Fourteenth Report
Instruments reported
The Committee has considered the following instruments
and has determined that the special attention of the House should
be drawn to them on the grounds specified.
A. Draft Equality Act (Sexual Orientation)
Regulations 2007
Summary: These Regulations prohibit discrimination
on grounds of sexual orientation in Great Britain. They take effect
on 30 April 2007 and follow similar Regulations for Northern Ireland
which came into force on 1 January 2007. The GB and NI Regulations
differ in their approach and the House may wish to press the Government
for an explanation of these differences. The House will also wish
to consider the Government's approach to faith-based adoption
agencies.
The Regulations were first laid on 7 March and
withdrawn and re-laid twice by 13 March due to drafting defects.
The Government will seek the House's approval on 21 March. The
Government's timetabling, by contracting the usual period between
laying and seeking the approval of the House, has meant that we
have had to expedite consideration of this instrument.
The Regulations are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
1. The Department for Communities and Local Government
(DCLG) have laid these Regulations under section 81(1) of the
Equality Act 2006. An Explanatory Memorandum (EM), Regulatory
Impact Assessment (RIA) and Equality Impact Assessment (EIA) have
also been provided.
2. The EM states that the Regulations prohibit
discrimination on the grounds of sexual orientation in the provision
of goods, facilities, services, education, management and disposal
of premises and the exercise of public functions. In particular,
the Regulations prohibit:
- direct discrimination: when a person treats another
person less favourably on the grounds of his/her sexual orientation,
or what is believed to be his/her sexual orientation, or the sexual
orientation/perceived sexual orientation of another person with
whom they associate; and
- indirect discrimination: when an apparently neutral
provision, criterion or practice results in a disproportionate
adverse effect on persons of a particular sexual orientation,
as compared to persons who are not of that orientation.
3. The Regulations will also cover:
- victimisation: less favourable treatment of a
person as a consequence of complaining of discrimination under
the Regulations;
- discriminatory advertisements: publishing an
advert, or causing an advert to be published, which indicates
an intention by any person to discriminate unlawfully under the
Regulations;
- instructions to discriminate: the act of instructing
someone to discriminate, or causing another to discriminate unlawfully
under the Regulations, for example, by offering a financial inducement;
- discriminatory practices: adopting or maintaining
a practice likely to result in unlawful discrimination under the
Regulations; and
- validity of contracts: the Regulations will provide
that contractual terms that result from or would result in unlawful
discrimination will be void.
4. In a statement on 7 March 2007,[1]
the Secretary of State for Communities and Local Government acknowledged
the strength of feeling that had been expressed by those commenting
on the proposed Regulations, albeit that the need to tackle discrimination
was not in doubt:
"While the case for this new legislation was
widely accepted, opinion was divided on the issue of how the Regulations
ought to balance the competing rights of individuals to hold and
manifest a religious belief against the rights of lesbian, gay
and bisexual people to live free from discrimination. It is exactly
because of these complex issues about how to reconcile potentially
competing rights and freedoms that the Government consulted so
extensively on these measures. I have listened carefully to the
many points raised, and I believe that the balance we have reached—which
is the same as that achieved in the Northern Ireland Regulations
and endorsed by the Joint Committee on Human Rights—is the
right one."
5. The Secretary of State also referred to the
concerns that had been expressed about the application of the
Regulations to the adoption and fostering sector: "The Prime
Minister addressed these issues in his statement of 29 January
2007, when he acknowledged the excellent and valuable work undertaken
by faith-based adoption agencies and announced that, in the interests
of vulnerable children, the regulations will provide for a transition
period for these agencies until the end of 2008." The Government's
policy, embodied in these Regulations, is that "nobody will
be required to act in a way that contravenes their core religious
beliefs, but where religious organisations enter into an agreement
to provide services to the wider community, on behalf of and under
contract to a public authority, the rights of lesbian, gay and
bisexual people to have equal access to those services comes to
the fore."[2]
6. The EM describes the consultation process
which was carried out by DCLG over a 12-week period from March
2006. 2,747 responses were received, of which a large majority
(almost 97%) accepted the principle of legislating in this area
to prohibit unfair discrimination on grounds of sexual orientation.[3]
7. The EM acknowledges that there was "an
exceptionally strong response on the scope of the proposed religious
organisation exemption, with almost every response specifically
addressing this question. Overall, roughly two-thirds of all respondents
sought a wider exemption. The Government believes that the concerns
expressed have been addressed by the wording of the exemption
at Regulation 14."
8. The EM also refers to the position of faith-based
adoption agencies, and the decision that there will be no specific
exemption. It reiterates that the Regulations will provide for
a transition period until the end of 2008, and states that "the
Prime Minister will be commissioning an ongoing independent assessment
of the issues agencies will need to address during this period
to comply with the Regulations".
