrimination wherever it exists. Indeed, only yesterday, during the Report stage of the Licensing Bill, such an issue arose. The Minister, the noble Lord, Lord Davies of Oldham, implied that these matters should be dealt with in a comprehensive anti-discrimination Bill, such as the one we are debating today.
I hope that the noble Lord, Lord Lester, will forgive me for having concentrated on some of my concerns about the Bill rather than on its many excellent points. Again, I most sincerely congratulate the noble Lord on what he and his very expert team have achieved, and hope that the Government will think again about their responsibility for this area and act quickly.
3.15 p.m.
Lord Faulkner of Worcester: My Lords, I, too, am very pleased to add my support to the Equality Bill of the noble Lord, Lord Lester. I congratulate him and his team on their drafting. I also congratulate the noble Lord on the stylish way in which he introduced the Second Reading debate.
I do not think that anyone has mentioned one of the successes that the noble Lord has had in the last few days in your Lordships' House. Buried in Written Answers on 13th February is the news that he has managed to secure a change in the wording of the Writ of Summons issued to Lords Spiritual and Temporal by the Crown Office (Forms and Proclamation Rules) (Amendment) Order 2002. Instead of referring to prelates, great men and Peers, the Writ of Summons henceforth refers to prelates, great men, great women and Peers. I congratulate the noble Lord on that. It is also a privilege to follow one of those great women, the noble Baroness, Lady Howe, who has done so much for the cause of equality and gave me so much support on the Private Members' Bill I introduced in the last Session.
The need for this Bill cannot be disputed. As other speakers have said, the law on equality is complicated, confused and, in many respects, out of date. It is widely accepted that aspects of the race relations legislation need to be improved, and there can be few who believe that the situation on sex discrimination is satisfactory. Similarly, issues relating to disablement need urgently to be addressed. To bring all these matters together, as the noble Lord, Lord Lester, has done with this Bill is therefore sensible and timely.
Noble Lords will recall that I have tried on a number of occasions to draw attention to the problem of sex discrimination in private members' clubs. I was able, with the support of the great majority of your Lordships, to take a Private Member's Bill through this House in the last Session. My Bill would have removed the exemption for private members' clubs with more than 25 members from the provisions of the Sex Discrimination Act 1975 by amending it in a way which would have brought that Act into line with the Race Relations Acts 1968 and 1976 which prohibit race discrimination in private clubs with 25 or more members.
I remember saying on Second Reading, almost exactly a year ago:
- "The Bill has nothing to do with political correctness. It is about decent, civilised behaviour. The aim is to say clearly and unambiguously to private member clubs that if they have membership categories for men and for women, those categories must be open equally to both sexes".—[Official Report, 13/3/02; col. 915.]
The second interesting development was that the official Conservative Opposition decided to support the Bill. I have paid tribute on a number of occasions in the past, and I do again today, to the noble Baroness, Lady Buscombe, for navigating her way through what I suspect was a party minefield to give the Bill her support. She made particularly telling speeches on her experiences with the Carlton Club, from which she and other noble Baronesses had resigned, because of that club's refusal to admit women on the same terms as men.
Thirdly, the Government, in the shape of my noble friend Lady Scotland, supported my Bill in principle. The Government were unable to find time for it in another place, but they have encouraged the introduction of a new Private Member's Bill, which deals with sex discrimination in private members' clubs. That Bill was introduced by the Member for Gloucester, Mr Parmjit Dhanda, under the ten-minute rule on 4th February. My noble friend Lord Davies of Oldham confirmed in our debate on the Licensing Bill last night that the Government support the Bill introduced by Mr Dhanda.
What we have in front of us today is a Bill which embraces not just the main ingredients of my Sex Discrimination (Amendment) Bill, but also brings together all the relevant anti-discrimination legislation and proposes the establishment of a new equality commission, which would be charged with monitoring and implementing the new Act. That is the body to which people who suffer discrimination would go to obtain redress; for example, the women members of golf clubs who are restricted to associate membership and told by the men when they should play, the bars and the facilities they should use, the competitions they may enter and so on.
