Armed Forces (Prevention of Discrimination) Bill
Debate between Thomas Docherty and Rory Stewart(10 years, 10 months ago)
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Thomas Docherty
If the hon. Gentleman looks, for example, at clause 1(a), (b), (c) and indeed (d), “service person” is mentioned repeatedly. I want to make a bit of progress because otherwise there is a danger that we could be perceived as trying to slow the progress of this important Bill.
We all saw with horror the events that took place in summer last year in Woolwich, and I am sure the whole House was in a state of revulsion at what happened. That is an extreme example, but later in the summer there was a lot of media interest in the Bill, and the BBC made a series of case studies as part of a day covering the issue of discrimination against the armed forces. The number of anecdotal examples that service personnel had suffered—although not on that same extreme level—was astonishing.
Rory Stewart (Penrith and The Border) (Con)
There seems to be a potential distinction between what happened in Woolwich, which was clearly an act of murder and terrorism that was prosecuted under existing legislation, and discrimination legislation. It seems slightly dangerous to muddle criminal justice legislation and discrimination legislation. Will the hon. Gentleman please clarify what the link is between Woolwich and the legislation he is proposing?
Thomas Docherty
The hon. Gentleman leads me on to the point that I was about to make. I have mentioned physical assault already, but clause 2 would extend the prohibition on discrimination to what are colloquially called “trade and sales” issues. For example, a pub, restaurant or shop cannot refuse to serve a member of the armed forces simply because they are a member of the armed forces. Again, this is not about whether it is possible for lawyers to make a case on motivation, because the clause would amend an existing Act, on which very smart lawyers have already built cases successfully. This is a debate about whether the principle should be extended.
The work by Lord Ashcroft, carried out with Ministry of Defence support, reported the problem, but I also have two specific examples that happened relatively recently. The first was in Edinburgh, so not far from my constituency. The warship HMS Edinburgh was in dock in Leith to receive the freedom of the city in a civic ceremony at the city chambers. At the end of the ceremony, a group of crew members, in their dress uniforms, visited a pub called the Ensign Ewart. I do not know whether you are familiar with that pub from your visits to Edinburgh, Madam Deputy Speaker—[Interruption.] I can assure the House that it is a delightful watering hole and the type of place that Madam Deputy Speaker might visit during her frequent visits to Scotland.
The group of young sailors, in their dress uniforms, visited that pub in the middle of the day having just received the freedom of the city. The irony that the pub is named after one of the heroes of the Napoleonic conflicts is not lost on me, and I am sure that the House can guess what happened next: the landlord refused to serve them because they were members of the Royal Navy. The city council and most people in Edinburgh were indignant. The Edinburgh Evening News, the local daily newspaper, ran a huge campaign saying it was absolutely ridiculous and an embarrassment to Scottish hospitality, which I know the hon. Member for North East Somerset (Jacob Rees-Mogg) enjoyed a few years ago in central Fife. That is one good example of the ridiculousness of the situation.
Thomas Docherty
The hon. Gentleman appears agitated. I think he is trying to get my attention. Of course, I will give way.
Rory Stewart
What grounds did the publican give for this act of discrimination?
Thomas Docherty
That is exactly the point I am coming to. The landlord said that the sailors were in uniform and therefore likely to cause trouble. I think the House will agree that that is absolutely absurd. Our young men and women serving in the Royal Navy, wearing dress uniform, in the middle of the day, when entirely sober, are not likely to cause trouble. The House will think that an absurd and ludicrous argument, and it goes to some of the prejudices regrettably still facing members of our armed forces.
On this point, the previous Chief of the Defence Staff, Sir David Richards, made some valid points a couple of years ago. He said that our country was undergoing a cultural change and that the perception of our armed forces was changing. I am sure that a few years ago there was the perception that groups of young squaddies or officers were likely to cause trouble. The service chiefs and the chain of command have worked phenomenally hard— [Laughter.] The Minister seems to be chuntering something about this being ridiculous. If she wants to explain what she thinks is ridiculous about the debate, I would be happy to give way. I think this has been a good and thoughtful debate and I regret that she is not approaching it in the manner—
Thomas Docherty
I will give way one last time, but then I want to wrap this up, because this is an important debate and I do not want it to appear that there is filibustering by either side.