9. The EM states that the Regulations take a
similar approach in terms of substance, to the Equality Act (Sexual
Orientation) Regulations (Northern Ireland) 2006 (SR 2006/439).
"Both draw on the approach set out in Part 2 of the Equality
Act 2006. However, where the Northern Ireland Regulations often
follow drafting precedent from that jurisdiction, these Regulations,
for reasons of consistency within Great Britain, tend to follow
the wording of the provisions in Part 2."
10. The Committee drew SR 2006/439 to the special
attention of the House in the Third Report of the current Session
(HL Paper 11). The issues raised by the Northern Ireland Regulations
were inevitably similar to those raised by these Regulations.
In our commentary, we said in particular that concerns had been
expressed by a large number of consultation respondents, but that
the Government believed that these had been met by a religious
exemption.
11. The Northern Ireland Regulations were debated
in this House on 9 January 2007 (HL Deb, 9 January 2007, col 179
et seq). Concern was expressed that those Regulations were
being implemented at an earlier date than the Regulations for
the rest of Great Britain. In particular, Lord Trimble referred
to the possibility that consultation might result in changes to
the British regulations, and he sought, and was given, an assurance
by Lord Rooker that the Northern Ireland Regulations would then
be amended to be brought into line with the British regulations
and thus keep the parity that was there at the outset.[4]
12. In this regard, it is notable that the RIA
provided by DCLG contains the following statement:
"In many respects, the regulations will mirror
the approach taken in the Northern Ireland regulations, to ensure
consistency across the United Kingdom. However, we have taken
a different approach in a number of areas to reflect the different
equality framework and policy considerations in Great Britain.
In particular, the GB Regulations:
- provide for a transition period for faith-based
adoption and fostering agencies until the end of 2008. In the
interim, any agency wishing to take advantage of the transitional
arrangements will have to refer gay, lesbian and bisexual couples
to agencies who are able to assist;
- will make clear that married couples and civil
partners are in materially the same position when considering
whether discrimination has taken place on grounds of sexual orientation;
- will provide targeted exemptions for the Blood
Service and insurance companies to allow differential treatment
where supported by sound epidemiological and actuarial evidence
respectively. It is our intention that the exemption for insurance
will not apply beyond the end of 2008;
- will not encompass harassment. As made clear
in the consultation of March 2006, this issue will be considered
and legislated upon in the context of the Discrimination Law Review."
13. We have no doubt that the House will take
a close interest in the Regulations which the Government have
now laid to prohibit discrimination on grounds of sexual orientation
in Great Britain. The Regulations, which are to take effect on
30 April 2007, follow similar Regulations for Northern Ireland
which came into force on 1 January of this year, albeit that there
are differences of approach in a number of areas. The House may
wish to press the Government for further explanation of these
differences.
14. The Regulations were first laid on 7 March
and withdrawn and re-laid twice by 13 March due to drafting defects,
possibly revealing an overload on the Department for Communities
and Local Government. The Government will seek the House's approval
of the Regulations on 21 March. We have received, and continue
to receive, representations about the adequacy of the instrument's
provision about faith-based adoption agencies. The Government's
timetabling, by contracting the usual period between laying, twice
relaying, and seeking the approval of the House, has meant that
we have had to expedite consideration of this instrument and has
prevented the usual period for receiving evidence. The significance
of the policy in the instrument is not in doubt and we draw it
to the attention of the House, but it is for the House to decide
its response.
B. Draft Parliamentary Constituencies (England)
Order 2007
Summary: This Order gives effect, without modification,
to the recommendations made in the Boundary Commission for England's
fifth periodical report on parliamentary constituencies. This
will increase the number of English Parliamentary constituencies
by 4 to 533. The changes will not take effect until after the
dissolution of the current Parliament.
This Order is drawn to the special attention of
the House on the ground that it gives rise to issues of public
policy likely to be of interest to the House.
15. The Department for Constitutional Affairs
(DCA) have laid this Order under section 3(1) of the Parliamentary
Constituencies Act 1986 together with a copy of the Boundary Commission's
report and an Explanatory Memorandum (EM).
16. The draft Order in Council gives effect,
without modification, to the recommendations made in the Boundary
Commission for England's Fifth Periodical Report on Parliamentary
Constituencies (HC 7032) of 31 October 2006. The proposed changes
will increase the number of English Parliamentary constituencies
by 4, from 529 to 533.
17. After approval by both Houses, the Order
will come into force fourteen days after the day on which it is
made by Her Majesty. However it will not affect any parliamentary
election or by-election until the next general election.
C. Home Information Pack (Redress Scheme)
Order 2007 (SI 2007/560)
Summary: This Order requires estate agents in
England and Wales to belong to a redress scheme in relation to
the marketing of residential property with Home Information Packs.
The Department of Trade and Industry have acknowledged the lack
of clarity over the issues that the redress scheme will have to
address. We urge the Government to take stock of the state of
policy development, to guard against the risk of making secondary
legislation that has to be amended in short order.
