HL Deb 26 October 1998 vol 593 cc1734-52

(" .—(1) Where a public authority to which section 60 applies proposes to take any action that may have a significant adverse impact on its ability to comply with the provisions of that section, it shall first prepare a statement of that impact (an "impact statement").

(2) An impact statement shall also include—

  1. (a) the aims and purposes of the action proposed;
  2. (b) alternatives to the proposed action which may achieve those aims and purposes but which are less likely to have such an impact, together with reasons for rejecting those alternatives;
  3. (c) proposals to mitigate that impact; and
  4. (d) a description of steps to be taken to monitor that impact.

(3) Before taking the action proposed, the authority shall—

  1. (a) consult those likely to be directly affected;
  2. (b) publish the impact statement in sufficiently good time to allow members of the public to make representations; and
  3. (c) where appropriate, consult the Equality Commission for Northern Ireland, which may publish any response they make to the authority.

(4) If, following such consultation, the authority decides to proceed with the action proposed, it shall publish its decision together with its reasons.").

The noble and learned Lord said: This amendment relates to what has come to be called policy appraisal. The agreement, as I understand it, envisaged that it would happen. At the moment I do not think it appears in the Bill in the form in which it was envisaged. The Bill is now going to provide for the arrangement of schemes. I had argued that it ought also to provide for the consideration of human rights, step by step, in decision taking. This amendment suggests that there should also be an appraisal of human rights, proposal by proposal, from a local authority.

It would require that a local authority, when it was making a proposal, would draw up a statement assessing the likely impact on people in terms of human rights, setting out the aims of the proposal, setting out the possible alternative ways of addressing the same matter and setting out any steps it proposed to take to mitigate any adverse effect in relation to human rights. It would then require the local authority to consult with those likely to be affected, and with the equality commission.

It is easy to speak of human rights as though they are something which we the legislators, and then the authorities, confer on the public. The public just sits there and receives them as they are handed down. Historically and very frequently conceptually, human rights are principally about empowerment and about giving people a voice in their own destiny. That, I believe, is what many in Northern Ireland still feel is lacking, so I hope that my noble friend will understand what the amendment is trying to achieve. If there is a better way of achieving it, then of course I will listen to what my noble friend says, but until then there is something lacking in the Bill which many people over the years, waiting for a Bill like this, have been hoping to see. I beg to move.

Lord Lester of Herne Hill

This amendment stands in my name too, and I should just like to say that I agree with every word of the noble and learned Lord, Lord Archer of Sandwell. We strongly support this.

Lord Cope of Berkeley

I go along with the thinking behind the suggestion of the noble and learned Lord, Lord Archer, but he did say that he thought it flowed from the Belfast agreement. My reading of the relevant bit of that agreement on page 16 is that an assessment of the impact of the actions of a public authority had to provide part of the scheme for carrying out the obligations which they are to be obliged to put forward. His new clause seems to me to go further than that in that every time there is an alteration in policy, as it were, or a new course of action being entered into, a further impact statement would have to be produced, as opposed to a modification of a scheme if it were a big matter requiring such a modification.

I also notice that the Government rejected earlier the proposal for impact statements in other circumstances, which was requested by the CBI in connection with the impact on companies of government actions. Those sorts of impact statements were rejected, but we wait to see what the Government's view will be on these sorts of impact statements.

Lord Dubs

In our March White Paper proposals and in the Good Friday agreement, equality schemes, prepared by public authorities and approved by the equality commission, were seen as a key means of implementing the statutory obligation to have due regard to the need to promote equality of opportunity.

In recent months there have been many suggestions for detailed changes to our ideas about equality schemes. Over the summer, my colleague, the Minister for Political Development, has discussed how to bridge the gap between the Government's position and these alternative suggestions. As a result, we propose to make changes which will reflect the noble Lords' new clause in several respects.

I have already mentioned the direct obligation on public authorities to prepare schemes. We also intend to bring forward amendments at Report stage which will make further changes. These are: a requirement on the commission to report on the promotion of equality of opportunity in its annual report, which will be laid before Parliament as well as the Assembly, and an expansion of the details of impact assessments at paragraph 2(2)(b) of Schedule 10 to include consideration of alternative policies, measures to mitigate adverse impact and monitoring the outcomes of policies after introduction.

The latter changes, together with the details of equality schemes already contained in paragraph 2(2) of Schedule 10 should match the most significant features of the noble Lords' new clause. These changes which we are proposing to the detail of impact assessments will be in the context of equality schemes and policy assessment, to which we are bound by the agreement. I therefore invite noble Lords not to support the new clause.

Lord Archer of Sandwell

I am grateful to the noble Lord, Lord Lester, for his support. I think that possibly the noble Lord, Lord Cope, and I will not add to the debate if we embark on a discussion as to the construction of what the agreement said. I am cheered by the announcement which my noble friend has just made. I think he accepts that what is now being proposed, the impact assessment, is not in any way inconsistent with the schemes. In fact, as I understand it, he wants to make this part of the schemes.

