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The courts now have much greater discretion to consider the facts of each case and to decide whether the landlord's treatment of the tenant is justified, which might cover some of the points raised by the noble Lord and his concerns about what is reasonable for a landlord to consider. We believe that this allows for greater fairness than a blanket prohibition on disability considerations being taken into account in some possession proceedings. I hope with that, and my undertaking to write to the noble Lord if I have not covered all the points he raised, he will withdraw his amendment.

Lord Hunt of Wirral: I shall press the Minister a little further. The Minister may well think that this would be an appropriate case for guidance from the Equality and Human Rights Commission. I understand that there is no clarity about whether we will get guidance. Will that guidance be available and, if so, on what timescale? I do not expect that she will have the answer immediately, but it is an area where the fears of a number of bodies have not yet been met by clear guidance from the commission.

Lord Lester of Herne Hill: I hope what I shall say will be helpful. It seems to me that where a tenant behaves badly-does not pay the rent or destroys the premises or whatever-and when he is served with notice to quit says, "It's because I have a disability", the question would be of fact, of causation, in the individual case. What was the real reason for the behaviour so far as direct discrimination is concerned? If the tenant behaved badly, there would be no objective justification, and he could be removed. It does not seem to me that there is a need for much guidance because I hope what I have just said is plain and obvious. It all boils down to the facts of the individual case and whether it is really attributable to disability or to misconduct.

Lord Hunt of Wirral: That was a helpful intervention from the noble Lord, Lord Lester of Herne Hill, because I am seeking to tease out whether it is an objective justification to expect rent and the ability to evict for non-payment. That is the area. If what the noble Lord said is correct, this has been a worthwhile period in the consideration of the Bill. I understand that the commission has been asked to provide guidance, and a little information on the timescale in which it will be available would be helpful.

Baroness Thornton: Draft guidance has been published and is on the website. There is a commitment to consult on the issue to do with premises. I cannot guarantee that that is covered in the guidance currently on the website.

Lord Elton: We are assuming that disability is a permanent condition, but I do not know that that is the case. If a person is a tenant and, after a while, is

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unable to pay the rent as a result of a newly incurred disability, is that not a case where some guidance would be needed?

Baroness Thornton: The noble Lord makes a very good point. That is probably right.

Lord Hunt of Wirral: This has been a helpful short debate because those who are still seeking guidance are going to receive it. The objective justification that I have teased out of the noble Lord, Lord Lester, will do much to reassure people in the mean time. I beg leave to withdraw the amendment.

Amendment 125C withdrawn.

Schedule 23 agreed.

9.30 pm

Clause 195: Age

Amendment 126 not moved.

Amendment 126A

Moved by Lord Hunt of Wirral

126A: Clause 195, page 121, line 6, leave out subsection (3)

Lord Hunt of Wirral: My Lords, we have tabled these amendments, 126A and 126B, to raise another issue which has been brought to our attention by the Delegated Powers and Regulatory Reform Committee. We have spoken a great deal about the order-making powers contained in Clause 195, which allow exceptions to be made to the provisions regarding age discrimination. We have debated the need for these regulations, their timing and which areas they will cover, and we have received assurances from the Minister that regulations would be introduced to allow exceptions relating to age-specific holidays such as those provided by Saga, insurance provision and other financial services. These would be in one order and due to come into being at the same time as these sections in the Act. I hope that the Chancellor of the Duchy of Lancaster can quickly reiterate that reassurance.

We have not spoken about the nature of the power contained in subsections (3) and (6). Those who have read the third report of the committee on this Bill will know that it has raised significant concerns about the strength of these powers. Its worry centres around the fact that, with these subsections, orders can be made which also impose requirements by reference to guidance or documents specified in guidance. This guidance is obviously not necessarily subject to parliamentary procedure. Therefore, while the power in Clause 195(1) is subject to affirmative procedure, the sub-delegation powers which allow requirements to be made by reference to guidance or other documents contained within that, mean that these requirements are capable of avoiding the affirmative procedure. This means that it is possible to bypass parliamentary control over the nature and extent of the exceptions. We have therefore

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tabled Amendments 126A and 126B, which would remove these powers of sub-delegation. The committee objected not only to the use of these powers, but also that the Government had offered no justification for them. We have subsequently seen, in a letter from the Minister, justification which states that the guidance would be too detailed for legislation, but it was necessary to have an order which required guidance to be complied with because this would give certainty to business about how a business was allowed to operate.

