§ 2.33 p.m.
§ Baroness Turner of Camden
My Lords, I beg to move that this Bill be now read a second time.
This is my third attempt to introduce a Private Member's Bill to outlaw discrimination on the ground of sexual orientation, and to do so by extending the scope of the Sex Discrimination Act. In 1995 I failed because time was not available. In 1996 your Lordships adopted the Bill, but it failed to make progress in the other place. I hope that this will be third time lucky. Because of my background and interest I am most concerned about discrimination in employment, but this time the Bill goes a little further and covers the provision of goods and services and some other matters that I shall deal with later.
It is not always understood by the otherwise well-informed that the law as it stands does not afford any protection against discrimination in employment and other areas to homosexual men and lesbians. It is not unlawful to refuse to appoint people, to treat them less favourably, perhaps by demoting them, to pay them less or to dismiss them because they are gay or lesbian. Nor is harassing them or allowing other employees to harass them unlawful. As the law stands at the moment, these things happen to gays and lesbians and there is no remedy for them in law.
It may be argued that the situation has changed, that in today's world such events do not occur, that there is now greater tolerance, that there are well known role models and that in any event behaviour cannot be changed, bad though it may be in some cases, by legislating against it. Research shows that discrimination takes place and that it is a common experience. A report 640 published by Stonewall indicates that 48 per cent. of its respondents have been harassed at work; 49 per cent. believe that they have to conceal their sexuality from those with whom they work; and 16 per cent. have faced actual discrimination at work. A survey by Social and Community Planning research confirms these findings. One in three heterosexuals said in a survey that they would be less likely to hire job applicants if they knew them to be gay or lesbian.
We are talking about ordinary people in ordinary jobs. Role models, important though they are—I commend them for the assistance that many have given to the cause of gay and lesbian protection—are often in the kind of professions where there is an acceptance of the right of people to live their private lives as they choose. One has in mind particularly the theatre, the entertainment profession, the arts and—perhaps one can now say—politics. But the research undertaken by Stonewall is about very ordinary people doing ordinary jobs in offices, shops and factories. I have the results of some of that research. I refer to the case of a bartender who had been in that employment for two years. There was never any complaint about his work until a woman colleague asked him out and he refused. When she saw him with his male partner she wrote to the manager to complain about his being gay and therefore, in her view, a possible AIDS risk. He was dismissed. That was five years ago. He has been fighting his case through the courts ever since. The difficulty is that dismissal because of sexual orientation is not unlawful.
Next is the case of a man who worked as a cashier for five years. His supervisor found out by accident that he was gay. From then on he was constantly picked on even though before that there had been no complaint against him. He was later dismissed. He found another job only to be dismissed from that when an adverse reference was received from his previous employer. There is also the case of a nursing auxiliary who worked with disabled people for 15 years until he was recently dismissed. There were no complaints about his performance for the first 11 years but his problems began with the appointment of a new manager who made homophobic remarks and made a point of telling others that he was gay. False allegations were made against that employee and he was dismissed. He is now awaiting the results of an internal appeal. There are also very well documented cases of harassment and violence against individuals when their sexual orientation becomes known.
There is little doubt that there are strains of homophobia in our society and some of it is extremely vindictive. It may be argued that little can be done about behaviour but I disagree. For many years women endured inequality not only in pay but in treatment generally. Legislation, and women's willingness to use it, has changed all that dramatically. Although there are still problems they are nothing like those of 20 or 30 years ago. Remedies are available. Legislation has a powerful effect. Generally speaking, we are a law-abiding nation. If one tells a person that what he is doing is against the law he will pause to think. The chances are that he will stop it. Surely, it is unpleasant 641 and unacceptable that individuals who carry out their duties at work quite properly should be subjected to bullying and harassment and have no remedy.
An increasing number of employers are now including sexual orientation in their equal opportunities policies. Most public sector employers have done so. I have here a list of leading employers who have now done so voluntarily. They include household names like Barclays Bank. Abbey National, Marks & Spencer, Boots, Glaxo Wellcome, Littlewoods, Sainsbury's, Shell and many others. They are good employers, but you do not need legislation to compel good employers to do the right thing. We have to make sure that others follow their good example and the way to do that is to give people similar protection in regard to sexual orientation, as already exists concerning gender and race discrimination.
My Bill also covers the provision of goods and services. Again, it is not unlawful to discriminate against lesbian women and gay men by refusing to supply goods and services to them. Stonewall has had reports of hotels refusing bookings. One hotel owner told a local paper, and I quote:Everyone runs their business their way and I run the hotel the way I see fit. If it is made illegal. I would have to respect the law, but at the moment I can do as I like".I should like finally to refer briefly to precisely what my Bill covers. Clause 1 inserts a new clause into the Sex Discrimination Act to make it unlawful to discriminate on the grounds of sexual orientation in any of the fields to which that Act applies: that is, employment, education, the provision of goods, facilities, services or premises. Clause 2 deals with interpretation and that defines sexual orientation by adopting the definition used in the New Zealand Human Rights Act, as meaning a person's heterosexual, homosexual, lesbian or bisexual orientation.
Clause 3 ensures that the provisions relating to sexual orientation discrimination do not apply to organised religions. This follows the exemption that already exists in the Sex Discrimination Act. Any decision to changes the Church's policy, or any religion's policy for that matter, would have to come within the Church itself rather than from Parliament. It is not covered by this Bill.
Clause 4 provides that local education authorities are under a duty not to discriminate on grounds of sexual orientation in carrying out their functions. Clause 5 amends the Sexual Discrimination Act so that the Equal Opportunities Commission can bring proceedings in respect of discriminatory practices resulting in unlawful discrimination on grounds of sexual orientation, as it can now in respect of sex discrimination and discrimination against married persons.
Clause 6 extends exemption for charities conferring benefits on persons of one sex only to charities conferring benefits on certain sexual orientations only where this restriction on their work is contained in a charitable instrument. Clause 7 covers sexual discrimination in terms and conditions of employment. I should perhaps point out that this would not cover pensions, because the Equal Pay Act does not do so. It 642 is possible that in order to do this an amendment is required to the Pensions Act 1995. I personally would be in favour of that, but that is another argument and it is not covered by this Bill. Finally, the Bill does not apply to Northern Ireland because the Sex Discrimination Act does not apply directly to Northern Ireland. An order in council would be required to extend it.
