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Oversights can occur with lawyers from time to time, though I suppose that in this case it might be the parliamentary draftsman who is to blame. Although I bear my fair share of the blame, so far as Scotland is concerned, I think that the noble Lord, Lord Wallace, is right: we just need to know what effect the provisions will have. I thank the noble Baroness, Lady Gould of Potternewton, for continuously trying to clarify exactly what is happening. We await with great interest an answer to the question of whether it was indeed inadvertence or whether there was some other motive behind it. If so, the Committee deserves a full explanation.
Lord Mackay of Clashfern: I think that the present provisions are related to what was referred to rather politely as an "underdevelopment" of the legal advice, because it has been developed since. It was due to an idea that providing the services of a celebrant of marriage was not exercising a public function. Until now the law has regulated this and there is no doubt that it is a public function in England, Scotland and probably also in the other jurisdictions in the United Kingdom.
I also feel certain that this is a matter of equal opportunities and therefore well within the competence of the UK Parliament. I have no doubt that it would be possible to get the agreement of the Scottish Parliament insofar as there should be any risk in that respect, but I think that putting the provision in the Bill is perfectly competent, and I hope the Government share that view.
Baroness Thornton: I will speak to both Amendment 58A and Amendment 58B, but before I do, may I say to the noble Lord, Lord Hunt, that our job in this House is to test Bills, to test whether they work and to seek clarification of them, and therefore all our discussions are going to be about, does this work, does it do what it says it is going to do, do we think it will work and, occasionally, have we forgotten to put something in
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Amendment 58A seeks to make clear that a clergyman of the Church of England, or a clerk in holy orders of the Church in Wales, will not be subject to a claim for discrimination on the grounds of gender reassignment when acting in accordance with Section 5B of the Marriage Act 1949. Section 5B allows a clergyman or clerk of the established church to refuse to solemnise a marriage if he or she reasonably believes one of the couple to have gained their legal gender under the Gender Recognition Act 2004. The 2004 Act was passed to provide transsexual people with legal recognition in their acquired gender. Under that Act, legal recognition of a person's new gender follows from the issue of a full gender recognition certificate by the gender recognition panel. Legal recognition of the new gender has the effect that, for example, a male-to-female transsexual person is recognised for all purposes as a woman in English law. On the issue of a full gender recognition certificate, a person is entitled to a new birth certificate reflecting the acquired gender and is able to marry someone of the opposite gender to his or her acquired gender.
The 2004 Act therefore amended the Marriage Act 1949 to provide clergy of the Church of England and the Church in Wales, who are under an obligation to solemnise the marriages of parishioners, with a clause that releases them from this obligation if they feel unable to solemnise the marriage of a person recognised in the acquired gender. The rationale of the relevant provision, Section 5B, is that a minister should not be obliged by law to act against their personal religious conviction on this matter. This provision is only necessary for clergy of the Church of England and the Church in Wales because they alone among denominations have a legal obligation to solemnise the marriages of their parishioners. This amendment seeks to make it clear that a person acting in accordance with Section 5B will not be liable to a claim for discrimination on the grounds of gender reassignment.
Although the Bill is not intended to cover this situation, we do agree that as a result of the Bill's broader protections for people who are undergoing or have undergone gender reassignment, there is a risk of claims being brought unless an exception such as this is put in place. Consequently, we are happy to accept the right reverend Prelate's amendment.
For Amendment 58B, a similar rationale applies. Although there is no legal obligation on religions or denominations other than the established church to solemnise marriages, those who solemnise marriages in those religions may also have personal religious concerns about conducting marriages involving people who have undergone gender reassignment. Currently they are able to refuse to solemnise marriages involving such people without any risk of a claim for discrimination. However, as with the established church, the Bill may raise questions as to whether any such refusals might give rise to claims for gender reassignment discrimination. We have always been clear that the Equality Bill's extension of protection from gender reassignment
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With this in mind, we agree that the position of religions other than the Church of England and the Church in Wales needs to be clarified, in case there was doubt that Part 3 inadvertently alters the position. We are therefore grateful for this amendment. In England and Wales, it will allow those, such as Catholic priests, who consent to the solemnisation of the marriage of a person in a registered building the same facility as clergy of the established church to refuse to marry people who have undergone gender reassignment without facing a claim for discrimination, as described by my noble friend Lady Gould. In Scotland, it will allow what it refers to as "approved celebrants" to decline to solemnise a marriage for the same reason. It defines approved celebrants by reference to the Scottish legislation: the Marriage (Scotland) Act 1977.
Baroness Knight of Collingtree: The word "reasonable" worries me. My experience is that what is reasonable to one person is often not reasonable to another. Who will decide what is reasonable? How will that be implemented?
Baroness Thornton: "Reasonable" is a legal expression that will be used as a test should this come to court. We are trying to clarify the Bill to make it clear that we would not expect the clergy who are mentioned in these amendments to be vulnerable to claims for discrimination. In Scotland, these amendments will maintain the status quo once the Bill is in force. As the noble and learned Lord, Lord Mackay, said, these amendments are within the competence of the UK Parliament as this is discrimination law, not marriage law. I hope that that helps the noble Lord, Lord Wallace.