Rory Stewart
Given that this example from Edinburgh is clearly absolutely central to the hon. Gentleman’s argument, it would be good, in terms of the policy implications and what the House can do to support the armed forces, to try and understand what exactly is going on and to get a bit deeper into this question. On the surface, it looks a bit bizarre. Here is a publican clearly keen to make some money and who normally would take people in. What exactly is the nature of the prejudice? He said they were in uniform, but can we get a bit deeper into this? What is it that makes a publican turn down sober people in uniform in the middle of the day? Unless we understand that, it will be difficult to come up with a policy solution.
Thomas Docherty
I shall explain very clearly. The publican’s argument is that these personnel will cause trouble, which is an absurd argument to put forward. I am sure that the Minister and I will agree that there is no reason to expect that men and women who are proud to be wearing their uniform at a civic event will cause trouble. The Bill is narrowly drawn—I am grateful to the redoubtable Kate Emms for her assistance, as ever, in drafting it—and very clear: it would amend existing legislation. Under the Equality Act 2010, a publican can still turn down somebody if they are drunk or if they have a genuine reason to believe they are likely to cause disruption. I stress, again, that this is not a debate about whether there should be exemptions under the 2010 Act, but whether those exemptions should be extended to cover members of the armed forces.
Rory Stewart (Penrith and The Border) (Con)
I congratulate the hon. Member for Dunfermline and West Fife (Thomas Docherty) on introducing a Bill that obviously reflects a deep intuition, a deep sense of respect for the military, and a deep desire to show the public admiration for the military for the service they provide and the sacrifices they make. So I begin by acknowledging that the Bill has been introduced with the best of intentions and to reflect that public respect.
I also want to say that discrimination legislation can, in the right place and at the right time, make a very useful contribution to society. It can be difficult, is often controversial, and has been a huge problem over the last 50 or 60 years, but, in the right place and at the right time, discrimination legislation can be hugely important. However, what I hope briefly to say is that unfortunately I do not believe, notwithstanding the hon. Gentleman’s good intentions and the importance of showing respect for the military, that discrimination legislation is the correct way of addressing this problem.
There are three reasons why: the first is to do with the inherent nature of discrimination legislation; the second is to do with the other forms of policy measures we can take to support the military and veterans without having to invoke discrimination legislation; and the third is the more complex and deeper issue of the kinds of values and attitudes that would be encouraged by introducing discrimination legislation, in particular the fact that it would begin to portray soldiers and veterans in the guise of victims, which would be very dangerous for our public policy relationship with the military in general.
There are four major issues around discrimination legislation that need to be addressed, notwithstanding the fact that discrimination legislation has been useful. The first of them is the complexity of discrimination legislation. It is extremely difficult and complex to operate. We get in trouble with it all the time in the courts on any number of issues. The second is the problem of futility: the number of cases in which discrimination legislation actually turns out to be futile because it does not address the problem concerned. The third is the problem of perversity: the way in which discrimination legislation of the wrong sort can in fact have a negative impact on a whole series of elements in society. The fourth is what I call the problem of jeopardy: the way in which discrimination legislation can in fact rebound on the very group it is attempting to protect and actually increase prejudice.
This is not an argument against discrimination legislation in general. It is simply an argument that it should be done only in the most specialised and careful circumstances. Discrimination legislation in general, although controversial, has been hugely successful. Probably one of the greatest contributions our society has made—one of the things I hope we will be remembered for in the future—is the introduction of legislation protecting people on the grounds of race, gender, disability and age. We must remember that that is not a small thing. There was a time in this country when it was legal for a landlady of a bed and breakfast to put up a sign saying, “No blacks admitted”; when women in this country could be paid three-quarters of the amount that men were paid; and when so-called public bars could exclude people on the basis of their gender or race and were not open to them.