This is a simple Bill, designed to protect vulnerable people. One can only imagine the stress that discrimination causes to many people who simply want to live quietly and unobtrusively and to get on with their lives. It is now illegal to discriminate on grounds of sex, race or, in Northern Ireland, on religion or political belief. It is also, with some qualifications, unlawful to discriminate against people with disabilities, yet discrimination in relation to sexual orientation remains perfectly legal.
I recently received a letter when it became known that I was intending to introduce this Bill again. I will quote from the letter:I ant writing to urge you to encourage and persuade fellow Labour Members and other Members to press the Minister not to let the Bill you are presenting fall by the wayside again. How long do gay men have to wait before there is a start to undo 100 years of bigotry, persecution and injustice?…Before I sit down I should perhaps make it clear that this Bill has nothing to do with the argument about the age of consent. That is a different issue which is being currently debated in the other place, and no doubt we shall have the opportunity of dealing with that in due course. Furthermore, as regards the Armed Forces, my advice is that if those were to be included, it would have to be stated in terms in the Bill, and it is not. Again, I believe that it is a matter which has to be debated in another place.
As I said earlier, this is a simple Bill designed to remove continuing injustices in the field of employment and in other fields. I commend it to the House. I beg to move.
Moved, That the Bill be now read a second time.—(Baroness Turner of Camden.)
§ 2.40 p.m.
My Lords, I am grateful to the noble Baroness, Lady Turner, for the careful way in which she explained the purposes of her Bill. Ever since I began attending your Lordships' House five years ago, the noble Baroness has been pre-eminent, both on the Opposition Front Bench and now when she raises important issues from the Back Benches.
If any noble Lord is tempted to divide the House, I shall be inclined to vote Content, or at least to abstain, not in support of the principles of the Bill but rather following the conventions of the House. It is well known that an intention to divide the House should be foreshadowed by a suitable amendment to a Motion on the Order Paper.
I have an interest to declare since I command a REME recovery company in the Territorial Army. It is possible that the Bill may adversely affect the TA and the Regular Army. I have not yet checked the 1975 Act. 643 It may be that the services enjoy some exemptions. The noble Baroness covered that point. However, it may be necessary to consider suitable amendments to ensure that the status quo does not change as regards the services. It may affect recruiting. Parliament and this House would then be able to address this thorny issue at the next quinquennial review of the Service Discipline Acts in a few years' time.
In a masochistic way, I slightly regretted that no noble Lord tabled a suitable amendment for debate during the time of the last review. I recall briefly touching swords with the noble Earl, Lord Russell. I know that any such debate would have been a real challenge to me. But I fully accept that the services need to reflect the society they seek to protect. However, at the same time I have to remind your Lordships that servicemen and women may be called upon to perform duties and to take action that a civilian would never be expected to do. I do not think that now is the right time to explore that argument further. Other noble Lords have more important contributions to make.
We in this country have made good progress with the promotion of equal opportunities both by using legislation and by changing public attitudes. But perhaps an equally serious form of discrimination is ageism, where employers make it clear that an older applicant would be unlikely to succeed or would be excluded from any consideration for employment. Obviously the noble Baroness's Bill is not a suitable vehicle for that issue. Nonetheless I suspect that it affects a larger proportion of the population than her Bill seeks to protect.
My final point is this. All areas of administration use acronyms to describe legislation. We have the HSAW (the Health and Safety at Work) Act. In the military we have RFA (the Reserve Forces Act) 1997. The noble Baroness will be familiar with TUPE. Perhaps the noble Baroness should look at the initial letters in the Short Title of her Bill.
§ 2.48 p.m.
§ Lord Addington
My Lords, I originally put my name down to speak to the Bill because I considered it a vehicle for raising an issue referred to at an all-party disability group on Tuesday. It related to secondary discrimination: people from the gay community who happen to have disabilities.
I shall return to that point briefly in conclusion. Since further noble Lords will speak in the gap, I shall speak briefly to support the Bill. This is an issue relating to basic human rights. In these circumstances one is tempted to misquote Martin Luther King. He said, "The law cannot stop somebody disliking me, but it can stop them lynching me".
We are not quite at that level but we are asking that people should be allowed to earn their living without being discriminated against because they find someone sexually attractive. That is what the Bill is about. If we discriminate against people because they have lustful thoughts then perhaps a young man who works in a shop during the summer months when women wear slightly 644 more revealing clothes should be banned. Are we going to carry on down that road? I do not believe so. It is absurd.
We are talking about making it a legal right for someone to be employed without discrimination. As the noble Baroness said, those with high levels of skill or who are in demand are generally able to fight off discrimination. However, those undertaking more mundane tasks or who are more vulnerable are open to it. I hope that the Bill will receive an unopposed Second Reading and will be placed on the statute book. There is no reason why it should not be.
Perhaps I may use the debate to flag up an issue relating to the same sex oriented community, to use appallingly politically correct language. It was suggested at the meeting I mentioned earlier that that community should look to those within it who are disabled because they are feeling increasingly isolated. No attention is being paid to them because of the amount of political energy required to pass legislation such as we have before us today. A gay or lesbian person in a wheelchair is out of the mainstream. That leads to mental problems and feelings of isolation. They are in the mainstreams of neither monitory groups nor of society as a whole. I hope that people from that community will take that point on board and put it on their shopping list of things to be dealt with.
I hope that the Bill reaches the statute book, when it will no longer be necessary to deal with such problems. They fly in the face of natural justice. Surely, there are better things we could be doing with our time than arguing against natural justice.
§ 2.53 p.m.
§ Lord Annan
My Lords, it is clear that on Fridays an unusual loquaciousness seizes the House. Therefore, I shall say simply that it is 33 years this summer since I had the honour of becoming a Member of your Lordships' House. I made my maiden speech on the Sexual Offences Bill. For the first time, it became legal for consenting adults to have homosexual relations. For that reason, I support the noble Baroness today. She and the noble Lord, Lord Addington, said everything that needs to be said about the reasons why the Bill is necessary. Employers are presented with three temptations: first, in deciding not to appoint people whose sexual orientation they do not like; secondly of demoting or dismissing them; and thirdly, of paying them less. All those points were admirably dealt with by the noble Baroness in her opening speech.
