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Anti-discrimination legislation is, by its very nature, complex and intrusive. By effectively placing the onus of proof on the defendant rather than the claimant and providing for unlimited damages in relation to successful claims, it already imposes a heavy burden on any organisation that employs staff. It is noteworthy that, while the Government's consultation on the reform of discrimination law touched on the possible additional burdens that fresh legislation might create for the public sector and businesses, it failed to recognise that the organisations least well placed to cope with ever more regulation are those in the voluntary sector. Most bodies in that sector, including the large number of small entities that make up the churches and other faith bodies, are essentially local, dependent on voluntary

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income and have, at most, a handful of paid staff and little by way of human resources or other professional support. Care must be taken to ensure that the Bill does not impose impossible additional burdens on these smaller organisations.

A key aspect of the Bill to which we shall naturally be paying close attention from these Benches is how it handles the difficult and crucial area of how a proper balance should be struck between competing rights regarding religious belief. We are not alone in having been concerned at what has appeared to be a growing trend towards regarding religion and belief as deserving of a lesser priority in discrimination legislation than the other strands. The argument appears to be that, because religion and belief are susceptible to personal choice in a way that other strands are not, religion and belief should be subordinate to those other strands when they are in competition with one another. We believe that to be a false analysis.

The preservation of religious freedom, including the right to manifest religious belief in all its diversity, remains a cornerstone of an open, liberal and tolerant society and was a constitutional principle in this country long before the Human Rights Act passed into law. Nor is religious equality achieved by the elimination in public institutions such as schools or local authorities of expressions of religious belief. That does not achieve equal respect for different religious groups and those of no religion; rather, it amounts to an enforced secularism that fails to respect religious belief at all. A genuinely generous equality allows the expression of religious belief not only by individuals but also by religious groups, and allows it to be expressed both in what they believe and in what they say and do.

From that point of view, a key issue that will arise in the passage of this Bill will be the approach taken to the carrying forward of the various exceptions that Parliament has previously conferred on religious organisations in existing legislation. Success in dealing with that issue will depend on the way in which potentially competing rights are balanced. That this process is, and is seen to be, undertaken with rigour and objectivity is all the more important where it relates to sensitive issues, not only to do justice to those directly involved but to ensure that the legislation has the support of fair-minded people.

Where Parliament is legislating for a situation in which the exercise of the right to freedom of religion conflicts with the human rights of other persons, its responsibility is, of course, to seek to ensure that the competing rights are balanced in the way required by Article 9.2 of the European convention. This requires that any restriction on the manifestation of religion or belief must genuinely be necessary; and that where it is imposed it must be no greater than is reasonably required to secure the proper protection of the other right.

Finally, there is an important issue about the legislative process itself. It was a matter of concern to many of us that the previous Equality Bill was amended at a late stage to insert a power allowing the Secretary of State to make regulations extending protection from discrimination and harassment on grounds of sexual orientation to the provision of goods, facilities and

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services. Whatever our view on the issue itself, we very much hope that when the new Bill appears we shall not find that it confers similar powers to make detailed provision in contentious and sensitive areas by delegated legislation. Where such matters are involved, we are clear that they should be dealt with in the Bill so that they can be subjected to a proper process of detailed scrutiny, not least to enable Parliament to satisfy itself that any necessary balancing of potentially competing rights has indeed been conducted properly. We will want to play our proper part in such scrutiny.

5.26 pm

Baroness Shephard of Northwold: My Lords, I shall focus on agriculture, particularly food security. I see that the Minister who will reply to the debate is breathing a big sigh of relief because on this occasion I am not pursuing him as regards local government reform.

The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): My Lords, surely I can venture a little way towards the unitary local government issue.

Baroness Shephard of Northwold: The noble Lord may enjoy responding to what I am about to say.

During debates on the gracious Speech this House has rightly spent considerable time examining economic issues, particularly the implications for our domestic economy, trade and, indeed, the currency of the present financial crisis. However, a number of factors are converging to create a global crisis for food security which is every bit as serious as the global credit crisis, and is made even more serious by the global financial situation. It is therefore disappointing in the extreme that while the gracious Speech contains measures dealing with environmental issues, particularly marine and coastal access, which will certainly have minor implications for food security, the only other measure which can be said to impact on agriculture is a draft Bill, the Floods and Water Bill. It is hard to see that Bill, or indeed the Government’s attitude in general towards food security, as in any way an adequate response to the situation we face.