As Lord Hoffmann said in justifying discrimination legislation, the basic idea that similar cases should be treated in a similar fashion and that different cases should be treated differently is a basic axiom of rationality. It is based on two fundamental principles: the fundamental principle of equality, which is the idea that people should be treated as ends and not means to ends; and the fundamental principle of rationality, which is that only relevant characteristics should decide how somebody is treated. However, the problem is that although we have made huge progress in those areas, legislation is a last resort. It is an incredibly complex and frequently counter-productive form of law to introduce, so much so that it should be limited to cases only where there is such a deep-seated prejudice extended over so many centuries that there is no alternative measure open to us. If we were to introduce such legislation in relation to the armed forces, we would have to go through a legal nightmare over the succeeding decades in trying to work our way through such cases.
Broadly speaking, discrimination legislation—I am not a lawyer—is based on five grounds. We need to determine the ambit of the legislation; the prescribed ground of the legislation; that unequal treatment has taken place; an analogous situation; and exactly what the justification is. The hon. Member for Dunfermline and West Fife will point out that, in relation to the armed forces, at least three of those measures are relatively straightforward, including the ambit of the definition in the case of the armed forces. In other words, is this discrimination in employment or in private life? The prescribed grounds in this case could be, although this will be more difficult to define, in relation to gender or disability, and they involve a relatively straightforward determination of what somebody’s gender is or what their ethnic background is. He could argue that it should be reasonably straightforward to determine whether or not someone is a member of the armed forces or has served in the armed forces. Unequal treatment requires the definition that this individual who comes from these particular prescribed grounds and operates in this particular ambit has been treated unlike someone else would have been treated in—and this is the fourth condition—an analogous situation and, fifthly, that that is unjustified.
We can all see again and again—we only have to open a copy of any newspaper—that hard cases and bad law have led to a situation in which discrimination legislation appears to go in the face of what has been normal practice. Hard cases will emerge again and again, and we have seen it. We can see it in things that everybody will have discussed in this House over the years. I am talking about, for example, whether or not it is possible for a Church of England school or a Jewish school to discriminate on the basis of religion; for a single-sex school to discriminate on the basis of gender; or for the police or the immigration authorities to discriminate on the basis of Roma ethnicity—that was a Supreme Court judgment. If we were to define the armed forces as one of those categories, a whole series of cases would begin to emerge in case law in which anybody who served in the armed forces or was a veteran of the armed forces would begin to be able to claim discrimination in everything from education through to employment. Importantly, it would not be possible simply to limit discrimination legislation—we would be struck down in Strasbourg—to admission to a public house.
Thomas Docherty
I am very clear that the legislation applies not just to public houses, but to any commercially procured service. The hon. Gentleman seems to suggest that the Criminal Justice Act 2003 and the Equality Act 2010 are flawed. Will he be clear that what he is referring to is not the principle of discrimination law? As I understand it, his problem is that he does not think that those laws should be extended to our armed forces. Is that his central argument?
Rory Stewart
My central argument is that a general protection exists for all citizens. The general principle that we do not create special categories of citizens is central to our notion of equality. We should only create special categories of citizens in the most extreme hard cases. My argument, to get to the nub of it, is that there have been over the centuries such extreme examples of sexism, chauvinism and discrimination on the basis of disability that despite the general principle of equality, and despite our general objection to special treatment, there are certain categories where that difficult decision has been correctly made, landing us in a nightmare of complexity but done for the public good. Including an individual’s occupation among the prescribed grounds for discrimination would be a very serious error and would open the floodgates to huge complexity.
Thomas Docherty
The hon. Gentleman must have heard my opening remarks, in which I said that the statistics from the noble Lord Ashcroft, produced with the support of the Ministry of Defence in the largest ever study of attitudes to and within the three services, show that one in five members of the armed forces has been refused service and one in four has been the victim of physical or verbal assault. If the hon. Gentleman can point out to me another example of a type of employment where that goes on, I want to hear it. Otherwise, I fear that he is not making a coherent argument.
Rory Stewart
With respect to the hon. Gentleman, that is not exactly the point I am making. I do not deny that members of the armed forces can be treated unfairly, nor do I deny that because they are going somewhere in uniform they are likely to be identified as a special category and treated unfairly as such. My argument is based not on the notion that there are no examples of unfair treatment but on the general assumption that expanding discrimination legislation is a very dangerous thing for this House to do. It is not simply that as a Conservative I feel that we already produce too much legislation and that we feel the effects of excessive legislation, but that extending discrimination legislation, in particular, should be done only in the most extreme situations.