She referred also to the more difficult issue of harassment. She gave some very good examples of the way in which that occurs. She said that it is sometimes argued that we cannot change public opinion; people have these hatreds of those who are gay and those who are lesbian; but what are we to do about it? Surely one must simply put up with it. The noble Baroness gave the most admirable example in calling upon the historic record of the women's movement to show that public opinion can change and can become more tolerant.
However, I have one word of warning; namely, that tolerance exists on two levels. First, there is the tolerance which some people who do not like gays or 645 lesbians should show on the matter. However, there is the other side of tolerance, which is that those who are gay or of a different sexual orientation ought, in their employment, to take care that they do not ostensibly, willingly and arbitrarily offend those with whom they work.
It is very understandable that someone who "camps it up" in his work may well find that his colleagues do not like it because their clients do not like it. Let us take, for example, the case of the transvestite. I know and like certain transvestites and I am not at all surprised when I find myself addressed by them in the morning in male costume, but find them in "full fig" in the evening, wearing makeup and skirts, enjoying themselves. I enjoy their company, too.
However, if one were in a business relationship and the person with whom one was having a business relationship with appeared in the morning as a male but, in the afternoon, suddenly appeared as a female, it is possible and understandable to argue that that could perhaps sway one's judgment. I think it wrong that such judgment should be swayed, but all that I am saying is that there is room for tolerance on both sides. When I say that, I have in mind in particular the outrage that occurred on Easter Day when the sermon of the most reverend Primate the Archbishop of Canterbury was interrupted.
I should like to make it as clear as I possibly can that the objects of the noble Baroness are admirable and that they should be endorsed by the House.
§ 2.57 p.m.
§ The Earl of Lauderdale
My Lords, I understand that another of my noble friends proposes to speak in the gap, so I shall confine myself to speaking for just a few minutes. Like my noble friend Lord Attlee, I am one of the admirers of the noble Baroness, Lady Turner, who moved this Second Reading. Indeed, she is a great model of courtesy, conduct and kindness in the House. However, I am sorry that she has identified this Bill with something which seems, on the face of it, to be part of a campaign by the gay community to legitimise itself in the face of opposition. Moreover, she has done so by way of a Private Member's Bill to amend statute law which has been with us for 25 years.
I know that I am perhaps not taking a very popular line, but I am not interested in that. I am all for equality of treatment; indeed, so are we all. However, subject to our support for equality of treatment, we also recognise that there can be such things as wrongdoing. When there is wrongdoing and it is proved fairly in a court of law, you put the wrongdoer behind bars. There is nothing discriminatory in that; it is the decision of society as a whole.
My complaint about the gay/lesbian campaign is that it runs counter to the heterosexual tradition not only of society in general but of supporters of nearly every religion one can think of. When the Question is put, I shall shout "Not Content", although I accept that I should have tabled a Motion on this matter. However, this week I have been busy with other matters.
646 A point that is not generally recognised is the strong medical evidence that homosexual acts undertaken by men and boys are dangerous to health and that anal intercourse is physically damaging and is prone to lead to disease. The use of condoms makes no difference as regards safe sex. There is no such thing as safe sex in this regard. The anus is not meant to be used in this way. A body of expert medical evidence supports the view that I am expressing in a rather clumsy way. I am sorry that I cannot support the Bill of the noble Baroness, whom I greatly admire. As I said, I shall shout "Not Content" at the appropriate time.
§ 3.1 p.m.
§ Lord Moran
My Lords, as I am speaking in the gap I shall make one brief point. However, it is an important one. Society has no responsibility more important than that of looking after children. Consequently nothing that we do in Parliament is more important than to seek to protect children. Children are of absolutely fundamental importance and they should always be at the top of our agenda.
As your Lordships know, a good many children in this country are being brought up in children's homes. They are defenceless and vulnerable. As we all know, recently there has been a number of serious and well publicised scandals in England and Wales relating to child abuse in children's homes. I believe we were all greatly shocked by those scandals. It is unfortunately the case that these homes have been, and are being, targeted by some homosexuals who want to infiltrate them in order to abuse the children. That is not only a worrying development in itself, but some of those homosexuals may carry AIDS, in which case they will pass a death sentence on many of the children they abuse.
There are real dangers in all this. I was encouraged to read in yesterday's Hansard a Written Answer of the noble Lord, Lord Williams of Mostyn, to the noble Baroness, Lady Young of Old Scone, concerning child protection measures. The noble Lord, Lord Williams of Mostyn, stated,the Government arc setting up an interdepartmental working group of officials to consider additional safeguards to prevent those who are unsuitable from working with children … The group will also consider whether further measures are necessary to protect 16 and 17 year-olds who may be vulnerable to abuse by those in a position of trust, such as carers, teachers and leaders of organised residential activities".—[Official Report, 4/6/98; cols. WA 51 and WA 52.]It is greatly to be welcomed that the Government are addressing that problem. However, this matter does not involve only known sex offenders, but also those who have not been convicted of an offence but who have a homosexual orientation and who seek to infiltrate children's homes. I believe it would be irresponsible, and indeed unforgivable, for us to prevent local authorities—I believe this Bill would do that—from refusing jobs to those who apply to work in children's homes whom they believe, or suspect, may have designs on the children in those homes.
For that reason, I shall support the noble Earl, Lord Lauderdale, in opposing the Bill. I very much hope that the Opposition parties will oppose it as a matter of principle. It does not seem to me that the Bill divides 647 up into finite, small points that can be considered in Committee. It is a question of one single aspect and either you agree with it or you do not. Personally, I do not.
§ 3.5 p.m.
§ Lord McCarthy
My Lords, I must be brief as I am speaking in the gap. I am bound to say in passing that this is not a Bill about paedophilia. It is about discrimination at work. That is what we are addressing.
The noble Baroness has twice previously produced a similar measure. The then Opposition supported those, but they were opposed by the Government, who advanced a number of reasons. They said it was not really a problem; it was not a sufficient problem to warrant legislation; that existing legislation covered the matter; and that if we passed such a measure it would merely lead to more and more legislation in relation to more and more minority groups. They said: we are not the French, the Italians or the Swedes, who may have had such legislation for years; we are the English. I hope that the noble Baroness will not trot out any of the tired old arguments that we heard from the previous government on both occasions in the past.
