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Lord Lester of Herne Hill: I entirely agree with the aim of the amendment. Indeed, in Amendment No. 212B and in other amendments in the name of the noble Lord, Lord Alli, and myself, we have sought to write into Part 2 discrimination on grounds of sexual orientation, and to do so in a fairly detailed way.
I speak now purely as a technician, and I apologise. My difficulty looking at this amendment in isolation is that one cannot give the new commission these functions which cover sexual orientation at age until Parliament has decided on the exact scope of the substance of the provisions, and the exceptions to them. It is difficult to phrase exceptions appropriately. I believe that the amendments tabled by the noble Lord, Lord Alli, do that, and we will come to that much later. However, if one were to imagine this commission faced simply with a provision of this kind, with Parliament not having taken the key decisions on what is the scope and what are the exceptions, then the commission itself would have to make up the exceptions as it went along. It would find it hard, for example, where it was balancing the issues of personal privacy and sexuality.
I entirely agree with the aim; my Private Member's Bill tried to do the same thing, and the noble Lord, Lord Alli, is trying to do the same thing. However, the amendment on its own would not work. On those technical grounds and not for any other reason, I believe that it is not the appropriate amendment at this stage.
Lord Alli: Like the noble Lord, Lord Lester, I support the intention behind the amendment. Before I turn to the specifics of amendments, I apologise to the Committee for not having been present at Second Reading. My noble friend Lady Massey kindly emphasised my concerns at Second Reading.
I thank the noble Baroness, Lady Turner, for having raised the issue at Second Reading. The elimination of unlawful discrimination in goods, facilities and services is not only a technical tidying-up of the equality laws. As she said, there is evidence of discrimination in a range of services in both the public and private sectors. There are still examples of gay men and women being refused double beds in hotels. There are examples of women being refused smear tests because of their sexuality. When I read Hansard, I was encouraged to see how much
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support there was in the House for extending those protections to cover sexual orientation with immediate effect.
I am sure that the amendment is designed to tease out from the Government what they will seek to do in terms of rectifying this mischief. As the Minister knows, I have tabled a series of amendments—Amendments Nos. 212B to 212U—to give effect to what Amendment No. 79 seeks to achieve in terms of sexual orientation.
I should say to the Minister that this is a serious and pressing issue in which there is no financial cost to Her Majesty's Treasury, merely a compelling and pressing need. I will come back to the issue in more detail when I speak to my amendments later. However, I give her notice and fair warning that I take the issue very seriously. If the protections are to be given to other vulnerable groups in the Bill, I shall press very hard for them to be given at the same time to gay men and women.
I wholeheartedly support the intention of the amendment and await with some interest the reply from the Front Bench.
Baroness Gibson of Market Rasen: I shall speak briefly as I put my name to the amendment, to support what my noble friend Lady Turner of Camden said. I hear and am mindful of the comments of the noble Lord, Lord Lester of Herne Hill. I have worked with him on equality issues over the years, as well as the noble Lord, Lord Alli. Both supported the amendment in principle. It is a probing amendment, and I also await the Minister's response with interest.
Baroness Ashton of Upholland: I am grateful to Members of the Committee who have spoken. I take seriously what my noble friend Lord Alli and other Members of the Committee said about the importance of the amendment and the recognition of the need to address the issue. As he said, there was a great deal of recognition at Second Reading that the law in the area is far from perfect, to put it mildly. As Members of the Committee said, one key area of concern is that the law does not provide protection against discrimination on the grounds of age, sexual orientation or gender reassignment in the provision of goods, facilities and services. In many other points—some technical, some more substantive—there is a strong case for reforming and extending our current anti-discrimination framework.
One job of government is to make sure that we look at those areas carefully and get them right, but I am persuaded that the principle that everyone should receive appropriate and effective protection from discrimination in the provision of goods, facilities, services and, indeed, public functions is the right one.
The Committee will know that we announced, as my noble friend indicated, our intention to review discrimination law and look in detail at the best ways to address the current gaps and difficulties. That work is under way. A proper investigation of how the law should be shaped, particularly in important areas such
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as providing protection from discrimination on the grounds of sexual orientation in the provision of goods, facilities and services is a key area for the discrimination law review.
The review is intended to give us proposals that will give a fairer, simpler and more effective framework, and will enable the Government to deliver our manifesto commitment to introduce a single equality Act in the lifetime of this Parliament.
As I have set out, we are taking steps to address the problem. But the new commission can carry out enforcement work only with the legal framework of discrimination and human rights law that exists at any point in time, which was the point made by the noble Lord, Lord Lester. So while the commission can work towards eliminating unlawful discrimination only in areas where such discrimination is indeed unlawful, there is no reason why the commission cannot promote good practice in areas where discrimination of this sort is not yet unlawful. I hope that noble Lords will feel that that is an important part of what the commission should be doing.
I recognise the seriousness with which this issue has been raised and I undertake to have further conversations and dialogues with our noble friends in particular who have raised this as an important aspect of the Bill. I shall also seek over the coming weeks to ensure that we are able to give more detail about the way in which we will be taking this forward.
