Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I beg to move amendment No. 120, in clause 51, page 32, line 30, leave out paragraph (f).

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment No. 121, in clause 51, page 32, line 48, leave out paragraph (g).

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I welcome you back to the Chair, Mr. Gale. We have indeed made a lot of progress, and I am sure that we can make much more this afternoon.

The amendments deal with subsection (4)(f) and (g) on immigration rules and entry clearance. Although to stimulate debate I have proposed to leave out both paragraphs, I have different views about each. Paragraph (g) is utterly logical. We know that we have to admit people specifically to fulfil religious duties in Britain. That is an area of exception that has long existed. Judgments are bound to be made in respect of criteria pertaining to religion.

However, paragraph (f) is a little more vague, and I would be grateful if the Minister explained why it is thought necessary to make the prohibition of discrimination on the grounds of religion apply to the immigration rules. One can of course think of occasions when one might wish to exclude somebody on the basis of their religion, but that will be not because of the religion itself but because of their behaviour. I wonder whether it is necessary for paragraph (f) to be phrased in such stark terms. Rather, could it not be restricted further? I wait to hear from the Minister about the Government's reasoning on that.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

Again, we are grateful to the hon. Gentleman for tabling these amendments so that we can have focused discussion on this part of the Bill. The clause represents a narrowing of the original terms of the Bill. That was achieved, with or without the Government's agreement at first sight, in the House of Lords. In respect of paragraph (g), I would make the same comments as the hon. Gentleman has just made.

However, there is a problem with paragraph (f). In human rights terms, the Government might be able to cite in any event an objective justification for taking action to deny someone the right to be here. That may well engage issues to do with the enjoyment of their private life which is effectively indirectly due to their religion. However, that would be subject to an objective justification.  

In respect of the discrimination measures, the Government must have some form of exemption, in case the concern is about not only the behaviour, but the presence in the UK. The test is not about behaviour in respect of the public good. It is that the exclusion or refusal of entry clearance would be conducive to the public good.

It would be interesting to note to what extent the experiences of Reverend Moon required that sort of provision. I imagine that he was excluded not directly on the basis of his religion, but on the basis of something quite closely connected to it. Although the Government suffered a reversal in the courts, perhaps on a technicality, that example prompts questions about whether it would be fair for the Home Secretary to use such powers of exclusion and removal against people on the basis of religion, when, from that religion's point of view, that is done simply because its adherents are not understood or because its religious opponents—religions do have opponents—are besmirching them. Clearly, there is an appeal right, but it would be useful to hear from the Government how often it is anticipated this sort of exception would be engaged under the statute.

Both the relevant paragraphs include, in brackets, the words

''but this exception does not have effect in relation to harassment'',

and I am not sure whether those were deliberately left in, following the removal of harassment from the provisions, whether it is intended to tidy things up, or whether it is reasonable to keep the wording in any event. It might well be, but I should be grateful for clarification.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

A warm welcome to you, Mr. Gale. Perhaps I should deal first with subsection (4)(g), because that seems to have struck a chord with the Committee and the hon. Member for Beaconsfield (Mr. Grieve) described it as utterly logical. Of course, the immigration service makes special arrangements for the admission to the United Kingdom of people, such as ministers of religion with particular religious functions, to assist religious communities that need access to such people. We need to be able to admit those people without acting unlawfully. I am pleased at the response of hon. Members of all parties.

Subsection (4)(f) would allow the immigration service to take entry decisions on the ground of public good where a person's religion or beliefs might be a part of the ground for the decision. In each and every case the decision would be an individual one about a specific applicant. There are, clearly, people whose religious views are so extreme that we would not want them to visit the United Kingdom to propagate them. The hon. Member for Oxford, West and Abingdon (Dr. Harris) mentioned the Reverend Moon. His exclusion was on the ground of public order. However, there may be individuals who apply to come to this country and who hold a particular religious belief—for example, that children should renounce their parents—that we find wholly   unacceptable, and do not want people to propagate in our communities.

It is difficult to distinguish between holding that religious belief and giving effect to it. Clearly, in making a decision about an individual, the immigration service will want to take account of not just the person's religious belief but its potential impact on vulnerable young people. An exemption to allow the immigration service to act in that way seems fair. The threat that is posed may not be of the scale that we discussed in earlier deliberations, such as terrorism or other wider threats, but the protection of, particularly, the most vulnerable people in the community is important. The immigration service should have a mind to that when making decisions about individuals.

I hope that the hon. Member for Beaconsfield will accept that those are reasonable grounds on which to provide an exemption. If so, he may consider withdrawing his amendment.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

The Minister makes a persuasive case. I hope that he will excuse my saying that it highlights a slight oddity that underlies the measure. I suspect that I shall, at the end of the day, be comfortable with it, but I think that the Committee should bear that in mind. We consider it acceptable for the state to lay down criteria by which it can deny access to the country to individuals whose views it considers not conducive to the public good. However, under the Bill we would deny individuals in Britain the right not to provide goods and services to people about whom they might hold exactly the same view.

I can make a distinction between those two concepts, but we should do well to have the issue in mind in Committee, because that is the reality of what we are doing. There is an argument, which was raised in another place, that we may be going too far—I now come back to my views about beliefs, which I raised with the Minister earlier—in extending the mantle of acceptability to other people's views, and that in doing so we may put an unwarranted burden on individuals. I have a residual anxiety about that.

