Clause 56 - Organisations relating to religion or belief
Equality Bill [Lords]
5:15 pm
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I beg to move amendment No. 40, in clause 56, page 36, line 41, leave out 'imposed' and insert 'reasonably justified'.
Roger Gale (North Thanet, Conservative)
With this it will be convenient to discuss the following amendments: No. 41, in clause 57, page 37, line 10, leave out 'imposed' and insert 'reasonably justified'.
No. 42, in clause 58, page 37, line 28, leave out 'imposed' and insert 'reasonably justified'.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
This is an important group of amendments because it goes into the test that needs to be applied to whether continued discrimination—discrimination after the Bill is enacted—will be considered legitimate. The matter was debated only briefly in the House of Lords because of time constraints. The amendments would amend not only clause 56, but clauses 57 and 58, which set out the circumstances in which religious organisations, charities and educational institutions are permitted to restrict their services or activities on the basis of religion or belief.
Obviously, some exceptions from the ban on discrimination are necessary, but it is important that they are not too widely drawn otherwise we would achieve very little. The Minister will be aware that previous versions of the Bill required a restriction to be imposed because it was necessary. That provision was then broadened to a restriction being imposed because it was expedient. Religious organisations objected to ''necessary'' because it seemed to be a solely objective test. Other organisations, such as the British Humanist Association, objected to ''expedient'' because it was too wide. Clearly, expediency is a huge catch-all, and I agree that such a subjective test would be outrageous because it would enable anything to continue.
I read in the Lords Hansard that even a bishop agreed that ''expedient'' was too wide a description. The Government have gone further than was necessary to meet the concerns expressed by religious and faith communities that they could not continue to discriminate in the way that they would want. That is not the first time that the Government have gone too far.
The current Bill has dropped any such test. Clause 56 states that
''subsections (3) and (4) permit a restriction only if imposed . . . by reason of or on the grounds of the purpose of the organisation, or . . . in order to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.''
In the other place, Baroness Whitaker proposed amendments similar to mine to replace ''imposed'' by ''reasonably justified''. I hope that the Government agree that ''reasonably justified'' is weaker than ''necessary''.
Baroness Scotland defended the original wording and said that it
''requires that there must be causal connection between the purposes of the organisation and the restriction. It does not, however, go so far as to require that the restriction is necessary. This test is well balanced between the strict necessity and expedience, but should be easily understood by the courts. The words proposed by my noble friend . . . would provide a test which would be less easy to apply. For that reason the wording providing by the draftsman is, in our respectful view, to be preferred.—[Official Report, House of Lords, 9 November 2005; Vol. 675, c. 676.]
I question, however, whether the word ''imposed'' is a test of reasonable justification.
I do not believe that the provision is well balanced between strict necessity and expedience, and neither does the British Humanist Association, which briefed me on this. The problem is exacerbated by ''on the grounds of'' in subsection (5)(a). Who decides what the grounds are? That will be highly subjective, and if a religious organisation claims that its purpose is based on those grounds, there is no test of reasonable justification to decide the matter.
In human rights terms, there must be objective justification for continued discrimination, and I fear that the wording in the parts of the legislation dealing with discrimination is inconsistent with what was accepted as a reasonable basis for statute in the Human Rights Act 1998, which provided that there needs to be objective justification of a potential breach of article 14 in relation to the enjoyment of other convention rights.
Subsection (5)(b) is also very weak. It says that
''subsections (3) and (4) permit a restriction only if imposed . . . in order to avoid causing offence, on the grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.''
I remember debates with, I think, another Minister on the Employment Equality (Sexual Orientation) Regulations 2003 when a late exemption was added, which was contentious enough in itself, which talked about avoiding
''conflicting with the strongly held religious convictions of a significant number of the religion's followers''.
I shall talk about that when I speak to the next group of amendments. The question is whether the test is well balanced without the wording being tightened up in subsection (5)(a) or (b). I do not believe that it is, and I urge the Minister to reconsider it.
