My Lords, I am grateful to the noble Baroness, Lady O’Loan, for her further amendment regarding the public sector equality duty. It is similar, although not identical, to Amendment 13 in the name of the noble Baroness and that of the noble Lord, Lord Singh, which the Committee discussed at length last Wednesday. I certainly do not intend to rehearse all the points that were made then. I undertook, following that debate, to write to the noble Baroness on a number of points that were made in that debate—I think that that suggestion was made by the noble Lord, Lord Deben—and to circulate the letter to all those who took part. I also indicated that if the recipients of that letter wished to follow it up with a meeting, I would more than happy to do so. Certainly, if there are any further points arising out of the contributions to the debate that have been made this evening which require to be covered by that, I shall do so.
The amendment is couched in different terms from Amendment 13 and would have a slightly different effect but, again, the Government believe that it is unnecessary and potentially harmful. As we discussed last week, the public sector equality duty places a duty on public authorities to have due regard to the need to eliminate unlawful discrimination because of, among other matters, religion or belief. Where this is relevant to the exercise of their functions, public authorities are already required to have due regard to the possible impact of their policies on people who believe that marriage should be between only a man and a woman. The amendment is therefore unnecessary.
However, the amendment is also potentially harmful—the noble Baroness, Lady Thornton, was right to say that this is our domestic legislation. The amendment would mean that public authorities would be required to consider this particular belief about marriage, giving precedence to it over all the other beliefs to which they are required to have due regard whenever they take a decision, regardless of the context and the relevance to the decision.
Moreover, the public sector equality duty is a duty to have due regard. It is a duty to think; it is not a duty to act or to achieve a particular outcome. The amendment goes far beyond the duty to have due regard. It places a duty on a public authority to ensure that the belief that marriage should only be between a man and a woman is respected, and to ensure that no one expressing such a belief will suffer any detriment. That is of course a desirable outcome, but it is not clear to me how any single public authority, or indeed all public authorities working together, could ensure that that would happen. I take the point made by the noble Lord, Lord Martin of Springburn. It was in one of our first debates that my noble friend Lord Lester made the point—I think that the noble Lord, Lord Alli, then quoted it back—that you cannot legislate against some public authorities or some individual doing a daft thing; “idiotic” may have been the word that he used. Mention has been made of the case of the housing officer who lost his job for something that was put on a public website, when in fact the law actually protected him. When the case went for judicial review, the judge put it on the record that, had he taken the matter to an employment tribunal, he would have had more substantial damages than he was able to get under a judicial review. The law has worked. I say to the noble Lord, Lord Martin, that I think that we all get very frustrated sometimes when daft things are done, but we believe that the Bill ensures that those protections are in place. I do not believe that the way to deal with those occasions where public authorities have not applied the current laws properly is to start trying to meddle with the equality protections and to risk unintended consequences. Rather, we should address them by doing what we can to ensure that public authorities understand the nature of the requirements on them and what they mean in practice.
That is why, as I explained on Wednesday and as my noble friend Lady Stowell has also explained, the Government will work with the Equality and Human Rights Commission to ensure that its guidance for public authorities is as clear as possible, in particular by making it clear that the equality duty cannot be
used to penalise an organisation or individual for opposing same-sex marriage and indeed that to do so would be unlawful. I also remind the Committee of my commitment given last Wednesday that we will address issues relating to the equality duty when we respond to the Joint Committee on Human Rights before Report.
On behalf of my noble friends Lady Stowell and Lady Northover, I thank noble Lords for the kind words that have been said. I thank all Members of the Committee, because we have had some very important and worthwhile debates. I hope that the noble Baroness, Lady O’Loan, has received the further reassurance on this issue that she has sought. I therefore ask her to withdraw her amendment.