There is, however, logic in the Minister's position as to why he wants to refuse entry to the relevant people. Of course, that is open to challenge in the courts, and I dare say that it will be challenged. One of the probable grounds on which it will be challenged is the European convention on human rights freedom to practise a religion.

I have no doubt that this area of the legislation is likely to be tested. I can well imagine that some individuals who are kept out—for good reasons, in my view—will say, ''The only basis on which you are keeping me out is my religious views, and that is discriminatory.'' It will then be for the Government's lawyers to argue that they are entitled to do so. In such circumstances, they may fall back on the argument that public order issues relating to such people warrant their exclusion. That is why I initially touched on whether we should focus on the public order element.

I genuinely hope that subsection (4)(f) stands the test of being challenged in the courts. In view of what the Government are setting up in the rest of the Bill, I   suspect that it will come to be challenged, but that is not to say that I think that the Government are wrong.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

Surely that is the way for decisions not to be challenged on the ground of discrimination. I am not a lawyer or draftsman, but it seems to provide a specific exemption. There is a debate to be had about whether the human rights of someone outside the country in respect of exclusion can be heard by the European Court of Human Rights. Indeed, that was one of the issues in the Moon case and the court found that they were not. I would have thought that the provision dealt with the question of whether there has been unlawful discrimination—because it will not be unlawful.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I do not share the hon. Gentleman's confidence. I would love to see the advice that the Government received, but I appreciate that I shall not. He advances a good argument, and it is possible that the Government will be successful, but I feel that they will be successful only if they are able to show that a public order issue warrants the discrimination that subsection (4)(f) allows them to practise.

Having conceded the principle of non-discrimination enshrined in the Bill, the Government may find themselves on more difficult ground in arguing to keep people out whose presence they think is not conducive to the public good. That is not to say that they will not succeed, but there are perfectly clear grounds on which an applicant could frame an argument. He could say, ''You are discriminating against me for coming into the United Kingdom and the only basis of that discrimination is in relation to religion.'' In view of the evolving nature of the law in that area, such an application might succeed. I hope that that does not happen, because I can think of a large number of people who ought to be kept out of the country whose views are particularly pernicious. I exaggerate when I say a large number, but I can certainly think of a few.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I do not want to drag out the debate, but the Government have made it clear that the basis upon which they will decide whether to exclude or remove people because their presence is not conducive to the public good is not only public order or good relations with other countries; they will also consider the list of unacceptable behaviour consulted on and finalised in the summer. On Monday, however, that list was criticised by the Joint Committee on Human Rights, especially in respect of the provision whereby someone who is judged not to have glorified or encouraged terrorism but merely justified it could be removed or excluded. I bow to the hon. Gentleman's greater knowledge, but I think the action will be there rather than in the area of discrimination.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

The hon. Gentleman may be right, but my experience is that those who challenge Government decisions tend to load their shotgun with as many pellets as possible. It is highly likely that one of the pellets will be about the contrast between the requirement of a public authority not to discriminate and the exception in subsection (4)(f). It could be argued that although Parliament has expressly provided that exception, clause 51 generally prohibits discrimination in the widest possible terms. I am sure   that the hon. Gentleman can see the incompatibility between those two provisions. Somebody will then argue that we should consult the European convention on human rights, and that the provision is not ECHR-compliant. That is what I apprehend may happen.

One's position is arguably weakened by the fact that the general prohibition has been spelt out so clearly and that that contrast has been included. The Government will argue that the measure is reasonable and proportionate—the classic words used in such cases. We should have in mind that the provision is a major exception, when subsection (4)(g) seems innocuous and exceptions can be allowed. I say to the Minister genuinely that I wish the Government well with the provision. I wait with interest to see what happens, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 16, in clause 51, page 32, leave out line 47.

No. 17, in clause 51, page 33, leave out line 11.

No. 18, in clause 51, page 33, leave out line 14.

No. 19, in clause 51, page 33, line 17, leave out

'(but this exception does not have effect in relation to harassment)'.—[Paul Goggins.]

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I beg to move amendment No. 138, in clause 51, page 33, line 41, at end insert—

'(n) action in relation to—

(i) acts of worship or other religious observance organised by, or on behalf of, any public authority,

(ii) the maintenance of places of worship or of any chattels, furnishing or equipment for religious worship or instruction on behalf of any public authority, or

(iii) the payment of any person for the purpose of facilitating acts of religious worship.'.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss new clause 13—Protection of Christian heritage—

'Nothing in this part shall require

(a) the removal of any copy of the Bible,

(b) the removal of any cross or other Christian symbol,

(c) the removal of any Communion table,

(d) the ending of Christian prayers,

(e) any restriction on the celebrations of Christmas, Easter or any Christian festival,

(f) the withdrawal of funding from a Christian organisation,

(g) a religious organisation in receipt of funding to change or cease any practice relating to its religion or belief as a condition of the funding.'.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

We now come to one of the Bill's more important issues that we must consider. The matter has certainly given rise to much anxiety. It may be possible for the Minister to allay that anxiety during the sitting; it may be, of course, that some members of the Committee will consider that there is no anxiety to be allayed, and that they shall want to take the thrust of clause 51 to its logical conclusion, which is, effectively, the secularisation of public authorities.  

The amendment and the new clause try to provide a foundation for a debate about the issue. I shall try to explain the concern. New clause 13 is substantially lifted from an amendment proposed by the Christian Institute. It is concerned that applied to a public authority, clause 51 would involve a public authority removing any connection it might have with the Christian religion. Amendment No. 138 seeks to address that anxiety by providing for a specific exception towards the end of the clause, after subsection (4)(m).

