Interpretation and exceptions

Question proposed, That the clause stand part of the Bill.

I note that subsection (4) states:

“A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998.”

I may not have caught up with what is going on, but if that is not an opportunity to probe the question of the definition of

“a function of a public nature for the purposes of the Human Rights Act 1998”,

I do not know what is. It seems to be an open invitation.

I shall not repeat most of what I have already said. Let me give the Committee time to find page 21—the explanatory note does not go into the matter in great detail, but it is a real issue. When is

“a function of a public nature for the purposes of the Human Rights Act” is a question that has tied up our courts, to an extent the Government and certainly the Joint Committee on Human Rights for a long time. There is a solution in respect of health care, which has been recognised and accepted after a great deal of struggle—not least on the part of  the hon. Member for Hendon (Mr. Dismore), who struggled long and hard to find a vehicle to solve that. The matter should be clarified in other areas as well.

For example, there is the question of academies, a delivery of education that their sponsors have argued is not covered by the definition of a public authority, or is differentially covered, depending on what the academies are doing. That is but one example, given the variety of ways in which public services are now delivered—in fact, through private and voluntary organisations in ways that were probably not even considered when the Human Rights Act 1998 was drafted. The issue is substantive and it would be of real benefit for the Government to set out whether they think that where we are with the YL case is where we want to be in equality legislation—at least in so far as they are willing to make the distinction between public and non-public functions in equality law, which I accept is not as great as the number of occasions on which I should like to make that distinction.

I have made my point and I look forward to the response. I hope it will be now, but if elsewhere, I am happy to be directed to another part of the building.

I am sorry, Lady Winterton, if I have been chattering too much.

The clause is interpretative and supplementary to clause 27, setting out meanings of public functions—provision of a service—largely replicating the position under existing law but bringing various diverse points together in one place for ease of reference. We have expressly linked the definition of “public functions” in the Bill to the Human Rights Act to provide, in so far as legislation can, clarity and consistency across the two pieces of legislation. We have also made it clear that the reference to providing a service covers services provided by both public and private organisations. That is important because we do not want to apply different requirements to organisations that are providing essentially the same service, simply because one is publicly funded and the other is not.

We have also used the clause—this does have some relevance—to make clear that the liability is therefore limited to that under part 5, when people are simply arranging for services to be provided by a third party to their employees. They should not then be regarded as a service provider. The employees would be regarded as a section of the public in relation to the third-party provider. The relationship between them and the third-party provider would be governed by this part, but that is not actually central to the point the hon. Member for Oxford, West and Abingdon raised.

Schedule 2 sets out reasonable adjustments and how they apply in relation to providing services and exercising public functions, and schedule 3 sets out exceptions to the prohibitions in the clause. I think at the core of the hon. Gentleman’s concerns are public functions in the Human Rights Act, rather than some of the other bits I have referred to. I can tell the hon. Gentleman that concern is not confined to my hon. Friend the Member for Hendon, nor is there a struggle over the issue. I was on the Joint Committee for Human Rights long before he was and we produced a report trying to probe how best to define public functions. I do not think it is putting it too bluntly to say we were slightly taken  aback by the way the court defined what a public function was, first of all in the case of Heather v. Leonard Cheshire Foundation and again in the case of YL.

Public functions are not specifically defined in the act, which instead speaks of functions of a public nature. Things that would be considered to be public are law enforcement, immigration and local authority revenue raising and collections. Public authorities provide public services such as leisure and day care centres, as well as carrying out non-service public functions such as law enforcement and revenue collection. If the activity falls into the category of providing a service to the public it will be covered by the provisions making it unlawful to discriminate in the provision of goods, facilities and services. If the activity is not caught under those provisions, it will be captured by the public functions provisions. What is important is that all the activities of public authorities are subject to the prohibition on discrimination unless there is a specific exception. That is helpful as I can be.

Dr. Harrisrose—

The hon. Gentleman is probably going to ask me a question I was just about to answer, but please carry on.

I would be pleased if I did because I accept that I am sometimes wide of the mark.

In the list the Solicitor-General gave, I am particularly interested in the provision of welfare services for vulnerable people such as the poor, hungry and homeless. Would they be covered even if they were delivered by a private or voluntary organisation, or as part of welfare services but funded privately through charity as part of a public authority’s organisation, in which case, a safety net would apply and the Government would say “no it is okay, that exists to look after them”? Although the hon. and learned Lady may not always wish to make the same distinction as I do, if certain organisations are delivering those services there is a greater need to protect vulnerable service users than when purely commercial services are provided to paying customers who have more of a choice. That is the area I am seeking to probe.

Of course, we do not have control over the courts. However, we are of the opinion that private bodies exercising functions of a public nature that are not covered by the service provisions will be subject to the public function provision set out in the Bill. An example would be Group 4 running a prison; it is carrying out a function of a public nature that is not considered to constitute the provision of a service. Accordingly, under the Bill, that activity would be subject to the requirements of non-discrimination in the exercise of a public function which is not a service. That is the broad definition and I hope it is helpful. It is better than it might be.

I know we should not have this debate now. However, it may help the Minister know my concern: what if a prison service was being run by a religious organisation? There is no injunction, and there is a big exception in schedule 23 for a religious organisation to  harass through unwanted proselytisation. I accept that it is not their intention to harass; I do not want to be misunderstood—I am using the term in its legal sense. A religious organisation might want to provide that welfare service only to people of its own religion so, because of the entitlement to discriminate, the issue does bite.

I do not expect the hon. and learned Lady to deal with such matters now because we can deal with them under schedule 23. However, I want her to acknowledge that without the distinction carried through to schedule 23 about what is a service in the exercise of a public function—about which we are in agreement—there will be the worry that vulnerable people, captive people or those who rely on a service may suffer because of the nature of the organisation that is delivering it. We must bear it in mind that that is not in the control of Parliament at any given stage. It is a point for later, but I wanted to flag it up now.

On the hon. Gentleman’s specific point, I wish to make it clear that welfare provision is considered to be a service. The same protection applies whether the service is provided by a public or a private organisation, but the public body that commissions the service will have to ensure that it is provided to all. That is by way of an addendum. I am sure that we shall examine the relationship between public bodies and contracted-out services later. I hope that the hon. Gentleman is satisfied that it is wider than he probably thought that it was. That being the case, I propose that clause stands part of the Bill.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.