We have constantly fought for certainty for businesses and very much want to ensure that. The Government's amendment would allow a certain amount of scrutiny because it would make the date for the guidance to come into force subject to the negative procedure. Can the noble Baroness support this decision to compromise with the recommendations of the committee with evidence of any precedent to enshrine guidance in legislation in this way? Does she consider this to be an appropriate procedure and is the negative resolution strong enough? I should also like her to comment on any discussion she may or may not have had with the committee on this matter. Furthermore, can she clarify what would happen if parliamentary scrutiny showed that there were problems with the guidance? Would the only option then be to vote against the commencement date? If that were the case, would it not be more difficult for businesses, and in fact provide less certainty, because they would have to wait for the changed guidance to be implemented and go through the procedure again, even though there might be only a relatively minor change?

We understand the need for clarity and certainty, but it would be very helpful to hear what discussions have been had with the Delegated Powers and Regulatory Reform Committee and whether it is satisfied now with the changes. After all, the noble Baroness will have noted that in the report the committee's reaction was strongly opposed to these measures. It is vital for your Lordships now to know what its response is in order that we can then say that we are content with the amendments. I beg to move.

The Deputy Chairman of Committees (Viscount Ullswater): My Lords, I must advise your Lordships that if this amendment is agreed, I will not be able to call Amendment 126C because of pre-emption.

Baroness Royall of Blaisdon: My Lords, I will first speak to government Amendments 126C and 135ZA and then address Amendments 126A and 126B, which have been tabled by the noble Baronesses, Lady Warsi and Lady Morris.

The role of guidance in the exceptions from age discrimination outside the workplace has been raised in debates on the Bill, and, as the noble Lord, said, by the Delegated Powers Committee in its third report of 2010. The committee's concerns arise in essence because these provisions, which allow for sub-delegation, require strong justification. Government Amendment 126C addresses the committee's concern about sub-delegation by ensuring that guidance made under a power conferred by subsections (3) and (6) can come into force only on a date that is specified in an order. This order cannot

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be the same one as that specifying the exceptions to which the guidance relates, and it will be subject to the negative procedure in Parliament.

Government amendment 135ZA is consequential. It applies the provisions in Clause 200 for making orders and regulations under the Bill to those made by the Treasury, as well as those made by a Minister of the Crown. Parliament will be able to debate the provisions, which will be supported by any guidance in the context of the exceptions order, which is subject to the affirmative procedure. Amendment 126C then gives Parliament the opportunity to consider any guidance that is issued. I hope noble Lords will agree that, by including in the Bill scrutiny of the power to bring any guidance into force, this amendment satisfies the concerns expressed by the committee. We have, of course, been in dialogue with the committee.

Guidance will not alter the scope of any of the exceptions. That would be outside the extent of the power, which therefore cannot be used to amend substantive provisions in the legislation. It will allow us to set out what steps service providers need to take to take advantage of the exceptions so that they are clear about what they need to do to comply with the legislation.

The justification of the ability to make guidance is straightforward; it is there to ensure that exceptions under Clause 195 can operate as effectively as possible. Section 45 of the Sex Discrimination Act 1975, the effect of which is replicated in paragraph 22(3)(b) of Schedule 3 to the Bill, is a precedent. Under that provision, the use of sex as a factor in determining premiums is permitted on the basis of relevant and accurate actuarial and statistical data that are published and updated in accordance with Treasury guidance. Insurers who comply with the disclosure requirements, and who rely on the data that they disclose, can take advantage of the exception when setting premiums.