Why is the anxiety present, and will the Government provide reassurance? The Minister will agree that we must accept that a feature of this country is its long Christian past. Although there are other, minority religions, some of which feature prominently today and have featured consistently for the past 300 years, their minority status has nevertheless been accepted. It has often been accepted and, indeed, enshrined by the special position given to the Church of England in our constitutional arrangements, that the country has a Christian foundation. That is reflected by the census, which shows that although many people do not practise their religion very much, upwards of 70 per cent. consider themselves Christian.

As a consequence, many institutions in Britain are suffused with recognition of their Christian heritage—not only organisations that have an overtly religious purpose. I am satisfied that those organisations and educational establishments have been provided by the Government with adequate protection in the Bill. I am more troubled about institutions that might qualify as public authorities but which, while fulfilling largely secular functions, including the provision of services to people on a completely equal basis, nevertheless contain recognition of their Christian heritage, which manifests itself from time to time. Let me give an example.

I mentioned earlier that I am a member of an inn of court—I am a bencher of the Middle Temple. That is not an overtly religious foundation, although its symbol, the lamb and flag, undoubtedly has a Christian derivation and represents an element of Christian symbolism. The inn, however, although it looks after students, grants scholarships and provides facilities without any religious discrimination of any kind, also celebrates the Christian deity and provides support for the Christian religion. It does that through grace before meals and, more pertinently, by providing support and subsidy to a church, the Temple Church. That might come out of separate funds; I have not researched the matter. It is clear that it does not do the same thing for Jews, Muslims, Hindus or anybody else, although, doubtless, if a Jewish, Hindu or Muslim organisation wanted to book a room for something with a religious aspect to it, there would be no problem about their doing that.

The question that arises, therefore, is whether anything in clause 51 makes that impossible. Having read and re-read the clause, I was left with a doubt in my mind as to whether there might be a problem. I am aware that when this was debated in the other place, it was looked at specifically in the context of harassment. Because the harassment clause has gone—properly, in   my view—some of the mischief has disappeared with it.

The obvious anxiety that was manifest and, indeed, debated in the other place was that somebody would come along and say, ''I, as somebody of another faith, find the saying of grace before the meal in the hall of the Middle Temple in some way harassing or offensive.'' The disappearance of the harassment clause removes that limb. However, it could be argued that, in providing part of the service of the inn, although the question remains whether it is a public service or can be distinguished from it, the inn would in some way be discriminating.

An inn of court is a good example, because it is a body that has functions that I can think of as ''public authority functions'' as well as other functions. Other examples might include a corporation such as the City of London. That undoubtedly celebrates its Christian heritage. I do not know how that is manifest in funding terms, but the Lord Mayor has a close connection with the church of St. Lawrence Jewry and there is, again, a lot of Christian symbolism enmeshed in the corporate structure. Other local authorities have civic services. When I was a councillor, not only did we have a civic service once a year, but, every second year, I think, we went to the local synagogue. Such things evolve of themselves, and I have no doubt that corporations now make visits to local mosques and Hindu temples.

All those things are done on what I would call a basis of natural progress, not on the basis of somebody coming along and saying, ''I have a right here; what you are doing is discriminatory.'' I cannot think of anything more likely to bring this legislation into disrepute than if we end up with a challenge to the way in which public authorities conduct their normal routine and engage at the same time in a celebration of the deity—a Christian deity, in all likelihood. They may suddenly find themselves hauled over the hot coals. Unfortunately, as the Minister will be aware, there is plenty of evidence of public authorities behaving in a, frankly, barmy fashion in response to pressure from various minority groups.

That has been fairly well documented. The examples range from public authorities being told that they cannot replace an antique statue of a wild boar in a public park because it has some offensive quality for a minority religion, to a public authority allegedly saying—although I do not know whether this is true—that its employees cannot have piggy banks in their office desks. I think that particular public authority was a Conservative one. These things are troubling, because they suggest that people wish to pick quarrels on matters of the utmost triviality, and offend people in doing it. Since those things are not fanciful, it is important to get the legislation right. I am mindful that there is an exception at subsection (4)(k), but I shall give way to the hon. Gentleman before I discuss it.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

As the hon. Gentleman said, this was more of an issue while the harassment provisions were in the Bill. I would not want it to be felt that those of us who were concerned about the measure were against harassment provisions being brought in. It   was because the definition of harassment included such terms as violation of dignity and creating an offensive environment. People with strong religious views will often claim that. I know that he recognises that there is no right not to be offended. That was the real problem, which I suspect is lessened under the current framing of the Bill.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I am grateful to the hon. Gentleman. I agree, and I was using the word ''harassment'' in its generic legal sense. Nobody wants people to be harassed, yet the reality of the Bill's wording—before that particular clause was wiped out in the other place—was that harassment had a broad definition and it could easily have been used as a pretext for bringing complaints.

The logical extension of the harassment clause, as it stood, was that total secularisation had to take place. One only has to look around to see the damaging consequences that that would have for the majority religion in this country. What would also be really damaging is that the entire structure of the Bill, which I support in its broad terms, would be destroyed. Public support for it would disappear, so we have to get it right.

I said a moment ago that paragraph (k) provides for some exceptions, particularly in respect of educational institutions:

''acts of worship or other religious observance organised by or on behalf of an educational institution (whether or not forming part of the curriculum)''.