Some men may want to pay a lower subscription to a club such as the Carlton but are denied admission as associate members. I hope that the new equality commission will look after them as well. There is nothing wrong with two categories of membership provided that each category is open equally to men and women.
This is a valuable and important Bill. Not only do I wish it well, like other speakers, I hope that the Government will give it their support and make it the foundation of a government piece of legislation which deals with the subject of discrimination and equality. There are precedents for Private Members' Bills which go through this House and become government legislation in another place, as happened with the Tobacco Advertising and Promotion Bill in the previous Session. It would be wonderful if my noble friend the Minister could say that that is the fate which the Government have in store for this Bill. But, at the very least, we must press on with it. I hope very much that the Second Reading Motion is agreed. I look forward to the Committee stage.
3.22 p.m.
Earl Russell: My Lords, we often hear of the principle of unripe time. I should like to congratulate the noble Baroness, Lady Howe of Idlicote, on introducing the concept of ripe time. It is just as real, but it is far less often heard of. It is my judgment also that this is the ripe time. I am very much reassured to find that it is also hers.
I also share the objections which have been made on all sides of the House, and in two excellent briefs from the Equal Opportunities Commission and the Royal National Institute for the Blind, to the piecemeal approach to anti-discrimination legislation. One of the weaknesses of the piecemeal approach is that it distracts attention from the basic point of why discrimination is wrong. Attempts to tackle discrimination against one particular group are usually seen as attempts to promote the interests of that one particular group at the expense of other groups. Those in all three of our parties who have sought to enter another place as Members of Parliament have, I think, found that that creates a backlash which makes life for a while more difficult for them than it need be. That is quite unnecessary.
The noble and right reverend Lord, Lord Habgood, once intervened in a speech that I was making on discrimination. It happened to be on sexual orientation but it might have been on anything else. He asked me whether I could say under what circumstances it was proper to discriminate. I said that it was proper to discriminate only in a case where the quality was relevant to the fitness and ability to do the job concerned—something very close to the wording of my noble friend's "occupational requirement". Once you accept that what you are dealing with is the occupational requirement, you get a much clearer answer to the question why discrimination is wrong. It is wrong because it ignores the dignity and the individuality of the individual—something to which everyone is entitled to recognition simply because they are a human being. It is wrong because it attracts attention to one of a person's qualities at the expense of all the others.
One does not usually turn to Ed McBain for political philosophy, but I remember reading in one of his books about detective Arthur Brown looking in the mirror, observing his different qualities that people might notice. He was middle-sized, middle-height, middle-aged. He was an American, he was a New Yorker, and he was black. Why, he wondered, was it only one among all those qualities that people chose to notice about him? It is a good question, and it is at the heart of why discrimination is wrong.
The third reason why discrimination is wrong is that, if we believe in any sort of fair competition—in the economy, most of us do—that competition must take place on a level playing field. People must be able to advance within it according to their merits.
My noble friend Lord Addington had some important things to say about the applications of the principle to disability. He pointed out that passing a note to a dyslexic and presenting a flight of steps to a
paraplegic, although very different activities, were equally total barriers.Both of them come within what I hope that I may be forgiven for fathering on the noble and reverend Lord as "the Habgood principle". There is consistency. If we can take account of that in Committee, I hope that we shall make some progress on points that concerned the noble Lord, Lord Rix, and a good many others.
I welcome the inclusion in the Bill of pregnancy and sexual orientation. I make a very serious point by welcoming both in the same breath. I welcome the inclusion of immigration. That is not meant to prohibit discrimination between people who were born in this country and people who are not immigrants. That cannot be done in immigration legislation. However, there is evidence that certain categories of immigrants, by nationality, are worse treated than almost any other. In the words of 1066 and All That, it was provided that,
- "anyone found in Armenia should be slowly divided into twelve parts".
There is a long way still to go on the problem of discrimination. Listening to my noble friend Lord Dholakia and others giving statistics on equal pay, I wondered whether there was now much more inequality arising from discrimination than from any ordinary question of class.