This Order is drawn to the special attention of
the House on the ground that it gives rise to issues of public
policy likely to be of interest to the House.
18. The Department of Trade and Industry (DTI)
have made this Order under section 172 of the Housing Act 2004
("the 2004 Act"). An Explanatory Memorandum (EM) and
Regulatory Impact Assessment (RIA) have also been provided.
19. The EM explains that, under section 155 of
the 2004 Act, from 1 June 2007 every person who markets a residential
property in England and Wales will be required to provide a Home
Information Pack (HIP) in relation to that property. In most cases,
the person marketing the property will be an estate agent. The
Secretary of State has approved a redress scheme, under which
complaints relating to HIPs can be referred to the Ombudsman for
Estate Agents. The Order requires estate agents in England and
Wales to belong to this approved redress scheme.
20. The RIA acknowledges that there are matters
to be resolved before the redress scheme can be definitively formulated:
"At present, as the HIP scheme is not up and
running, it is not known with certainty the issues that the HIPs
redress scheme will be required to address. For instance, we expect
the legislation to provide sellers and buyers with a statutory
option for redress should the compilation of the HIP by an estate
agent be done incorrectly. However this would not extend to the
quality of the professional advice contained in documents provided
as part of the HIP, as the estate agent cannot be expected to
assess quality where this is out of their professional competency.
Additionally, redress could be available should the estate agent
fail to advise the seller that a HIP is required ..."
In our 39th Report of session 2005-06 (HL Paper 214),
we commented on the Home Information Pack Regulations 2006 (SI
2006/1503), which the Department for Communities and Local Government
(DCLG) laid before Parliament on 14 June 2006. Those Regulations
prescribed the contents of HIPs, provided for exceptions from
the HIP duties set out in Part 5 of the 2004 Act, and also made
provision for the approval of certification schemes in connection
with Home Condition Reports (HCRs), which were to be a mandatory
element of HIPs. They too envisaged that the HIP requirements
would be introduced from 1 June 2007.
21. In our 39th Report (published on 29 June
2006), we commented that the Government and others concerned faced
a major organisational challenge to ensure that there were enough
qualified Home Inspectors by June 2007. We stressed the need for
the Government to keep under review whether full implementation
of the HIP scheme should go ahead in June 2007.
22. On 18 July 2006, the Government announced
that HCRs would a voluntary, not a mandatory, element of HIPs
from June 2007. "Mandatory introduction of Home Condition
Reports remains on the table, however the Government wants to
encourage market led take up first, in order to allow a more flexible
roll-out that responds to consumer demand and the results of further
testing." In its new proposals to phase the introduction
of HIPs, the Government intended to prioritise the delivery of
energy efficiency information through the Energy Performance Certificates
(EPCs) to be included in HIPs.[5]
23. We are aware that the Government have continued
the work of preparation for the introduction of HIPs from June
of this year, and that this has included a consultation launched
by DCLG at the end of January 2007 which, among other things,
covered the proposal that estate agents should include EPCs with
their property particulars.[6]
DCLG's "Home Information Pack - Update: Towards 1 June",[7]
which contained these consultation proposals, states that, on
29 March 2007, the Department will lay Regulations to amend the
2006 Regulations, setting out requirements to produce a HIP when
marketing a property, and specifying both the mandatory and authorised
contents of HIPs.
24. However, we are concerned that, while maintaining
the date of June 2007 for the start of the HIP scheme, the Government
have left it to such a late stage to resolve a number of uncertainties
that surround the scheme; and, in particular, that the Government
propose to amend the Regulations laid in June 2006 only two months
before the date set for the introduction of HIPs. In the case
of the Home Information Pack (Redress Scheme) Order 2007, DTI
have acknowledged that there is a lack of clarity over the issues
that the redress scheme will have to address. We urge the Government
to take stock of the state of policy development and the extent
to which those affected understand and support that policy, to
guard against the risk of making secondary legislation that has
to be amended in short order.
1 HC Deb 7 March 2007 col 129WS. Back
2
HC Deb 7 March 2007 col 129WS. Back
3
DCLG have published the Government response to the consultation
process as "Getting Equal: Proposals to outlaw sexual orientation
discrimination in the provision of goods and services": see:
http://www.communities.gov.uk/pub/503/GettingEqualProposalstooutlawsexualorientationdiscriminationintheprovisionofgoon_id1508503.pdf
Back
4
HL Deb 9 January 2007 col 208.
Back
5
See DCLG press release of 18 July 2006: http://www.communities.gov.uk/index.asp?id=1002882&PressNoticeID=2207
Back
6
See DCLG press release of 25 January 2007:
http://www.communities.gov.uk/index.asp?id=1002882&PressNoticeID=2340
Back
7
http://www.communities.gov.uk/pub/758/HomeInformationPackUpdateTowards1June_id1505758.pdf
Back
| 