The problem is that large numbers of public authorities are not educational institutions. I question whether the Middle Temple, my inn, is an educational institution. It may arguably be so; that may be its let-out clause. But it still remains problematic, and I remain anxious about it. I want to listen to what the Minister has to say on the matter.

While the harassment clause has gone, and some of the more extreme examples with it, I remain concerned that it could still be argued that a public authority is behaving in a discriminatory way because the benefits it provides could be argued to include the opportunity of religious observance in a corporate framework. If that religious observance were being offered in a way that favoured only one faith, it would be said that it could not do so in those circumstances.

The Christian Institute was also anxious, as the Minister is aware, that the measure could affect the decisions of public authorities, such as hospitals, to provide a Bible in the drawer by the bed or to have a chapel on the premises. Again, these institutions are not overtly religious, although many have religious origins. Nevertheless, they have accumulated a spiritual dimension over the years that reflects the mainstream majority religion in this country.

This is an important issue. I am fairly certain that the Government do not intend the result of the provision to be the disappearance of Bibles from bedsides in hospitals, the closure of hospital chapels, corporations prevented from having annual civic services or public authorities prevented from saying grace before meals at corporate functions. As I am sure that that is the case, I need to know, and the   Government need to persuade me and perhaps others, that that cannot happen under the Bill as it is drafted. At the moment, there is scope under the Bill to argue that it should happen. Even the process of a legal challenge in such circumstances troubles me because of the impact that it would have on the credibility of the legislation. I look forward to hearing from the Minister on that point.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I rise briefly to stress the point that I made earlier that most of the concern related to the fact that the initial definition of harassment in the Bill was so wide that it almost invited people to take legal action, if they so wished, and possibly to succeed in doing so.

I hope that the discrimination law review will consider more carefully a definition of harassment that gives people scope to express themselves, even at the risk, within reason, of offending other people. It should be made clear that simply doing something that another person considers to be an affront to their dignity should not be sufficient to be considered unlawful. No one wants inter-religious strife, but it is probably better to allow freedom of expression than to stifle it either deliberately or inadvertently through such a wide statute.

The hon. Gentleman's amendments would, however, have a greater effect than the effect that he has just described. He tabled new clause 13, but did not speak to it. I wonder whether that is because he recognises that it is not wholly satisfactory as it singles out certain religious symbols of one religion.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I explained that new clause 13 was the Christian Institute's draft. It is an important draft, because it immediately brings to the attention of the Committee the sorts of areas that are causing the institute particular concern. Amendment No. 138, which I drafted, would cover all those points adequately and in rather more neutral language. It is not necessary for Parliament to legislate in rich language; in fact, it can do so in simple terms. That is why I drafted the amendment as well as tabling new clause 13.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I certainly commend the hon. Gentleman on his drafting. Amendment No. 138 is clearly better than new clause 13, and I accept his point that he spoke to amendment No. 138 for that reason. New clause 13, as drafted by the Christian Institute, shows the sorts of sensitivities involved, but it is a self-defeating argument. The institute clearly has strongly held views and sincere reasons for putting those points, including the fear that minority religions will call for the removal of the things that they find offensive.

The hon. Gentleman makes valid points about his amendments. The Minister knows that I generally speak from a non-religious point of view. Does the Minister think that, if a local authority decided to spend public money on bringing in a religious person to lead prayers at the beginning of every meeting, it would be satisfactory if staff and members of the   council, trying to discharge their public function from their preferred place, were let into a room only if they were of the right religion or willing to sit through a religious service in a local authority meeting?

I am prepared to say that I would not want us to go any further than we already do in some legislatures in this country in respect of making specific provision for the booking of seats on the basis of participating in or sitting through a religious service. Indeed, I might argue, although not now in this Committee, that we should draw back from that. I hope that the Minister will be robust enough to say that there is a limit on what public authorities can do in respect of getting into specific single religious issues. Clearly, multi-faith forums and provisions particularly for the Christian heritage of the country, as the hon. Member for Beaconsfield puts it, are reasonable so long as they do not disadvantage individuals and subject them, to use the Minister's term on another part of the Bill, to a detriment. A person can choose not to take the Bible from a hospital drawer. They can also choose to take it. There is no way, in my view, that that could be considered as discrimination, far less harassment on any reasonable definition of harassment.

I would like to give some encouragement to the Government in making it clear that public authorities, particularly when spending public money performing a public function, should be careful that they are not causing a detriment to people on the basis of their religion. That leaves a lot of scope for cultural activity, some of which will relate to a faith or be multi-faith, but also indicates the point beyond which it would be considered not reasonable to go. I look forward to the Minister's response to the debate.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I shall deal with amendment No. 138 and new clause 13. First, it might be helpful if I respond to some of the general points that have been made, not least by the hon. Member for Beaconsfield, because it is important for hon. Members to have constant regard to what is happening on this issue, as on many others, in the communities that we represent. A number of things are happening and they are interrelated.

Surveys of people's adherence to particular religious beliefs and institutions show that such adherence remains at a very high level. The vast majority of people in this country regard themselves as members of a particular religion or faith community. At the same time, as the hon. Gentleman is right to point out, we live in an increasingly secularised society, so despite the high level of adherence to formal religion, there is an ongoing process of secularisation. An increasing number of people identify themselves in terms of their religious belief and religious community. The fact that we are debating part 2 of the Bill reflects that and the need to protect people from discrimination on those grounds. All three elements run together and there is an interplay between them. We need to have regard to that.