In the past two or three days, I happened to have conversations with two distinguished women members of the Lobby about how difficult it was to be a Lobby correspondent and a mother of children. Why should it be more difficult to be a woman member of the Lobby with children than to be a man member of the Lobby with children? I am convinced that one of the ways forward for equality is increasing attention to the rights of men as carers of children.
The rights of men as the ones who deal with domestic emergencies should also be considered. I remember an agonised article once written in the Guardian by a woman who tossed a coin with her husband to decide which of them should stay in to let the workman in to repair the boiler. Her husband lost and got the sack, and the mixture of feelings running through her mind can safely be left to the imagination. A great deal is still to be done in that area.
I noticed in the publicity about Rachel Lomax, whom I congratulate on her promotion to deputy governor of the Bank, that, when she first applied to work part-time while her children were young, that was the first such request that had been met. It is time that there were a great many more, and time that they were regarded as regularly available for both sexes. That is the only way that we shall make progress.
After all, if we are to have a society based on promotion by merit, as, in recent days, the Prime Minister has often said he wants, it must be one equally open to both genders, all races, all orientations and to anyone who can pass the Habgood principle of "fitness
to do the job". As Lord Palmerston said when he was talking about Catholic emancipation, it is inexpedient to exclude so many able persons from the public service.In that context, as the person who spoke from these Benches against the inclusion of religion in the Anti-terrorism, Crime and Security Bill, I praise and welcome its inclusion in this Bill. My objection in the Anti-terrorism, Crime and Security Bill and that of these Benches was twofold: first, we thought that the drafting was not right—the direct read-across from racial hatred to religious hatred did not work; and, secondly, we thought that something of this complexity should not be dealt with as rushed emergency legislation. We meant that. Now it is in a place where we can consider it slowly and seriously. After the final guidance offered by the noble and learned Lord, Lord Goldsmith, right at the end of the Anti-terrorism, Crime and Security Bill, I suggested that the gap could easily be closed. We are very happy to see it here.
The categories of discrimination continue to change. For example, there used to be discrimination against women with moles because they were more easily suspected of being witches. It was the witches' familiar mark. We do not have to worry about that at the moment, but we shall have to recognise that categories of discrimination will change again. However, I believe that my noble friend was right to limit himself to particular categories, named and set out in the Bill, even though he wants to combat a phenomenon which is general. We need legal certainty, and we need precision in setting out what is and what is not permitted. To say that legislation will be needed at some time in the future as those categories change is only to say that all human affairs are mutable, and no legislation in this place will ever change that.
3.32 p.m.
Lord Bhatia: My Lords, I congratulate the noble Lord, Lord Lester of Herne Hill, on introducing this Equality Bill. It is a very thorough piece of work, and perhaps few could have produced such a well-researched and detailed piece of draft legislation. The noble Lord has for many years worked in the field of equality and human rights. He is a leading authority in this area. I, for one, am very supportive of the Bill and hope that many other Members of this House will also support this initiative.
Human beings, from time immemorial, have found it difficult to interact with others who are different. In some ways, we are all very tribal. We have a tendency to stick together with those who are similar to us in a variety of ways. Consequently, and often quite inadvertently, we may offend and perhaps even injure others by the usage of inappropriate attitude, language or behaviour. We often forget, for example, that people with disabilities may need special attention or assistance. Quite often, however, all they require is simply to be treated like everyone else. On the other hand, it is also true that every society has its bigots—uninformed and prejudiced people—who seek deliberately to hurt those who are different from themselves.
It is because discrimination exists on the grounds of age, gender, race, religion, belief or no belief, sexual orientation and disability, for whatever reasons, that people need protection by way of equality legislation. Such legislation ensures that clear lines are drawn so that we may all know what is and is not acceptable and behave accordingly.
Such legislation can, then, also deal with those who deliberately, and sometimes repeatedly, undertake acts of discrimination and unfair behaviour on one ground or another. It is only through such clearly defined legislation that we can deal with those people and thereby create a more just and fair society to live in—a society where every citizen is able to go about his or her business and achieve his or her full potential.