Rory Stewart
A whole body of case law exists exactly to resolve such issues of discrimination of any sort that we have not to date felt a need to resolve. Discrimination can already happen in the United Kingdom against people who are not in protected categories. It is possible, for example, to take legal redress as a white male former member of the armed forces. My hon. Friend himself would be able to seek legal redress in many situations in which he felt that he had been unfairly treated. The particular question of the rights of publicans to admit or not admit people into their establishments is another area of case law.
This is a question for the Edinburgh courts; it is not for me to determine what the publican did. My sense, as regards the publican’s right to do what he did, is that in this case the publican’s argument was not the argument that the hon. Member for Dunfermline and West Fife has suggested; the publican’s argument was not that he believed that the people in uniform were going to cause trouble, but that he had had a lot of experience of the other people in the pub causing trouble and attacking people in uniform when they came in. In other words, he believed that it was an exacerbating factor and he was in no way criticising the people in uniform. He was trying to protect against violence breaking out in his pub on the basis of experience of that happening in the past. Unless the hon. Gentleman has a deep understanding of exactly how much violence has happened in that pub and why the publican, who would have an interest in trying to generate income from alcohol sales, excluded those people, it would be difficult to judge in this case.
Thomas Docherty
I lived in Edinburgh for years, and I know this pub particularly well. I am not sure that the hon. Gentleman was in the Chamber for the start of my speech because, as I said, I know this pub; it is a nice pub in a nice area. It is not a rough pub, but a normal pub. The hon. Gentleman must have missed the start of my speech because the point he is making has been covered.
Rory Stewart
The hon. Gentleman is very kind to suggest that I missed the start of his speech; I did not. I was here for the entirety of his eloquent speech.
To be honest, I do not think we should get dragged down into discussing this particular pub; this issue is a bit of a rabbit hole, and I would like to close it down. But there still seems to be a bit of an issue. On the one hand, the hon. Gentleman is presenting the pub as a wonderful pub that has absolutely no problems at all; on the other, we have the slightly imponderable question of why the publican, who presumably wishes to generate income from his pub, did not allow these people in. It seems that there is an issue that the hon. Gentleman needs to address about the pub.
However, that is not my point. My point is a bigger one about the kinds of things for which we introduce discrimination legislation. Hard cases make bad law. It would be unfortunate if what happened in a single pub in Edinburgh, or indeed many scores of times up and down this country, were to lead to the introduction of something almost unprecedented: to add, suddenly and out of nowhere, an entirely new category based on occupation to the broad categories of inherited characteristics—gender, race, sexuality, age and disability. That could be the beginning of something that all of us in the House would regret.
Why do I feel that? It is not only because of the complexity of the legislation that would be introduced, which I have touched on, but because of three additional points: futility in legislation; jeopardy in legislation; and counter-productive legislation.
When I talk about futility in legislation, particularly in relation to discrimination, I mean whether introducing this form of discrimination legislation would address the basic problem. Criticisms have been made of all discrimination legislation during the last 40 years; it has frequently been said that the law may not be the best way to address deep-seated cultural prejudices or inherited attitudes.
I will be concrete. Addressing discrimination against the armed forces should be attempted in the first place through policy, by ensuring that the correct social attitudes are promoted in schools and through how Government and public policy makers talk about the armed forces, so that we address exactly what the prejudices are. If there is an existing prejudice that members of the armed forces have certain characteristics, it is incumbent on the many armed forces charities—wealthy and well-supported charities, which enjoy a huge groundswell of positive public opinion—and the Ministry of Defence, as well as the regimental associations, to try to establish what those prejudices are and to address them.
My second point is about jeopardy. Introducing new discrimination legislation imposes a huge element of cost. That cost was justified in relation to gender, race, disability, sexuality and age. Perhaps the hon. Gentleman would like to consider the costs of legislation to deal with employment discrimination. He would need to reflect on the exact implications for a small or medium-sized business that employed somebody from the armed services, and for the human resources department of a company that did the same.
The hon. Gentleman will find—this is central to my argument—that in Strasbourg and at the Supreme Court the attempt to create a special category of occupation that is determined as an object of discrimination in relation to, for example, public houses and bed and breakfasts, cannot stop there. It will be extended immediately to employment law.