However, these amendments should not be seen as discriminatory against transsexual people. They do not add anything new; nor do they remove anything. Transsexual people have rightly gained the ability to be legally recognised in their acquired gender. As in other situations, however, this is an area where the Bill should strike a balance. In striking that balance, we agree that, as under current law, people of faith who have the ability to solemnise marriages should not be forced to go against their strongly held personal religious convictions.
(2) Sub-paragraph (1) does not apply to the provision of an electronic communications network, electronic communications service or associated facility (each of which has the same meaning as in that Act)."
Lord Lester of Herne Hill: This amendment needs to be considered together with Amendments 113 and 114, which were tabled by the noble Baroness, Lady Warsi, and which are designed to have a similar effect.
Their origin is the concerns expressed by the BBC and Channel 4 that the Bill could result in inappropriate interference with the editorial independence of broadcasters and so have a negative effect on the range and depth of programming. This was forcefully expressed to the Government, and I agreed to table amendments, originally together with the noble Baroness, Lady Howe, with that in mind. The drafting was not ideal, and the drafting of my amendment reflects a great deal of assistance I received, if I am allowed to say so, from the Government and their advisers. It has been agreed with the broadcasters.
The problem refers back to the kinds of problems to which the noble Lord, Lord Alton, referred. For example, if broadcast content is caught by the provisions in the Bill, the broadcasters were concerned that complaints about programming could be brought that might create double jeopardy for broadcasters, since those issues are already dealt with by the designated broadcasting regulators: Ofcom and the BBC Trust.
The sorts of examples-I do not want to multiply any more stupid examples-that came to mind were a claim of race discrimination on the basis that the broadcaster's dramas over a period of time had featured too few non-white people; or because they had shown a film that was thought to be offensive to a particular ethnic group; or a claim of sex discrimination on the basis that a programme was degrading to women; or a claim of race or religious discrimination in relation to a decision to broadcast a film offensive to white people or white Christians, in circumstances where it would not have broadcasted a film offensive to non-white people or to Muslims; or a complaint in relation to a scheduling decision over what was broadcast in Holy Week, or on the Sabbath, or during Ramadan.
The noble Lord, Lord Alton, if he were here, would be glad to know that in the view of the broadcasters, those are not just theoretical threats. They have given as an example the West Midlands Police complaining to Ofcom that Channel 4's "Undercover Mosque" might have included material likely to constitute an incitement to racial hatred; or a group called the English group arguing that a programme called "The Seven Sins of England", which discussed anti-social behaviour from a current and historical perspective,
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It is good to have these examples, because it livens up Hansard a great deal. Those complaints are, as the broadcasters have pointed out, costly and vexatious, and they can have a chilling effect on programme makers. As the Bill allows for subjective tests about harassment to some extent, that again has caused some worry. I will not go on, but those are the kinds of concerns which gave rise to my amendment, which has an objective similar to those with which it is grouped. I beg to move.
Lord Hunt of Wirral: My Lords, I was very interested to hear the speech by the noble Lord, Lord Lester. As he knows, we have tabled similar amendments to Schedule 18, to exclude people involved in the public broadcast of programmes from having to abide by the provisions of the public sector equality duty. As the noble Lord has explained, the main aims are to ensure that the content of programmes being broadcast by public service broadcasters should not be inappropriately regulated.
Lord Lester of Herne Hill: I am sorry to interrupt, but I did not point out, as I should have done, that my amendment is concerned with Section 29, and services, not the public service duty, which I think is dealt with separately.
Lord Hunt of Wirral: That is quite correct. The amendment tabled by the noble Lord, Lord Lester, would mean that a broadcaster would not fall foul of the provisions regarding discrimination, as he has just explained, as laid out in Clause 29, which is headed, "Provisions of goods and services". Amendment 113, which I now speak to, would mean that the persons involved in commissioning, content, and broadcast of programmes, would be excluded from those groups who have due regard to the public sector equality duty. Amendment 114, in the names of my noble friends, would mean that any function connected with these activities would also be excluded.
We on these Benches think that it is wrong to include the content produced by public service broadcasters under the provisions of the Bill. The risk is that there would be inappropriate control and interference with their editorial independence, which could risk damaging the creative process, of which we are all very proud in this country, and may risk artificial constraints being placed on the range and depth of programming. I am sure that the whole House would not want to encourage that.
In another place, we received assurance that the Government completely agreed that the public sector equality duty should not apply to the commissioning, content and broadcast of programmes. As I understand it, the Government have produced a new website-lastminuteamendment.com. I carefully researched this website, which has been fully populated of late, particularly yesterday-we have yet to come to those amendments-
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Lord Mackay of Clashfern: My Lords, I am glad to notice that the noble Lord, Lord Lester, has made an exception to his general policy not to legislate against ridiculous examples by seeking to do it here. These amendments are highly desirable; but is the position of those who take part in the programmes protected? I will not add to the ridiculous examples, but there was a case of someone taking part in a programme who was investigated by the police on the ground of what he had said by way of his religious views about a certain aspect of social life. The position of those who take part in a programme, as well as the authorities which produce the programme, requires to be clarified. This may protect them also, but I am not certain of that.