I would add two factors to that. One is that it ought to be an on-going matter and not something which is incorporated in the schemes once and for all. The other—an essential constituent—is the matter of consultation: that it should be concerned with empowerment of the people and not something which legislators and others hand down from somewhere on high. I cannot at the moment assess whether what my noble friend proposes is going to contain those factors, because we have not seen the proposal. However, we look forward in hope, and "they can't hurt you for hoping", as someone once said to me. Meanwhile I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 61 [Discrimination by public authorities]:

Lord Dubs moved Amendment No. 159:

Page 29, line 27, leave out ("discharging) and insert ("carrying out").

The noble Lord said: I beg to move this amendment formally.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 160:

Page 29, line 29, after ("discriminate,") insert ("directly or indirectly").

The noble and learned Lord said: With this amendment it may be for your Lordships' convenience to discuss Amendments Nos. 161, 163, 164 and 169.

Amendment No. 160, I may be told, is unnecessary. It is an amendment to deal with a situation where a public authority do not set out to discriminate against a particular person or group, but where they do something of which the inevitable consequence is discrimination. It is a necessary by-product of something done for a different reason. If they build public buildings to which the only approach is by a flight of steps, it may be said that access is by means of those steps whether someone is in a wheelchair or not. There is no discrimination. In fact the necessary consequence is to impose a disadvantage on persons in wheelchairs. If my noble friend replies that this is unnecessary because making discrimination unlawful is to make indirect discrimination unlawful, I think I can only add that this is not the view which has always been taken either in the courts or in debates in your Lordships' House and in another place.

If the Government intend to make indirect discrimination unlawful, then I ask rhetorically: what is the objection to saying so? Can it be that the draftsman has taken the words from Section 19 of the Northern Ireland Constitution Act 1973?—because those are certainly the words to be found there. But of course in those days people were not giving much thought to indirect discrimination. We have come a long way since 1973. Since then we have learnt a great deal about the forms which discrimination can take, so I hope that when my noble friend replies, his response will be a sympathetic one.

Turning to Amendment No. 161, the Government are well seized of the point that what everyone wants to be protected is the whole range of matters in respect of which in the past they have suffered discrimination. As my noble friend pointed out a short time ago, that is now the scheme of Clause 60. It is not clear why such provisions should not be in Clause 61 when we turn to the question of incitement.

As the noble Lord, Lord Lester, reminded us a few moments ago, last Monday we were told that the Government seek consistency. I believe that the burden is now on the Government to explain why there is inconsistency in this respect. It seems to me that further elaboration from me would not assist. I believe that the onus is on the Government to explain why inconsistency is permissible in this respect. I await the reply of my noble friend. I beg to move.

Lord Monson

I do not know whether this is the right moment to mention this point. When speaking to Amendment No. 154 the noble and learned Lord, Lord Archer of Sandwell, was sympathetic to those who might in due course want to add to the list of characteristics against which it should be illegal to discriminate, although he was not in favour of anything happening immediately.

I wonder what those additional characteristics might be. Is it envisaged that discrimination on the grounds of height and weight might be outlawed, as I understand it is in two or three American states? What about discrimination on the grounds of physical appearance, other than physical appearance relating to race or disability which is already outlawed? After all, discrimination on the grounds of physical appearance is also illegal in a couple of American states, and logically so if all other forms of discrimination are banned. Survey after survey has revealed that good-looking people, be they male or female, have a much better chance of getting a good job and being promoted than those who are less well favoured, if I can put it in that way. I understand that it has also been established that the life-time earnings of those who might fall into the category of good-looking people are at least 10 per cent. higher than the life-time earnings of those who are not in that category. It will be interesting to hear, when the noble Lord comes to wind up—

Lord Archer of Sandwell

I am grateful to the noble Lord for giving way. Before he sits down, perhaps I should make it clear that I was simply responding to a suggestion from the noble Lord, Lord Molyneaux. I was responding with some sympathy because we are now sensitive to discrimination in a number of matters where 20 years ago people thought that the whole thing was a joke. These things are no longer jokes. I do not know what will or will not be a joke in 30 or 40 years time. I would not venture to make a prediction.

Lord Monson

I am grateful to the noble and learned Lord.

Lord Molyneaux of Killead

I support the point made by the noble Lord, Lord Monson, and the noble and learned Lord, Lord Archer. That was exactly the point I had in mind. I think that it is not wise to have in legislation what you might call a closed list, for the very reasons given by my noble friend, Lord Monson. It would probably be bad draftsmanship to add an "etcetera". However, I think that we should not close our minds, not to the possibility but the probability, that we will be required to add to this list quite frequently in years to come.

Baroness Lockwood

I support the principles behind these amendments. As my noble and learned friend Lord Archer said, our knowledge of discrimination is far beyond what it was some 20 years ago. There is already an enormous amount of court interpretation of the concept of indirect discrimination. In answer to the noble Lord, Lord Monson, that is a safeguard against irresponsible use of legislation and bringing irresponsible cases under the legislation.

However, the court cases and the interpretation of indirect discrimination have been very educative in the ways in which people can be discriminated against. There is some discussion at present about whether or not there is institutional discrimination in the police force. Institutional discrimination usually relates to the way in which processes have been developed over time. Such processes can accidentally discriminate against individuals or groups of individuals. Therefore, I think it is important that the concept of indirect discrimination is incorporated in the Bill. In the light of our discussion on the first group of amendments and the assurances that were given, can my noble friend the Minister tell us whether the concept of indirect discrimination will be embodied in the Bill and whether it will be applicable in the case of public authorities in the same way as against individuals?

