HL Deb 04 April 2003 vol 646 cc1629-35

2.19 p.m

Report received.

Schedule 2 [Protected areas of activity]

Lord Lester of Herne Hill moved Amendment No. 1: Page 89, line 27, at end insert—

The noble Lord said: My Lords, Amendment No. 1 deals with a matter which needs to be put beyond doubt. It is really a technical amendment which should engage no controversy. Clubs are bodies that may he liable for discrimination in various guises. One way is where a club is not a properly run club, which screens members on the basis of personal selection but essentially allows any member of the public to become a member. It has always been clear under the Sex Discrimination Act and the Race Relations Act that a club of that character, which does not have a proper screening process is a person concerned with providing goods, services and facilities for the public or a section of the public and is therefore liable if it discriminates in that capacity.

On looking again at the Bill it seemed that it was possible to argue that we had not maintained that distinction to ensure that there was liability in that kind of situation. Amendment No. 1 makes it clear on page 89, line 27, by adding words to the end of paragraph 41 that deal with that situation. As I say, it does not really raise any new point; it simply makes clear that which I think was already inherent in the Bill. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 2: Page 89, line 38. leave out paragraph 42 and insert—.

"Exclusion for members clubs limited to persons who are members of particular groups

42 (1) There is excluded from the protected area of activity specified in section 6(1)(f) the management of any members club that is carried on otherwise than for profit. if the principal purpose of the club is to enable the benefits of membership of the club to be enjoyed by persons who arc members of any one or more of the following groups—

  1. (a) any group of persons identified by reference to a particular age group into which they fall;
  2. (b) any group of persons identified by reference to their race, nationality or ethnic or national origins;
  3. (c) any group of persons identified by reference to a particular disability they have or have had;
  4. (d) any group of persons identified by reference to their family status;
  5. (e) persons generally who have undergone a gender reassignment;
  6. (f) any group of persons identified by reference to their marital status;
  7. (g) pregnant women generally;
  8. (h) any group of persons identified by reference to their religion or belief; and
  9. (i) any group of persons identified by reference to their sexual orientation.

(2) But the exclusion in sub-paragraph (1) does not apply—

  1. (a) in relation to any members club if its principal purpose is to enable the benefits of membership of the club to be enjoyed by persons who are members of any group defined by reference to colour; or
  2. (b) to exclude anything done for a reason or reasons relating to any prohibited ground that falls outside the scope of such restrictions as are reasonably necessary to give effect to the principal purpose of the club.

(3) In determining the principal purpose of a members club, regard is to be had to—

  1. (a) the extent to which the affairs of the club are conducted in such a way that the persons primarily enjoying the benefits of membership are persons of the particular group concerned;
  2. (b) the essential character of the club; and
  3. (c) any other relevant circumstances."

The noble Lord said: My Lords, Amendment No. 2 deals with a matter which was raised by the noble Lord, Lord Borrie, in Committee. I am grateful to him for having raised this issue. Again, I do not think it is controversial, but it has been our approach in relation to this Bill whenever any defect or improvement has been raised by any Member of the House to seek to give effect to what has been suggested where possible. Noble Lords will know that we have done that, for example, with amendments to deal with disability discrimination in a more satisfactory way.

The point raised by the noble Lord, Lord Borrie— what he described as his first concern—in Committee, relates to paragraph 42 on page 89, which, in deference to respect for personal privacy and private life, excluded members' clubs from liability if they were clubs for racial and religious groups. The noble Lord, Lord Borrie, asked why that should not apply also to other vulnerable groups, for example, the young, the elderly, gay and lesbian groups, and so forth. We thought that we had dealt with that, in a slightly indirect and complex way, elsewhere in the Bill. But, having thought about it, it seemed to us better to replace paragraph 42 with the words in the amendment which, as your Lordships will see, spell out each of the excluded clubs where the group of persons for whom they are providing benefits are defined by reference to age, race, family status, gender reassignment, marital status, pregnancy, religion or belief, or sexual orientation. We have still maintained, as in the Race Relations Act 1976, liability if a club imposes a colour bar. I very much hope that the concern of the noble Lord, Lord Borrie, has been met in the way that I have described. I beg to move.

Lord Borrie

My Lords, in Committee the noble Lord, Lord Henley, and I proposed an amendment to remove from the Bill all provisions relating to members' clubs. I was glad of the exemptions from anti-discrimination laws that the Bill, as originally drafted. provided for single-sex clubs, single ethnic and single religious group clubs. But I asked why the same should not apply to clubs confined to specific age groups or people of particular sexual orientation—for example, pensioners' lunch clubs, youth clubs or gay clubs.

The noble Lord, Lord Lester, has now provided exemptions for all those groups and the amendment before us seems to be appropriately comprehensive. I am glad of that because, as your Lordships' know, I have taken the view with regard to the Bill—and indeed the earlier Bill presented by my noble friend Lord Faulkner of Worcester—that it is wrong in law for the law to involve itself and to intervene in how people choose to associate with others in their private social lives.