Rory Stewart
If the hon. Gentleman wishes to intervene on that point, I would like to hear why he believes that such legislation would not eventually be extended to employment law, once the basic philosophical argument on discrimination had been accepted.
Thomas Docherty
I know, Madam Deputy Speaker, that you will shortly rule that there is a danger that the hon. Gentleman and I are going out of order. However, I will respond specifically to his last point—we covered that issue in the Defence Reform Bill in this Session, and amendments about it were rejected. We cannot have similar amendments in the same Session. Also, the one thing does not logically follow the other in the way that he suggested.
Having said that, I know that if I continue to debate this issue, Madam Deputy Speaker, you will rule both the hon. Gentleman and me out of order very soon.
Madam Deputy Speaker (Mrs Eleanor Laing)
On the contrary, both hon. Gentlemen are in order as they deal with this narrow Bill in, if I may say so, an intellectual way that the House appreciates.
Rory Stewart
Thank you, Madam Deputy Speaker.
Let me expand on this a little for the hon. Gentleman. This is a question of proscribed grounds for discrimination, which is one of the five aspects of discrimination legislation that I set out. One needs to ask what the proscribed ground for discrimination is, and the Bill would add to gender, sexuality and disability the ground of occupation in the military. If the law accepts philosophically that there is an additional category in the proscribed grounds for discrimination, it would not be possible—no judge would consider this possible—to limit that simply to the provision of hospitality and not extend it to employment law, because the precedent of a proscribed ground of occupation would have been created.
Thomas Docherty
As I said, many of these arguments were covered during our consideration of the Defence Reform Bill, when I think that the Minister was a member of the Defence team. That Bill includes measures on employment discrimination, but things have not gone the other way. The Ministry of Defence is confident that the Bill’s measures on anti-reservist discrimination will not roll on in the way the hon. Gentleman describes. Additionally, the Scottish Parliament is working on measures regarding the assault of NHS employees, but it is confident that they will not fall foul of the Strasbourg Court. The hon. Gentleman’s argument does not hold up because there is precedent in the United Kingdom of cases on which the European Court has not required that a provision covers everything.
Rory Stewart
With respect, I disagree with the hon. Gentleman. We might not have time to explore this fully, but I shall try to make myself clearer.
There is a basic problem in making a new extension to discrimination legislation. All the grounds in that legislation are extremely complex. It has been difficult to operate the legislation over the past 50 years, but doing so has been absolutely necessary because of centuries of prejudice and abuse against women and racial groups. The sort of stuff that happened was so horrifying that the House felt that it had no alternative but to introduce an extremely difficult and clumsy form of law that has produced a whole series of consequences—often futile or perverse, and even counter-productive, in that prejudice increased against the group that we were attempting to protect.
Thomas Docherty
I promise that this will be my last intervention on the hon. Gentleman. He talks about gender, but there are still men-only golf clubs today—I know that the Minister and I are both appalled by that—despite years of anti-discrimination legislation covering one or both genders. His argument breaks down because some extensions of protection have not led to intended or unintended consequences.
Rory Stewart
The hon. Gentleman is producing an argument against his Bill because he seems to be saying that there are examples of legislation that was futile. Does not his example of the golf club suggest that, despite the existence of legislation, there was a minimal impact on the group to be protected?
Thomas Docherty
There is a danger that we will run out of time, but the Equality Act 2010 was not designed to apply to golf clubs, and there has been no successful challenge in the European Court to get it extended to golf clubs. The Scottish Parliament is working on measures to deal with assaults on emergency workers, but that will not roll on to cover trade and sales. One cannot say that these things will automatically go forward. I am sure that clever lawyers such as the Minister could find creative ways of making their case about that, but so far the courts have not extended such legislation.
Rory Stewart
I thank the hon. Gentleman for that. May I perhaps make a little progress? Some of what the hon. Gentleman wishes to achieve could be achieved without discrimination legislation. Without getting into all the arguments on the appropriate ambit of legislation, unequal treatment, analogous circumstances, justification and prescribed categories, many other things could be done to achieve the same objectives. Importantly for the House, there is a fundamental distinction between what can be addressed through discrimination law and what can be addressed through sensitivity to context and culture. Saying that we do not wish to create a special category of soldiers or veterans who are treated differently from other citizens is not the same as saying that the House cannot come up with any policies that might provide more support for soldiers and veterans, that acknowledge the obligations that we owe them and the unique service they have performed, and that find concrete ways to help them.