6.15 p.m.

Lord Lester of Herne Hill

The grouping here is somewhat eccentric. Quite different subjects have been grouped together. In speaking to Amendment No. 160 I shall speak also to Amendments Nos. 161 and 163. I shall not speak to Amendment No. 164 because that deals with affirmative action, which we have already covered. I shall not speak to Amendment No. 169 because that deals with the definition of "public authority", which we have already covered.

Amendments Nos. 160, 161 and 163 are particularly important and I shall, therefore, take a few moments to explain our position. In the Belfast agreement, one of the points agreed was that the human rights commission would consider a clear formulation of the rights not to be discriminated against and of equality of opportunity in both the public and private sectors. That was obviously an important commitment, which we welcome. However, there is no reason why Parliament cannot meanwhile do its best to give a clear formulation of the rights not to be discriminated against and of equality of opportunity in both private and public sectors.

Amendment No. 160, which stands in my name and those of the noble and learned Lord, Lord Archer of Sandwell and the noble Lord, Lord Rix, seeks to do two things. First, it seeks to widen the types of forbidden discrimination beyond religious and political discrimination in respect of the public authorities exhaustively listed at present in Clause 61. We are seeking to widen the obligation so that not only is direct religious and political discrimination forbidden, but also indirect religious and political discrimination, and direct and indirect discrimination on the other grounds set out in the amendment, including, for example, disability and sexual orientation.

Those are important because there is no reason in principle—I doubt whether the Government would disagree—why any public authority should discriminate directly on any of those grounds, nor is there any reason why there should be unjustifiable indirect discrimination on any of those grounds. Public authorities are already covered by the obligation not to discriminate directly or indirectly under sex and race discrimination legislation and under fair employment legislation in respect of religion.

It is important that public authorities, in discharging their public functions, should not discriminate directly on any of those grounds or indirectly without good cause. In other words, they should not apply rules which are equal in a formal sense but unequal and unfair in their impacts against members of particular groups; namely women, ethnic minorities, religious groups, the disabled and so on. That is the purpose of Amendments Nos. 160 and 161.

Amendment No. 163, which stands in my name, is confined to extending the scope of Clause 61 to indirect discrimination on the grounds of religious belief or political opinion. So, that amendment is narrower than the others.

When the concept of discrimination came out of the Van Straubenzee report and into, first, the Northern Ireland Constitution Act 1973 and then the Fair Employment (Northern Ireland) Act 1976, the concept of discrimination was not well understood and it was considered to apply only to purposive or intentional direct discrimination. It was only later, in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Fair Employment (Northern Ireland) Act 1989, that the wider concept of indirect discrimination was included. Nothing in the Belfast agreement, as I read it, suggests that the concept of religious and political discrimination is to be frozen into the mind-set of the framers of the Northern Ireland Constitution Act 1973. I would be astonished if anyone suggested that that was the point of the Good Friday agreement.

It is extremely important, first, in dealing with religious discrimination that this Bill covers indirect as well as direct religious discrimination. Just as in the fair employment legislation, the provisions should similarly apply to public authorities under Clause 61. That is absolutely vital. It is equally important that public authorities should be under the wider duty.

Some of your Lordships may be wondering why the existing equality legislation does not cover the ground in respect of gender and race discrimination. The answer is the decision of the Appellate Committee of your Lordships' House in the case known as Re: Amin, which decided that the relevant provisions of the Race Relations Act and therefore of the Sex Discrimination Act applied only to marketplace activities, not to the public activities of public authorities. That is why the existing provisions do not adequately cover the area of Clause 61. They cover private employers. A private employer cannot directly or indirectly discriminate on grounds of sex or race, but a public authority, in the exercise of its functions, is, for the reasons that I have just given, not caught at the moment. I do not think that there is, or should be, anything controversial about the notion that a public authority should not discharge its functions in an arbitrary or discriminatory way on any ground.

As I said earlier, the Privy Council has made it quite clear that English common law would in any case require that kind of standard in respect of any public authority. We are seeking to spell out on the face of the statute what the common law requires—and to do it in a way which is within the well-known tests of the fair employment, sex discrimination and race relations legislation. Those are my reasons for supporting Amendments Nos. 160 to 162.

The Earl of Dudley

Before the noble Lord sits down, does he consider that, as a matter of legal interpretation, the Ministry of Defence would fall within the category of a "public authority", having and discharging functions relating to Northern Ireland?

Lord Lester of Herne Hill

I cannot think of any authority more likely to be a public authority than a ministry of the Crown. The Bill states so specifically. The Ministry of Defence would undoubtedly be such an authority. If the Ministry of Defence were to discriminate against women, ethnic minorities or any other group arbitrarily or unfairly, directly or indirectly, it would undoubtedly fall within the scope of Clause 61. I say that subject to correction from Ministers.

Baroness Turner of Camden

I had intended to speak to this group of amendments because I have put my name to Amendment No. 164, which we seem to have dealt with already in relation to Amendment No. 162. Nevertheless, I should like to join my voice to those who have been supporting Amendments Nos. 160 and 161 for the simple reasons that I support everything that has been said about the need to refer to the important issue of indirect discrimination and I cannot see that that is provided for elsewhere in the Bill.