I say to my noble friends simply this—there is an open door; there is no question but that this Government and this Minister wish to do this. We are simply discussing when and how to make sure we do it properly. What I will not do is to find ourselves in a position where we do not do it well enough. That will be really important in our discussions too.
On the basis that I take it very seriously, that I recognise that this is an area that we need to address, that we need to give not only reassurance but commitment as to how we will do that, I hope that my noble friend will at this stage feel able to withdraw the amendment.
3.45 pm
Baroness Turner of Camden: My Lords, I thank my noble friend for that response and also noble Lords who contributed to this debate, including the noble Lord, Lord Lester, for his help over the technical side of the amendment. As I said when I introduced it, I had some doubts as to the way in which I had gone about it. I knew what I wanted to achieve, but I was not certain whether my wording had achieved it. It is quite clear now that it has not achieved what I wanted. That being so, and in the light of the assurances given by my noble friend—I accept and know that she does take these issues very seriously—I am very willing to withdraw the amendment. There will be another opportunity to come back to this issue in later amendments, tabled in the names of my noble friend Lord Alli and the noble Lord, Lord Lester. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Baroness Miller of Hendon moved Amendment No. 80:
( ) conduct its affairs in the public interest and with an appropriate degree of independence"
The noble Baroness said: Clause 8(1) instructs the commission on the manner in which it shall both achieve the aims of the Bill and, at the same time, on how it shall exercise the substantial powers it is given to enable it to do so.
Most, if not all, of the list in paragraphs (a) to (g) of subsection (1) will be found in the Acts which the Bill, in effect, consolidates; for example, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Rights Commission Act 1999. But there is one notable addition required to that list, and the purpose of this amendment is purely to rectify that omission.
The amendment instructs the commission to conduct its affairs both in the public interest and with an appropriate degree of independence. It is probable that the second strand of that instruction is much more significant, because being obliged to conduct its affairs in the public interest should merely be regarded as dotting the "i's" and crossing the "t's" of any statutory organisation fulfilling a quasi-judicial function. However, underlining the need for the commission to act independently is extremely relevant.
Let me say at once that I am not in any way impugning the integrity or mindset of any chairmen, present or past, of the bodies that are being amalgamated into this organisation, nor of any future chairman of the new commission that the Bill is creating. What concerns us and what should concern the Government—any government—is that the commission should be independent of any pressure or attempt to influence its activities and decisions either by the Government or any Minister or senior official, or even by some populist campaign by any part of the media.
In the latter respect I emphatically do not single out the so-called red-top newspapers, and by "senior official" I include chairmen of public inquiries who may look into a particular problem and come to a particular conclusion, suggesting a particular remedy. In that case, the commission, while taking the inquiry report into account, should not consider itself absolutely bound to follow its conclusions and recommendations, thereby having its statutory functions usurped.
What gives us concern about the potential danger to the independence of the commission is the number of times throughout the Bill that the Secretary of State is given power to direct the commission to carry out certain functions. For example, Clause 15(4) provides that:
Clause 17(1)(a) provides that the commission,
"The Commission shall investigate a matter specified in subsection (1) if directed to do so by the Secretary of State",
and so on.
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I have found similar instances scattered throughout the Bill. I do not wish to take up your Lordships' time by enumerating them all because I notice that the noble Lord, Lord Lester, and his colleagues have tabled a large number of amendments to reduce the influence of the Secretary of State on the work of the commission. Some of those amendments have already been spoken to and some remain to be called. Indeed, my inspiration for the wording of this amendment was that used by the noble Lord, Lord Lester, in Section 39(2)(b) of his Equality Bill in 2003, which your Lordships passed.
I also do not include either Henry VIII provisions in the Bill giving the Secretary of State power to amend legislation or the power to issue instructions to cover the transition from the three commissions to just one.
What concerns me is, first, that the commission should not be seen as a mere political instrument of the Government; and, secondly, that the power to direct the commission's activities in those particular circumstances should not create an atmosphere within the commission that makes it feel that it should, even in cases where there is no such direction, take into account what it supposes, rightly or wrongly, are the views of the Government.
Perhaps I may suggest an admittedly extreme and hypothetical example to illustrate the point. Let us suppose that a Minister had pronounced The Satanic Verses an affront to the Muslim community—which I am absolutely certain no Minister has ever done or ever would do. That would be no reason for the commission to take or support any action against Mr Rushdie or to institute any inquiry of its own volition unless it independently came to the same conclusion.
This is essentially a probing amendment. We seek an unequivocal statement from the Government that the commission can rely on the fact that it will be able to carry out its functions without the Secretary of State breathing down its neck or pursuing it with a stream of suggestions, memos and e-mails. In other words, we seek a statement that, despite the fact that the commissioners are appointed by the Government and hold office at the Secretary of State's pleasure, the commission truly is independent, as any quasi-judicial organisation ought to be. I beg to move.
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