New Clause 41 — Irrelevance of alleged discriminator's characteristics

Equality Bill – in the House of Commons at 4:15 pm on 2nd December 2009.

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'(1) For the purpose of establishing a contravention of this Act by virtue of section 13(1), it does not matter whether A has the protected characteristic.

(2) For the purpose of establishing a contravention of this Act by virtue of section 14(1), it does not matter-

(a) whether A has one of the protected characteristics in the combination;

(b) whether A has both.'.- (Vera Baird.)

Brought up, and read the First time.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I beg to move, That the clause be read a Second time.

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: new clause 7- Harassment (sexual orientation)-education and services and public functions-

'(1) A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect mentioned in subsection (2).

(2) The purpose or effect is-

(a) violating B's dignity, and

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(3) In deciding whether conduct has that effect, each of the following must be taken into account-

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

(4) The relevant protected characteristic is sexual orientation.

(5) This section applies to-

(a) Part 3 (services and public functions) where the service or public function is carried out by a public authority, or on behalf of a public authority, under the terms of a contract with a public authority, or is otherwise a function of a public nature, and

(b) Part 6 (education).'.

New clause 8- Harassment (gender reassignment)-education-

'(1) A person (A) harasses another (B) if-

(a) A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect mentioned in subsection (2),

(b) A engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has that purpose or effect, or

(c) because of B's rejection of or submission to conduct (whether or not of A), A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(2) The purpose or effect is-

(a) violating B's dignity, and

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(3) In deciding whether conduct has that effect, each of the following must be taken into account-

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

(4) For the purposes of subsection (1)(c), the conduct is-

(a) conduct mentioned in subsection (1)(a), or

(b) conduct mentioned in subsection (1)(b).

(5) The relevant protected characteristic is gender reassignment.

(6) This section applies to Part 6 (education).'.

New clause 9- Harassment (religion or belief)-education and services and public functions-

'(1) A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect mentioned in subsection (2).

(2) The purpose or effect is-

(a) violating B's dignity, and

(b) creating an intimidating, hostile, degrading or humiliating environment for B.

(3) In deciding whether conduct has that effect, each of the following must be taken into account-

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

(4) The relevant protected characteristic is religion or belief.

(5) This section applies to-

(a) Part 3 (services and public functions) where the service or public function is carried out by a public authority, or on behalf of a public authority, under the terms of a contract with a public authority, or is otherwise a function of a public nature, and

(b) Part 6 (education).'.

New clause 10- Caste-

'In relation to the protected characteristic of caste-

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular caste;

(b) a reference to persons who share a protected characteristic is a reference to a person of the same caste.'.

New clause 18- Direct discrimination arising from sexual orientation-

'A person (A) discriminates against another (B) on grounds of sexual orientation if, because of a manifestation or behaviour connected with B's sexual orientation, A treats B less favourably than A treats or would treat others.'.

New clause 19- Discrimination by association and perception-

'A person (A) discriminates against another (B) if A treats B less favourably than A treats or would treat others because-

(a) A perceives B to have a protected characteristic, or

(b) B associates with a person (C) who has a protected characteristic.'.

New clause 30- Caste (No. 2)-

'(1) If a Minister of the Crown is satisfied that any person is suffering, or has suffered, discrimination, harassment or victimisation on the ground of caste, a Minister of the Crown may by order amend section 4 to provide for the characteristic of caste to be a protected characteristic.

(2) An order under this section may make such supplementary provision as a Minister of the Crown considers appropriate.

(3) An order under this section must be made by statutory instrument and is subject to the affirmative procedure.'.

New clause 31- Religious care homes for the elderly-

'(1) Subsection (2) applies to a voluntary care home for persons in need of personal care by reason of old age and infirmity that-

(a) is an organisation of the kind referred to in Schedule 23, paragraph 2(1), or

(b) acts on behalf of or under the auspices of such an organisation.

(2) Subject to subsection (3), nothing in this Act shall make it unlawful for such a care home to restrict the provision of its services or facilities to a person on the grounds of his sexual orientation.

(3) If such a care home restricts the provision of those services or facilities as mentioned in subsection (2), it must at the same time refer the person seeking them to another person who the agency believes provides similar services or facilities to persons of his sexual orientation.

(4) Subsection (2) permits a restriction only if imposed-

(a) if it is necessary to comply with the doctrine of the organisation, or

(b) so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.'.

New clause 32- Religious adoption and fostering agencies-

'(1) Subsection (2) applies to a voluntary adoption agency or fostering agency that-

(a) is an organisation of the kind referred to in Schedule 23, paragraph 2(1), or

(b) acts on behalf of or under the auspices of such an organisation.

(2) Subject to subsection (3), nothing in this Act shall make it unlawful for such a voluntary adoption agency or fostering agency to restrict the provision of its services or facilities to a person on the grounds of his sexual orientation.

(3) If such a voluntary adoption agency or fostering agency restrict the provision of those services or facilities as mentioned in subsection (2), it must at the same time refer the person seeking them to another person who the agency believes provides similar services or facilities to persons of his sexual orientation.

(4) Subsection (2) permits a restriction only if imposed-

(a) if it is necessary to comply with the doctrine of the organisation, or

(b) so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion's followers.'.

New clause 35- Scottish Gypsy Travellers-

'A person has the protected characteristic of being a Scottish Gypsy Traveller if they by reason of their common heritage, culture and traditions, that may but need not include a nomadic way of life in Scotland, may reasonably regard themselves as a Scottish Gypsy Traveller as others may reasonably be expected to be aware of.'.

New clause 43- Caste (No. 3)-

'(1) Caste includes-

(a) jati;

(b) biraderi.

(2) A person has the protected characteristic of caste if the person is a member of a caste group found within a hierarchical group-based system of social stratification, where both membership and group and individual status are hereditary, ascribed, and permanent.

(3) In relation to the protected characteristic of caste-

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular caste group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same caste group.

(4) The fact that a caste group comprises two or more distinct caste groups does not prevent it from constituting a particular caste group.'.

Amendment 2, in clause 4, page 4, line 15, at end insert-'caste.'.

Amendment 53,page 4, line 15, at end insert-

'being a Scottish Gypsy Traveller.'.

Amendment 16, in clause 13, page 6, line 31, leave out 'because of' and insert 'on grounds of'.

Amendment 187, page 7, line 6, after 'race', insert 'or caste'.

Government amendment 144.

Amendment 55, page 7, line 11, leave out paragraph (a).

Amendment 188, in clause 14, page 7, line 23, at end insert-

'(aa) caste;'.

Government amendment 145.

Amendment 58, page 10, line 1, leave out clause 19.

Amendment 189, in clause 19, page 10, line 16, at end insert-

'caste;'.

Government amendment 149.

