Provision of services, etc.

I beg to move amendment 232, in clause 27, page 20, line 12, at end insert—

‘(8A) Subsection 8 applies only where the provision of the service is not—

(a) carried out by a public authority;

(b) carried out on behalf of a public authority;

(c) carried out under contract to a public authority, or

(d) otherwise carried out in the exercise of a public function.’.

This amendment extends protection against harassment on grounds of sexual orientation and religion or belief in relation to part 3 (where exercising a public function). Harassment is defined in a more limited way.

I discussed the amendment earlier, so I will not repeat the justification in respect of harassment. It was important to separate out public services from other services, because that is what I wanted the harassment provisions to cover. But it is useful to take the opportunity to raise a slightly separate point raised by the amendment: why do the Government not propose a separation between public services and non-public services, and a definition of public services? I will explain what I mean by that.

The justification for proposed new paragraph (a) was dealt with under the harassment clause, so I will not repeat that. But the argument that there should be a specific definition of public services and that they should be separated out from other services—commercially delivered services—is an important point that the amendment probes.

There is a long-running issue about what exactly a public service is. When it is delivered by a commercial organisation under contract to a public authority, or where its nature is public but it is privately purchased, or where its nature might be private or public but it is publicly purchased, as in care homes, there is a long-running controversy about how we can get our courts to understand that the intention in the Human Rights Act 1998 was to ensure wider coverage.

The worry is that simply referring to services and the exercise of a public function will not cover everything that we need to cover. Although the Government might not see the need to make such a distinction between public services and others generally, when it comes to schedule 23 some of us will argue that, for example, the exemptions provided for religious organisations to discriminate in the delivery of services ought not to exist to the same extent when delivering public services. I will not talk about those now, because we will debate them later. But there is an argument for a separation between public services and non-public services.

Even if the Solicitor-General does not see the need for the amendment, and does not see the need to have the demarcation where I might wish to see it, I would be grateful if she said whether her understanding is that services carried out in the exercise of a public function should also extend to categories under proposed new paragraphs (a), (b) and (c) in my amendment. We are grateful for the Government’s efforts in tackling the problem of the YL case in health care. However, does the Solicitor-General believe that the same should apply by extension in discrimination law? In many instances,  article 14 cases will be brought in relation to the meeting of other rights under the Human Rights Act 1998. It will be useful for equality law to recognise the same reach of the public services obligation as human rights law.

The amendment is purely probing at this point, given that half of its justification is gone. I hope it gives the Government the opportunity to set out their thinking, as it is—I speak as a member of the Joint Committee on Human Rights—a particular interest, or obsession, as some might say, of that Committee, to ensure that public services are covered where they need to be.

I have one question for the Minister, to clarify something, which I hope will save us some time later. I want to check that education and provision of schools are included in the provision of services. Given that clause 27 states:

“A duty to make reasonable adjustments applies to...a service-provider”, will the duty apply to schools? Will the duty in clause 19(5), relating to the need to provide auxiliary aid also apply to schools? I ask that rather convoluted question because there is a concern about schedule 13. An organisation has asked us to table an amendment to that schedule because it says that the requirement for a school to provide auxiliary aid does not currently apply. From reading clauses 19 and 27, it seems that schools would have to do so. If that is the case, we will not need to trouble ourselves with an amendment to schedule 13, which will save us some time later on. I would be most grateful if the Minister could answer my question.

The hon. Member for Oxford, West and Abingdon said this morning that he would not pursue the matter because he thought it was tied up in the earlier discussion about harassment. He has managed to have a debate about an amendment that would add harassment to the Bill, and not at all about public authority and its definition. There is a time in the Bill when we will talk about how we define public authority and public functions, but it is not now. I will deal with the issues when the time is right. It is up to the hon. Gentleman either to withdraw the amendment or press it to a vote.

We have not made the distinction between public and private services in the primary legislation on race relations and sex discrimination. Both are covered in the same way in the Bill.

On schools, I hope that the hon. Member for Forest of Dean finds it a satisfactory answer when I say we need to go to part 6, where education is completely covered. If he does not, I will write to him about the actual point he raises.

I checked part 6, but it did not seem to exclude earlier parts of the Bill. It will be helpful if the Minister can clarify whether clauses 19 and 27 apply to schools. If they do not, and she then writes to us, we can have a discussion when we get to part 6. I wanted to check, because if the clauses do apply to schools, it will be helpful when we are thinking about tabling amendments. I think the Minister may now be in a position to answer.

Clause 26(2) states:

“This Part does not apply to discrimination, harassment or victimisation...that is prohibited by Part 4 (premises), 5 (work) or 6 (education)”.

We need to travel on to part 6 to look at issues around education.

I plead partly guilty to the charges laid down by the Minister. I said that I thought that amendment 232 could have been grouped with the other amendments to clause 24. I think that you and your colleagues, Lady Winterton, chose to group it separately because it raised separate issues, such as the distinction between private and public services—the Minister has made no comment on that—and the definition of a public authority. In respect of the last of those, I am happy to have the debate whenever the Minister feels it is appropriate. I would be grateful if she or one of her team could indicate when she feels it is appropriate for the Opposition to raise that issue. I would like to do that when she wants—I have no desperate desire to do it now or out of order. I understand that point.

I regret the Minister stating that the Government are not making a distinction in the Bill between the provision of services privately and the delivery of services of a public nature. That is something that we shall have to debate when we deal with the exceptions, where I believe that there is cause for that distinction to be made. Although feeling half guilty, I make no apology for raising the point—given that the amendment was separately grouped in order that I could do so—that there ought to be that distinction. At some point we need to cover the definition of a public authority. The question that comes to mind is if not now, when? We shall work to find out when that might be.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28 ordered to stand part of the Bill.