There are only two arguments that the Government can make. One is that this is not a perfect Bill. The other is that all these provisions are embraced in future legislation relating to fairness at work. The argument of the character in "The Lady's Not For Burning", that it's all got to be done at the proper time, and this is not the proper time, does not fit.
If the Bill is not perfect, then let us amend it, transform it, change it. Let the Government tell us now what they want to do. The Bill could be totally transformed. To say that it is not perfect is not an argument. To say that it all has to be gone into at the proper time is also wrong. We do not know when the proper time is. This is an immediate problem affecting a large number of people, and this Bill is a way of dealing with it. Therefore, I hope the Government will accept the Bill.
§ 3.8 p.m.
The Earl of Halsbury
My Lords, my reason for speaking in the gap is that I did not think it would be possible for me to respond to the many lobbies from educational and religious establishments, and so on. Only at the last moment did I find myself free to attend this House. My view is that the trouble with homosexuals is that they are exhibitionists, and they should keep quiet about it. For that reason, if the noble Earl, Lord Lauderdale, chooses to divide the House, he will not lack a Teller.
§ 3.9 p.m.
§ Lord Monson
My Lords, like my noble friend Lord Annan, I, too, strongly supported the decriminalisation of private homosexual activities 33 years ago, at a time when it was a somewhat unfashionable and unpopular cause. However, it is a mistake to regard this Bill as a natural progression from that legislation. Wolfenden 648 gave homosexuals the freedom to be themselves without fear of being sent to prison, while this Bill deprives those who find certain practices repugnant of their freedom to make a choice as to whether to associate with, let their houses to or employ people. The noble Baroness has introduced the Bill with her usual skill and sincerity. However, there are others who believe with equal sincerity that coercive political correctness has gone quite far enough.
As my noble friend Lord Halsbury indicated, if people behaved with discretion, as they did in a more civilised age, and kept their sexual proclivities to themselves, the problem would scarcely arise. An employer or potential employer might have a vague suspicion that someone was inclined in a certain direction, but that would normally be the end of the story. It is when people shout their sexual orientation from the rooftops that the problem arises. I concede that there are hard cases; the noble Baroness mentioned a couple of moving examples. However, as we all know, hard cases make bad law.
The Bill would, for example, force a family with teenage sons to employ a homosexual gardener or handyman. It would force an elderly and fastidious widow to employ a lesbian housekeeper against her will. The Bill goes further than the previous Bill in that it extends to the provision of services. It would force individuals posted abroad for one or two years to let their houses to people whose intimate practices they found—justifiably or unjustifiably—abhorrent.
For the first time in history, it will become illegal to advertise for a married couple. Such an advertiser could face a fine of up to £5,000 by virtue of lines 18 to 22 inclusive on page 1 of the Bill in conjunction with Section 33 of the 1975 Act, which is de facto incorporated into the Bill. Illegal to advertise for a married couple: think about that, my Lords!
§ 3.12 p.m.
§ The Lord Bishop of Wakefield
My Lords, I welcome part of the intention of the noble Baroness, Lady Turner, in this Bill, and I certainly share her concern about discrimination. I welcome the words of the noble Lord. Lord Annan, about the unfortunate events in Canterbury Cathedral on Easter Day.
I do not believe that homosexual orientation is necessarily a fixed state. It is well known that many people are attracted to members of the same sex at certain stages in their life but not at other stages. I therefore do not believe that sexual orientation can be legislated for in the same way as gender. As I understand it, it is the equal treatment between men and women, irrespective of their gender, that is the basis of the Sex Discrimination Act 1975. Since sexual orientation is not an issue of gender, it should not, in my view, be included within the definitions of the Act as here proposed.
I am conscious of the fact that I am speaking in the gap. Perhaps I may turn to three clauses that may raise issues of potential conflict for the Church, church schools and religious charities. Clause 3 amends Section 19 of the Sex Discrimination Act so that it would not 649 be illegal to discriminate against ministers of religion in a job situation which is limited to one sex or sexual orientation so as to comply with the doctrines of the religion. However, Section 19 does not extend beyond the minister of the Church, so that employment of other staff—for example, youth workers, who are clearly in an influential position, particularly over young people who are at an age when their sexual orientation may be uncertain—would be outside the exclusion of doctrinal belief. It seems to me that churches and other faith organisations would possibly be forced to employ those who did not conform to their religious beliefs on sexuality. I should like clarification from the noble Baroness on that point.
As we have already heard, Clause 4 amends Section 23 of the Act so that a local authority may not discriminate on the grounds of sexual orientation in the way that they carry out their education functions. Clause 4(2) amends Section 25(1) so that it will read,a body to which this subsection applies shall be under a general duty to secure that facilities for education provided by it, and any ancillary benefits or services, are provided without sex discrimination or sexual orientation discrimination".That sounds fine, but those two sections could be used to argue that teachers should give equal weight to sex education, promoting homosexual relationships as if they were of equal moral status to heterosexual relationships.
As it seems to me, there is part of an agenda underlying this Bill which is about promoting homosexual lifestyle as being equivalent to heterosexual lifestyle. I hope the noble Baroness will forgive me if I misread her underlying intentions, but if those are her intentions, then under God that is a position that I cannot accept. The two sections may be used not only to argue that teachers should give the matter equal weight, but also that it would apply to governors as well. I would value her clarification on that.
Finally, Section 6 and Section 43(2) of the SDA says that charitable benefits can legally apply only to persons of one sexual orientation as well as to those of one sex as currently provided for in law when specified in a charitable instrument. However, as I understand it, charities would not be excluded from the employment requirements of the Act and would be unable to refuse to employ individuals on the basis of their sexual orientation. That situation would be of great concern to some Christian and other religious charities which do not believe that homosexuality is compatible with Christian or other faith beliefs.
I hope that your Lordships will forgive me for taking some time in the gap, but I look forward to clarification from the noble Baroness on those issues.
§ 3.15 p.m.