What comes out of the debates that ensue from that is sometimes not helped by the misinformed reporting of some stories that we see constantly dripping through the media. One of the latest examples was the rumour put around in various newspapers that the   Home Office had withdrawn funding for a carol service at St. Martin-in-the-Fields for crime victims. That story was complete nonsense. There was never a proposal to withdraw funding, but of course the Home Office wanted to be sure about the range of victims of crime who were being invited to that event order to ensure that everyone was sufficiently and properly engaged.

Such stories play into potential prejudice and the lack of information, which does not help. Our responsibility here is to clarify the issues wherever we can. It is important to recognise the need to ensure that public authorities can support the religious needs and wants of the people whom they serve, in a way that balances protection for people of other beliefs as well. We do not seek to prevent local authorities or any other public authorities from being involved in carol services, celebrations of Diwali or other religious activities in which they feel it is right for them to be involved. The hon. Member for Beaconsfield pointed out that these things evolve over time and that there is now a broader range of religious faiths and activities than perhaps was the case in the past. We do not think that this part of the Bill stands in any way against that trend. We feel it is right—this is in some measure a response to the hon. Member for Oxford, West and Abingdon—that public authorities should treat people of all faiths and none fairly. That is the limit that I would place on this.

Whether amendment No. 138 is better than new clause 13 is a matter for members of the Committee to judge for themselves. I believe that it tips the balance unfairly. It would have the effect of allowing a public authority to support one religion by organising worship and maintaining places of worship, while refusing, under any circumstances, to do the same for others. There should be chapels in our crematoriums, hospitals and elsewhere and they should be properly maintained for those who wish to use them. We believe that the authorities providing such facilities should be reasonably flexible to the needs of those who need and want to use them.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

It is a bit harsh to say amendment No. 138 would almost encourage discrimination. Just as in other clauses that provide exceptions—we discussed the security services, who will not take it as a blank cheque to go out and practise discrimination—the removal of these functions of a public authority from the clause is not designed to present a blank cheque to do the same. It is simply that this is the only mechanism apparently available in the Bill to remove the possible impact of the duty under subsection (1). The problem is not the exception, but whether that subsection prevents those things from happening.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I apologise to the hon. Gentleman if he feels that I am being unduly harsh. My argument is with the way in which the provision would make a preference for one religion that must be provided for, without making provisions for other religious beliefs. I say it slightly more gently: he has tipped the balance a little too far in amendment No. 138. Others would argue that he tips it severely in new clause 13.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

The Minister will know that one of the distinctions between new clause 13 and amendment   No. 138 is that amendment No. 138 is faith neutral. The phrase ''the Christian religion'' does not feature in it. The amendment simply says that subject to the other duties on the public authority, the three possible provisions allow a public authority latitude and discretion to support a particular faith and possibly even several faiths if it wanted to do so. The amendment says, however, that the authority cannot be challenged just because it decides to sponsor an act of worship or religious observance organised on its behalf.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I simply say again gently to the hon. Gentleman that his amendment No. 138 sets in stone rather too severely the ability of a public authority to support and encourage particular religions and religious beliefs and not to respond to others. Our argument here is that public authorities have a duty to respond to the various needs of the religious beliefs of the communities that they serve. Just because a public authority provides a chapel or a service for one community, does not mean that it has to provide that service for all religious beliefs and all religious communities. It may not be necessary in a particular locality for that service to be provided. But it is perfectly in order for such provision as is deemed suitable and appropriate to be made. There is a balance to be struck and that is what we seek to uphold.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I am grateful to hear the Minister say that. That is exactly what I thought he would say, and exactly what I want to hear him say. I have to contrast that comment about what a public authority can do with the plain terms of the clause. By saying that it cannot discriminate, subsection (1) seems to me to lay itself open to the possibility of a challenge, because somebody can say, ''You are a public authority and you support an annual Christian civic service. I am a Muslim and I object to that.'' What happens then? Perhaps the Minister will take the Committee through what happens next when that challenge is raised. I think that he is saying that the public authority could argue, ''Our decision is reasonable and proportionate in all the circumstances,'' but that involves a public authority in potential litigation from which I believe that it is entitled to be protected.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

Careful judgments must be made. Public authorities should have proper processes for deliberating on such matters: they must gather information and then make decisions. It is perfectly reasonable for a public authority to have differential provision for different faith communities, if that provision can be justified by reference to matters other than the religion or the belief. If the individual Muslim to whom the hon. Gentleman referred is the only person of that religious persuasion in a particular community, it might be disproportionate to expect the public authority to make the same provision for him as for vast numbers of people elsewhere. Public authorities cannot be expected to provide the same level of support and service to everybody, irrespective of financial and other considerations. The differentiation there is not on grounds of religion or   belief, but on other rational decisions about resources and what is proportionate in the circumstances.

I understand some of the nervousness and concern, and to some degree share it, but I hope that the guidance that we produce will clarify many of these matters, so that we can bust some of the myths that have grown up.

I say clearly and categorically that I am a Christian. I celebrate this country's Christian heritage, but the best way to protect that heritage is not to seek to give greater protection in law to the beliefs of Christians than to those of others. New clause 13 is not necessary, because what it addresses is not and should not be a problem. Bibles and other Christian symbols need not be removed, as people fear they will be. Public authorities must respond to the needs of the religious communities that they serve. Community relations could be damaged if we singled out the Christian faith for added protection. It might appear that we were afraid that religious symbols might be banned by the Bill, and that we wanted to protect Christian symbols alone. We do not want to do that. Equally, we do not want Christian symbols to be thrown out and disregarded, when many consider them to be important.