Amendment 190, in clause 24, page 12, line 24, at end insert-

'(1A) Caste discrimination is-

(a) discrimination within section 13 because of caste;

(b) discrimination within section 19 where the relevant protected characteristic is caste.'.

Government amendments 152 to 154.

Amendment 191, in clause 25, page 13, line 42, at end insert-

'caste;'.

Amendment 194, in clause 34, page 18, line 38, at end insert-

'(1A) For the purposes of subsection (1)(c), "detriment" may include-

(a) refusal by A to exercise any power that A has with relation to the premises;

(b) insistence by A on enforcing any provision of any relevant lease or other agreement.'.

Government amendments 162 to 165.

Amendment 72, page 52, line 5, leave out clause 81.

Amendment 74, page 65, line 8, leave out clauses 104 to 108.

Amendment 192, in clause 145, page 92, line 6, at end insert-

'caste;'.

Amendment 102, in clause 188, page 115, line 36, leave out from 'aim' to end of line 38.

Amendment 196, in clause 192, page 117, line 35, at end insert-

'(A1) It is not a contravention of this Act for-

(a) a person or organisation which provides tourism or holiday services to place age limits on group holidays or holidays catering for people of particular ages;

(b) a person or organisation to design and provide financial products for specific market segments qualified by age or age groups;

(c) a person or organisation to provide insurance programmes where the calculations of the premiums for such programmes are based on reasonable evidence of the underlying difference in risk based on the purchaser's age or age group.'.

Government amendment 177.

Amendment 119, in schedule 3, page 134, line 16, at end insert-

'(3) Nothing in this paragraph is to be taken as a requirement for the same number of places to be provided for both boys and girls.'.

Government amendment 179.

Amendment 120, page 139, line 22, leave out paragraph (e).

Amendment 121, page 140, line 1, after 'effective', insert 'or appropriate'.

Amendment 122, page 140, line 7, after 'effective', insert 'or appropriate'.

Amendment 123, in schedule 5, page 147, line 30, leave out sub-paragraph (3).

Amendment 197, in schedule 9, page 161, line 27, at end insert

', and

(d) the requirement is a genuine and determining one.'.

Amendment 37, page 162, line 13, leave out sub-paragraph (8).

Amendment 130, page 167, line 4, leave out from 'leave' to end of line 43.

Amendment 132, page 178, line 28, at end insert-

'Co-educational institutions turning single sex3A The responsible body of a co-educational school does not contravene this Act so far as relating to sex discrimination if it is a co-educational school deciding to alter its admission arrangements so that the school will be a single sex school.'.

Government amendment 186.

Amendment 14, in schedule 22, in page 210, line 42, leave out sub-sub-paragraphs (a) and (b).

Amendment 15, page 211, line 2, at end insert

'except in relation to academy schools'.

Amendment 198, in schedule 23, page 212, line 11, leave out 'an organisation' and insert 'activities'.

Amendment 199, page 212, line 12, at end insert-

'(2A) This paragraph does not apply to any activity done-

(a) on behalf of a public authority, and

(b) under the terms of a contract between the organisation and the public authority.'.

Amendment 200, page 213, line 9, after 'orientation', insert 'or religion'.

Amendment 31, in schedule 27, page 223, line 32, at end insert-

'School Standards and Framework Act 1998 Section 58(6) and (7). Section 60(4) and (5).'.

Amendment 193, in schedule 28, in page 225, line 14, at end insert -

'Caste Section [Caste (No.3)]
Caste discrimination Section 24 (1A)'.
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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

These are miscellaneous but important new clauses and amendments. Many of them were tabled by the Opposition, but I shall start with the Government ones.

New clause 41 and the associated amendment support the Bill's aim of clarifying the legislation, and we have listened to points made by hon. Members in Committee. The new clause is needed also in consequence of clause 14, which was added in Committee and protects people from dual discrimination.

The amendments are necessary to ensure that, in cases of direct or dual discrimination, the alleged discriminator cannot argue that they are not liable because they share the protected characteristic. Without the amendments a gay man, for example, might dispel an allegation that he had discriminated against another gay man because he himself is gay. That coincidence is irrelevant under the Bill.

We discussed the matter in the eighth sitting of the Committee. The key question was whether, by stating overtly the long established convention that it is immaterial in a case of direct discrimination that the alleged discriminator is of the same religion or belief as the victim, this cast doubt on the situation for other protected characteristics. Our starting point was that it should not have cast doubt because we have merely replicated the law as it applies, uniquely, to religion or belief, and we thought that parallel issues were unlikely to arise. We then considered that the scope for intra-religious discrimination required us to take the action that we have taken.

As a presentational matter, the difference with this Bill is that we now have a single clause setting out the definition of direct discrimination and the qualifications to it, for all the protected strands, but unlike some of the other caveats and elaborations in the clause for particular strands, subsection (6) could, to the unfamiliar, raise questions about where this leaves other characteristics, in cases in which the claimant and the discriminator share the protected characteristic. We do not think that real problems will arise.

We have listened to the arguments made by Dr. Harris, though, when he advanced the case for an amendment, and we have taken his argument pretty well on board. There are two more points that I could make in favour of these changes, but as he advocated them very strongly and we have accepted them, he will be pleased, I hope, and we need not elaborate why we did so.

Clause 14 is about dual discrimination, allowing somebody who has been treated less favourably because of a combination of two protected characteristics to bring a claim. That was introduced towards the end of the Committee stage. The amendments today will make it clearer how the provisions work. There are many consequential amendments that we could not pick up in Committee because the clauses affected had already been debated by the time we introduced the new clause.

On amendment 145 to clause 14, the basic principle is that although the conduct alleged in a dual discrimination claim must be prohibited in respect of each of the protected characteristics in the combination, a claimant does not have to prove that he or she was treated less favourably because of each of them in turn. However, where an exception or justification applies to the conduct which would mean that it was not unlawful direct discrimination because of one or both of the protected characteristics, a dual discrimination claim cannot succeed.

For example, discrimination in employment is prohibited in respect of both sex and race. That would mean that a black man may bring a claim of dual discrimination if he is denied a job because of the combination of his sex and race. He would not need to be able to prove that he was treated less favourably because of his sex and because of his race separately. However, if the employer could show that it is an occupational requirement for the job that it should be held by a woman, and therefore that denying the job to a man would not be unlawful, the claim would not succeed. This is not a change of policy, but it is important clarification because there are provisions in the Bill that allow genuine occupational exemptions of this kind. We have put in place amendments to capture those justifications and exceptions from any other Act as well.

