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Mr. Chidgey: I can respond only by saying that the ECJ's point was that no such law or regulation exists in the UK, although it does in many other European countries; and that because of that, the ECJ was not able to try or come to a conclusion on the case--it was outside the court's jurisdiction.
Mr. Fabricant: Is the hon. Gentleman aware that some companies have overcome the problem of determining what is or is not a spurious claim? For example, the John Lewis Partnership offers discounts to partners and to the partners of partners, entitlement being based on the number of years the partners have lived together. There are ways of getting around the problem.
Mr. Chidgey: The hon. Gentleman makes an important point. The key word in the description is that it is a "stable" relationship--a phrase which could apply equally to a heterosexual couple who do not happen to be married and to a same-sex couple, the key test being whether the relationship is long term and stable. Many of Britain's top 100 companies have policies ensuring that they do not discriminate against people on the ground of their sexual orientation.
The new clause provides an opportunity for the UK to introduce laws that match those of our neighbouring European countries--an opportunity to end that type
of discrimination. The case of Lisa and Jill is by no means unique: recent surveys among gay men and lesbians show that 16 per cent. have faced discrimination at work and another 21 per cent. suspect that they have suffered discrimination on the ground of their sexuality; and 48 per cent. have faced harassment, including ostracism, threats and even physical violence. In 1995, Social and Community Planning Research undertook an independent survey of employees of all sexual orientations. It found that one in three heterosexuals is less likely to hire an applicant if they know the applicant to be gay or lesbian--a telling fact. In 1998, the Equal Opportunities Commission, in its publication "Equality in the 21st Century", included a recommendation that:
As the law stands, it is not unlawful to refuse to appoint someone because of their sexuality. Treating someone less favourably because of their sexuality is not unlawful; harassing someone because of their sexuality is not unlawful; and dismissing someone because of their sexuality is not generally unlawful. New clause 5 would give the Secretary of State the power to extend protection.
Mr. Healey:
This is a useful rehearsal of the problems of discrimination on the basis of sexual orientation and age and reinforces the argument for some action in that area. However, does the hon. Gentleman concede that the Department for Education and Employment is currently receiving representations from various agencies, including the Equal Opportunities Commission, about the need to consolidate and update discrimination legislation across the board? Might it not be better to deal with those issues in consolidated discrimination legislation rather than in this Bill?
Mr. Chidgey:
I am grateful for that intervention. I am aware that the Department for Education and Employment is panicking about the problem as it affects teachers. However, I imagine that its legislation will cover only the teaching profession. I contend that the problem of discrimination is endemic in all of industry and commerce.
Mr. Chidgey:
The hon. Gentleman is eager to contribute--he must have been briefed about this issue. I have followed the Bill through the Committee stage, and I do not accept the Government's "wait and see" approach. During consideration of the Bill, the Government said time and again that they wanted the power to make regulations in case they were needed. What is so different about my proposed new clause? I shall give way for the last time.
Mr. Healey:
I have also followed the Bill through every stage, I have attended every Committee sitting so far, and I have not been briefed by the Government. The hon. Gentleman misunderstands me. I am talking not about teachers but about responsibility. The Department
Mr. Chidgey:
I am grateful to the hon. Gentleman for that clarification. However, I do not foresee any problems if such legislation were to be on the statute book. I do not think there would necessarily be a clash of responsibilities. I do not profess to be a legal or a parliamentary clerk, but that is the sort of excuse we tend to hear when Governments do not want to do what most people think they should.
New clause 5 would give the Secretary of State the power to extend protection from discrimination in employment to lesbians and gay men. Like so many others in the Bill, it is an enabling clause. It would givethe Government the opportunity at last to prohibit discrimination against sexual orientation in the workplace. The Government are on record in another place as expressing reservations about only the scope and timing of the Sexual Orientation Discrimination Bill, not its good intentions. This new clause is specific in its scope. Its intentions are clear and precise, and I urge the Minister to grasp this opportunity to convert the Government's rhetoric into law.