As my noble friend Lady Lockwood said, the fact that we have been able to move on indirect discrimination in the United Kingdom has meant that a whole range of issues has been dealt with on behalf of women which might not otherwise have been dealt with. Such provisions will enable the commission to tackle rules or policies which appear neutral but which, in practice, may impact unfairly on one particular minority or disadvantaged group.

Amendment No. 161 seeks to extend the grounds of prohibited discrimination (in a way which I support) to include discrimination on the grounds of, gender, race, disability, age, marital status, dependants, sexual orientation". My noble and learned friend Lord Archer of Sandwell referred to the Northern Ireland Constitution Act 1973 which prohibited religious and political discrimination. It seems to me that the Belfast agreement provides an opportunity to move forward beyond those rather narrow discriminations and to broaden the horizon of discriminations which can be dealt with by the new equality commission and to impose on public authorities the duty not to discriminate in such a way. I have pleasure in supporting the amendments.

Lord Rix

I apologise for being absent from the Chamber when the noble and learned Lord, Lord Archer of Sandwell, moved Amendment No. 160 and spoke to Amendment No. 161. Perhaps I may support those amendments briefly. Indirect discrimination means imposing a requirement or condition on a job which makes it harder for disabled people to gain access to it. The effect may be unintentional, but it can be just as damaging as the effect of overt discrimination. Indirect discrimination on the basis of disability can, in most cases, be grasped easily without the need for detailed statistics. Therefore, Amendment No. 160 is important to disabled people who face many systematic barriers.

On Amendment No. 161, I hope that the Government can give some reassurance that issues of religious or political discrimination will not overshadow other equality considerations. The Government have the opportunity to entrench equality within the culture of the new administration. If they are serious, as I believe they are, in their intent to promote equality, they should ensure that a public authority does not discriminate on other grounds which, of course, include disability.

Lord Hylton

I notice that Amendment No. 161 includes "dependants". I have a suspicion that that may be going just a little too far.

However, my main point relates to Clauses 60 and 61. We understand that those clauses impose additional duties, over and above those in the Human Rights Bill. We have already touched on the fact that the two clauses contain different lists of what constitutes a public authority, but I have now noticed that there is yet another discrepancy within and between the clauses. I refer specifically to lines 3, 4, 11, 29 and 30 on page 29 which list different kinds of groups. It is not apparent why that should be so either on the face of the Bill or in the Explanatory and Financial Memorandum. I should like to know the answer. If the Minister does not want to reply now, perhaps he would be kind enough to write to me and place a copy of the letter in the Library of the House.

6.30 p.m.

The Earl of Dudley

I wish briefly to follow up my question to the noble Lord, Lord Lester, and his reply. As I read Amendment No. 161, if the question of discrimination against "sexual orientation" is accepted it seems that no one in the Armed Forces will be able to serve in Northern Ireland. As I understand it, at present the Armed Forces—that is to say, the Army—have set their faces against homosexuality. Surely it would mean that no regiment could be sent to Ireland and, indeed, no regiment could serve there. I may be wrong. Perhaps the Minister will elucidate the point.

The Minister of State, Home Office (Lord Williams of Mostyn)

I can perhaps help Members of the Committee. The groups of amendments are in danger of becoming somewhat disoriented. Under the sixth group we were intending to discuss Amendments No. 159, which has already been passed, Amendments Nos. 165 to 168 and 169A. So we shall now have to return to them. I am not complaining about that; I am simply indicating that perhaps things have gone astray.

We are presently discussing the seventh group. As the noble Lord, Lord Lester, rightly pointed out, a large number of the issues in the group—namely, Amendments Nos. 160 to 164 inclusive, and Amendment No. 169—have already been discussed. The noble Lord is quite right again. These amendments were discussed when we had extensive discussion on Amendment No. 162. I do not wish to appear discourteous, but I do not believe that Members of the Committee want me to flog over old ground more than two or three times.

If I may respectfully say so, the real point is what my noble friend Lord Dubs has pointed out on many occasions. This Bill is not designed or calculated to right all wrongs of inequality or discrimination. It is a Bill which will put into effect—and the noble Lord, Lord Cope of Berkeley, has made the point on a number of occasions—as closely as may be, the Belfast agreement. If one asks why X, Y or Z is not in the Bill, quite often the answer, as both the noble Lord opposite and my noble friend have said, is that it is not part of the context in which we are operating; namely, the Belfast agreement.

A question was raised about consistency and inconsistency, first, as regards Clause 60 as opposed to Clause 61 and, secondly, as opposed generally to the over-arching inconsistency that is claimed by virtue of the fact that the Human Rights Bill, which will become an Act on Thursday of this week, will be different again. The answer is quite plainly to be found on page 16 of the agreement. It is worth requoting it for one last time: The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency". I respectfully repeat what my noble friend Lord Dubs has so often said; namely, that that remains the case.