Over many years this country has developed an extensive range of laws that protect those who are different, weak and/or vulnerable and today it has some of the best equality provisions anywhere in the world. Our vast array of legal provisions that deal with different forms of discrimination, are, furthermore, supported by a range of specialist equality institutions and agencies. However, because of the way that those laws and bodies have developed, there are also many gaps that need to be filled. I believe that quite rightly the noble Lord, Lord Lester, wishes to bring together all such laws and institutions and fill the remaining gaps. I fully support this effort.
Many Members of the House who have already spoken, and who will speak after me, bring their experience and wisdom to support, to add to and to argue the substance of the Bill. Perhaps I may take this opportunity to make a very specific contribution on just one of the grounds of discrimination covered by the Bill, that of religion. It is unfortunate that in Britain individuals and institutions are still permitted to discriminate against people on the basis of their religion or belief. I believe that that is, in itself, most unacceptable in a multi-faith, multicultural society such as ours. But it is a wholly different matter altogether that the state and its laws should discriminate between religions as to the protection and provisions that it avails to them.
Through my involvement in the Religious Offences Select Committee, I have come to learn how, in the area of criminal law, our blasphemy laws protect only one faith—perhaps even just one denomination in that faith—to the exclusion of others. Our provisions on incitement to hatred also protect only some religions and not others.
Having said that, let me make it clear that I am not advocating that those protections and provisions that are in place for some religions should be removed in order to provide a levelling down and equality between different religions. Rather, we should expend our best efforts to see how we may level up the situation to protect all faiths. Surely, where equality is concerned, we need to ensure that all faiths receive the required protection in law so that all our citizens can go about their business without fear.
In the area of civil law, some faith communities are protected but not others. That may change to some extent under the Government's proposed
implementation of the EU framework employment directive. Even after those changes, however, some faith communities will not be protected from discrimination in education; in the provision of goods, facilities and services; in law enforcement, regulatory and control functions; in the disposal or management of premises; and in the management of private members' clubs. However, others will be protected. Some religious communities will still not benefit from the positive duty on public sector agencies to eliminate discrimination and to promote equality of opportunity, while others will. Furthermore, some faith communities will still not have the same level of access to equality institutions as other faith communities.That situation is clearly iniquitous and in breach of Article 14, vis-a-vis Article 9, of the Human Rights Act 1998, which requires that there be no discrimination in provisions availed for different faith communities. Once again I am not suggesting that there be a levelling down of the provisions that are currently rightfully made for some religions, but simply that the state should be just and fair to all religions by levelling up.
I conclude by saying that I support the Bill, knowing that some of the inconsistencies in the civil law arena that I have pointed out, and which no doubt others will point out, can be eliminated by the Bill's adoption into law. Then the state will be a little less discriminatory on the basis of religion and belief.
3.39 p.m.
Baroness Wilkins: My Lords, I join with other noble Lords in paying warm tribute to the noble Lord, Lord Lester, for his immense contribution to the cause of equality over the years. The wisdom, skill and diligence that he and his team have demonstrated in presenting the Bill for Second Reading shows once again how much we, as a society, are in their debt.
I very much welcome the introduction of the Bill. It gives us an opportunity to stand back and examine the breadth and complexity of issues which are involved if we are to create a society that eliminates discrimination and provides equal opportunities for all.
The introduction of the Bill is especially welcome in the light of the Government's current consultations on a single equality commission and concern at their lack of commitment that this should be preceded by a single equality Act. As the RNIB points out, unless there is a single equality Act and upward harmonisation, all discussions about a single equality commission will be blighted by concerns about the formation of hierarchies within it, with lower profile or lesser protected groups being at the bottom of the pile.
Disability groups have, for the most part, welcomed the Bill of the noble Lord, Lord Lester, and the strenuous efforts he has made to meet their concerns. The features that have been particularly welcomed are; the application of anti-discrimination duties to all public authorities and functions; the extension of positive public sector duties to promote equality across
the board; and the use of tribunals for enforcing the legislation with cases being referred to the courts only in exceptional circumstances.However, as other noble Lords have mentioned, there is still considerable concern that the anti-discrimination legislation and structures protecting disabled people are still too vulnerable to be subsumed into a single equality Act. Disability rights' legislation is relatively new on the statute book; the Disability Discrimination Act only began to come into force in 1996 and has yet to be implemented in full. The next stage relating to reasonable adjustments for physical features will not come into effect until October 2004. The Disability Rights Commission has been in existence for only three years and there are still major loopholes in the law.