For the second time in today's deliberations, the hon. Gentleman has treated us to accounts of events at the inn of court of which he is a member. He sought some clarification, and I hope that I can help him. The inn of court would be a public authority only when carrying out functions of a public nature. Therefore, it is not in itself a public authority. Those running the inn of court would be discriminating only if they refused to provide public functions for a person because of that person's religion; refusal would be clear discrimination. It would be indirect discrimination only if, for example, they insisted on people saying grace before they received the public function. I hope that that helps to clarify the position for the hon. Gentleman.

I acknowledge that we need clarity, and I hope that the Bill will help to provide that. I hope that the guidance will help to enhance our understanding and that the rational and reasonable discussion and reporting of these matters will reflect a proper balance. Saying grace is one thing; compulsory baptism for all service users would be something else entirely. We must have an understanding—

Dr. Harris rose—

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

The hon. Gentleman has a habit of knowing when I have only three words left to say.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I do not want to delay the debate by making a separate contribution, so I will limit my remarks to a few seconds. Where would the Minister say provision by a legislative authority to give preference in seating locally to those who participate in some way in a religious service would fall? Would it be on the compulsory baptism side or on the side of what he described as harmless? People may have to deal with such issues every day; indeed, members of the Committee themselves may have to do so. Surely   on such difficult issues the Minister should be able to give us an idea of where the Bill will leave those distinctions.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I shall certainly not recite the list of examples this afternoon, much as the hon. Gentleman may wish me to. It will be necessary to use common sense and to understand the local context—the people involved, the nature of the communities being served and so on. Those things will matter and will require mature, sensible judgment. There is no one-size-fits-all formula that we can deploy in every circumstance. We need proper respect for all faith communities and a realisation that public authorities must respond to their needs as best they can.

I suspect that the amendments play on unfounded fears. This has been a good debate, and I think that some of the fears of the hon. Member for Beaconsfield will have been allayed. I hope that he feels able to withdraw the amendment.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I am grateful to the Minister, who has gone a considerable distance towards allaying the fears. I tabled new clause 13 precisely because I was conscious that others have greater fears than I do and feel strongly on the issue. Therefore, I wanted to make sure that the matter could be fully and properly debated in Committee.

The Minister provided considerable reassurance, but I remain troubled. We must face the fact that we live in a litigious age. People's tendency to use the courts to assert rights, often in perfectly trivial matters, appears to be a growth industry. Once one provides an opportunity for that to happen, experience suggests that people come along with agendas of their own and seek to prevail. We are living in a society that in many respects is in rapid transition, and there seems to be a willingness to use the courts and to behave in a rather un-neighbourly and unnecessary way to assert rights.

Therefore, I do not entirely share the Minister's confidence. In fairness, I think that he accepted that one consequence of the Bill may be that legal challenges will be made. We shall have to rely on the common sense of the judiciary to ensure at an early stage, as has happened before, that unreasonable challenges are thrown out of court so that a reasonable and happy mean is maintained.

I have some anxieties, because I believe that the Government may have to face the consequence that if institutions that are essentially non-denominational or non-religious in nature but maintain elements of Christian heritage begin to feel threatened, some of them may decide to convert themselves into more overtly religious organisations. There is an issue here, as we try to find the happy mean that enables people to live together in harmony. As a lawyer I have to say that, on the whole, harmony does not come through the courts. I try to dissuade people from litigating, and I am sure that other members of the Committee with a legal background will agree. It is a weapon of last resort, not of first resort. I have an anxiety that the provision will give rise to unnecessary litigation. I understand the Government's position, which is not unreasonable, but if the provision is used in that way, we shall have cause to regret it.  

I shall consider the matter, and if I can come back on Report with something that might be helpful to maintain the thrust of what the Government are trying to achieve and to provide a safety net of sanity, I shall return to it. For the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I beg to move amendment No. 122, in clause 51, page 34, line 7, leave out paragraph (c).

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following amendments:

No. 123, in clause 51, page 34, line 9, leave out paragraph (d).

No. 124, in clause 51, page 34, line 11, leave out paragraph (e).

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I was so absorbed in the last debate that for one moment I half forgot what the next one was going to be. With these amendments I simply seek clarification. Clause 51(6) is quite complicated, but if I understand it correctly, it provides circumstances in which clause 69(4)

''shall not apply in relation to a reply, or a failure to reply, to a question in connection with an alleged contravention of this section''.

Paragraphs (a), (b) and (c) are about people's legal rights, and I have no great difficulty with them. However, paragraphs (d) and (e) are slightly more complicated, because they specify that exceptions may exist so that an organisation will not be required to give a reply to an allegation of discrimination,

''(d) where the reply is given in circumstances specified for the purposes of this paragraph by order of the Secretary of State, or

(e) where the failure occurs in circumstances specified for the purposes of this paragraph by order of the Secretary of State.''

That is a let-out clause, which in certain circumstances allows the Secretary of State to protect public authorities from compliance with clause 69, which, as I mentioned, is about the provision of information, usually as a prelude to litigation. I should like to know from the Minister why those two paragraphs are there, why the Government think that exception necessary, and how it will be exercised.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I hope that I can reassure the hon. Gentleman. We want to see requests for information by people who believe that they have been the victims of unlawful discrimination to be acted upon as speedily as possible. If somebody sets out to frustrate the pursuit of requests for information in those circumstances, or to avoid providing the information, that would be a serious matter.