However, we now come to this particular Bill which, as I have said previously, is to deliver the goods following the Belfast agreement. It is quite plain. Subject to the outcome of public consultation, which is under way—my noble friend Lord Dubs referred to this earlier—the British Government, intends, as a particular priority, to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion; gender; race, disability; age; marital status; dependants; and sexual orientation". Then we come to the following: Public bodies"— not public authorities— would be required to draw up statutory schemes showing how they would implement this obligation. Such schemes would cover arrangements for policy appraisal, including an assessment of impact on relevant categories, public consultation, public access to information and services, monitoring and timetables". So there is not a pure consistency; it is designed lack of pure consistency because the Belfast agreement was couched in that way. Paragraph 2 on page 16 of the agreement deals with the ECHR and paragraph 3 deals with matters of "particular priority". The matter of particular priority is therefore to be found, first, in Clause 60. That clause is virtually a re-recitation of what I read out earlier from the agreement; in other words, it covers religious belief, political opinion, racial group, age, marital status or sexual orientation, men and women, persons with disabilities and those without as well as persons with dependants and those without. There was no stratagem to include the word "dependants" in the amendment as one can already find it in Clause 60.

Clause 60 requires a particular duty to be discharged by public authorities in Northern Ireland. That is covered in Schedule 10. As was observed earlier, the duties are quite onerous. The equality commission will have to carry out various duties. The "public authority" in paragraph 2 of the schedule has to draw up equality schemes and thereafter there is a rigid mandatory obligation on the commission to approve it or refer it to the Secretary of State. The Secretary of State then has various obligations. The commission will also have to deal with complaints and carry out investigations. Indeed, paragraph 8(3) of the schedule says: If a report recommends action by the public authority concerned and …; the action is not taken within a reasonable time—

  1. (a) the Commission may refer the matter to the Secretary of State; and
  2. (b) the Secretary of State may give directions".
So there are quite severe sanctions involved for a breach of Clause 60 at any stage, with the related obligations under Schedule 10. That has been done deliberately to bring about a consequence which, by and large, I believe we all want.

I turn now to Clause 61. My noble friend Lord Dubs has already dealt with Amendment No. 159, which was accepted, but I am dealing with these matters generally because the groups have become rather muddled. Here we are dealing with a public authority carrying out functions relating to Northern Ireland on the grounds of religious belief or political opinion. That is limited and has been limited for the obvious historical reason that we all recognise; namely, that this has been a particular cause of vice, unhappiness and wrongdoing in Northern Ireland. That is why one has different lists in Clause 60 as opposed to those in Clause 61. We have not sought to be absolutely consistent because we are dealing with different circumstances.

Perhaps I may deal with this group as quickly as I can. I give way to the noble Lord.

Lord Lester of Herne Hill

I am grateful to the Minister. I am sure that the noble Lord does not wish to construe the Belfast agreement with what has been called the "austerity of tabulated legalism". However, where in the Belfast agreement does he find the obligation to introduce Clause 61 and confine it narrowly to direct religious discrimination?

Lord Williams of Mostyn

One does not find it in those terms. One finds it in Clause 60 in the way I have mentioned but one does not find it in Clause 61. However, permeating the Belfast agreement, one does find the particular concerns of certain types of discrimination, not least by allegations made against—and I am talking at random—the Police Authority or the RUC. We want to put into effect the Belfast agreement and its spirit; we are not launching in this Bill on a whole-scale reconstruction of inequality discrimination law.

The noble Lord and I have discussed this matter both inside and outside the Chamber. He takes the view, as others do, that there is a legitimate case for a wide review of all aspects of law within this general compartment. I afford this no disrespect by calling it the "general inequality discrimination law". I am not guilty of subscribing to the doctrine of unripe time for which the noble Lord has sometimes rebuked me gently. I am simply pointing out that this is not the occasion to do so. I am not suggesting in the slightest that any of the very well-marshalled and moderate arguments like those put forward by my noble and learned friend Lord Archer of Sandwell, by my noble friend Lady Turner or by the noble Lords, Lord Rix and Lord Lester, are not valid; I am saying that this is not the context in which to deploy them. If we get to that stage—I am not being discourteous in saying this—we will have really argued ourselves to a standstill. I recognise the moral and philosophical virtue, as it were, behind the points that have been put. I do not disagree with their validity but, as I said, this is not the occasion to deploy them.

We intend to bring forward an Order in Council to extend the law to indirect discrimination on the provision of goods and services. That is an extension. As the noble Lord, Lord Dubs, has already said on a number of occasions, I do not believe these are matters for consideration on this occasion. We shall certainly give the observations that have been made tonight a fair hearing, but I do not think we shall come back to your Lordships on Report with anything satisfactory other than by way perhaps of marginal amendments.

We do not want to extend "public authority" in Clause 61 to the ECHR Human Rights Bill public authority. We have specifically included lists. The lists are not, of course, set in stone; they could be varied in the future. I accept this is a different conceptual approach from the one we adopted on the Human Rights Bill. In the context of Great Britain generally, I think we acted correctly on the Human Rights Bill—I think the noble Lord, Lord Lester, agrees with this—in not having a list because we wanted the law to develop organically. We are dealing with much more specific problems in the context of Northern Ireland—the noble Lord, Lord Cope, knows that from experience far better than I—and we have designed particular remedies for specific wrongs. Accordingly, I stress that I am not at all dismissive of the thoughts behind Amendments Nos. 160, 161 and 163. I simply indicate that we are not able to accept them.