The noble Lord, Lord Lester, has tried to meet these concerns by proposing that the Disability Rights Commission has a three-year exemption from an equality commission. However, I would agree with the DRC that that does not go far enough in recognising the specific needs and requirements of disabled people and that the very existence of an equality commission might compromise the progression and enforcement of any disability-specific legislation.
There are a number of other issues which are of concern to disability organisations. The Disability Rights Commission makes the case for two major omissions. First, there is no provision for reasonable adjustments in post-16 education; and, secondly, the Bill makes no provision for reasonable adjustments with respect to premises.
The Bill also fails to take on board some of the recommendations in 1999 of the Disability Rights Task Force which set out the next steps in achieving full civil rights for disabled people. In particular, MIND, the RNID and the RNIB are concerned about the issue of definition. While they welcome the Bill's provision that anyone who has a disability is covered—and some blind and partially-sighted people currently have to undergo extensive medical examinations in order to prove that they are disabled—they remain concerned at the complicated nature of the definition which, in a more inclusive legislative framework, lies at odds with the way that the other strands are treated. The RNIB, for instance, has proposed that the burden of proof in relation to the status of complainants as disabled persons be shifted to the respondent. Far too much tribunal time is currently taken up with definition issues before the real issue of discrimination can be addressed.
Among other things, there is also concern about the lack of transport accessibility standards and the absence of specific provisions to ensure that guide-dog owners, for example, are granted carriage and not charged extra by taxis and minicabs.
I shall now turn briefly to Part 4 of the Bill, which sets out the constitution, general function and powers of the equality commission. Many disability organisations have concerns with the proposals of the noble Lord, Lord Lester, and would argue for a federal
body rather than the fully integrated commission based primarily on functional units as set out in the Bill. They are concerned that the experiences of such commissions elsewhere have resulted in disabled people losing out when disability rights are subsumed into a generalist structure. For instance, the chair of the Equal Opportunities Commission found clear evidence on her visit to the Australian equality commissions that disability had fallen off the agenda at state level, where there is no disability-specific commissioner.The equality commission proposed in the Bill would not guarantee a proper focus on civil rights for disabled people. It would result in reduced representation in that there would be only seven to nine commissioners, none of whom must be disabled. The DRC currently has 10 to 15 commissioners, over half of whom must be disabled people, or people who have had a disability.
The RNIB makes the case for the Bill to be amended so that the equality commission reflects the DRC model. That would be a federal arrangement consisting of an umbrella body, focusing on cross-cutting issues of shared concern, and specialist units linked to appointed committees that would have responsibility for the individual strands. The federal body would be responsible for promoting equality in general and the new arrangements. It would also tackle multiple discrimination, mainstreaming equality through the use of cross-cutting positive duties on public bodies and equality audits, using strong strategic enforcement powers and advising the Government. The federal body would include the chairs of the proposed strand committees, including one for disability rights.
The strand committees would allow the current level of representation of disabled people to continue, with a majority on the disability rights committee being disabled people. There would also be minimal disruption to existing structures, processes and work programmes under that model. Most importantly, disabled people would continue to identify with the commission as "our commission", and would feel that it protects and enforces disabled people's rights. They would not feel that no sooner had the DRC been created than it was taken away.
I have dwelt mainly on the concerns that disability organisations have raised about the Bill in the hope that the noble Lord, Lord Lester, will be given the opportunity to take it through all its stages and on to the statute book. But I hope that that does not obscure my warm welcome of the Bill and my hope that the Government will support it.
3.47 p.m.