We envisage similar arrangements for using age as a factor in the insurance industry. Without the ability to issue guidance, all the detail on how to comply with an exception would need to be set out in the Act. This would be cumbersome, and inconsistent with the drafting of the rest of the Bill. It would also be harder to make minor necessary changes to the detail to cater for developing practices and procedures in the financial services sector, for example, because a fresh affirmative resolution instrument would be required for every such change.

The guidance-making provision is particularly important for financial services as age-based exceptions are likely to be complex, and considerable detail will be needed to provide sufficient certainty to service providers. The guidance will be needed for matters such as giving full effect to the proposals on transparency -data publication-and signposting and referrals by one insurance company to another. We aim to consult on the draft exceptions order in autumn 2010. We will consult on any amendments to that guidance unless circumstances require the amendments to be made urgently.

However, guidance may not be limited to financial services. While the exceptions that are also planned for other services, such as age-based holidays and commercial discounts, are likely to be more straightforward, they

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may require such guidance-for instance, to make clear the steps that service providers must take to come within the exception. Health services are far more complex, and it would not be sensible to rule out the use of guidance in that sector too if it is eventually decided-and to the extent that it is decided-to use the power in Clause 195 to make exceptions in relation to health and social care. In most areas, having the exceptions in legislation will suffice, but at least some will need more detail so that service providers can understand their responsibilities. The noble Lord asked what would happen should the commencement date be voted against. It would mean that the guidance would not come into force.

Amendments 126A and 126B, which would remove subsections (3) and (6) from Clause 195, would remove our ability to provide that clarity. If we could not make guidance, we would have two choices; either granting wide exceptions, which I think nobody would want, or including extremely detailed and often sector-specific provisions in the legislation. Neither of these are satisfactory options.

We have listened to the Delegated Powers and Regulatory Reform Committee. Amendment 126C specifically addresses its concern about parliamentary scrutiny. It ensures that the guidance cannot be used if Parliament is not happy with it, while retaining the necessary advantages offered by guidance. The noble Lord asked me to reiterate assurances about how Clause 195 will be used. It will be just as the noble Lord described. The power will be used to make an order, subject to affirmative resolution, setting out exceptions to the ban from age discrimination to come into force on the day of the ban.

The noble Lord referred to holidays for older people and exceptions. I reassure the noble Lord that we are doing further work and consultation to ensure that we get the exceptions right. On 27 January, we published a policy statement, which provides further clarity as to the exceptions which we are developing. I will ensure that the noble Lord receives a copy. There will be a further opportunity for consultation on the detail of the exceptions when we consult on the draft order that will contain them in the autumn. I trust that the noble Lord will feel able to withdraw his amendment.

Lord Hunt of Wirral: My Lords, the noble Baroness said that there had been dialogue with the Delegated Powers and Regulatory Reform Committee. It would be helpful if she could indicate whether the committee had expressed satisfaction that its concerns had been met.

Baroness Royall of Blaisdon: My Lords, as I understand it-it is my excellent officials who have been speaking to the officials from the Delegated Powers Committee-it is in agreement with and accepts what we are doing. However, it wishes to see how the debate pans out and to hear what I am saying at the Dispatch Box before all its concerns are assuaged.

Lord Hunt of Wirral: Therefore, I should say that I will now await the views of the committee before deciding whether to return to this matter at a later stage. In the mean time, I beg leave to withdraw the amendment.

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Amendment 126A withdrawn.

Amendment 126B not moved.

Amendment 126C

Moved by Baroness Royall of Blaisdon

126C: Clause 195, page 121, line 24, at end insert-

"( ) Guidance issued (or treated as issued) under a power conferred by virtue of subsection (3)(a) comes into force on such day as the person who issues the guidance may by order appoint; and an order under this subsection may include the text of the guidance or of extracts from it."

Amendment 126C agreed.

Amendments 127 and 128 had been withdrawn from the Marshalled List.

Clause 195, as amended, agreed.

Amendment 129 not moved.