Lord Lester of Herne Hill

Before the noble Lord sits down, as regards Amendment No. 163, he has indicated helpfully that nothing in the Belfast agreement seeks to confine the definition of religious discrimination only to direct religious discrimination. The noble Lord has also indicated that religious discrimination is a matter of particular concern in Northern Ireland, as everyone knows. Can he tell the Committee what is the policy reason—if there is nothing in the Belfast agreement—for confining the definition of forbidden discrimination by public authorities only to direct religious discrimination and not including indirect religious discrimination?

6.45 p.m.

Lord Williams of Mostyn

The policy conclusion was that Clause 61—I think the noble Baroness, Lady Turner, mentioned this—simply reproduces Sections 17 and 19 of the 1973 constitution Act. That is a policy conclusion that we have reached. I do not believe that this is the right occasion to go beyond that. I do not mean that reply to be dismissive. I simply have to say what the facts are.

Lord Monson

In the light of the interesting explanation given by the noble Lord, Lord Williams of Mostyn, for which we are grateful, I hope I may put one question to him. Just as Scotland was the experimental testing ground for the poll tax, to the great annoyance of the Scots, is there not a danger that Northern Ireland is set to become the experimental testing ground for outlawing forms of discrimination which will not be illegal on the British mainland, such as discrimination on the grounds of age and sexual orientation, to the probable annoyance of the people of Northern Ireland?

Lord Williams of Mostyn

I entirely disagree with that. The agreement is the product of much heartache and compromise. There has been careful consultation upon the Bill. I do not think that anyone in Northern Ireland could conscientiously—nor have I found this expressed—think Northern Ireland was being used as a testing ground. In fact, quite the opposite used to be the case in that friends and colleagues in Northern Ireland used frequently to complain that our legislation was often applied to them too late. I refer to the Children Act by way of example. I have never heard it suggested by anyone in Northern Ireland that we were not doing our utmost to provide a regime to deal with their particular problems. After all, the problems described in Clauses 60 and 61 occur in England and Wales but not to anywhere near the same extent and have not—we also need to bear in mind—brought about more than 3,000 deaths in a relatively short period of time.

Lord Monson

Is the noble Lord, Lord Williams, saying that there is much more discrimination on the grounds of age and sexual orientation in Northern Ireland than in England, Scotland and Wales, because I do not think that is the case?

Lord Williams of Mostyn

One needs to be quite careful about one's suggestions on these occasions. What I am saying—I think fairly—is that Northern Ireland has been an unhappy, divided society. It has been divided sometimes on the basis of true discrimination, and sometimes on the basis of suspicion. What we are trying to do is to set a new map for Northern Ireland in changing circumstances. As the circumstances develop, the map may, of course, need to change. I am not suggesting for one moment that ageism is more rampant in Northern Ireland than here; what I am saying is that we are trying with our colleagues there to set a new opportunity for change to do away with suspicion, which is sometimes just as corrosive and dangerous as real fact.

Lord Molyneaux of Killead

Before the noble Lord sits down, I should say that his comments have encouraged me greatly. I do not distort the words of the noble Lord, Lord Williams of Mostyn, but for the first time the belief has been encouraged that Northern Ireland will be the trend setter. It would be no bad thing if Northern Ireland blazes the trail for all the protections to be introduced here. I would welcome that.

Lord Williams of Mostyn

I entirely agree with the noble Lord's comments. I am most grateful for his generosity. This has been the position in the past, of course, not simply in the context of law but in the context of industrial development. I refer to remarkably imaginative schemes to which both governments have been party. I am most grateful to him for that support.

The Earl of Dudley

Will the noble Lord, Lord Williams, confirm that there is no legal difficulty posed by the Bill standing in the way of service by the Armed Forces in Northern Ireland?

Lord Williams of Mostyn

I do not believe there to be any.

Lord Cope of Berkeley

I find myself much in sympathy with what the Minister has said. As he said, the purpose of the Bill is to implement the agreement. Indeed, if we were to accept some of these amendments, which go way beyond it, desirable though they may be in extending the protection as regards various rights, we would step outside the Long Title of the Bill, or at least we would be in danger of doing that.

I am reassured to hear from the noble Lord, Lord Lester, that the other forms of discrimination are already outlawed as regards public bodies and others by the common law and by other statute law. The Minister is quite right to say that the nub of what we are trying to do is to tackle the religious and political discrimination which has led to 3,000 deaths and untold other agony. That is why this matter is given a high priority within the agreement and within the Bill. The other forms of discrimination, important as they are, need to be tackled in other ways. I do not believe in using this measure as a vehicle to seek a huge extension of those rights at this stage.

Lord Archer of Sandwell

On one matter at least my noble friend Lord Williams and I are totally at one. As he said, the groupings have been somewhat disorientated. Unlike many of our decisions, that is not irremediable and no doubt in due course we can rely on the Chairman of Committees to assist us in sorting that out. For the moment I am content to say that I am grateful to the noble Lord, Lord Lester, for his great assistance in the course of this debate and for the support of my noble friends Lady Lockwood and Lady Turner and of the noble Lord, Lord Rix.