§ Earl Russell
My Lords, I am glad that we heard the case against the Bill in the gap. It is proper parliamentary procedure, as well as natural justice, that we should hear the case on both sides. I listened to it with a great deal of interest. I look forward to resuming the engagement with it in Committee and shall now briefly respond to some of the points that have been made.
650 The noble Earl, Lord Halsbury, said that homosexuals are exhibitionists. First, that is conspicuously not true of a large number of gay people whom I know. Secondly, supposing it were true; I believe that most of us can think of some heterosexual exhibitionists—the names of Gallagher and Gascoigne come to mind among others. If one were to discriminate against exhibitionists, the profession of politics would suffer grievous loss.
The noble Lord, Lord Monson, argued that this was taking political correctitude too far. The basic principle of political correctitude is that we are all human. As soon as we start saying that we are all human "except", it does not matter what one puts under the word "except"; we are treading on a dangerous slope.
The noble Lord referred to the possibility of letting houses to people whose practices one might regard as abhorrent. If I let my house—and I have done so—I do not believe that I have any right thereby to know in what sort of sexual practices the people occupying it may indulge. It is none of my business. Provided they leave my house in good condition, as they found it, that is all apart from payment of rent—that I can legitimately require of them.
The noble Lord, Lord Moran, on the subject of children's homes, raised an issue of great seriousness, but one which I do not believe to be germane to this Bill. Paedophilia is a crime. Everybody I know agrees with that proposition and I believe all the supporters of this Bill agree equally. But paedophilia comes equally in both sexual orientations. I believe it to be wrong in whichever sexual orientation it comes. When I attempt to restrict paedophilia and if I am convinced—as I perfectly well might be next time I listen to a serious discussion on the subject—that restrictions are not sufficient, then I shall consider extending them.
The noble Lord, Lord Moran, raised also the case of 16 and 17 year-olds in care. This is a serious issue. I understand what he was saying and agree with a great deal of it. But again, such abuse can happen within a heterosexual or a homosexual orientation. The abuse of positions of power in order to obtain sexual favours is in all circumstances wrong. It is something from which "straight" men are by no means immune. I would be reluctant to use that argument as an argument against employing "straight" men. One punishes the abuse of power and the use of force involved in inflicting unwanted sexual attentions persistently and repeatedly regardless of the sex involved.
The right reverent Prelate, having paid tribute to the principle of equal treatment, argued that there might be a danger of conferring equal moral status. We all have views about each other's moral status. Most of us, most of the time, have the wit to keep quiet about them. The world's religions have often had views—very passionate views—about the moral status of others among the world's religions. The Church of England is in a conspicuous and honourable place in having learnt that we must live and let live among different religions. I believe that exactly the same thing is true of sexual morals. There are a great many things that are done that I believe do not enjoy equal moral authority. But if I were prepared to legislate against everything that I think 651 does not enjoy equal moral authority, I should take up a great deal more time of this House than I am willing to do.
The noble Earl, Lord Lauderdale, said that if you do something wrong you should be put behind bars. With respect, if you do something criminal you should be put behind bars. That is a very different proposition. To the suggestion that anyone who does something wrong should be put behind bars, I reply in the words of Hilaire Belloc:Is it true? It is not trueAnd if it were it would not doFor people such as me and youWho pretty nearly all day longAre doing something rather wrong".I am happy to support this Bill.
§ The Earl of Lauderdale
My Lords, before the noble Earl sits down, perhaps I may say to the noble Earl that I used the term "wrongdoing" in a rather general sense. Of course he is quite right that "criminal" is the word I should have used.
§ Baroness Miller of Hendon
My Lords, some of your Lordships will be aware of my own endeavours over many years to secure the advancement of women in public and political life. It is therefore with personal confidence that I can confirm to your Lordships that my party is opposed to any form of discrimination, whether it be on the grounds of race, religion, sex, age or, indeed, on the grounds of sexual orientation.
On 14th July 1995 when I wound up for the then Government on the Second Reading on one of the previous Bills on this subject introduced by the noble Baroness, Lady Turner of Camden, I said that we did not believe that legislation was the most effective way to overcome entrenched prejudice.
I said I believed that such legislation amounts to a form of coercion to conform and would add another piece of legislation to an already overregulated society. I added that we preferred instead to explainthat we all have a duty and a responsibility to examine our consciences and ensure that in our everyday dealings with one another we act fairly and put to one side the race, sex or sexual orientation of our fellow citizens".—[Official Report, 14/7/95; col. 2021.]In some ways it is embarrassing to be quoting from my own speeches, but I shall do so again, because in the same debate I said that protecting the interests of one particular group through legislation sends a signal to every group, however small and however narrow and partisan their cause, that they, too, could be candidates for specific legal protection.
My views on that aspect have not changed. I believed then that the burden of proving the need for legislation rests on those who are making the case that we ought to have legislation. I still believe that that case has not been made. I doubt whether the case will ever be made that we will be able to persuade a majority of the public to 652 accept that legislation—and I emphasise the word legislation—is the way to deal with this difficult and sensitive matter. However, if the majority of your Lordships disagree with me, there is one caveat that I should like to add.
The previous Acts prohibiting discrimination on the grounds of race and sex have undoubtedly provided a remedy for those who have been unfairly or improperly treated for those reasons. There can be little doubt that because of the sanctions that the Acts imposed the law has also protected untold numbers more by inhibiting any such improper and distasteful conduct. Yet, on the other side of the coin, they have also generated a culture of litigiousness which has resulted in a number of cases which really should never have been brought. It is all too easy for someone who has been refused a job or passed over for promotion or has not received a raise to allege that it was on some grounds of discrimination. In some cases it is simply due to the inability of the so-called victim to recognise either his own lack of qualifications or the superior qualifications of the persons with whom he was competing.
There is also the problem that there is no risk, because the tribunal does not award costs against the loser, however frivolous the claim or however flimsy the defence. The costs incurred by employers, both in terms of money and managerial time in fighting unjustifiable claims, are a considerable burden. This means that the complainant might just as well launch speculative proceedings in the hope that the nuisance value will encourage the respondents to settle. Some of the well publicised and ludicrous cases that have been reported in the press that ought to have been thrown out by the tribunals but were not may very well also be a factor. Then there have been the astronomical and wholly disproportionate damages that have been awarded in some cases, damages far in excess of what the victim might have received if he or she had suffered some severe injury in an accident.