We should also consider the contrast between this provision and the positive action taken under race relations legislation to promote the interests of under-privileged people, which most members of the Committee would want, which had to be objectively proven. That was a far greater test than the continued negative discrimination for which this provision allows. On that basis, the current test should be tightened if we are to have a sensible, well balanced anti-discrimination statute, and I urge the Government to tighten it.
Baroness Scotland said in the House of Lords that she believed that the test of reasonable justification would be less easy to apply, but under clause 56 religious and other organisations are required only to state their body's purpose and to say that the restriction or discrimination was imposed on that basis. That is not a test at all. It simply allows for religious organisations to make their defence in whatever way they like without any objective justification.
I understand that the Government have tried to move from expediency to this provision, and I am grateful that they have gone that far, but there must be a more effective objective judgment. The term ''reasonably justify'' is not a new concept for courts to have to apply. The whole basis of the need to justify things objectively is well known, and a reasonable justification cannot be seen to be a whole new area of jurisprudence. As a test, it is reasonably justified, and I commend it to the Committee.
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
Once again, we are discussing where precisely to draw the line in exemptions. Some have argued from time to time during the passage of the Bill that it is drawn too narrowly or too widely. I am, however, slightly confused by the hon. Gentleman's comments because he has given the impression that a massive debate has been raging in another place, which has spilled over to our deliberations. That is not my understanding. He quoted my right hon. and noble Friend Baroness Scotland, who said in Committee that exceptions must be based on something between necessity and expedience. She paid tribute to the draftsmen who produced amendments to reflect that judgment. When those amendments were considered in another place, Lord Bishop of Chelmsford spoke warmly in endorsement of the Minister's comments, and the hon. Gentleman's colleague Lord Lester of Herne Hill said:
''My Lords, I echo that remark and pay tribute to the draftsman and to the Government. This is a suitable way of meeting the points which were raised and I am grateful.''—[Official Report, House of Lords, 19 October 2005; Vol. 674, c. 861.]
It appears that, through a careful process of discussion, consideration and further drafting, the House of Lords Committee arrived at a form of words that was acceptable to all parties. We have benefited enormously from that work because they provided us with a form of words that works well.
The hon. Member for Oxford, West and Abingdon argues in favour of reasonable justification. My concern, among others, is that that would place an undue burden on religious and other organisations that are, necessarily, very small. Those organisations often provide, for example, luncheon clubs, sports groups and other low-key, local, but important services, particularly on occasions such as Christmas or Easter. Many of those organisations do not have formal constitutions, and it is right that they should be able to continue their engagement and involvement with the community without having to worry about restricting their membership to people of the same belief or having to open their activities to all. That is why a definition somewhere between necessity and expedience is one that respects the legislation and the need to tackle discrimination.
This is an area of considerable debate and concern, but there is a growing consensus on the right words. I hope that the hon. Gentleman can confirm that that consensus has been reached in another place. If he is having difficulties, I can provide him with the page number.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I am very keen. I knew that I had it, and the Minister could see me hunting through Lords Hansard, which is a pleasure not to be enjoyed at this time of day. Baroness Whittaker moved amendment No. 35, which stated:
''leave out 'imposed', and insert 'reasonably justified'''.—[Official Report, House of Lords, 9 November 2005; Vol. 675, c. 675.]
Subsequently, Lord Lester of Herne Hill, whom the Minister quoted in support of the Government's position, said, ''I support the amendment.'' There was not the consensus on this matter that the Minister claims. While everyone agreed that the form of words in the Bill was better than ''expedient'', many, including my noble Friend, believed that there was a better way forward.