In addition, clause 14 relates to cases of disability discrimination in education which are heard by the special educational needs and disability tribunals or equivalent specialist tribunals. We are excluding from the scope of clause 14 circumstances involving discrimination in education because of disability. That is because the case of someone being treated less favourably by a school, owing to the combination of disability and another protected characteristic, would be met by a single-strand claim in the specialist tribunal. It is better to defer to the expertise of those exclusive jurisdictional regimes than to undermine them by sending combined claims out of their specialist area to the civil courts. We are not stopping a remedy; we are providing the one that we think best fits.

We need to make that amendment to clause 14 to reflect the changes to the rest of the clause, but they are quite techie and detailed and I do not feel that people will be disadvantaged if I do not set out exactly why we need all the consequential amendments. By and large, there was cross-party support for dual discrimination, and it follows that, because the measure was introduced late in the day, we will have to put in shape all prior clauses in order to acknowledge it.

Amendments 152 to 154 are about clarifying "harassment" in clause 25. Amendment 152 replaces the bulk of subsections (1) and (2) with some more straightforward propositions. Currently, subsection (1)(b) defines sexual harassment by copying the wording of European directives, namely whereby somebody

"engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature".

We replicated that wording when we amended the Sex Discrimination Act 1975 to implement the relevant directive, but it is difficult to identify any sexual harassment that would not be verbal, non-verbal or physical, therefore those words were probably always superfluous. The wording has not been a problem with the 1975 Act, but in the more far-reaching Equality Bill it could cast doubt on broader references to "conduct".

The second matter that amendment 152 addresses is an ambiguity in clause 25(4). "Harassment" in clause 25 encompasses three kinds of conduct: first, unwanted conduct in relation to all the protected characteristics, but not pregnancy, maternity, marriage and civil partnership; secondly, sexual harassment; and thirdly, less favourable treatment because a person has rejected or submitted to either sexual harassment or harassment related to sex or gender reassignment.

Clause 25(4) covers the third form. The provision is ambiguous and we need to clarify it to ensure that the conduct that is submitted to or rejected has the purpose or effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The ambiguity arises because of the way in which the three forms of harassment are described, so we have, as it were, restructured the provision.

Amendment 179 amends schedule 3, which relates to part 3 of the Bill, on services and public functions. The issue is about the provision of services to employees and the ways in which they are to be treated as a section of the public. That is relatively straightforward when it involves the arrangement by employers of such services for employees as gym membership, but when the employer discriminates in providing access to that service, the employer can be held liable. Employers should ensure that all employees can access the service without being discriminated against, but that becomes more difficult when it is applied to group financial products such as group insurance policies-arrangements between an employer and an insurer for the benefit of the employees, their partners and so on.

Group personal pensions are arranged by the employer for the employee as part of their overall package. They are entered into on the basis not of individual characteristics, but of the employer's business and the overall profile of their employees. Currently, employers are responsible for those schemes, as they are part of the employment relationship, and the amendment would remove from the scope of the provisions services group insurance schemes that are arranged in that way. It is very important that I mention that, as it is a change of that kind.

Amendment 186 is a purely technical amendment, so let me bother the House with it no longer. I look forward to hearing from Mr. Harper about the Conservative new clauses.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 4:30 pm, 2nd December 2009

Before I speak to the new clause, I want to say a brief word about timing-a point well raised by my right hon. Friend Miss Widdecombe. It is obvious at this stage of proceedings, with less than one and a half hours to go until the Report stage concludes, that there has been a gross underestimation of the time that the House requires for debate. That is solely a matter for the Government. Last week I wrote to the Leader of the House-a letter that I copied to Mr. Speaker and to which I am yet to receive a reply-pointing out that she had committed to Dr. Harris to open negotiations with the Opposition parties and interested Back Benchers on the timing of the scrutiny of the Bill on Report. That appears in the Official Report of 25 June 2009. That negotiation never happened. She also said that she wanted to ensure that the way that we scrutinised this Bill was an exemplar of how the House of Commons scrutinises Bills. I think it is clear that it is no such thing. If it is an example, it is a very poor one.

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Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

In the light of what my hon. Friend has said, should not the Minister withdraw the remark that she made a few moments ago when she said that the Government were not asked to provide more time for consideration of the Bill?

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. Before this matter proceeds any further, I think that the hon. Gentleman's comments clearly indicate that time is now of the essence. Perhaps these are matters for another day. I suggest that he now makes the necessary remarks about new clause 41.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful for your guidance, Mr. Deputy Speaker; I am sure that my right hon. and learned Friend Mr. Howard recognises that I will follow it.

The Solicitor-General has clearly outlined the purpose of new clause 41, and we are perfectly happy to accept it. I want to speak to some of the other new clauses and amendments in the group. For the benefit of the House, I will make my remarks as brief as I can. I am not going to curtail necessary debate and the points that I need to make merely because we are short of time, but I will not prolong my remarks unnecessarily. New clauses 7, 8, 9, 18 and 19 and amendments 14, 15 and 31 cover harassment on several grounds relating to sexual orientation or other gender issues. Some of those were tabled by the Liberal Democrats; I understand that the key one is new clause 7, which they may well want to speak to. Having looked at the new clause and reconsidered the matter, I thought that it would be helpful if I outlined our views on it. In Committee, the Solicitor-General indicated that there was no evidence that there was a real problem. The most telling evidence that we heard came from Stonewall, who said that there was no clear evidence that homophobic bullying in schools required this legislative solution and that it could be dealt with in other ways. Stonewall said that it campaigned for legislative change but only where there was an identifiable real-life mischief that required such change, and it was not convinced that it was necessary in this case.

In Committee, the hon. Member for Oxford, West and Abingdon gave the example of two parents who were gay and had adopted a child who would find it difficult if they went to a school where homosexuality was taught to be sinful. I said that parents in that position would not choose to send their child to a faith school where that was the belief of the religion concerned; indeed, I said that that would be a completely crackers policy. In other circumstances, such as bullying between pupils, that is a matter to be dealt with by the school.

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Photo of Evan Harris Evan Harris Shadow Science Minister

I am intrigued by the way in which the hon. Gentleman is citing my argument. Is he saying that the best way to avoid the problem is for parents who fear that their child will be bullied to not choose schools where they might be bullied? That is a new line, even from the Conservative party, on parental choice. Surely the argument is that no school should countenance such behaviour so as to maximise the choice available to parents, especially those in the position that he describes.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman is misrepresenting my remarks, I hope not deliberately. There are two specific situations here. If the child is being bullied by other children, then the right solution is for that to be dealt with by the school and the school authorities. The Solicitor-General made the very sensible point that in the state sector, there is clear guidance from the Department for Children, Schools and Families that it should be dealt with by the school. When the problem is between pupils, it is not appropriate for the law to be involved. The case that the hon. Gentleman is talking about is not really one of bullying but one in which a child whose parents or guardians are gay feels harassed by the school, presumably a faith school, teaching as part of its ethos that homosexuality or its practice is sinful. My point was that it would not be sensible for a parent in that situation to choose a faith school, knowing that they would be putting their child in that position. It would be crackers. It is not at all accurate for him to characterise that as my saying that people have to predict where their child will not be bullied when they choose schools.