The statistics are stark. Each year the world’s population is increasing at a rate equal to the entire population of Great Britain. By 2050 at least, if not before, there will be more than 9 billion mouths to feed in the world. At the same time, UN figures show that each year drought, deforestation and climate volatility are already taking out of food production an area equivalent to the size of the Ukraine. Thus, while we need to double food production by 2050, we will have to do so on a reduced area of cultivable land worldwide, and with fewer resources than at present. Climate change threatens production levels on existing land and will make some uncultivable. Worldwide water availability will certainly restrict output. The volume of food aid is now less than half what it was in 2000. The situation is therefore grave.

It is because these facts are incontrovertible that the content of the gracious Speech disappoints in its

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inadequate response—one might almost say nil response—to this challenge. The Government have had rather a relaxed attitude to these issues for some time. In 2005 a joint Treasury/Defra report asserted that whatever food we in Britain might be short of, the world would supply. Margaret Beckett MP, at the Oxford Farming Conference, famously remarked:

“The world is awash with food for us to import”.

This remark was rash at the time; it is now risible. A recent Defra analysis said:

“Climate change is likely to bring new challenges for food security, not of rich countries, like the UK, but of less developed tropical regions”.

That will not do, especially for a net importer of food such as the UK.

Surely, in addition to helping the developing world feed itself through aid and investment, we should right now stop importing the vast quantities of food that we can grow ourselves. Ten years ago we produced a surplus of pork; we now import a third of all the pork we eat. We ship in more bacon, lamb, eggs and chicken than we did 10 years ago. This is most emphatically not a protectionist point. Trade must continue to play an important part in food security, but the Government’s current view seems to ignore the growing global food security crisis in which, by increasing domestic production, we could help ease the pressure on stretched global markets. We have the infrastructure, soils, climate and skills to increase that production. This is significant because 2008 will go down as the critical year when more than 50 per cent of the world's population became city-dwellers.

It would be unfair to imply that absolutely nothing is happening within Government with regard to food security. In the past year the Cabinet Office produced a report called Food Matters: Towards a Strategy for the 21st Century. This was followed by a Defra consultation paper entitled Ensuring the UK’s Food Security in a Changing World. In October Hilary Benn announced that a council of food policy advisers would be appointed. The noble Baroness mentioned this council in her opening remarks and I am sure that the noble Lord will wish to update us in his winding-up speech.

Given the gravity of the crisis which confronts us and the world, I would have expected the gracious Speech to contain urgent measures, for example, to remove barriers to maximising domestic food production; to support CAP reform to make farmers more able to respond to consumer demands; to resolve the question of the contribution GM technology could make towards increasing food production and reducing agricultural costs; and, in particular, to address the 45 per cent reduction in funding for research and development in agriculture that we have seen in the past few years by reordering government priorities.

It is hard to think of an issue of greater importance than feeding ourselves and helping to feed the world. The primary duty of any Government is to provide security for their people, and that includes food security. Frankly, a draft Bill on floods and water, reasonable and honourable though it may be, does not even start to address the challenges we face.



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5.33 pm

Lord Lester of Herne Hill: My Lords, it is a pity that the Government’s business managers decided to group equality together with local government, transport, agriculture and the environment, rather than with home, legal and constitutional affairs. That means that, for the purpose of this debate on Human Rights Day, equality has been put into a separate compartment from human rights, even though the right to equality before the law and to the equal protection of the law is a human right and indeed a constitutional right which we hope will be recognised and protected under the equality Bill. That was rightly recognised in the mandate given to the Equality and Human Rights Commission. Equality without discrimination needs to be viewed from a broader human rights perspective.

However, unlike the Official Opposition, we wholeheartedly welcome the Government’s commitment to introduce a further equality Bill during this Session. We shall seek to strengthen the Bill where it is weak, to clarify its terms where they are obscure, and to make it workable and effective in practice. We will support the Bill’s passage, provided that it meets these essential objectives. There is great expertise across the House in the areas to be covered by the Bill, on which the Government would be wise to draw. Several noble Lords who will make important contributions in this debate will be centrally involved.