I respectfully add my voice to that of the noble Lord, Lord Molyneaux. In this respect Northern Ireland is a trend setter. The people of Northern Ireland know of some of the problems which can occur when matters of this kind go wrong. That may not be anyone's fault. It may be due to the inevitability of certain historical processes. They know better than most that that can happen. It is perhaps fitting that one day history will accord to them the label of pioneers in this respect.

For that reason, I accept what my noble friend says. There is a limit to what can be achieved in any one piece of legislation. We cannot put right every human wrong; we cannot dry every human tear. I would be content if what we achieved was to implement what was in the agreement.

It seems to me that there are some things which are so obvious that if someone were asked, "Why aren't they in the agreement?", the answer would be, "Because they are too obvious to need saying". I should have thought that that was true of two matters in particular. One is indirect discrimination. If my noble friend will allow me to say so, it is rather curious that it is proposed to include indirect discrimination, as I understand it, in relation to goods and services, but it is perfectly all right, so far as this legislation is concerned, to discriminate indirectly in relation to the provision of other matters which are within the control of public authorities. That is something I do not understand. The noble Lord, Lord Molyneaux, and others are better placed than I to say whether it is the case. I should have thought that if you had said to those who gathered at the table to produce the agreement, "You have not mentioned indirect discrimination. Is that because you think indirect discrimination is all right?" the answer would be, "Of course we are not in favour of indirect discrimination, we want to abolish it. But surely you don't have to say it in the agreement. When we come to the more precise draftsmanship of legislation, we would expect to see it there". That is what I should have thought they would say.

In relation to the distinction between the duty not to discriminate in Clause 60 and the duty not to incite other people to discriminate in Clause 61, I confess again that that is a distinction which, first, I find hard to follow, and, secondly, I find difficult to envisage as arising from the agreement. I cannot believe that those who sat down to produce the agreement would have said, "Of course we don't believe public authorities should discriminate, but we don't care if they incite other people to discriminate". They would have said, "That is something which we expect to be included in the legislation". If the Government do not address that, they will miss one of the essential underlying points of the agreement. It is perfectly all right to incite people to discriminate on grounds of race, gender or dependency, but you must not incite them to discriminate on grounds of religion. It is a curious distinction and I believe that the alibi that it does not arise from the agreement does not hold water.

I appreciate that my noble friend has a difficulty. The matter does not lie entirely in his view of the logic of the legislation, but I hope that the Government will be able to think again about this. I propose to give them that opportunity. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 161 and 162 not moved.]

Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 163:

Page 29, line 30, at end insert—

("() For the purposes of subsection (1), a person ("person A") discriminates against another person ("person B") on the grounds of religious belief or political opinion if—

  1. (a) on either of those grounds person A treats person B less favourably than he treats or would treat other persons, or
  2. (b) person A applies to person B a requirement or condition which person A applies or would apply equally to persons not of the same religious belief or political opinion as person B but—
    1. (i) which is such that the proportion of persons of the same religious belief or of the same political opinion as person B who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it,
    2. (ii) which person A cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied, and
    3. (iii) which is to the detriment of person B because he cannot comply with it.").

The noble Lord said: We had a full debate on this issue and the matter needs to be reconsidered when we see the Government's amendment relating to goods and services to the public. I deal now with indirect religious discrimination.

As I have tried to explain, the case of Re: Amin—a 3:2 decision with strong dissent from Lord Scarman among others—decided that the goods and services to the public provision did not apply to public authorities. Therefore, if the Government are to introduce a goods and services amendment and regard Re: Amin as good law, we will have a situation where there will be an obligation not to discriminate directly or indirectly in providing goods and services to the public except in relation to the non-marketplace functions of public authorities. That would be bizarre and would certainly annoy the Catholic bishops who have made representations in the educational field about the need for indirect religious discrimination to be covered. It would annoy the minority community on the receiving end of religious discrimination by public authorities if there was a narrow definition.

I cannot believe that the politicians in Northern Ireland or in the Irish Republic would wish that. I hope that they will be able to reconsider the matter in the light of this debate as well as the Government. I shall not move the amendment, but leave it at that and hope that further consideration can be given to it.

[Amendment No. 163 not moved.]

[Amendment No. 164 not moved.]

Lord Dubs moved Amendments Nos. 165 to 168:

Page 29, line 44, leave out from ("to") to end of line 45 and insert ("any act or omission which is unlawful by virtue of the Fair Employment (Northern Ireland) Act 1976, or would be unlawful but for some exception made by virtue of Part V of that Act.").

Page 30, line 1, after ("making") insert (", confirmation or approval").

Page 30, line 8, after ("making") insert (", confirmation or approval").

Page 30, line 10, after ("to") insert ("the").

On Question, amendments agreed to.

[Amendment No. 169 not moved.]

Lord Williams of Mostyn moved Amendment 169A:

Page 30, leave out lines 14 to 20 and insert— ("() any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation); () any body (other than a Northern Ireland department) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation); () any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation);").

The noble Lord said: This is a technical amendment which deals with the question of public authorities, bringing the matter into line with Clause 60. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 170 to 173 had been withdrawn from the Marshalled List.]

Clause 61, as amended, agreed to.

Clause 62 [Unlawful oaths etc.]

Lord Dubs moved Amendment No. 174:

Page 30, leave out lines 34 to 36.