Photo of Evan Harris Evan Harris Shadow Science Minister

I can see the point that the hon. Gentleman is making, but I shall put my point in the language that he is using. Is he saying that parents who fear that their child will be harassed by being told that their parents' lifestyle is unacceptable or sinful should have less choice of school? They cannot choose their local state school if that risk exists. Would it not be better to have a provision outlawing harassment, so that faith schools had to work within the framework of non-harassment?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I think the hon. Gentleman's argument is really about whether there should be faith schools. I have set out our view of his new clauses, which will give him an idea of how we will vote if he presses them. I believe I will have the support of my right hon. and hon. Friends if I do not prolong this part of the debate, given that we wish to cover a number of other matters.

A number of new clauses and amendments, tabled by various Members, are about discrimination according to caste. Those are new clauses 10, 30 and 43 and amendments 2, 53, 187, 188, 192 and 193. I and a number of other Members raised the matter in Committee, and we took the line that we were not convinced that there was a serious existing problem in the UK. I suggested that if it were proved that there were, it might be possible to subsume protection against caste discrimination into one of the other protected characteristics. The Solicitor-General said that the Government had looked hard to see whether there was evidence of such discrimination, and that such evidence had not been brought before them. However, she said that they were continuing to examine whether there was a specific problem.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

There is a great deal of information and evidence about the presence of caste discrimination in this country, not least in the document produced by the Anti Caste Discrimination Alliance over the past few weeks, which is a significant study. It is time to put to rest the line that many people have taken that there is no evidence of caste discrimination-there is an enormous amount, and it is time that we addressed this scourge on the many people in our society who suffer from it.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the hon. Gentleman. In a moment I shall draw attention to the information from the ACDA that I received just last week, and then I will listen carefully to the Members who have proposed the relevant new clauses and amendments. I was simply setting out what the Solicitor-General had told us, and I have not seen any evidence that the situation has moved on.

It would be helpful if those who have tabled the new clauses and amendments explained how we can deal with the problem. Some have proposed a new protected characteristic and some propose adding caste protection to the race discrimination provisions, and it would help if they explained what other type of discrimination caste discrimination is most akin to. I have looked into it, and it clearly has some similarities with race in the sense that people are born with it and are unable to change it, but its origins are heavily linked to religion and the Hindu faith. I am not sure how well adding it to one of the other protected characteristics would deal with the matter. Equally, I am not terribly keen to start creating a large number of new protected characteristics, given that one of the central purposes of the Bill was to bring together a number of strands of discrimination and simplify legislation on them so that it can be enforced more effectively in practice. It may be that there is a good case for including caste as a protected characteristic, but there may also be a case for including a lot of other things. If we end up having a very large list of protected characteristics, this area of law will become ever more complex. However, I will listen with interest to those making those proposals.

I said that I would speak briefly about the letter that Members received from the ACDA, which refers to a scoping study it carried out between August and October. Not being a statistician, I do not know how much weight one should give to that study. The organisation says that 300 people participated in an online questionnaire and that there were nine focus groups in England. It said that from that survey, there was clear evidence that the caste system had been imported into the UK with the Asian diaspora and that caste discrimination affected people in ways beyond personal choices, including in employment, education and the provision of services.

ACDA said that based on the survey data, there may be 100,000 people in Britain who are affected by such discrimination. I do not know-I presume the Minister has had professional advice on this-whether an online survey in which 300 people participated and the findings of nine focus groups is sufficiently robust research to draw the conclusion that 100,000 people suffer such discrimination. If that is true, the House will want to look at it very seriously, but on the face of it, I am not sure one can draw that conclusion from the depth of that research. As I said, I am sure the Minister has had advice from officials and statisticians on whether it would be safe for the House to reply on that basis. I am sure she will remark on that when she responds.

My right hon. and learned Friend the Member for Folkestone and Hythe, to whom I was not allowed to respond earlier, tabled amendment 196, which refers to the age discrimination provisions in the Bill. We welcome the introduction of measures to ban age discrimination, but we raised in Committee the fact that the provisions in the clauses on age discrimination, principally clause 192, which amendment 196 attempts to improve, are very wide powers, and that the vast majority of the detail was going to be brought forward by secondary legislation.

My right hon. and learned Friend has a company in his constituency that would be affected by the measures, for which he will speak up very effectively later if there is time, but we raised its concerns, and those of a number of other organisations, in Committee. We asked whether the Bill would allow very sensible, worthwhile business models that give older people better terms and conditions, which we termed "good discrimination", for things such as holidays, leisure facilities and insurance products, and whether such models would be sufficiently recognised.

We were concerned about that at the beginning of the Committee, but less concerned after the Minister published the Government's consultation on age discrimination, because it adequately recognised the concerns of those business organisations and asked for their responses. The consultation has now closed, but we have not yet seen those responses or the Government's response. The regulations that implement those age discrimination measures will be informed by the consultation and we will be looking closely at whether they accurately reflect the consultation and the concerns of those business organisations. Clearly, our support or otherwise is contingent on that. My right hon. and learned Friend may not have a chance to make these points, but I know he will be looking to the Minister for a clear assurance that the regulations will ensure that businesses that legitimately provide products based on the age of consumers will be able to continue. He and many who are employed in his constituency will welcome a clear response from the Minister on that.

The final areas on which I want to touch briefly relate to religion. New clauses 31 and 32, the latter tabled by my right hon. Friend the Member for Maidstone and The Weald, will-from the point of view of the Conservative party-be subject to free votes, so what I am about to say will be my personal views. I also have some questions for those who tabled the new clauses, the answers to which I will take into account when I cast my vote later. The two clauses are very similar in their drafting, although new clause 31 refers to care homes for the elderly and new clause 32 refers to adoption or fostering agencies.

Both clauses specifically refer to voluntary care homes and voluntary agencies. How would that affect those agencies that take money from public funds? My view is that if a care home or adoption agency takes money from the taxpayer and provides a public service, it should do so in a non-discriminatory way. For example, if a voluntary care home has any clients who are paid for by the taxpayer, does that change the nature of that organisation and would it affect the impact of new clause 31?

My second point refers to the drafting of the new clauses. Both specifically say that a care home or adoption agency would be able to restrict the provision of their services or facilities to a person on the grounds of their sexual orientation. If they were to restrict the provision of services, they would have to refer the person seeking them to another organisation that could provide services for them. That restriction could be imposed only if necessary to comply with the doctrine of the organisation or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. I am a little confused about that, because most of the religions-and, given the supporters of the amendments, we are largely talking about Christianity-do not have a problem with someone's sexual orientation, per se, but with the practising of that sexuality. Those religions also have a problem with those who have sex outside marriage, even if they are heterosexual, but the clauses refer only to sexual orientation. It would be helpful to know why they were drafted in that particular way.