Lord Patel: My Lords, the reference of the noble Lord, Lord Faulkner of Worcester, to private clubs reminded me of an article that I read in The Times last Saturday, 22nd February, at page 13. Two articles on the same page were relevant to today's Bill. The headline of the first was:
- "Woman golf pro takes on Royal and Ancient Men".
- "Plans for a single equality body to champion women, gay people, ethnic minorities, the elderly and disabled people have been blocked by one of the interest groups concerned".
I congratulate the noble Lord, Lord Lester of Herne Hill, and his team on introducing the Bill, and on the easily understandable, clear Explanatory Notes, which are necessary for the likes of me. I wholeheartedly support the Bill. To move from anti-discriminatory legislation to legislation that recognises and promotes equality in all walks of life for all citizens of our country—young and old, black and white, male and female, able and not so able—is what a truly multicultural, multi-ethnic, civilised society should do. The Bill is mainly about recognising equality. It goes a long way to doing that.
I am pleased that the Bill tackles both discrimination and positive duties. In the debate on the Race Relations (Amendment) Bill in December 1999, as reported at col. 146, I expressed concern that the legislation did not remove the exemption that allowed discrimination in partnership arrangements comprising fewer than six partners. I believe that the Bill will remove the partnership exemption from race discrimination legislation. I hope that the noble Lord, Lord Lester of Herne Hill, will agree that I am right to think so. It is important in the medical field, particularly in general practice, as many practices have fewer than six partners.
The second issue that I raised in the debate on 14th December, 1999 was indirect discrimination. I am encouraged to see that the Bill significantly extends the duty on public bodies, such as the NHS. Such bodies will be under a duty to have regard to the need to eliminate unlawful discrimination on any of the prohibited grounds. They will also be required to promote equal opportunities and good relations between members of different racial groups. That will help to eliminate practices and procedures that amount to indirect discrimination.
I speak mostly about health services and healthcare, for that is what I know most—little though it may be—about. However, people in all walks of life are familiar with discrimination by institutions and individuals. The legislation on racial discrimination does not promote equality; it is, as the noble Lord said, reactive and negative. Those who work in the health service and those who need healthcare are likely to benefit from laws that promote equality. I have spoken in your Lordships' House about the tens of thousands of doctors and nurses from ethnic minorities who feel that they are not treated as equals, despite doing the same job. Although legislation against racial discrimination has helped raise awareness of the issue and helped to educate people, it has not removed indirect discrimination of the type that holds people
back from promotion and greater rewards and fails to recognise their true worth—in short, unequal treatment.That is not to say that anti-discrimination legislation, particularly that relating to race, has not been effective. Gone are the days, which I remember as a student in London in the late 1950s, when most advertisements for room rentals openly stated "No blacks". There was no legislation to prevent that then. The noble Lord, Lord Lester of Herne Hill, will, no doubt, be able to reassure me that the Bill will not blur the focus on discrimination of a particular type—for example, racial discrimination.
It is to be hoped that the Bill will remove inequalities in healthcare. I am speaking about the healthcare needs of the ethnic minorities, the elderly and the disabled. The Parekh report on the future of multi-ethnic Britain and other publications have highlighted not only the disease burden from which the ethnic minorities suffer but the lack of services to meet their health needs. Legislation that recognises those needs as of right may help.
We have an increasingly ageing population. The elderly suffer from all kinds of discrimination, including discrimination in health and social care. Denying care on the basis of age is immoral and unethical, but it exists. Healthcare that does not recognise the special needs of the elderly is not equitable. Similarly, despite the many laws, people with mental health problems and disabilities suffer because their needs are not regarded as being equal to those of the more able. The third commonest cause of disability in the world is mental illness. Despite the high priority given to mental health in our health service and the services for those disabled through mental illness, such people—young and old of all races—do not get equal care. Those from ethnic minorities and the elderly suffer even more.
The noble Baroness, Lady Buscombe, referred to the clause on pregnancy. I must disagree with her. In my work as an obstetrician for three and a half decades, I was always concerned about the inability of pregnant women to attend ante-natal clinics. I was even more concerned for women whose pregnancies were complicated by existing diseases and who were not given permission to take time off work for the benefit of their own health and that of their baby.
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