Amendment 129ZA

Moved by Lord Lester of Herne Hill

129ZA: After Clause 195, insert the following new Clause-

"Equality between spouses

Abolition of a husband's duty to maintain his wife

The rule of common law that a husband must maintain his wife is abolished."

Lord Lester of Herne Hill: My Lords, in speaking to Amendment 129ZA, I shall speak also to Amendments 129ZB to 129ZD and to the amendments to Clauses 208 and 209, which are related. The new clauses proposed under the amendments would remove three minor rules of law which treat husbands and wives unequally, and they equalise the legal position in respect of civil partners. The amendments would not only bring our law up to date by eliminating provisions that are clearly discriminatory and redundant, but would also remove the existing incompatibilities in UK law with Article 5 of Protocol 7 to the European Convention on Human Rights. That article protects the right to equality between spouses, except for any special provision the state needs to make to protect children. These amendments would leave it open to the Government to proceed with signature and ratification of Protocol 7 to the convention should they choose to do so, as I hope they will, to fulfil the long-standing commitment.

The proposed new clause to be inserted under Amendment 129ZA abolishes the common-law duty for a husband to maintain his wife. This rule has long been superseded by statutory remedies for obtaining maintenance during a marriage. Consequently, I believe that there is no longer a need for a common law duty to maintain in favour of one spouse only.

The new clause set out in Amendment 129ZB abolishes a second common law rule, that of the presumption of advancement. This presumption discriminates against husbands and is outdated. The presumption of advancement is a rule of evidence in court proceedings which provides that where there is no evidence to the

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contrary, a husband or father is presumably making a gift when he transfers property to his wife or child. But when a wife transfers property to her husband or a mother to her child, the presumption of advancement does not apply. Unless there is evidence to the contrary, she is presumed not to be making a gift and her husband or child holds the property on trust for her. The effect of the presumption of advancement is clearly discriminatory and its abolition will not have any unfair or undesirable effects, and therefore this amendment seeks to abolish the presumption.

In order that the UK can ratify Protocol 7, abolition of the presumption of advancement is extended to Northern Ireland. I understand that the Northern Ireland Executive have agreed to this step in principle and will make the necessary arrangements for a legislative consent motion. I am grateful for their assistance.

The final rule to be addressed is the statutory provision in respect of money and property derived from a housekeeping allowance currently in Section 1 of the Married Women's Property Act 1964. It provides that if a husband pays a housekeeping allowance to his wife, any savings or property derived from this allowance in the absence of an agreement to the contrary belongs to the husband and the wife in equal shares. However, if the wife pays the allowance to the husband, the Act makes no similar provision. Amendment 129ZC amends Section 1 of the 1964 Act so that it applies equally to husbands and wives, and money and property derived from a housekeeping allowance are owned by the husband and wife in equal shares regardless of who paid or received the allowance.

The final clause set out in Amendment 129ZD inserts a new Section 70A into the Civil Partnership Act 2004 to provide for the equal division of housekeeping allowances paid by one civil partner to the other. This simply mirrors the effect of the previous amendment to the Married Women's Property Act for civil partners, ensuring that their rights are developed in parallel.

I conclude by stressing that these amendments are long overdue and represent an important step in remedying outdated inequalities in our domestic law. In addition, I hope that the Government, if they accept them, will make good their commitment, which is on the record, to sign and ratify Protocol 7 to the convention, dating from the 1997 White Paper, Rights Brought Home. I beg to move.

9.45 pm

Lord Hunt of Wirral: My Lords, I would like to make it clear that we support these amendments and the changes to the law that they would effect, but I will keep my remarks brief because we have little time in which to finish a large number of groups. This is, however, not the most appropriate time to get into discussions about Protocol 7, because there are wider issues to be addressed which deserve significant scrutiny. This is a debate for another time, and perhaps the Minister might be able to inform your Lordships when an appropriate time might be. In her Second Reading speech, she made reference to the fact that the Government would continue to seek a suitable legislative vehicle for these changes. Has she found such a vehicle yet? If so, can she give us a brief steer as to what vehicle is going to be used?

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