I believe that it is quite natural for people—at any rate sometimes and on some occasions—to seek out the company of their own kind in terms of their own age group, sex or whatever. It is quite wrong for the law to intervene and prevent it.

I would still prefer the Bill to have no application at all to members' clubs because the definition used to provide exemption for certain clubs—now admittedly more extensive if the amendment is passed—which is dependent on locating the "principal purpose" of the club, may sometimes be difficult to apply.

I continue to be concerned because the noble Lord's amendments do not cover another point I made in Committee: for example, if a male club allows women to take up any form of membership, such as associate membership, it must grant them precisely the same rights and facilities. In such circumstances the possibility of a men-only bar in a club will be prohibited unless at the very least there is an equivalent women-only bar. I am not sure whether that would be sufficient.

My advice to working men's clubs that have in recent years, perhaps tentatively, opened their doors to women on a basis other than full membership—and that applies apparently to the majority of them—is that they will need to consider shutting their doors once again to any form of female membership if the Bill becomes law. I have other continuing concerns. If the Bill becomes law, if any kind of club offers, for example, a lower subscription to those under 30 in order to attract less well-off, it is assumed, younger members, that may contravene the Bill because it discriminates on grounds of age against those over 30.

Of course today I shall not pursue the matter further, but I hope that the sponsors of the Bill will not boast about the unanimous and apparently unquestioning Front Bench support for the Bill. The Liberal Democrats are amazingly free of any Front Bench presence at this moment. However, as with any government Bill of comparable length and complexity to this, each of the Front Benches would have displayed their customary diligence and probing. I happen to have an interest in a Bill that is being considered in Grand Committee. It is the Water Bill. It attracts no more than perhaps a dozen interested persons. None the less, both Front Benches have done an incredibly probing job in examining the Bill word for word, clause for clause, as they normally do. A glance at the Marshalled List of amendments to the Water Bill will reveal that.

It is a shame that on this occasion the Front Benches have failed to subject the Bill to any real scrutiny. That may say something about the expectation of whether the Bill will make further progress. but just because we deal with the Bill on quiet Fridays, because few people are sufficiently interested to take part and few amendments have been tabled at any stage, I hope that the noble Lord, Lord Lester of Herne Hill, will not hereafter imply that he has mass support for his Bill.

2.30 p.m.

Lord Cope of Berkeley

My Lords, I tiptoe carefully into this debate, following in the footsteps of my noble friend Lady Buscombe, who cannot be here today and sends her apologies to the House and to the noble Lord, Lord Lester. However, as the Front Benches have been mentioned, I thought that I should speak at least briefly to make one or two points.

First, perhaps I should declare an interest as a member of a variety of associations of 25 persons or more for various purposes that would fall into many of the relevant categories. The noble Lord, Lord Lester, is making a valuable contribution in helping us all to struggle through the tangled legal undergrowth that is essential to a Bill of this character. Amendment No. 2 takes us all a stage further.

The noble Lord, Lord Borrie, started by describing the amendment as perfectly comprehensive, but then seemed to think that it was not as comprehensive in its coverage as he would want. I noticed that in new paragraph 42(1)(b), there is an exclusion for clubs the members of which are identified by reference to their race, nationality and so on.

I happen to be a vice-president of the Royal Society of St George. We exist to boost England, if I may put it that way—I do not want to set out all the objects of the society in full—but the society is not restricted to persons who are English. Anyone who supports the objects of the society may join. We would therefore not have the protection otherwise provided by new paragraph 42(1)(b). We do not need that protection because, as far as I am aware, there is nothing in the rules of the society that would fall under the Bill. However, that demonstrates one difficulty of trying to define membership in such a way and of being so precise.

New paragraph 42(1)(i) provides protection for a group of persons identified by reference to their sexual orientation. I understand from reading the debate in Committee, and so on, that that is intended to allow gay clubs, for example, to function. But it seems to me that that might also permit a club that would otherwise fall under the Bill to put up a notice saying, "No gays". That would be discrimination of a kind that might allow it through the terms of the Bill. As your Lordships well know, I am not a lawyer, but someone who knows more about the law than I should consider that.

My final point relates to new paragraph 42(2)(b). Its wording is extraordinarily complicated. If I can interpolate from the amendment, it states that: the exclusion in sub-paragraph (1) does not apply … to exclude anything done for a reason … outside the scope". The number of negatives in that make it extremely difficult to understand. I suggest to the noble Lord, Lord Lester, that he try that sub-paragraph out on the Plain English Campaign to see whether it could assist in achieving clearer drafting. I think that I know what it is intended to do. As it comes from the noble Lord, Lord Lester, I suppose that it will achieve its purpose in legal terms—I know of his legal distinction. But it is a little more difficult for ordinary mortals such as me to follow it through.

I hope that those slightly detailed points will reassure the noble Lord, Lord Borrie, that Her Majesty's Opposition are willing to look at some of the detail sometimes. Clearly, if the Bill were to come back as a government Bill in this or a similar form, we would do our best to draw attention to some detailed points while agreeing in principle with the objective of this amendment, for example.