Photo of Evan Harris Evan Harris Shadow Science Minister 4:45 pm, 2nd December 2009

I understand that the hon. Gentleman is speaking for himself and that it is his view that if one is in receipt of public funds and delivering a public service, one should not discriminate, and that therefore, for example, a Catholic adoption agency should not say that it will not provide services to gay couples. On the same basis, is it right that a Catholic adoption agency, funded by the public and delivering a public service, should be able to say that it will not provide services to Jewish, Protestant or Muslim couples seeking to adopt?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

If the hon. Gentleman will forgive me, I shall limit my remarks to the new clauses that are under consideration today, given that we are short of time. Otherwise, we would be in danger of widening the debate and I suspect that you, Mr. Deputy Speaker, would jump on me from a great height if I did so.

Amendment 37 was tabled by Mr. Drew and it refers to schedule 9 to the Bill and an exemption provided for religious organisations in employment matters. There is an interesting dispute here about whether the Government are changing the existing law. The provision in the Bill is about the definition of employment for the purposes of an organised religion, and the amendment would remove that definition from the Bill.

There are two parts to the definition:

"Employment is for the purposes of an organised religion only if the employment wholly or mainly involves...leading or assisting in the observance of liturgical or ritualistic practices of the religion, or...promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)."

Many Christian and other religious organisations are concerned that the definition is new, will change the law and narrow the scope of the exemption. They are concerned because they believe it will prevent them from using the exemption for a number of posts in their organisations where they are currently able to do so.

Photo of John Mason John Mason Spokesperson (Work and Pensions)

The hon. Gentleman said that many posts would be excluded by the definition, but some people feel that all posts would be excluded. Let us consider the definition:

"wholly or mainly involves...leading or assisting...liturgical or ritualistic practices...or...promoting or explaining the doctrine of the religion"

Even a full-time priest, minister or pastor would not "mainly" be doing that, because much of their time is spent visiting the sick and perhaps with funerals and so on. In fact, therefore, the definition could exclude everybody.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman, who served on the Public Bill Committee, anticipates some of my later remarks. Ministers and priests have written to say that they do not think that what they do would be accurately captured by the definition. On some areas, there is a dispute between the Government and organisations, but the Government have been clear about one thing: ministers, priests and those who lead worship in churches should be covered by the definition. However, many organisations are now concerned that even those positions would not be covered, so it would not even achieve what the Government hope.

Photo of Andrew Selous Andrew Selous Shadow Minister (Work and Pensions)

Does my hon. Friend agree that there is a double standard here? It seems to be in order for the Labour party to discriminate against committed Conservatives applying for a post as, for instance, director of a research department, so why should faith-based welfare organisations not have the same degree of free association, whether they are Christian or of any other religion? That is a fundamental principle, and it strikes me as odd that we exempt political parties and treat them in one way, but treat faith-based organisations completely differently.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My hon. Friend makes a good point, and he will not be surprised to learn that it has been made by a number of those faith organisations that feel that they are being treated unfairly.

When we raised that point in Committee-we discussed it at length-I think that the Solicitor-General's argument for the Government was that the provision did not change the existing law, but simply clarified the definition to save courts and tribunals having to do it themselves. Effectively, she said that it did not change the position. We probed and argued, and the more that I learned about it afterwards, the more time that I took and the more that I looked into it, the less convinced I was that she was right. I think that the definition narrows the scope of the law. That is why I have put my name to amendment 37 and why Conservative Members will be happy to support the hon. Member for Stroud if he presses it to a vote.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Does my hon. Friend share the concern of a wide spread of Christian denominations, from the Church of England through to the Fellowship of Independent Evangelical Churches, which do not understand why the Government have departed from their position in the Employment Equality (Sexual Orientation) Regulations 2003? In the 2004 Amicus case, the Government said that they were engaged in

"striking a delicate balance between the employment rights of gay and lesbian people, and the right of religious groups to freedom of religion", and that they were

"concerned it would lead to litigation in tribunals about the extent to which requirements dictated by doctrine or the religious convictions of followers could legitimately limit working for an organised religion".

Is it not the case that the provisions will affect that balance and strike at the heart of religious liberty?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 5:00 pm, 2nd December 2009

My hon. Friend is right. I was just getting on to why we have ended up in this position, and from a European route too. The European Commission has issued a reasoned opinion that claims that the UK exemptions passed in 2003-the regulations to which my hon. Friend referred-are broader than allowed by the employment directive of 2000. Indeed, the Commission is effectively lobbying the House, in a way that I do not feel is entirely appropriate, by saying:

"We welcome the proposed Equality Bill and hope that it will come into force quickly".

The European Commission has no business telling the Parliament of the United Kingdom whether we should pass legislation. Frankly, that is none of its business. It would be interesting for the Solicitor-General to tell us whether the Government have indeed tightened the Bill in response to the Commission's reasoned opinion.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

This is interesting, because I think that I am right in saying-the hon. Gentleman will correct me if I am wrong-that he and I both think that the Government have narrowed the scope of the exemption. He welcomes that-if narrowing is indeed what the Government have done-whereas we do not; but interestingly, we both think that the narrowing has taken place. In Committee, the Solicitor-General held the view that there had been no narrowing. [ Interruption. ] The right hon. and learned Lady repeats her view now from a sedentary position. However, I do not think that hon. Members will find that convincing, which is why it would be helpful to test the opinion of the House.

Photo of David Drew David Drew Labour, Stroud

I thank the hon. Gentleman for giving way, seeing as we are discussing amendment 37 in some detail. Like him, I am concerned about the position of the European Commission, particularly as it would seem that the Commission did not formally publish what role it had played in trying to influence the Government. Only by a degree of investigation and chance did we discover what the Commission's perspective is, which is doubly unhelpful and a good reason why amendment 37 should be accepted in due course.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman makes a good point. The European Commission openly said that it had written a reasoned opinion and sent it to the United Kingdom. However, I understand-I am sure that the Solicitor-General will correct me if I am wrong-that when various organisations have tried to get hold of a copy, officials from the Government Equalities Office have declined to let them have one on the grounds that such opinions are confidential to the Government. It is helpful that we now have a copy of that reasoned opinion from a source in Brussels, but it is disappointing that it was not released by the Government. It should be placed in the Library, so that all Members can see it. It would be helpful if the Solicitor-General can let me know when she responds to this debate-or now, if she wants to intervene-why it was felt necessary to keep that secret.