Again, I should like to remind your Lordships that it was I who piloted the Race Relations (Remedies) Act 1994 through your Lordships' House, so there can be absolutely no question of my being personally opposed to the award of proper and reasonable damages in cases of wrongful discrimination. So the caveat I wish to enter is that I hope that the good intentions of the Bill will not be spoiled, should the Bill ever reach the statute book, by providing yet another source of ill-conceived claims. I hope that those responsible for administering the Bill, if it should become an Act, will do so with discretion, by rejecting out of hand the more improbable claims and thus discouraging others from launching similar implausible claims. I hope when it comes to awarding damages that the tribunals in all cases of unfair dismissal, on whatever ground, and in cases of improper discrimination, also on whatever grounds, will bear in mind that their function is to compensate the victim for his loss and his humilation, his mental suffering if you will. It is not their function to award punitive damages.
If I may indulge myself for the last time in my speech, I should like to quote what I said in 1995: we believe that people should be dealt with on the basis of their 653 individual merits and their qualifications, and solely on those grounds. My noble friend Lord Henley is not here today, but on the second occasion that the noble Baroness, Lady Turner of Camden, introduced her Bill, he said:We deplore unjustified discrimination. We will continue to send out the message that it is morally unacceptable".—[Official Report, 6/3/96; co1.406.]I was very pleased to hear what the noble Lord, Lord McCarthy, and the noble Earl, Lord Russell, said in answer to the difficulty mentioned by the noble Lord, Lord Moran. I understand his concern—we all share that concern: I am sure that the noble Baroness, Lady Turner, shares that concern—about children in children's homes. But paedophilia has nothing to do with the Bill. I have read many cases of dreadful things happening to children in children's homes which were definitely done by heterosexual men and not homosexual men. So I really do not think that we should introduce that kind of idea into this Bill.
This is the third attempt of the noble Baroness, Lady Turner, to introduce this Bill in one form or another. I believe that her persistence certainly deserves full marks and, if I may say so, my congratulations. I hope that she will not mind if I say to her that we shall most certainly not oppose this Bill at Second Reading, but that it is not one that should be included on the statute book because we do not believe it is a matter for legislation.
§ 3.30 p.m.
§ The Minister of State, Department for Education and Employment (Baroness Blackstone)
My Lords, like the noble Baroness, Lady Miller, I wish to pay tribute to my noble friend's longstanding, energetic and knowledgeable commitment to equal opportunities in general and to her championing of this cause. I agree with her that it is a cause very well worth fighting for. I also wish to acknowledge the important role which has been played, and continues to be played, by Stonewall. In the 1995 debate on the previous Bill of the noble Baroness, Lady Turner, one noble Lord referred to Stonewall as the most moderate and most intelligent of lobbying groups which recognises the changes of culture in our society and the pace at which they are taking place. It still deserves that accolade. The position of the Government—which is not to support the Bill—is not taken lightly, given its valiant supporters. The reason that the Government are unable to do so has nothing to do with the arguments made against it by speakers in the gap.
The equal opportunities movement in this country is a vibrant one, I am glad to say. For instance, the Institute of Personnel and Development is leading a campaign among employers and personnel professionals intended to promote a positive approach to equal opportunities in the round, including sexual orientation, and to bring out the skills and experience of all employees. The Government welcome and endorse that campaign. I am delighted that more and more employers, including the Government themselves, and 75 per cent. of all health services have equal opportunities policies which specifically include sexual orientation.
654 During our presidency of the European Union, Ministers have repeatedly said that, in order to create a Europe which is "inclusive", we must promote equality of opportunity in education and training and at work. That means combating discrimination and promoting access to employment and equality of opportunity; and providing security at work, while remaining adaptable enough to respond to economic change. It was for these reasons, and because we deplore unjustified discrimination of all kinds, that a very early action after the election was to negotiate the Amsterdam Treaty, containing the new Article 13 which gives the Community new powers to oppose discrimination on much wider grounds than the existing one of sex.
The Government's position is clear. Our manifesto reads,The country's attitudes to race, sex and sexuality have changed fundamentally. The Labour Party's task is to combine change and social stability … We will seek to end unjustifiable discrimination wherever it exists".That remains our firm intention. I am very aware that in comparison to discrimination on grounds of sex, race and disability, there is a gap in the protection that we offer some individuals.
Let me remind the House of some government activity. The Government's legislation giving further effect in our domestic law to the rights in the European Convention on Human Rights law will emphasise the positive rights of individuals, with all their varying characteristics, and is a historic initiative.
We have changed the UK's immigration provisions so that same sex partners in established relationships have a right of entry and then of settlement after another year together. We look forward to the new treaty powers in Article 13 being put to good use when all member states have ratified the treaty, bearing in mind that we will have to proceed by unanimity.
The Government have stated their intention to repeal Section 28 of the Local Government Act 1988 as soon as a suitable legislative opportunity arises. Section 28 was introduced to ensure that local authorities did not intentionally promote homosexuality, publish material with that intention or promote the teaching in their schools of the acceptability of homosexuality as a "pretended family relationship". The section has been widely perceived as discriminatory and we believe that it serves no useful purpose.
As regards homosexuality in the Armed Forces, the Government have committed themselves in the course of this Parliament to reviewing the position. We will take account of the weight of the evidence, of the UK's laws and of the views of the European Court and of the Armed Forces themselves. The review will start with the position agreed in the last Parliament and will look in detail at the findings of the thorough survey which was undertaken by the MoD in 1995–96. A way forward will then be established.
The Government have agreed that there will be a free vote on whether the age of consent for homosexual sex should be equalised at age 16. This could be debated at the Report stage of the Crime and Disorder Bill if a Beck-Bencher tables such an amendment.
655 I would also like to remind the House that the new White Paper, Fairness at Work, proposes reducing to one year the length of time which an employee must be in work before gaining protection from unfair dismissal. It his hard to imagine circumstances in which an industrial tribunal would find sexual orientation fair grounds for dismissal.