Baroness Thomas of Walliswood

My Lords, I had not intended to speak today and I refrained from doing so in Committee, because I am aware that my noble friend Lord Lester is more than capable of defending himself under any circumstance whatever. But since I was challenged by the noble Lord, Lord Borrie, to show Front-Bench support for my noble friend's Bill, I stand here to say just that: we support the Bill. As the Liberal Democrat spokesperson on women, I certainly feel no obligation to challenge the wording of my noble friend's Bill.

Lord McIntosh of Haringey

My Lords, I expressed the Government's view of this Bill in a rather lengthy speech at Second Reading and I do not propose to add anything. But the noble Lord, Lord Borrie, should not draw any conclusions, favourable or unfavourable, from my silence.

Lord Lester of Herne Hill

My Lords, I am very grateful to everyone who has spoken. Briefly, I shall deal with some of the points. First, in defence of the Government, I fully understand the position that they have taken, as I am sure the House does. The position has been expressed by the noble Lord, Lord McIntosh, and by the other Minister who spoke at an earlier stage. I shall summarise it as follows: the Government take the Bill very seriously. They are not in favour, at this stage of their policy development, of having a single equality Bill. They are instead busily working on the regulations that will come before Parliament in May, as I understand it, to give effect to the EU equality directives that cover some of the ground dealt with more widely in this Bill. I am sure that the civil servants dealing with the matter will look at the Bill and think about some of the ways in which it approaches problems to see whether they believe those provisions to be sensible or otherwise.

So I am in no way discouraged by the fact that neither the Government nor the main Opposition have tabled a series of amendments. Indeed, in a previous debate, the noble Baroness, Lady Buscombe, was kind enough to indicate very clearly, as did the noble Lord, Lord Cope, today, that the Conservative Party is favourable to simplifying the law, producing coherence and greater accessibility, and therefore approves of the Bill's aims without necessarily subscribing to every part of it.

Secondly, I am glad that the noble Lord, Lord Borrie, believes that I have hit the target as regards his first concern—not about sex discrimination in clubs, which I shall come to in a moment. As I understand it, he is favourable to Amendment No. 2 as it stands.

I shall explain some matters that the noble Lord, Lord Cope, raised about the amendment. It applies only if the principal purpose of the club is to enable the benefits of membership to be enjoyed by persons who are members of any one or more of the groups listed. For example, it would apply to a gay club or a heterosexual club—a club of a particular sexual orientation—only if its principal purpose were to give benefits to straight members or gay members. If it did that, it might be offensive, but it could put up a notice excluding those of a different sexual orientation. That is how it works.

There was also criticism of the un-plain English in paragraph 42(2)(b). I take full responsibility for that, even though it was drafted by a highly skilled former parliamentary counsel. The purpose of the subparagraph is plain enough. It is to stop discrimination leaking unnecessarily into places that it should not, as a result of an over-broad interpretation of the exception. I shall look again to see whether even plainer English could be used to deal with that.

The only other point is the familiar one raised repeatedly and always forcefully by the noble Lord, Lord Borrie, about sex discrimination in clubs. As noble Lords know, paragraph 43 excludes from the scope of the Bill single-sex clubs, run for profit or otherwise, but keeps within the scope of this Bill what was in the Bill introduced by the noble Lord, Lord Faulkner of Worcester. That Bill was supported by the Government and by those of us on these Benches and the Conservative Benches. I hope that the noble Lord, Lord Borrie, will not mind my describing him as being a bit like Captain Ahab with Moby Dick in pursuing the issue again and again. We all understand well what his position really is.

What we are doing is not coercive; we are saying that, if a club, as a matter of the free choice of its members, allows women as well as men to become members or associate members, it must treat them equally. Its constitution and its workings must focus on the fact that that will be the principal object. If that is the principal object, the club will be liable. If the club's main object is to give benefit to women or to men, it will be beyond the scope of the Bill.

The noble Lord, Lord Borrie, does not like the drafting of the purpose test in paragraph 43(3) and made that clear on the last occasion, although he has not tabled an amendment and nor have I. I have not tabled an amendment to introduce a different test because, during the debates on the Bill introduced by the noble Lord, Lord Faulkner of Worcester—I read them after our previous debate in Committee—the noble Baroness, Lady Scotland of Asthal, commended the form of words in that Bill as being fit for the purpose. Having read the debate again, I decided, on reflection, that what was in this Bill and in the noble Lord's Bill represented the right approach.

Strictly speaking, I am out of order even to mention all that, as no amendment that deals with that subject has been tabled. However, I thought that, out of courtesy to the noble Lord, Lord Borrie, I should explain why I have dealt with the first of his concerns but will never be able to deal with the second of his concerns. My position, like that of those on both Front Benches, is that a club that allows both halves of the human race to be members should treat those members equally—in the same bar, in two separate bars or whatever. That is not an invasion of personal privacy. In that situation, equality trumps personal privacy and personal choice.

On Question, amendment agreed to.