I understand that the reasoned opinion states that the Government have given an undertaking to remedy the alleged defect that the European Commission says is in our existing law, but the Solicitor-General has just confirmed to the House that the law is not being changed at all. I do not see how we can square that circle. The view that the hon. Member for Oxford, West and Abingdon and I share-that the measure has been narrowed-is the right one. We might differ on how welcome that narrowing is, but what he and I have set out, as well as the Government's response to the European Commission, all appear to confirm that. If there has indeed been such a narrowing, as we think there has, we shall support amendment 37, standing in the name of the hon. Member for Stroud, which seeks to extract that definition from the Bill.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman is absolutely right. The nub of the issue is that the Government cannot have it both ways. They cannot tell the European Commission that they will comply, and thereby avoid infraction proceedings, by narrowing the scope of the measure that they say the Commission judges to be too wide, but at the same time tell us, with the other side of their face, that there is no narrowing at all. They cannot have it both ways. The reasoned opinion makes it clear that the Government have assured the Commission that what we have is the very narrowing that the Commission required.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the hon. Gentleman for that. This will obviously take some time and I apologise to the House for that, but it might be helpful for hon. Members to know that paragraph 19 of that reasoned opinion-reasoned opinion No. 226, on EC cases other than failure to notify measures-says:

"The UK Government has informed the Commission that the new Equality Bill currently under discussion before the UK Parliament will amend this aspect of the law and bring UK law into line with the Directive."

Assuming that the European Commission has correctly interpreted what it has been told by the British Government, I do not see how that interpretation can be true given what the Solicitor-General has told us-that this definition does not narrow the law. They cannot both be true: either the Government have misinformed the European Commission or the European Commission has been very confused. In that case, the Solicitor-General will be able to tell us and she will either have to get a letter winging its way immediately to the European Commission to put it straight or she will have to admit to the House that the provision does indeed narrow the exemption, which she has insisted today is not the case. In any event, we will listen to her explanation with great interest.

Colleagues may feel that I have done this particular aspect of the provisions to death, so I shall briefly pick up a few points I made in response to John Mason. Members will be pleased to know that I am coming to my final point, as I know others want to enter the debate. I remind them, however, that I did not draft the programme motion.

I have had a number of letters from pastors and priests that have been passed on to me from various Christian organisations. I shall try to give a general sense of them rather than quote from them. The authors do not believe that their leadership role within their Churches falls within the definitions. Let me cite one from Spencer Shaw, the pastor of the Emmanuel Evangelical church in Chippenham. He makes the point that he works more than 50 hours a week and that although some of that time is spent leading corporate worship and teaching biblical doctrine, the larger proportion of his time is spent on other matters of running a church. He spends many hours each week in leadership meetings, working with other Churches, organising events, training staff and volunteers, visiting the sick, and listening to and encouraging people with problems. He also spends many hours in study, personal prayer and preparation. He says all those activities

"are vital to the role of the Christian Minister and must be undertaken by someone whose beliefs, ethos and lifestyle are consistent with those of the church he leads."

He does not feel-I have read his explanation of what his job involves-that he would fall within the terms of the definition in the Bill because he would not "wholly or mainly" spend his time on the two specified activities. If the definition does not even include people who lead worship in their churches, it seems to me that it is a faulty one.

I could add a number of other examples, but I will not try the House's patience by reading them into the record. I am not at all convinced, however, that this definition is sound or that the Solicitor-Genera is giving us a straight answer about whether it changes the law. I hope that she is able to clear that up, as it does not accord with what the Government have told the European Commission. On that note, let me make it clear that Conservative Members will support the hon. Member for Stroud if, as he has indicated, he presses his amendment to a Division.

Photo of David Drew David Drew Labour, Stroud

This will be a short speech, as we have already covered much of the ground. I intend to press amendment 37 to the vote. The amendment is straightforward in the sense that it simply removes paragraph 2(8) from schedule 9. What those who feel strongly about this want to see is effectively a return to the status quo. We have just had an argument about whether and why the Government's interpretation is narrow. The simple answer is that even if we argued crucially that ministers as part of organised religion have certain protections-in some cases those protections have been found wanting by the courts under existing legislation-others involved in religion do not. It is absolutely right to protect people when they are going about doing something that in any other walk of life they would feel entirely free to do.

Several examples have been given. Andrew Selous mentioned political parties. We saw a real live example involving them when a peer who had taken the Labour Whip until the last election had it removed from him because he had happened to make a voluntary donation to a friend who was a member of another party. Some of us may have misgivings about that, but it happened, and that individual had no recourse because he was seen to have been disloyal to the political party that he served as a parliamentarian.

I believe, as do the other Members who signed up to amendment 37, that that safeguard would not apply to religion, and we feel strongly that there is a need for protection. We are not asking for a change in the law; we are merely asking for the status quo to be reinforced. It is irrelevant to us whether the narrowing of the definition is a result of the Government's own inclination or of pressure from the European Union. The simple fact is that if sub-paragraph (8) is removed, we shall feel that the position has been clarified.

This issue has been a source of debate not only here but in the Public Bill Committee, on which I, like others, was pleased to serve. To be fair to the Solicitor-General, I should say that we were given some clarification, and some of us felt that it would go a long way towards making clear that people in organised religions would be given rights and protections. However, the Government seem to have moved in the other direction and weakened those protections, which is why I tabled amendment 37.

The strength of public opinion was demonstrated in a letter sent to the Minister for Women and Equality saying that members of many Churches and other religions-for this concerns not just the Christian community, but a number of religions-felt that if the provision were passed in its current form, it would bring about a deleterious change that would threaten to prevent those involved in organised religion from going about their everyday business.

I hope that the Government will think again and will agree to take us back to where we thought we were-or, at least, the position to which we thought they were moving in Committee-rather than taking an even harder line and restricting even further the freedom of operation of people who, in good faith, pursue their religious convictions. I tabled the amendment because I believe in freedom of conscience. I do not believe that there should be a right to discriminate against people who are, for instance, gay or disabled, but I do believe that people have a right to work with fellow members of their faith. I believe that that right should be recognised and should not be undermined by people who come in and say-as happens too often nowadays-that they want exactly the same rights as members of organised religions whose faith they may not share and whose goals they may not wish to pursue.

I hope that the Solicitor-General will consider amendment 37 carefully. It seems to have attracted support from both sides of the House. I hope that, even at this late stage-I am sure that those in the other place will give the amendment careful attention if it is not accepted here-we can obtain clarification and stop the narrowing of the rights of members of organised religions. I should be delighted, in due course, to press the amendment to a vote.