I shall give an example that might interest the hon. Gentleman. Without introducing discrimination legislation, it is possible—the hon. Member for Barnsley Central (Dan Jarvis), the shadow justice spokesman, has proposed this—to consider ways of working with military personnel and veterans in the criminal justice system without defining a proscribed category of discrimination. It might involve, for example, ensuring that a police officer is aware that someone they have arrested has served in the armed forces, not so that the police officer could give them lax or special treatment, or because they should somehow be immune from prosecution, but because awareness of their context or background could lead to more constructive engagement between them and the police officer. The same could be true in the prison system, with military mentors working with prisoners with a military background, so that they may be able to develop a more constructive rehabilitation programme. If the probation service paired ex-military probation officers with ex-military released prisoners, that might radically reduce the chance of reoffending. For example, in Buffalo, New York, where such a system has been applied, reoffending rates among veterans and soldiers have dropped to 0%, and across the United States the rate has dropped to 20%. That is not discrimination legislation or special treatment; it is an understanding of the context.
I appear to be losing the attention of the hon. Member for Dunfermline and West Fife so I will move on to the final stage of my speech. We need to be careful about discrimination legislation for a third, more difficult reason, which is that—I appeal to my hon. Friend the Minister here—we should not begin to have an unrealistic attitude to our relationship with the armed forces. We must balance carefully showing respect for people’s sacrifice and service with realism. We cannot begin to create a sentimental context in which, through special treatment, by which I mean treatment that is not justified on the basis of people’s service or sacrifice, it is not possible for us to engage realistically with the military. What do I mean by that? This is important: the danger of this discrimination legislation, apart from the problems of complexity, futility and jeopardy, and apart from the fact that we have alternative policy solutions, is that it reflects a cultural attitude that, though understandable and admirable, is sometimes in danger of portraying soldiers and veterans as victims.
In other words, there is a danger of sentimentalising soldiers and believing that they need to be treated with kid gloves. More dangerous—this is particularly relevant in relation to how we deal with policy in Afghanistan and Iraq—is the idea that we should not criticise the armed forces and that they need such special treatment as to affect the job of this House, which is often to hold soldiers and generals vigorously and aggressively to account, to disagree with the policies that they propose, and sometimes to make an even more difficult decision to withdraw soldiers from combat notwithstanding the fact that there will be a huge public outcry demanding to know whether soldiers have died in vain. Putting forward soldiers as victims and talking about their sufferings can become very dangerous for the soldiers themselves and for the public policy process.
What we need, and what I am afraid this Bill goes against, is a realistic, respectful attitude towards the armed forces—not an attitude that treats them with kid gloves or suggests that they are suffering the form of discrimination from which minority ethnic groups, disabled groups and women in this country have suffered, but one that recognises their sacrifice and recognises that it can often be difficult to be a soldier or a veteran. It is an attitude that puts in place concrete, plausible policies—for example, in the criminal justice system—to help soldiers and veterans as they reintegrate into society; shows, through the forces charities, memorial days, poppy collections, the media, documentaries and the things that are said in this House, our immense admiration for the armed forces; and continues to improve this country’s cultural attitudes towards the armed forces, which, incidentally, have never been so positive. This is not the Victorian era when soldiers were treated with contempt; instead, the armed forces, as shown in every opinion poll, now constitute one of the single most respected and admired ingredients of our society, as they should be.
Introducing this legislation is exactly the wrong thing to do. It would prove to be a nightmare for us, opening the door to the introduction of other special occupational categories and involving us in complexity, futility, perversity and jeopardy. I worry that it reflects a sentimentalising of soldiers that also uses them as a means to a political end, and that it is an attempt to portray them as victims when they are in fact autonomous, independent, confident individuals capable of holding their own with anyone else in society. If they require special treatment from this House, it is not through anti-discrimination legislation but concrete, small, focused measures that can easily be introduced by the Ministry of Defence and the Ministry of Justice to the benefit of the public as a whole.