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
I am grateful to the hon. Gentleman for his contribution to the debate. He holds his views strongly and sincerely. I am the first to acknowledge the assistance that I receive from others, not least those who are in this Room. The hon. Gentleman quoted from column 675. Perhaps I could gently point him to column 861, which reports a subsequent debate when a consensus was found on this matter. I hope that the hon. Gentleman will be reassured that that consensus was reached among the three main parties during their discussions. That is Parliament at its best: arriving at something that is both principled and practical. The work that took place in the House of Lords, of which we are the beneficiaries, gives us the best possible settlement on this matter.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I am afraid that the Minister has got the order mixed up. The column to which he referred, from which he correctly quoted Lord Lester's complimenting the draftsmen—as it is polite to do in any event—was from Report stage. The column from which I quoted was on Third Reading. Even in the House of Lords, the order is: Report; Third Reading. As the Minister rightly states, ''expedient'' was found to be not expedient, and therefore another word—''imposed''—was imposed. That was welcomed and, furthermore, there was broad support, not necessarily from the Government, for a new test.
The Minister's answer does not address this significant problem. I would be grateful if he intervened on me to deal with it. How does he justify the fact that the current wording allows a religious organisation to discriminate, not in the way that he provides for, which would be easily covered by the wording that I am suggesting—lunch clubs would be reasonably justified—but against people to whom, for example, they do not want to rent their premises because, as they say, the purpose of their religion is to discriminate against and make life difficult for people of other religions?
To a certain extent, faith is like that. People believe that their religious convictions are right. One hopes that they will be polite about it, but they do not have to be if they believe something strongly and also believe that everyone else, almost by definition, has chosen the wrong path. It is reasonable to discriminate if the purpose of an organisation is to promote one religion over another. I believe that it is not the Minister's intention to allow such discrimination, but I do not understand how his wording, even if it is an improvement on ''expedient'', will prevent organisations that do not have to from discriminating on the grounds that they give.
The Minister is not indicating that he wants to give me any comfort on this point. I do not know whether it is because he cannot, as he realises that religions will state that that is their purpose.
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
I will happily intervene on the hon. Gentleman if he insists. I have done my best to give as full an account as I can of how opinion coalesced in the other place to the point of providing us with the form of words of which we are the beneficiaries. He may wish to consult further on what actually took place, but I say with some confidence that what happened is what I described as happening.
As this is an intervention, I do not wish to go on too long. There must be a causal link, not a spurious one, between the two provisions—that is the point. The legislation must be practical, bearing it in mind how small many of the organisations are, and that we do not wish to overburden them. The principle of the legislation and bearing down on discrimination are, of course, important, but we do not want to strangulate organisations that play a purposeful and important role in many of our communities.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I am not going to pursue the argument further—nor ought I. I am grateful that the Minister at least recognises that he cannot defend what I consider to be too wide a get-out by saying that the matter was agreed in the House of Lords. On that basis, we might as well not turn up here, although I do not suggest that too loudly.
I see the Minister's point about the organisations being small, and I guess we shall have to look and see. We may well seek to come back to the issue at a later date. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Roger Gale (North Thanet, Conservative)
Before we proceed, I should say that I have been told that there will shortly be a Division in the House; I offer that thought.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I beg to move amendment No. 43, in clause 56, page 36, line 43, leave out paragraph (b) and insert—
'(b) in order to avoid conflict with the strongly held religious convictions or beliefs of a significant number of persons of the religion or belief to which the organisation relates.'.
Roger Gale (North Thanet, Conservative)
With this it will be convenient to discuss the following amendments:
No. 157, in clause 56, page 36, line 43, after 'causing', insert 'serious'.
No. 44, in clause 58, page 37, line 30, leave out paragraph (b) and insert—
'(b) in order to avoid conflict with the strongly held religious convictions or beliefs of a significant number of persons of the religion or belief to which the institution relates.'.
No. 158, in clause 58, page 37, line 30, after 'causing', insert 'serious'.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I can be brief, because my amendment relates to an issue similar to the one just discussed. It queries why the test in the subsection (5)(b) arm of the exemptions is not even as strong as that in the contentious provision in the measure on employment. As I said earlier, that related to the giving of offence to religious organisations with strongly held views and a significant number of members. I come back to my earlier point: without that test, it will be relatively easy for organisations to state, ''This causes offence'' without needing to show that there has been offence to a significant number of people or that the offence is significant.