In Standing Committee, the Minister acknowledged:
New clause 4 refers to the general prohibition of discrimination in employment, as the Secretary of State may specify from time to time in the regulations. Time and again, the Bill gives the Secretary of State powers to make regulations as he thinks fit--and when we probe the Government on the detailed applications of the Bill, they reply that it is an enabling Bill and that detailed regulations will be introduced after consultation and as appropriate.
If the Secretary of State finds new clauses 4 and 5 too specific and rigid, perhaps he will accept new clause 6, which would provide a general power following precisely the line that the Government have taken throughout our debates on the Bill. New clause 6 would, in the words of the right hon. Member for Makerfield--now the Minister of State, Department of Trade and Industry--enable the Government
Mr. Gordon Marsden (Blackpool, South):
I have great sympathy with the hon. Member for Eastleigh (Mr. Chidgey) about new clauses 4 and 5. I pay tribute to him for bringing this important issue to the attention of the House. As he said, it is nonsense that the rulings that have been made in our courts--although they must abide by existing legislation--clearly discriminate against lesbians and gay men in partnership arrangements.
I sympathise with the hon. Gentleman's objectives in tabling new clause 4 because, like other hon. Members, I have had constituency cases involving people who were clearly victims of age discrimination. Teachers, in particular, experience such problems.
It is absurd that, as the Court of Appeal held in Smith v. Gardner Merchant in 1998, the proper comparison for a claim under the Sex Discrimination Act 1975 is between a male and female homosexual, and where an employer can show that a lesbian and a gay man are treated equally badly, there is no case for sex discrimination. What we have, according to the present law of the land, is equality of misery or injustice, and clearly a Government who are intent on equality of opportunity and equal rights should not be prepared to countenance that for longer than is necessary. I therefore have enormous sympathy with the aims of the new clauses tabled by the hon. Member for Eastleigh.
The question is: what is the appropriate mechanism within government for remedying that problem? It is well known--we should be cheerful about this fact--that increasing numbers of employers in the private and public sectors have introduced equal opportunity policies that include anti-discrimination terms for lesbians and gay men. That is to be applauded, but there will always be those who fall through the gaps. The survey to which the hon. Member for Eastleigh referred underlines the need for us to introduce legislation to deal with that problem.
My hon. Friend the Member for Wentworth (Mr. Healey) referred to the Department for Education and Employment. In certain circumstances, it would be most appropriate for that Department to introduce legislation on this matter.
Equally, it is important that, whatever the House decides, we send out a very strong message that hon. Members and the Government will not tolerate discrimination in employment on the ground of sexual orientation for longer than necessary. I shall therefore be looking to the Minister to comment in his reply on what he believes is appropriate. In Committee, he said that it was too early to be clear whether a legislative measure would be the appropriate way to proceed. I am in no doubt that the time for some legislative measure to proceed is well past. It is extremely important that this injustice is remedied.
"There should be legal protection against discrimination for lesbians and gay men.
In another place, the Sexual Orientation Discrimination Bill was passed, but there was insufficient parliamentary time for it to become law by passing through this House.
"a gap exists in the protection that we offer some individuals. The Government deplore discrimination on the basis of sexual orientation."
The Minister then admitted that the Government had no clear plans to deal with the issue in the foreseeable future, and said:
"it is too early to be clear whether a legislative measure would be the appropriate way to proceed."--[Official Report, Standing Committee E, 23 March 1999; c. 580.]
That is not good enough. The Government have made much of codes of practice on ageism and have commissioned research to test their effectiveness. However, they are silent about discrimination on the ground of sexual orientation. At the very least, they should make a commitment tonight to draw up a code of practice on sexual orientation rather than simply promising to consult.
"to ensure that not only will workers have a remedy in law against discrimination, but the appropriate legal framework will be put in place".--[Official Report, 9 February 1996; Vol. 271, c. 618.]
30 Mar 1999 : Column 940
It would also allow the Government to keep their election manifesto promise to
"seek to end unjustifiable discrimination wherever it exists".
I look forward to the Minister accepting new clause 6 and demonstrating that that is one promise that the Government will keep.
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