I hope that, having assured your Lordships of the Government's genuine concerns, I may now give the reasons why we are unable to support the Bill. First, your Lordships are aware of the importance that this Government place on the family and on the need to consider how all our policies impact on the family. We recognise the central value of the family and marriage, but also acknowledge that there are other forms of partnership and other ways of bringing up children which are also valid. For generations, marriage has provided for millions of people a strong and stable base for the bringing up of children in a rapidly changing world. This is not to deny, however, that there are strong and mutually supportive families and relationships outside marriage. This Bill goes to the heart of that issue. It invites us to treat same-sex couples as the equivalent of a family unit, which leads logically to treating all mixed-sex unmarried couples as the equivalent of a family unit. What we must do is tread a careful path between taking account of social reality and at the same time ensuring that we do not undermine the family.
Secondly, I come to one of our major concerns. The Bill would outlaw not just direct, but also indirect, discrimination on grounds of sexual orientation. This could mean that it would be unlawful for anyone covered by the Sex Discrimination Act—not just an employer—to apply to someone a,requirement of condition which is such that the proportion of people of a homosexual or lesbian orientation who can comply with it is considerably smaller than the proportion of people of heterosexual orientation who can comply with it".In every case, applying such a condition would be in principle unlawful. The burden of proof would be on the defendant to prove that it was objectively justified.
No one can be sure what "requirements or conditions" this Bill would make unlawful in principle, but perhaps the most obvious one is marriage. It would become unlawful in principle to base any treatment or benefit on the fact that someone is married. This is a massive change from the present. In the employment field, for instance, currently the SDA specifically allows an exemption so an employer may recruit a married couple. This Bill leaves it unclear where that exemption would end up. Looking much more widely than work, I am advised that it might even be that favouring married couples would be held to be direct discrimination and therefore incapable in law of being justified.
In its judicial capacity, your Lordships' House has ruled that there is direct discrimination if, but for her sex, a woman would have received the same treatment 656 as a man. It might be said that but for their sexual orientation a gay or lesbian couple would have the right to marry. This raises serious and important issues.
§ Earl Russell
My Lords, is the noble Baroness aware that some married couples do not feel in need of a tariff barrier?
§ Baroness Blackstone
My Lords, yes. Thirdly, I should like to expand on pensions. Noble Lords will realise from what I have said that any rule that gives married couples preferential treatment over gay couples can be discriminatory. In spite of the comments of my noble friend Lady Turner, outside the state schemes the Bill would have far-reaching implications for occupational pensions which paid survivors' benefits. If schemes were required to pay survivors' benefits to same sex couples, the provision might need to be extended to all unmarried couples. The impact needs to be considered carefully. There could be very significant cost implications for all contributors and all schemes' funding. In the Civil Service alone the Government estimate that this would cost some £20 million a year.
One problem is that one cannot prejudge the result of the Government's current wide-ranging review of benefits and pensions. We have received representations that occupational pensions should be required to pay survivors' benefits to all partners irrespective of marriage. We shall consider those representations as part of the review, but at this stage we are unable to give a commitment. Meantime, it is perfectly possible for occupational schemes to extend survivors' benefits on a voluntary basis, and an increasing number choose to do so. Even though the state social security schemes may not be covered by the Bill, it would raise highly important issues, especially in regard to the potential differences between contracted-in and contracted-out pension benefits. The Green Paper on pensions to be published by DSS Ministers later this year will open up debate. We believe that that is the right time to deal with this discussion. Beyond pensions, eligibility for certain benefits such as income support and family credit are based on the definition of the family unit. One would need to look carefully at those very wide benefit issues.
I have already mentioned the Armed Forces. In spite of the advice given to my noble friend, I am advised that not only serving members of the Armed Forces but civilians would be affected. For example, the MoD does not allow its civilian staff to be accompanied by unmarried partners, whether heterosexual or homosexual, on overseas tours. This is a long-standing convention with certain host nations and invariably reflects host nations' religious or other laws about marriage.
I have already referred to what is often described as the family unit. Currently, non-married couples are excluded from jointly adopting a child as marriage is seen as an indication of permanence and commitment of the couple. It also helps the child's legal status if the relationship breaks down. These are not systems to be dispensed with lightly. We are currently considering the introduction into the UK of the Parental Leave Directive. I am aware that Stonewall has informed the 657 Government that workers with parenting responsibilities, whether recognised in law or not, should benefit from parental leave rights.
In housing, at present certain succession rights to tenancies are given to the surviving member of a heterosexual partnership but not of a same sex partnership. The Government have undertaken to consider, in the light of comments made in the course of a Court of Appeal judgment, how far that legislation may be amended, but this must be done carefully.
At this stage therefore I can promise that the Government are committed to giving serious consideration to the issues raised by this Bill. I should like to make clear that our reservations are about scope and timing, not about the good intentions of the Bill. I am glad to say that the Equal Opportunities Commission is currently consulting on proposals for extensive changes to the Sex Discrimination Act and the Equal Pay Act. We are looking forward to seeing the recommendations of the EOC after consultation and we shall consider them carefully and positively. Its present consultation proposes a new right to equal treatment encompassing sexual orientation.
I can assure noble Lords that all of the issues that I have outlined will be thoroughly analysed in the context of changes to current sex discrimination and equal pay legislation. I hope that my noble friend will be able to accept that it is reasonable to await the final views of our specialist equal opportunities body.
However, fortunately there is increasing recognition that this kind of discrimination in the workplace should be addressed, and many major employers incorporate sexual orientation in their equal opportunity policies. I want therefore to repeat that the Government are committed to looking seriously at the issues raised in the context of the wider review of equality legislation. I hope that I have made clear that the Government deplore unfair discrimination. I hope that I have also made clear that they have good reasons for reservations about the scope and timing of the Bill. Nevertheless, the convention of the House is that the Bill should be given a Second Reading.
§ 3.45 p.m.
§ Lord Richard
My Lords, before my noble friend Lady Turner rises to wind up the debate, perhaps you would allow me to say a few words. I listened with great interest to some of the speeches made on this Bill today, although not to all of them. I was very surprised to see that a number of noble Lords have indicated that they may well divide against the Second Reading of the Bill. While it is of course procedurally possible and technically in order for them to do so, I hope your Lordships will not mind my pointing out that it is perhaps somewhat at odds with the current procedures of this House for there to be no less than six speeches in the "gap", when on the original list there were only eight speakers.