Mr. Grieve rose—

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I have already excited the hon. Gentleman.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I only wanted to say that I mistakenly referred only to paragraphs (d) and (e), but I also have an amendment referring to paragraph (c), which says:

''where the reply is of a kind specified for the purposes of this paragraph by order of the Secretary of State''.

They are all in the same generic group, but I wanted to get that on the record.  

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I am grateful to the hon. Gentleman for clarifying that point. I should like to underline my opening remark—that we want people who believe that they have been discriminated against, and who need information, to get it as speedily as possible. It would be wrong for anybody to stand in the way of that without justification.

The provisions enable the Secretary of State, who has the duties, to set out on what forms and in what manner questions should be asked, to specify a form that may be used for replies, and to specify circumstances in which inferences of discriminatory conduct should not be drawn from a failure to use properly the arrangements that he has made. We are talking here about a practicality. For example, if an inquiry is sent to the wrong person, the court should not be able to infer that discrimination has occurred simply because the request has gone to the wrong person, so there has been a delay in the reply. I hope that the hon. Gentleman appreciates that. Sometimes poor administration will be to blame. Although poor administration is to be deprecated and dealt with, it should not be left to a court to assume that discrimination has occurred just because of it. That is what the provisions are about. This is not a get-out clause, but it means that discrimination cannot be assumed if poor administration is the real culprit.

Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)

I am grateful to the Minister for his reply. Bureaucracies are always—dare I say it?—good at protecting themselves, and this seems to be another example of that. I have to accept that bureaucracies do not necessarily function at 100 per cent., so the Minister may have a good argument. However, it is slightly telling of the Government's lack of confidence that they are going to be told to comply with their own regulatory framework. I would prefer it if those provisions were not in the Bill at all, but I shall go away and reflect on what the Minister has said. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Roger Gale (North Thanet, Conservative)

The hon. Member for Oxford, West and Abingdon has indicated that he wishes to raise a particular issue, which is also covered by new clause 16. It is appropriate for the matter to be raised under this clause, but the hon. Gentleman will appreciate that I do not expect a repetition of the arguments should we reach new clause 16.

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

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

Thank you, Mr. Gale. I was aware of the fact that the matter was covered in two different places, having discussed it with the Clerk. Indeed, I had vaguely hoped and/or expected that the new clause might have been taken under this clause or an earlier one that dealt with school transport, but for reasons that I never understand because it is beyond my capacity to do so, the grouping was set out as it has been. As we always say, I am sure that that was the correct decision.

I shall not dwell on the issue of guidance because the new clause refers to the need for guidance to be   issued, but I draw the Minister's attention to school transport, which is mentioned in this clause and a previous one. The Minister will be aware that the issue of school transport and the related exemption is found in subsection (4)(k)(v). The prohibition on a public authority exercising a function to carry out any act that constitutes discrimination does not apply to action in relation to transport to or from an educational institution, which is also dealt with under clause 50(2)(b) concerning the exercise of an authority's functions in relation to transport.

I am not arguing that schools that may choose pupils on the basis of their parents' religious adherence should not arrange transport when they are beyond where those pupils would usually go to school. I am not arguing that that is wrong. My point is that the process should be exercised fairly and in a non-discriminatory way with regard to all people who find that because there is discrimination in admissions on the basis of religion—or a lack of it—they are faced with extra journeys. One would have thought that this matter was straightforward. The Bill should treat equally anyone who, on the basis of their parents' belief or faith or lack of either, has to go further than is indicated to get to school because the school nearest to them—in the range that they would not qualify for subsidised transport—is of the wrong faith or no faith. That is not a difficult concept for the Bill, the guidance—to which I shall come on another occasion—or the explanatory notes to specify.

The failure of the explanatory notes to make that absolutely clear is remarkable. This is evident in, for example, paragraph 186 of the explanatory notes, dealing with clause 50, and paragraph 192, which refers to clause 51. I shall refer to the latter, but they are pretty much identical. It states:

''Transport—an LEA or other responsible body can arrange transport to a faith school for those pupils who live a distance away and they will not be obliged by this legislation to provide a similar service for pupils at another faith or non-faith school.''

Heaven help the parent with no religious belief, an atheist or humanist, who does not want their child to go to the local faith-based school and wants their child to participate in the subsidised or free transport scheme made available—allegedly in a non-discriminatory way—for children to travel further than the distance they would normally because of faith-based discrimination in admissions. That may not happen frequently; non-religious parents might not avail themselves of the freedom not to have their child educated in a faith school as frequently as parents with religious views chose not to have their child educated at a school that does not have a faith ethos or discriminate for admissions on grounds of faith. Nevertheless, we know that it happens. Evidence was given to the Education and Skills Committee when it considered the draft School Transport Bill that suggested that that was a problem.

I will not go into the Committee's conclusions because they relate mainly to guidance, but it agreed that there was an issue. It was well identified that the problem was not only that children of non-religious   parents, who wanted to get on the bus that passed them for the same price as the children of religious parents, were not allowed to do so without paying to go a similar distance in the same direction, but that in many cases the local authority at no point—I would be interested to find a local authority that did—told such parents that they were entitled to ask for and receive subsidised transport, if they qualified on the basis of a belief that was not religious. The test should be the same. If there is a test for genuineness of religious belief and the allocation of transport, there should be some test for genuineness of non-religious belief. In neither case is it a particularly difficult test to pass. I do not see why people should have to go out of their way as a religious parent does not to prove their atheism. As long as the tests are equal, that should apply.