Photo of Evan Harris Evan Harris Shadow Science Minister 5:15 pm, 2nd December 2009

There are a lot of amendments in this group, and I know that many Members wish to speak to them, so I will be as brief as possible, especially as much of the necessary ground has been covered in the previous two speeches. While I do not agree with what Mr. Drew has said, I certainly think that he and Miss Widdecombe have a right to have a debate. I also hope that the House will recognise that I have tried on more than 10 occasions to secure adequate debating time for the Report stage of this Bill. I got several assurances from the Leader of the House that there would be proper consideration and scrutiny not only of Government amendments-there are five more groups of Government amendments that we will not get anywhere near scrutinising-but of other important amendments that divide the parties, and that cannot be dealt with on Division in Committee as it is not possible for the breadth of opinion that exists to be expressed in Committee. It is nothing short of disgraceful that we are in this position now. A second day is all that would have been required for us to make sufficient progress.

I accept that the Speaker has done what he can by providing large groups that enable us to touch on a number of issues, but the Leader of the House will go down in history as having organised things in such a way that more amendments and new clauses than ever before have fallen without scrutiny in this place. The Government will find it more difficult to get their business through the upper House because of this failure to give us the opportunity to debate these matters, and that is counter-productive for the Government.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The facts are very straightforward: no Whips from any Opposition party asked our Whips for a second day. Nobody at all from either main Opposition party has ever approached me asking for a second day either, and therefore, by default, one day has been allocated. If anybody had wanted more, they only had to ask and we would have considered their request. The letter from Mr. Harper that caused-

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I am reluctant to interrupt the hon. and learned Lady, but the point she is making is a debate for another day given that we now have only three quarters of an hour left. I am sure this issue will be returned to in other ways later.

Photo of Evan Harris Evan Harris Shadow Science Minister

I understand your concern, Mr. Deputy Speaker, and I can only say in reply that, as reported in Hansard, I asked the Leader of the House on 25 June whether she would open negotiations-

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. This does not help either. Perhaps Dr. Harris will now address his remarks to the amendments before the House.

Photo of Evan Harris Evan Harris Shadow Science Minister

I want to deal first with new clause 7-and new clause 8, which is closely related-which calls for protection from harassment on the grounds of sexual orientation in education and the delivery of public services. Protection already exists in those areas in respect of other grounds, so it is necessary also to protect vulnerable individuals on these grounds.

The key point about people in education and using public services is that they are a captive population. They cannot choose another hotel, another bed and breakfast or another retailer; they rely on public services, and in schools, they are particularly vulnerable. Therefore, all one needs to do to make the case for this provision is to show that there is a bullying and harassment problem in those places and that the new clause will do the job in providing protection, just as the existing provisions, such as for protection from racial harassment, do their job.

It is also necessary to ensure that there is no undue infringement of free speech, however. I hope that hon. Members will accept that I am always sensitive to arguments about that, which is why my proposed definition of harassment in relation to sexual orientation is, even for schools, slightly narrower than the existing provision for sexual orientation harassment in employment, as it requires both a violation of dignity and the creation of an environment that is

"intimidating, hostile, degrading, humiliating or offensive".

A number of studies have shown that there is harassment on the grounds of sexual orientation. A European Union study showed:

"Discrimination on the ground of sexual orientation...becomes an important issue for secondary schools...The main problems experienced by LGB individuals include: harassment and bullying...insulting and degrading treatment during classes...Fellow pupils may threaten or subject LGB pupils to verbal and physical abuse in the classroom and on school grounds".

That evidence is cited by the Equality and Human Rights Commission in support of including a measure such as this in the Bill.

In addition, the EHRC's briefing material states:

"Stonewall found that of the 1,100 lesbian and gay people interviewed in 2007 for The School Report:

Almost two thirds...of young lesbian, gay and bisexual pupils have experienced direct bullying. 75 per cent. of young gay people attending faith schools have experienced homophobic bullying."

The idea, promulgated by Mr. Harper, for whom I have a great deal of time otherwise, that the solution is for parents to choose schools where pupils will not be harassed is astonishing. Would he make the same argument about racial harassment-that argument could be made, too? That is otiose and odious in principle, but the idea that this provision should apply in areas where there is no choice of school, or that people who are vulnerable to harassment should have a smaller choice of schools because they have to avoid the schools where harassment takes place, is bizarre. In the Public Bill Committee I asked the representatives of religious organisations whether anything in the way in which they deliver the curriculum, be it on religious education or anything else, amounted to the creation of an environment that was hostile, degrading, threatening or offensive, and they said that there was not. They said that that was not part of what they do, so I do not think that this provision will in any way hinder what faith schools can do. In fact, it is not about faith schools; it is about all schools.

Photo of Andrew Selous Andrew Selous Shadow Minister (Work and Pensions)

I speak as a governor of a voluntary controlled state school in my constituency. Is it not the case that all schools, faith schools or otherwise, take all bullying and all harassment extremely seriously? None of them is negligent about it, so why do we need a new provision? Is this not dealt with already?

Photo of Evan Harris Evan Harris Shadow Science Minister

No, it is not, because protection from harassment on the grounds of sexual orientation is not available in school as it is in employment. If schools had policies sufficient to ensure that this was not a problem, as the hon. Gentleman and I agree they should, we would not be turning to the law. However, the evidence that I have just set out for him, which is well established, is that young people who are lesbian, gay or bisexual or who are perceived as such do experience harassment. It was found that 97 per cent. of pupils hear other insulting homophobic remarks such as "poof", "dyke" and so on, and less than a quarter-23 per cent.-of young gay people have been told that homophobic bullying is wrong in their school. It was the hon. Member for Forest of Dean who seemed to say that this was about faith schools. I am not making that point, because this is about all schools, as it is a current problem for all schools.

Photo of John Mason John Mason Spokesperson (Work and Pensions)

I am against all bullying in all schools, as I am sure all other hon. Members are. The hon. Gentleman has cited high figures for certain types of bullying, but does he accept that there are high figures on almost every other kind of bullying too? The level of bullying faced by religious people is potentially even higher than that faced by the lesbian, gay, bisexual and transgender community.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman will see that new clause 9 contains a provision to extend protection from harassment on the grounds of religion, on an even narrower definition in order to preserve the free speech that is even more greatly engaged there. It would not make provision in respect of an "offensive environment" because people can easily be offended, as I understand it, on the grounds of religion. So that is not an argument for not having the protection. The argument for having the protection is the mischief that exists. That is a view-I am not going to go into more evidence, because we need to move on-supported by not only the EHRC, but the Joint Committee on Human Rights. Paragraphs 114 to 118 of its thick report on this Bill, which contains 112 recommendations, clearly stated that it wanted protection against harassment to be extended to the sexual orientation ground and indeed to the transgender ground-the gender identity ground, which does not currently exist in schools for a similar reason.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I have had extensive contact over the past few years with organisations that deal with bullying. Their evidence shows that homophobic bullying is second in incidence only to bullying on the grounds of appearance.