The paragraph (b) arm of the exemptions allows the organisations to which the clauses apply to write their own exemption simply on the basis of what they say, because offence is a subjective issue. Some of their members might say that they would be offended if people who were not religious followers were able to rent their organisation's premises because such people might do something vicious to sacrosanct or hallowed ground. I do not know what the issues would be, but we know that there is the potential for such problems. I hope that the Minister can justify why he did not use the form of words that were found to be just about acceptable on judicial review in respect of the regulations on employment and sexual orientation, from which I quoted earlier.
Sitting suspended for a Division in the House.
On resuming—
Roger Gale (North Thanet, Conservative)
Before we proceed, the hon. Member for Beaconsfield has told me that he would be comfortable debating amendments Nos. 128 and 129 with this group. I have agreed and the Minister has agreed to that arrangement, because it may facilitate matters, as the debates are rather similar.
Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)
I am grateful for that, Mr. Gale, as it was apparent that amendment No. 43 touched on the same part of the clause. The hon. Member for Oxford, West and Abingdon was concerned that the expression
''in order to avoid causing offence''
was too wide and would give religious organisations too great an opportunity to behave in an unreasonable manner.
I have a separate anxiety about that expression. It seems to me that the use of the words
''in order to avoid causing offence''
could favour religious organisations or religions that made the most noise. Therefore, the religion that argued most vociferously that offence would be caused would be able to claim the benefit of the exemption and the religion with an underpinning of tolerance could be disadvantaged because somebody might say, ''Your members are not offended by these things. Therefore, we can impose on you something that you are not comfortable with.''
I disagree with the hon. Gentleman. It seems to me to be an area where Parliament strays dangerously. The truth is that what people decide concerns them as a matter of conscience can be unreasonable, and it may seem to an outsider that that is not a reason for preventing them from operating a restriction. The purpose of the clause is to provide protection to organisations that have a religion or belief.
I prefer either amendment No. 128, which I tabled, which would remove the expression
''in order to avoid causing offence''
and substitute
''comply with the principles and practice''
of a religion, or the alternative that I inserted in amendment No. 129, which is
''conform to the religion or belief of''.
I should be grateful if the Minister would respond to that. My concern here is that it is not just because something is offensive that people should be able to claim that they do not want it. They should, in the context of a religion, be able to claim that they do not want it because what is being demanded of them does not conform with their principles and practices. The use of ''offensive'' seems to favour those who make the most fuss, and that is not how the provision should work in practice.
I make one other point in passing. Subsection (4) says:
''Nothing in this Part shall make it unlawful for a minister''.
Should it not specify that it is a minister of religion? While I know that Ministers of the Crown have their ''M'' spelt with a capital letter in the arcane mysteries of drafting, it was not immediately apparent to me when I read the subsection what sort of minister was being referred to.
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
With a capital ''M''. Again we are considering where the line should be drawn at which faith groups and religious organisations should be able to claim an exemption. We believe that it is now drawn in the right place, but clearly hon. Members wish to test that further.
I should perhaps illustrate my argument with an example showing why we believe that ''causing offence'' is the right expression. The example is letting a church hall. Under the clause, if a church wanted to refuse to hire out its hall to satanists, it would have to show that doing so would cause offence to Christians. That is a simple and clear test. Immediately the hon. Member for Oxford, West and Abingdon wishes to change the definition in the amendments that he has tabled, he adds complexity to it in three ways.