Baroness Howe of Idlicote: My Lords, I second the amendment in my name and that of the noble Lord, Lord Lester, and I thought that he put the case brilliantly. All the examples given illustrate clearly how important it is to get this right. As the noble Lord, Lord Hunt, said, and as I understood it, there was an intention for the Government to take on the task of putting down an amendment. So I am surprised that all this time has gone by with nothing happening. I hope that a hitch has not occurred, because this provision is crucial. On the cost of the licence fee, I do not think that we want the licence fee, instead of paying for making programmes, to pay compensation to whoever is making complaints about the way in which they have been portrayed. I very much hope that the Minister will reassure us.
The Archbishop of York: My Lords, I, too, support the noble Lord, Lord Lester. I am glad that he has converted at last to the possibility that idiotic cases could be dealt with. However, his example from "Carols from King's" was from John, chapter 1, verse 11 and not verse 14. That said, I do not know whether I want to go a long way with the noble and learned Lord, Lord Mackay, about people appearing on programmes and expressing views which could be an incitement to religious and racial hatred. The law protects us from that side, and I would be more content to leave this issue where the noble Lord, Lord Lester, has left it.
Baroness Royall of Blaisdon: My Lords, Amendment 58C will provide an exception for broadcasters, such as the BBC and Channel 4, from the services and public functions provisions in Clause 29. This is intended to ensure that claims for discrimination, harassment and victimisation cannot be brought in relation to the broadcasting and online distribution of a contents service, as defined in the Communications Act 2003.
We agree with noble Lords opposite. It was never our intention that anything in this Bill should undermine the editorial independence of these broadcasters. The noble Lord, Lord Lester, has made an eloquent case for the exception, and we understand the concerns that have been expressed by the broadcasters themselves. The examples which have been cited-the ludicrous
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This chilling effect can in turn deny the viewing public the opportunity to see controversial programmes that are an important means of prompting public debate. We have therefore concluded that including an exception for the broadcasters in the Bill in respect of the broadcasting and online distribution of content could provide certainty and ensure that the concept of editorial independence is protected. We are therefore happy to accept the amendment tabled by the noble Lord, Lord Lester, and the noble Baroness, Lady Howe of Idlicote, and I thank them both.
Amendments 113 and 114 are amendments to Schedule 18, paragraph 4. These amendments would except from the scope of the equality duty any person involved in the commissioning, content and broadcast of programmes, or any function in connection with the commissioning, content and broadcast of programmes. These amendments are identical to amendments tabled and debated during the Committee in another place. As then, the Government oppose these amendments because they are unnecessary. We have made clear on a number of occasions our intentions for the public service broadcasters and the equality duty in letters to the Director-General of the BBC in a Named Day Question answered by the Secretary of State for Culture, Media and Sport, and during Committee in another place, both of which are recorded in Hansard. I also responded to this point at Second Reading.
Our policy is that the duty should not apply to the broadcasting and output functions of the public service broadcasters. Editorial independence for broadcasters is a long-standing government policy and one we are committed to retaining, as our acceptance of the previous amendment has just shown. However, it is important that we list the BBC, Channel 4 and S4C in Schedule 19 and we will do so at the same time as we amend the rest of the list. When we list them in Schedule 19, we will explicitly exclude their broadcasting and output functions. Clause 149(4) makes it clear that if a body is listed in Schedule 19 in respect of certain specified functions, the duty will only apply to those functions.
There are no amendments from the Government that will appear on lastminute.com, as the noble Lord says, because we are having informed discussions with a wide number of public bodies about whether they should be included, including the BBC. We are working closely with the BBC and other broadcasters to define exactly what functions need to be excluded in order to respect editorial independence.
Lord Hunt of Wirral: I am following of course what the noble Baroness is saying, but it would be helpful to get some idea of timescale. As I understand it, she is saying there is no need for amendments to primary legislation because we will deal with this through secondary legislation, but I think we are not going to be able to share what is proposed until some later stage. It would be very helpful if some sort of time could be put on when we shall see the result of these discussions, please.
Baroness Royall of Blaisdon: I am told later this year. I cannot give a timescale. What I will try to do is come back to noble Lords in writing with more ideas-notwithstanding the fact that we are speaking to the various bodies involved-about the sort of things that we will be considering in secondary legislation so that noble Lords have more substance about the things that we will be proposing in due course.
Let me explain why listing broadcasters in Schedule 19 is preferable to setting out an exclusion. It is important to list these bodies in Schedule 19 because it means we can be clear about what functions of those broadcasters are subject to the duty and which are not. For instance, by listing the broadcasters we can be clear that certain functions such as those in connection with employment of its workforce are included. If we relied on the public functions provision of Clause 148(2) together with the exception for the commissioning, content and broadcast of programmes, then it would not be clear what other functions were subject to the duty. Indeed, some would argue that the employment of its workforce, for instance, would not be covered. That lack of clarity has been unhelpful to the broadcasters in the past, and we are in discussions with them to make sure we are clear on that for the equality duty.
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