Successive Governments have made piecemeal changes in discrimination law since I had the privilege more than 30 years ago of working as Roy Jenkins’s special adviser at the Home Office on what became the Sex Discrimination and Race Relations Acts. Since then, successive Governments have added layer upon layer to a great barrier reef of complex, opaque and anomalous primary and subordinate legislation. One of the most grotesque examples, as the noble Baroness, Lady Warsi, may be interested to discover, was the equal value regulations introduced by the Thatcher Government, which this House, unusually, condemned in passing them through the House.

Employers and trade unions, public authorities and other service providers and victims of discriminatory practices and procedures are left in the dark about their position under the law. The complexity and obscurity of the law and the bureaucratic and tortuous nature of some of its procedures create unnecessary litigation and delays that undermine respect for the law and impair access to justice and effective individual and collective remedies.

The Government wasted a decade in failing to meet the pressing need for comprehensive reform. Instead, they put the cart before the horse by creating the EHRC before tackling the reform of the law. The resulting delay means that Parliament now has the last chance before the next election to enact a statute of which we may be proud.

According to the current list of ministerial responsibilities, the Government Equalities Office is,

But the description of its work does not mention the broader human rights perspective, and ministerial and Civil Service responsibility is balkanised across Whitehall.

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Instead of joined-up government, discrimination law reform has been poorly co-ordinated, and no government department has been willing to take responsibility for the EHRC, which has become Whitehall’s orphan Annie.

We fought hard in this House during the passage of the most recent Equality Act for the commission to be genuinely independent from government influence and for commissioners to be appointed on merit in accordance with the UN Paris principles. It is vital for those values to be respected in practice; for appointments to be on merit and for the commission to avoid becoming a politicised NGO. The EHRC was created to be an independent public authority acting professionally and using its powers effectively to promote equality and respect for human rights and to combat unlawful discriminatory practices. It should leave politics to the politicians and concentrate on its demanding statutory mandate.

What then are the essential requirements for equality legislation of which we may be proud? The Bill must contain clear, consistent standards to make this area of the law more user-friendly and accessible. The Government have promised that there will be no regression. The Bill must level up and not down. They must create an efficient and effective regulatory framework, securing accessible remedies through procedures which are inexpensive and expeditious. The law needs to be effective in achieving widespread change while, as the right reverend Prelate the Bishop of Southwark emphasised, avoiding imposing overly burdensome and bureaucratic obligations. We welcome the development of public sector duties, giving greater emphasis to securing real progress in policy-making and service delivery. That must not be an exercise in creating mountains of unnecessary paper or the mechanical ticking of boxes on standardised forms.

I shall quickly refer to a few topics that we shall have to look at in depth. On sex discrimination and equal pay, the commission has published the bleak facts about the squandering of the talent of women and the prevalence of sex discrimination and sexual harassment and unequal pay for equal work. Women are grossly under-represented in top jobs, and improvements are moving at a snail’s pace. The full-time pay gap has begun to widen and stands at 17 per cent. According to Sunday’s Observer, on a world league table of equal pay ranking, the UK is 81st out of 130 countries.

The Government’s response to the pay gap is weak. The gracious Speech refers to the Bill as designed,

Mere help will not suffice. The Government intend to rely on public procurement instead of requiring equal pay audits from large and medium-sized private and public sector employers. Public procurement is important and provides a lever for change, but it is necessary to clarify the ability to use equality requirements in public procurement without breaching EU rules.

The equal pay procedures have been criticised by senior judges, equality experts and equality agencies as tortuous and unworkable. They need to be simplified. The private, as well as the public, sector should be subject to positive duties, placing the responsibility on

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employers to ensure equal pay, instead of relying on individuals to sue them. That would enable an employer to implement equal pay on the basis of a rational and well-thought-out pay equity plan.

The procedures in employment tribunals need to be streamlined, with the power to refer complex cases to the Employment Appeal Tribunal or the High Court. Group or representative claims should be dealt with together, and there is a need for systemic remedies for systemic discrimination; for example, where in an individual case a court or tribunal finds sex discrimination in a collective agreement or pay system, there needs to be suitable machinery for changing the system in an orderly way. That, unfortunately, was abolished by Mrs Thatcher’s Government.

