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DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION
(1) The Secretary of State may by regulations make provision about discrimination or harassment on grounds of sexual orientation.
(2) In subsection (1) "sexual orientation" has the meaning given by section 35.
(3) The regulations may, in particular
(a) make provision of a kind similar to Part 2 of this Act;
(b) define discrimination;
(c) define harassment;
(d) make provision for enforcement (which may, in particular, include provision
(i) creating a criminal offence of a kind similar to, and with the same maximum penalties as, an offence created by an enactment relating to discrimination or equality;
(ii) about validity and revision of contracts;
(iii) about discriminatory advertisements;
(iv) about instructing or causing discrimination or harassment);
(e) provide for exceptions (whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality);
(f) make provision which applies generally or only in specified cases or circumstances;
(g) make different provision for different cases or circumstances;
(h) include incidental or consequential provision (which may include provision amending an enactment);
(i) include transitional provision.
(4) The regulations
(a) shall be made by statutory instrument, and
(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
(5) In subsection (3)(h) "enactment" includes an enactment in or under an Act of the Scottish Parliament."
The noble Baroness said: My Lords, I said on Report that I was aware of the Equal Opportunity Commission's concerns about Clause 81. I was grateful to my noble friend Lady Lockwood for raising this question. That clause brings in a prohibition on sex discrimination and harassment in the exercise of public functions, through inserting a new section in the Sex Discrimination Act 1975. I take the opportunity to address one of the concerns raised, which can be dealt with appropriately in this Bill. This concerns the compatibility of the exceptions to the new provision in the Sex Discrimination Act 1975 with the gender directive, which will need to be implemented by December 2007. These exceptions are set out in a table of exceptions in Clause 81.
The EOC is concerned that the implementation of the gender directive may require changes to the Sex Discrimination Act 1975 soon after the provisions of this Bill are brought into force. We have looked carefully at the points raised and the requirements of the gender directive, and we are sensitive to the need to minimise the disruption arising from changes required by Community law and to the need for clarity in advance.
While there is in our view no conflict between the public functions provisions of this Bill and the requirements of the gender directive, we are anxious not to create in this Bill provisions that will conflict with the requirements of the gender directive or any other existing or future community law. Consequently, we propose Amendment No. 42 to make it clear that nothing in the table will permit anything which is prohibited by any Community law relating to discrimination. We agree we should make this clear beyond doubt.
The EOC has other concerns relating to these exceptions but, as I indicated on Report, I believe the broader question of definitions and exemptions in the Sex Discrimination Act 1975 needs to be looked at more deeply in the discrimination law review. The review will provide full opportunities for the deep and detailed consideration that is needed. I beg to move.
Lord Lester of Herne Hill: My Lords, since the noble Baroness, Lady Lockwood, is not a free woman but is sitting on the Woolsack, I hope that she will not mind my speaking in her name and saying that, if she were free, she would say what I am about to say. We are grateful to the Government for having tabled and moved Amendment No. 42. As the Minister said, it ensures that the very broad exception in the table must be read subject to Community law relating to discrimination. It is put very neatly in that way. It means that, for example, the proportionality test in the gender directive will have to apply.
As the EOC has indicated, there are other, wider structural problems with dovetailing between this Bill and the Sex Discrimination Act 1975. However, it would be beyond the scope of this Bill, as the Minister has said, to seek to deal with those sophisticated and
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complicated matters now. They will be dealt with, as I understand it, by the discrimination law review, which is entirely sensible.
Finally, since this is probably my last opportunity to say this, I want to pay tribute to the Minister, without whom it would have been impossible to make the Bill into what it now is, that is, a Bill of which we should all be proud when we send it to the other place. I know that she has had a difficult time because she has had to deal with so many different departments and issues. It has been an enormous pleasure to me to work with her, and what she has done is quite remarkable.
"(3) Paragraphs 36 to 38 and 41 to 55 of Schedule 3 (which amend the Estate Agents Act 1979 (c. 38) and the Disability Discrimination Act 1995 (c. 50)), together with corresponding entries in Schedule 4, shall not extend to Northern Ireland."
This is a minor technical amendment whose purpose is to tidy up some technical referencing in the Bill. Essentially, it clarifies that the consequential amendments to the Disability Discrimination Act and the Estate Agents Act contained in Schedules 3 and 4 do not apply in Northern Ireland. The amendments will ensure that the Northern Ireland-specific changes made to the Disability Discrimination Act and the Estate Agents Act as they came into force are thereby not undermined. I beg to move.
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