Certainly during my short time in the House I have known no such precedent; in this case, until the speeches in the "gap" took place, there was no notice that this Bill would not be given a Second Reading in the usual 658 way. I was indeed surprised that no notice of a Division had been given by tabling the appropriate Motion so that it could appear on the Order Paper. I accept of course, as several speakers have said, that they all had different reasons for not being able to put down the Motion, but I hope they will all agree that it is a little unfortunate that a Division may take place on an issue of this sort, given this procedural—I nearly said "wrangle" but perhaps that is not the right word—device, or certain devices, that have been used this afternoon.
I really would put this appeal to the noble Earl, Lord Lauderdale: he has heard the issues, he has made his point and I hope that in all the circumstances he will not divide the House on the Second Reading of this Bill. In the event that a Division is called, my ministerial colleagues will abstain, as my noble friend the Minister has made it clear that the Government do not support the Bill. However, as the Leader of the House, in the circumstances of this case I have to say to your Lordships that in my view it would be wholly in accordance with the present usual practice of your Lordships' House to allow this Bill a Second Reading today. I hope that in all the circumstances the noble Earl will not seek to divide the House.
§ Lord Richard
My Lords, of course the noble Earl is entitled to say that he is not content. The rules are perfectly clear that on the Second Reading of any Bill any Peer is entitled to say that he is not content. However, I am saying that the way in which this has been dealt with this afternoon is, first, peculiar; secondly, not in accordance with the normal current practices of your Lordships' House; thirdly, that it would be unsatisfactory, to put it mildly, if there were to be a Division on this Bill in these circumstances; and, fourthly, I think that perhaps one or other of the "gappers" could have put down a Motion on the Order Paper. In those circumstances I hope that the noble Earl will not divide the House.
§ Lord Burnham
My Lords, with the leave of the House, from these Benches I would like to give my entire support to what the noble Lord the Leader of the House has said with regard to the procedure to be adopted on this Bill.
§ 3.48 p.m.
§ Baroness Turner of Camden
My Lords, I thank my noble friend the Leader of the House for making clear the constitutional position of the House. I should like also to thank all the noble Lords who have participated in what I think was an extremely interesting debate. In particular, I thank those noble Lords who have been kind enough to support the Bill. There have been a number of them on all sides of the House.
I say this to those noble Lords who opposed the intentions of the Bill. My intention is simply to provide a clear means whereby ordinary people doing ordinary 659 jobs will not be discriminated against, mainly in their employment. The issue has other aspects too, but I was mainly concerned with employment. I say that to the right reverend Prelate who intervened to speak about religions and the Church in particular. Our intention is simply to provide people with a different sexual orientation from the heterosexual one with a means, a remedy, if they feel they are being discriminated against.
Contributions were made by a number of noble Lords on such issues as exhibitionism, and so on. Those have been dealt with very adequately by the noble Earl, Lord Russell. We are concerned here again with people who simply want to lead their lives with as little intervention, bullying and harassment as possible. I wish to provide them with a remedy should they feel that they are being discriminated against.
§ Baroness Knight of Collingtree
My Lords, I am grateful to the noble Baroness for allowing me to intervene. I am worried about one small point. I agree that all of us should be against unfair discrimination. However, the Bill seems to provide a reverse unfairness for ordinary people. Let us be fair to the employer who has to pay the wages and consider an employer who has two applicants for the job one of whom appears an obvious homosexual. It may not be that factor which makes the employer choose the other man. However, would it not then be possible for anyone to say—my noble friend Lady Miller made the point—"I have been discriminated against because of my sexual orientation"? Would the measure not give someone the advantage of using that weapon? That is what worries me.
§ Baroness Turner of Camden
My Lords, the same situation arises in any discrimination case, whether on grounds of sexual orientation or any other discrimination. If anyone feels that he has been discriminated against unfairly, I seek to provide some remedy that he can apply. If there is a hearing, it may be decided that that was not the case. But at least the individual concerned who feels that he has been discriminated against unfairly has some form of remedy and some way in which to proceed. That is what the Bill is about. It can apply, irrespective of sexual orientation, in a discrimination case on other grounds. It is no different. Under the Bill, the individual would have some remedy, whereas at present if the ground is sexual orientation there is no way in which the grievance can be adequately explored.
I turn to what the Minister said. I am glad to learn that the Government are considering the repeal of Section 28 which was of such concern to many people in Stonewall, and many who feel they have been discriminated against. I am glad to learn also that there will be a free vote on the whole issue of the Armed Forces. My understanding is that the Bill clearly does not cover the Armed Forces. As I said earlier, it would mean, I think, that there would need to be amendments to other legislation. If that were intended to be included in this Bill, it would have to be stated in terms, and it is not so stated. So far as I am aware, the Bill does not cover the Armed Forces.
660 I believe that a number of issues raised by the Minister could be dealt with through amendments to the Bill. The noble Baroness addressed the issue of family and family units. One respects the Government's views, and other views expressed. I am glad to learn also that the Equal Opportunities Commission, of which I was a member for some eight years, is now having seriously considered by the Government the changes for which it has pressed for a long while to the Sex Discrimination Act 1975. However, I still believe that that does not cover all the issues that we wish to be addressed in the Bill.
I understand that the Bill does not cover pensions and that special legislation is required. That is because the original equality legislation did not cover pensions and in the Bill, we seek to apply those provisions. I would be in favour of survivors' benefits being extended to same sex partners, but that is not part of the Bill. I understand that the matter requires detailed consideration.
This is a simple Bill designed to give, in the main, employment protection—other protection is provided—to people who have a sexual orientation as described in the Bill. A number of noble Lords who have spoken believe that there may be other repercussions. That is not what the Bill provides. The issue of children was adequately dealt with by the noble Baroness, Lady Miller, when she spoke on behalf of the Opposition Front Bench. It is the view of those who support the Bill. I commend it to the House.
§ The Earl of Lauderdale
My Lords, I apologise to the House and to the Leader of the House for my oversight and I thank him for his kind words. I am 87 and I forget things. One day he will be 87 and no doubt he will forget things, too. I offer sincere apologies to the House for failing to observe the rules. I naturally accept the advice and respect the leadership which the Leader of the House gives us so nobly.
On Question, Bill read a second time, and committed to a Committee of the Whole House.