We welcome the Government’s intention to reform disability discrimination law to close the gap created by the unfortunate recent decision of the Law Lords in the Malcolm case, and to apply the concepts of direct and indirect discrimination not only to sex, race and other types of unlawful discrimination but also to disability. Together with the duty to make reasonable adjustments, that should ensure that existing legal protection is not undermined by the Malcolm decision.

The subject of religion has already been addressed by the right reverend Prelate the Bishop of Southwark. I listened with care to his speech. I had the misfortune to disagree with some of it but I agree especially with what he said about the right to express religious belief and the importance of Article 9 of the convention, which is recognised in the Human Rights Act. However, I hope that he, together with the Church of England and indeed the House, agree that it would be divisive and unworkable to saddle public authorities with a duty to promote religion and belief, including a lack of religious belief, when exercising their public functions. It would also be divisive and unworkable to enable civil claims of religious harassment to be made on the ground that the claimant’s human dignity has been infringed. That would encourage vexatious claims, which would interfere unduly with the rights to free speech and religious freedom. While religious freedom must of course be protected and religious discrimination forbidden, this is an area where one size does not fit all, and exceptions must be no more than are appropriate and necessary.

Finally, we welcome the Government’s decision to make it unlawful to discriminate on grounds of age in providing goods, services and facilities to the public and performing public functions, but we regret the decision to kick it into the long grass.

In conclusion, we will support the Government in their efforts to enact the Bill but they should not take our support for granted, using the self-imposed problems of a short parliamentary Session to limit necessary debate and amendment when the Bill is in this House.

5.45 pm

The Lord Bishop of Chester: My Lords, I wish to speak on the environment. I confess at the outset to having had real difficulty about what I might say beyond welcoming the Marine and Coastal Access Bill and the flood defence measures that have been announced. Issues on the environment are so complex

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and often confront us with difficult dilemmas whether we are talking about individuals, the Government or society as a whole. The trouble with dilemmas, especially those with a longer-term profile, is that it is all too easy to delay facing them squarely and making the necessary decisions. We can live with a certain inertia. To take an obvious example, we are still in the early stages of a culture change on how buildings are heated. I constantly go into shops, offices and other public buildings that are overheated to an uncomfortable degree. As a society, we need to accept that a whole new culture on energy conservation must be embraced.

Another obvious and immediate example to which reference has already been made is the third runway at Heathrow. From a perspective of aviation needs and from comparisons with other major airports in Europe, an overall economic case for the third runway seems clear. Yet it will probably—almost certainly—be an unpopular decision, adding to pollution in a densely populated area and compounding the sense that were we starting from scratch, we would not locate a hub airport for London in such an area or one so close to London itself. It is also unclear how making provision for increased volumes of air traffic could be compatible with the target of an 80 per cent reduction in carbon dioxide emissions in the UK by 2050, given that the only way known to us to propel aircraft is through turning hydrocarbons into water and CO2.

Aviation is in a slightly different position from road and rail transport where other options are available. However much the efficiency of the engines may yet be improved, it is an energy-intensive activity. In saying that, I echo the noble Lord, Lord Soley, because I have no support for those who invaded Stansted Airport this week and committed criminal acts. We need democratic, careful and thoughtful discussion, not intemperate unilateral actions because the issues are so complex and difficult.

Nuclear power has attracted similar passions in the past. This is a classic example of a thorny dilemma. It seems pretty obvious that the chances of getting anywhere near the 2050 CO2 target will require a major reinvestment in nuclear power—if not quite on the French scale, then beyond what we have done in the past. The Government have moved steadily of late towards supporting new nuclear stations, but they are still leaving commercial decisions to electricity generators themselves. Will the market deliver? Will it deliver sensible long-term choices? If by any reasonable judgment we need a long-term nuclear capacity, does that not need more direct government involvement in relevant decisions and planning than is currently the case?

It is salutary to note that without the recent shifts in government policy there was a real danger that all the benefits of the introduction of renewable technology and wind power, largely because of government regulation and obligation, would have been completely negated if we had simply closed down the present nuclear capacity. Of course, I recognise that the fears about safety, long-term storage of waste, and so on, are real and raise genuine environmental questions of their own. I believe that these issues are soluble but I understand the dilemmas the Government have faced that have to some extent resulted in putting off key decisions.



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