The noble Lord said: The group consisting of government Amendments Nos. 174 to 178 all relate to Clause 62. Amendment No. 174 is a simple technical amendment which removes from the Bill provisions which appear elsewhere.

Amendments Nos. 175 and 176 ensure that the ban which the clause imposes on the making of certain oaths applies to both authorities and departments. Amendment No. 177 is a technical amendment which reduces the number of words used to describe those Ministers who are subject to the clause. The term "Minister" is now defined elsewhere in the Bill. Amendment No. 178 confines actions for breach of the clause to Northern Ireland. I beg to move.

Lord Cope of Berkeley

I was unclear as to the origin of this clause about taking oaths and making declarations. In particular, it seemed to me that to take an oath or make a declaration is not that different from giving a pledge, which the members of the Executive and others are required to do in the terms of Schedule 5. That is taken directly from the Belfast agreement.

However, it seemed to me that under Amendment No. 174, in taking out the references to an oath or declaration installed by the Bill we were taking out the protection that would otherwise be given to that pledge, if it might be regarded as an oath or declaration. I do not know what the difference is between those three types of statement. Obviously, the pledge in Schedule 5 goes beyond the requirements of Clause 62(3). It seems to me that Amendment No. 174 is in danger of rendering the pledge unlawful under that clause. That is clearly undesirable.

Lord Holme of Cheltenham

Perhaps the noble Lord could help those of us who do not have the back-up that he has to identify where in the Bill the definition of "Minister" referred to in Amendment No. 178 is to be found, so that we can establish whether we support it.

Lord Dubs

I understand that lines 34 to 36, which are the subject of Amendment No. 174, are already covered by Clause 77(4)(b). All the amendments in this group relate to Clause 62 which prevents specified authorities and bodies from requiring persons to take an oath or declaration as a condition of employment of services or appointments except in certain circumstances. It largely re-enacts Section 21 of the Northern Ireland Constitution Act 1973 which in turn was designed to implement paragraph 64 of the 1973 White Paper Northern Ireland Constitutional Proposals.

Lord Cope of Berkeley

I had not appreciated the effect of Clause 77(4). On the face of it, we do not need either subsection (2)(a) or (b).

Lord Dubs

Amendment No. 50, agreed by the Committee last week, added a new clause before Clause 18. I believe that that is the explanation but I am not totally certain.

Lord Cope of Berkeley

That is probably the answer to the question put by the noble Lord, Lord Holme, rather than my question. Perhaps noble Lords will have the opportunity to return to these matters on Report.

On Question, amendment agreed to.

7 p.m.

Lord Dubs moved Amendments Nos. 175 to 178:

Page 31, line 4, after ("any") insert ("department or").

Page 31, line 5, leave out ("(authorities") and insert ("(departments and other authorities").

Page 31, line 8, leave out from beginning to ("a") in line 10 and insert ("a Minister and").

Page 31, line 11, after ("actionable") insert ("in Northern Ireland").

The noble Lord said: I beg to move Amendments Nos. 175 to 178 en bloc.

On Question, amendments agreed to.

Clause 62, as amended, agreed to.

Clause 63 [Removal of restrictions on investigation into maladministration]:

Lord Dubs moved Amendment No. 179:

Page 31, line 30, after ("discrimination") insert (", or aiding or inciting any person to discriminate,').

The noble Lord said: The amendment seeks slightly to widen the circumstances in which restrictions on investigations into complaints should not apply. As a result of the amendment the restrictions will not apply to investigations into aiding and inciting discrimination and investigations into discrimination itself.

On Question, amendment agreed to.

Clause 63, as amended, agreed to.

Clause 64 negatived.

Clause 65 [Participation in NSMC and BIC]:

[Amendment No. 180 not moved.]

Clause 65 negatived.

Clause 66 [Attendance at BIIC meetings]:

Lord Dubs: I beg to oppose the Question that the clause stand part of the Bill.

Lord Hylton

Is one to understand that there will be government amendments at Report stage to replace all of the three clauses that are in process of being deleted?

Lord Dubs

If they are not dealt with elsewhere there will be further amendments.

Clause 66 negatived.

Clause 67 [Recognition etc. of implementation bodies]:

[Amendment No. 181 not moved.]

Lord Dubs

I beg to oppose the Question that the clause stand part of the Bill.

Lord Cope of Berkeley

I wonder whether this is an opportunity for the noble Lord to refer to cross-border bodies, which are the subject of this clause and which we discussed earlier when inserting the new clause to replace this one. There was some confusion at least in my mind, and perhaps in the mind of others, as to the exact legal status of cross-border bodies. If the noble Lord is not in a position to respond now, clearly there will be other opportunities at later stages of the Bill, but here is one opportunity.

Lord Dubs

I appreciate the opportunity that the noble Lord gives me, but I am not sure that there is very much to add to what I said last time. If there is, I should like to take a future opportunity to do so.

Lord Molyneaux of Killead

I am very grateful for the assurance given by the Minister because some noble Lords have had second and third thoughts on these matters. It would be very helpful to have a debate at a later stage of the Bill.

Clause 67 negatived.

Clause 68 agreed to.

Lord Dubs moved Amendment No. 182:

After Clause 68, insert the following new clause—