First, under his test the church would have to show that hiring the hall would conflict with Christian beliefs. Our courts are wonderful institutions, but they are not necessarily geared up to becoming theological institutions. However, they would have to become so to determine whether there was a conflict with Christian beliefs. They would have to understand those beliefs and how they were affronted by hiring the hall to a satanist group.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
Why are the Minister and his colleagues content to force courts to make that judgment about the employment, equality, sexual orientation and, if I remember correctly, religion regulations that state inter alia or in part that discrimination in employment is justified by organised religions or religious organisations to
''avoid conflicting with the strongly held religious convictions with a significant number of the religion's followers''?
The courts already have to deal with that, because of statute. If the Minister is saying that it is a new problem, it is not. The provision applies equally to other legislation.
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
I shall think carefully about and reflect on the comments made by the hon. Gentleman. I understand that a great deal of effort has gone into ensuring that wherever possible the legislation before us is consistent with the different pieces of legislation covering different areas of discrimination, whether employment or race relations.
Many propositions in the clauses that we have discussed today are transposed from other legislation from other areas, so if the hon. Gentleman is raising a potential contradiction, I should need to study it carefully. However, I understand that in order to be practical, all provisions have been brought together as comprehensively as possible. I promise the hon. Gentleman that I shall consider his point carefully.
A second difficulty and complexity that the hon. Gentleman adds is that the belief or view must be strongly held. How would anybody assess whether the view was strongly held?
Most interestingly of all, the third complexity is that, in the example I gave, the view must be held by a significant number of Christians. How many Christians should one have to consult? Those that belonged to that particular church, the whole diocese, the rest of the country, the global Church? There is no definition of how one should assess what is a significant number of Christians.
Keeping the provision as a test of causing offence makes matters clear and simple, makes them work in practice and, again, helps to strike the balance between principle and practicality.
Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)
How would the provision work in practice? Presumably, the test is entirely subjective, so if a religious organisation says, ''If this were to happen, it would cause us offence,'' that is the end of it. Or, could somebody say, ''That is not true. We don't think you really would be offended; that's just a pretext''?
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
That would be the end of it. If a group claimed that offence would be caused, that would be its justification for not hiring out the hall. As with all such matters, they are—[Interruption.] I will give way.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I apologise for muttering from a sedentary position. I shall repeat what I said: how is that different from a simple test of expediency? Clearly, it is a different non-test, but it is a non-test.
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
It is a very clear and subjective test. If something gives offence to somebody, the test is their judgment about its impact on them, their beliefs and their attitudes. That is a clear test. The tests that the hon. Gentleman suggests mean that we should have to conduct a theological test about whether something conflicts specifically with Christian beliefs; and there is another test about the strength of the belief and how many people hold it.
Although I do not deny that the hon. Gentleman's intentions are honourable, by trying to define the precise point at which we draw the line and strike a balance, his definition and way of tackling the matter would add complexity to groups that are not geared up to deal with complexity. That is the point. If we were discussing major global institutions that have the capacity to deal with such things, that would be fine. However, we are often discussing small groups that provide services to local communities and groups. We have to respect that. Although we want to bear down on discrimination wherever it is, we have to respect the practical nature of some organisations.
The wording that the hon. Member for Beaconsfield has asked the Committee to consider in amendment No. 128 would add complexity by its reference to principles and practices. Amendment No. 129 refers to conforming to the religion or belief of people connected to the institution. Again, that would add complexity and could muddy the waters somewhat. The wording of that amendment is unclear particularly because in the case of many institutions the religion or beliefs of some of the people connected to them are different from those of the institution. The existing words make it explicitly clear that the religion or belief of the institution is the key element, not that of any person connected with it. I realise that there are different views and that we are teasing out the issue together, but the settled position currently reflected in the Bill makes the test simple, straightforward and practical. That test honours the principles that we are defending as well as the practicality of making the measure work.
Roger Gale (North Thanet, Conservative)
I have created a difficult situation for myself. Mr. Grieve, if you wish to respond although your amendments have not been moved, you had better speak now or not speak.
Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)
The Minister has persuaded me that the wording as it stands is right, and I am grateful to him for doing so.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
The Minister has persuaded me that I was right to question his wording. I am sorry to move apart from the hon. Member for Beaconsfield, although I suspect that that will not be surprising. I will explain why to the Minister on the basis of his arguments. Religion is not absent from his words, and so a court will have to make a decision on whether an offence is on the grounds of religion or belief. Both he and I realise that although everyone dealing with this legislation—and with religious hatred legislation, sexual orientation and religious employment regulations' exemptions for religious organisations—always says that the last thing we want is for courts to consult theological sources, that is inevitable when it comes to these exemptions. It is in his wording, and to argue that the same may occur with mine is not a good argument.
Secondly, all the Minister's complaints about the courts having to interpret strongly held religious convictions of a significant number are contained in the employment equality regulations on both sexual orientation and religion. I remember that that was in subsection (7) and that a judicial review, which I supported, felt that that went beyond the exemption in the directive that required the regulations to be brought under section 2 of the European Communities Act 1972. The Government scraped through. The courts have already considered the matter and have commented, and there is therefore case law from the High Court. The Minister's arguments are not strong as they apply to the wording.
I am grateful that the Minister said that he will consider what appears again to be a lack of consistency. Later, the employment regulations will be amended in clause 76. I have tabled an amendment that will point out another area where they are not aligned.
The fundamental problem is that the Government seem to have substituted a test of expediency that is completely subjective with another subjective test of someone being offended. It is subject to the same criticism as we would have about a case where someone felt offended by a Bible in the hospital bedside cabinet, forcing local authorities to go round removing them. It is the same problem. We do not accept such cases, which might apply to small providers, and we should not accept the subjective failure to test the basis for the discrimination.
I understand that some of those organisations are small and would rather not change those of their practices that happen to be discriminatory, but that is not a good argument for not legislating. However, one could not describe some of those organisations as small. For instance, the Church of England and the Catholic Church are large organisations.
Finally, I urge the Minister to reflect before Report on the huge difference that exists between not allowing discrimination in race, particularly on such a subjective test—it would offend me to have to ''not discriminate'', yet a weak test is defendable particularly when, as he said, there is a large read-across between faith and race in other parts of the Bill—and other sorts of discrimination. I do not think that it is right to have such a weak test.
This is the first time that I have been less happy after hearing the Minister's usually emollient words than when moving the amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I beg to move amendment No. 35, in clause 56, page 36, line 44, at end insert—
'(5A) Nothing in this section shall make it lawful for an organisation to which this section applies, and which performs a public function, to act contrary to the provisions of section 51 (1) in the performance of that function unless in so doing it is acting under, and in accordance with, a requirement of a contract with a public authority to perform that function.'.
Roger Gale (North Thanet, Conservative)
With this it will be convenient to discuss amendment No. 36, in clause 57, page 37, line 17, at end insert—
'(2A) Nothing in this section shall make it lawful for a person to whom this section applies, and who performs a public function, to act contrary to the provisions of section 51 (1) in the performance of that function unless in so doing he is acting under, and in accordance with, a requirement of a contract with a public authority to perform that function.'.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I shall try to be quick. The amendments deal with religious organisations performing public functions. I am grateful to the British Humanist Association for its help, and for the efforts of Baroness Turner of Camden and Baroness Whitaker, who spoke in another place in Committee and on Report respectively. They tried to do something about the problem.
Religious organisations and charities as defined in clauses 56(1) and 75(1) are exempted from the duty not to discriminate in certain circumstances. However, such organisations and charities may be carrying out functions of a public nature. For example, they may be providing statutory or other services under contract from a local authority or the NHS. In such circumstances, they should be exempted from the general law, and clarification is needed on whether they will be allowed to discriminate in the performance of such functions.