Part of the problem stems from the original legislation. The law on school transport is contained in the Education Act 1996. Section 509(4) states that when LEAs are considering whether or not to make discretionary transport arrangements in relation to a particular person, they are required, among other things, to have regard to

''any wish of his parent for him to be provided with education at a school or institution in which the religious education provided is that of the religion or denomination to which his parent adheres.''

That should be read in a non-discriminatory way and the same should apply to non-religious parents. Although the wording of the Bill should be clear, the fact that the explanatory notes encourage local education authorities to apply the provision in a discriminatory way is extremely disappointing.

I hope that the Minister will recognise that if local education authorities continue to fail to let people know that they can access such transport and to deny subsidised transport to children who are going further than usual in order to avoid a faith school at the wish of their parents, there will be human rights challenges. Legal action has been taken, as the Minister knows. If we have an opportunity to debate guidance, I shall go into that in more detail.

I hope that I have made the point as clearly and politely as I can. I feel strongly about it, because I have had representations from people I know who feel that as the explanatory notes make such an error, if it is an error—and if it is not, it is even worse to feed such discriminatory practice—LEAs will continue as they are doing and we will not make progress. The Bill is an opportunity to sort that out once and for all, if we are to have the sort of education system where schools can choose on the basis of religion. I hope that the Minister can give me some encouragement in words and action as to how we will deal with the problem.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I shall be as encouraging as I possibly can. The hon. Gentleman has been threatening us with the subject of school transport on and off throughout the course of our deliberations today, so I am pleased that he has had the opportunity to get it off his chest.

Local education authorities have a statutory requirement to provide free home-to-school transport for certain pupils. They also have some scope to decide when transport is necessary in other circumstances.   They will consider each pupil's case on its merits, taking account of all the relevant factors, which will include a parent's wish for their child to attend a school of the religion or denomination to which they adhere. That discretion means that local education authorities often provide subsidised transport for pupils of faith schools that are located outside the local area. The Bill contains an exemption to ensure that that practice can continue, otherwise local education authorities would be vulnerable to challenge on transport policies that take into account the historical distribution of religious schools, which were often built outside town centres.

Local education authorities may also—in our view they should—provide subsidised transport to a non-faith school for children whose parents are strongly opposed to their attending a faith school that happens to be closer to home. That would also be unlawful if it were not for the exception in the Bill. The exceptions need to be there in order to enable local education authorities to continue to operate such policies. I do not know whether that is helpful to the hon. Gentleman, but that is what we seek to achieve. Those who choose to travel further to go to faith schools should be able to do so, and those who wish to go to a non-faith school because the nearest school has a faith dimension or an ethos to which they do not want to adhere should be able to travel there too. It is important to enable local education authorities, which are responsible for such policies and their implementation, to exercise their functions properly.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

We are in complete agreement on the Minister's last paragraph. I would not argue, and have not proposed an amendment, to remove that provision. I understand that it is needed to avoid challenge. However, even in the explanation that he has given, the Minister has unnecessarily separated a school pertaining to the religion or denomination of the parent. When he says that, why can he not also say ''or lack of it, or philosophical belief'' so that it is clear in everything that he says that the provision should be exercised in a way that does not discriminate between faith and non-faith?

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

The hon. Gentleman is right. The measure should operate in a non-discriminatory way. I regret it if my remarks were not as comprehensive as they should have been—the provision applies equally in the way that he has indicated. It is important that local education authorities should be able to continue to exercise their function properly in that respect. It is too late to consider the explanatory notes; they have nearly served their purpose. However, we will make such issues abundantly clear in any guidance that we issue with the legislation.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

Does the Minister believe that there is a problem with the explanatory notes? If he does, I will be more relieved and more reassured. If he thinks that those notes, which mention only arranging transport to a faith school, are correct and capture the idea of non-discrimination, I cannot be reassured; there is still some distance between us. If he would comment on whether the explanatory notes are in error, that would be helpful for those who later read this debate.   Otherwise, they might look only at the explanatory notes.

Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

I need to come back to the hon. Gentleman on the accuracy of the explanatory notes. I have tried to make it clear that a family that has chosen a school that is at a distance from home because of a particular religious belief should be able to be supported by a local education authority, just as should a family that does not wish to go to a religious school that happens to be the closest to home because of the ethos of that school. I have been as clear as I can.

Ours is an even-handed approach and I believe that it is right. In the end, it is for local education authorities to carry it through. We cannot and should not pass legislation that would oblige local education authorities to follow a discriminatory course. We have to include exceptions that enable such authorities to function properly. If I can ensure that the guidance that ensues from this legislation is clear, I shall seek to do so.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I thank the Minister for his remarks. He has a reputation for going as far as he can to meet hon. Members' concerns during the Committee stages of Bills, and he has done so here.

I should like to make two points. I hope that we will have the opportunity to return to the question of guidance under another clause and that the Minister and his staff will have had time to look at the issue to see whether he can offer us something. In particular, I flag up the recommendations of the Joint Committee on Human Rights and the Education and Skills Committee regarding the validity of the current guidance.

Secondly, I have had a message from the experts on this issue, who tell me that had I tabled an amendment to remove school transport, we could probably have dealt in this debate with the issue of guidance raised by my new clause. To be true to my view, however, I did not group those provisions together and I apologise for the fact that we will have to revisit the issue. In the light of the Minister's comments, however, I hope that when we do so, we will be briefer than we might otherwise have been.

Roger Gale (North Thanet, Conservative)

I am sure that we will be.

Question put and agreed to.

Clause 51, as amended, ordered to stand part of the Bill.