Amendments were tabled in the other place that would have added new subsections after clauses 56(5) and 57(2). They were similar to my amendments. Ministers in the other place made a fair point in response to the amendments; they said that organisations will sometimes be requested to do something that is discriminatory in effect, such as outreach work for the health service with Muslim women. That is fully understood. That is why the amendments have been revised. They are important, given the Government's policy of encouraging the religion-based provision of public services—a subject for a separate debate. Certainly there will be legitimate occasions when such public functions are carried out by religious organisations.
The amendments meet the objection correctly made in another place by Baroness Scotland. I hope that the Minister will look kindly on them, because I am concerned that when such bodies act as a public authority they could discriminate. The Minister will be aware that the Human Rights Act duty to secure non-discrimination in the enjoyment of convention rights requires that organisations behaving as a public authority should be careful in that respect.
I hope that the Minister can offer me some comfort, because mine is a genuine attempt to get the wording of an amendment right in response to concerns raised in the other place.
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
I appreciate that the hon. Gentleman's efforts are always a genuine attempt to improve the wording of legislation—from his perspective. This is an important matter. As we increasingly have a mixed economy of public service provision by private sector, voluntary sector and public sector organisations, this becomes an important issue. Current case law, most notably the Leonard Cheshire case, suggests that faith groups and others that are used to deliver public services will not generally fall within the definition of public authorities in the Bill. It is unlikely, therefore, that faith groups that might make use of the exemptions in clauses 56 and 57 would at present be considered to be public authorities for the purposes of clause 51. Therefore, the amendments may seem unnecessary. However, Ministers in the other place and elsewhere have made it clear that we regret the narrow interpretation of public authority given in the Leonard Cheshire case. The Government believe that the term ''public authority'', as used in section 6 of the Human Rights Act, should cover third-party bodies in broader circumstances than those suggested by that case.
A number of processes are at play here. There is the development of case law, which I have just outlined, and the discrimination law review, which will consider this and other matters. I hope that, through that and the Bill, the position will become clearer. We would expect core public authorities that fund services provided by faith groups to ensure that all who have equal need have equal access to one provider or another. In the majority of cases, that will involve faith groups providing services on a non-discriminatory basis to all those who require such a service. That is how most faith groups would in any event wish to run their activities. They do not want to make use of the exemptions in clauses 56 and 57 because they want to provide services to everyone and not restrict them to people of the same faith.
There are, however, cases where a public authority may wish to use a particular faith group to deliver services that will be discriminatory. For example, a local authority that provides a general meals-on-wheels service may wish to use a Jewish or Muslim group to provide a specific service that meets the dietary requirements of Jews and Muslims. The faith group would be discriminating and would be covered by the exemptions of clauses 56 and 57, but the local authority would not be discriminating, because it would be meeting equally the needs of everyone in the community, regardless of their religion or belief, by providing a wider meals on wheels service to ensure that everybody who needed it received it. Therefore, while contractual requirements are a valuable control, it would not be right to limit the exemptions in these clauses entirely to them.
I hope that I have been able to offer some reassurance to the hon. Member for Oxford, West and Abingdon. The situation is to some degree fluid. Case law is developing and there is the discrimination law review. We also have powers in the Bill to vary some of the exceptions as we learn from experience and as further developments take place, but I think that at present the balance is correct.
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
I am grateful to the Minister for those remarks. He is right that there was the judgment in the Leonard Cheshire case, which was disappointing. I do not think that it was from the Supreme Court, so there is still hope that it will be overtaken by other case law, but otherwise the Government will act. I asked the old Joint Committee on Human Rights what it wanted to do about the problem. In its report it made four suggestions, none of which it was entirely happy with, but there is still agreement that the problem needs to be tackled.
The Leonard Cheshire case showed that the danger existed that there would be discrimination even in what should be perceived as public functions, so the amendments play in an important area. I understood the Minister's specific concern that the contractual provision of the amendment might be too narrow, as it does not take in the wider context of policy from the public authority that is contracting the services, and I shall go away and think about that. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 ordered to stand part of the Bill.
Clauses 57 and 58 ordered to stand part of the Bill.