Photo of Evan Harris Evan Harris Shadow Science Minister

We recognise that there is a problem. This is protected ground in employment. Why should vulnerable people in school not have the same rights to protection on the grounds of harassment that people have in employment? The Equality and Diversity Forum also supports the provision of protection from harassment in schools and public services.

I accept that new clause 9, which deals with religion, is more controversial. The Joint Committee on Human Rights has not expressed an opinion, so I would not seek to divide the House at this stage on the question of harassment on the grounds of religion. I would point out to hon. Members, however, that the definition there is narrower and, of course, protection already exists in employment. It seems to those on the Liberal Democrat Benches that there should be some protection in schools.

Let me deal, if I may, with caste discrimination. This has already been mentioned by the hon. Member for Forest of Dean, so I shall not spend too much time on it, but it is clear that there is a problem. If even one person suffers discrimination, let alone a small percentage of people from that background, it makes sense, now that we have a Bill-after 12 years-that gives us the opportunity to make it a protected ground, to seize the moment. If there is not a problem, such a provision will not be used. To come back and have to await further primary legislation is not seizing the moment, if 12 years can be described as a moment. The problem with the Government saying that there is no evidence is that, in their attempt to find evidence, they consulted only 19 organisations-a figure that is narrow by anyone's terms-all of which were organisations that condone the caste system. It was therefore not a surprise, as we said in Committee, that they said that there was not a problem.

The Anti Caste Discrimination Alliance has done the research and its report shows-I would say that that was good evidence-that caste discrimination is rife in the UK, with more than half of those from traditionally lower status Asian backgrounds finding themselves victims of prejudice and abuse. How can we test this in the courts if there is no basis on which to do so? I do not know why there is a sudden threshold of x many thousand, but even if there were that threshold, I think that it has been met.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Will the hon. Gentleman also concede that one of the problems is that people of lower caste who are discriminated against in opportunities, housing, jobs and a whole range of other things are often very isolated and very poor, and have no access to lawyers or to any independent advice? Putting something in the Bill would at least offer the opportunity for making a serious case on behalf of people who are suffering in silence with no obvious access to any kind of legal redress.

Photo of Evan Harris Evan Harris Shadow Science Minister

I agree. It would be a great pity if we did not take the opportunity to tackle the problem in the Bill. I do not think that it is an ever-growing list-there are not lots of extra grounds. This is one specific ground where there is clearly potential for harm and evidence of discrimination and harassment.

New clause 18 is an important new clause that would seek to define clearly in statute, and not just in case law, that discrimination against someone on the grounds of a manifestation of their sexual orientation-such as sex outside marriage, which is the only option that gay people have-is discrimination on the grounds of sexual orientation. That was made clear in the Amicus case, but, as we heard, there is doubt about this because the hon. Member for Forest of Dean asked that question in respect of the amendment tabled by the right hon. Member for Maidstone and The Weald. It is a live question and many organisations told us in evidence that they thought that they would be allowed to discriminate, not on the grounds of sexual orientation, which is not allowed, but on the grounds of sex outside marriage.

Let us be clear that that is discrimination, because the proportion of gay people who can meet that condition is zero and the proportion of heterosexual people able to meet that condition will always be more than zero, because they can get married. That is discrimination on the grounds of sexual orientation. The Minister said in Committee that she agreed that it was. Making it clear in the Bill will solve all the problems of people believing that they can get away with using such behavioural conditions to get around the ban on sexual orientation discrimination. It will also prevent religion being used as a proxy for such discrimination, by someone saying that one cannot be an orthodox, or proper, member of whatever the religion is if one's private life does not comply with the requirement to have sex only inside marriage, for example.

New clause 19, which is supported by the Joint Committee on Human Rights and is therefore important, asks simply that discrimination by association and perception, which is barred in case law, be expressly covered by the Bill. That would help carers and people who are perceived to be members of protected groups.

On the subject raised by the amendment tabled by the hon. Member for Stroud, it was useful that the hon. Member for Forest of Dean said from the Conservative Front Bench that we have to comply with the EU directive. Indeed, we were supposed to do that when we passed the 2003 employment regulations. The trade union Amicus and others took the case to the High Court, before the Bill, to argue that the exemption that we are talking about was too wide in respect of sexual orientation. Although that case was lost, the judge said that it would have to be read narrowly.

A complaint was then made to the European Commission, by the National Secular Society, I believe-I declare my interest in that respect-that the 2003 regulations did not faithfully comply with the directive because the exemption they gave was wider than the exemptions envisaged in article 4(1) and (2). It is clear from what has been revealed that the Commission has found that the exemption is too wide, and requires the Government to narrow it-or perhaps it requires them to clarify the matter. If they would place the reasoned opinion in the Library, there would not be the current opacity and secrecy, and we would be able to see clearly why they do not believe that this is a narrowing.

There should be no doubt that unless someone is involved in liturgy, proselytising or other activities set out in the schedule, they should be protected from discrimination on the grounds of sexual orientation. It is wrong that people doing youth work who are employed by a religious organisation should be drummed out of their jobs because of their sexual orientation, or be made to be celibate.

Photo of John Mason John Mason Spokesperson (Work and Pensions) 5:30 pm, 2nd December 2009

The hon. Gentleman uses the term "drummed out". Does he accept that there is a difference between recruiting someone and dealing with them in the way mentioned by the hon. Member for Stroud when they have changed their position once in employment?

Photo of Evan Harris Evan Harris Shadow Science Minister

The directive states that the characteristic has to be

"a genuine and determining occupational requirement".

Sexual orientation is not a genuine and determining occupational requirement for youth workers, secretaries or care takers. Religious organisations can say that it is, and I support them in this, in respect of

"leading or assisting in the observance of liturgical or ritualistic practices of the religion," or

"promoting or explaining the doctrine of the religion".

I accept the point that has been made that even if they spend most of their time doing pastoral work and do not run many services, they should be covered by that provision. If that is the issue, perhaps clarification is needed. There is no difference between us on those grounds.

Photo of Alan Beith Alan Beith Chair, Justice Committee, Chair, Justice Committee

Does my hon. Friend realise that many youth workers in churches have as their primary activity the explanation of the doctrines of the religion to those with whom they work? Where do they fall in his understanding of the definition?

Photo of Evan Harris Evan Harris Shadow Science Minister

If their job is promoting and explaining the doctrine of religion, and if their employment wholly or mainly involves doing that, theirs is a teaching role rather than one of organising activities and doing other pastoral work that youth workers do. I think that such a role would fall clearly within paragraph 2(8)(b) of schedule 9, and my right hon. Friend should be reassured. It is not in our interests to interfere with the right of religious organisations, within this exemption, to ensure that those promoting and explaining the doctrine are not subject to gender or sexual orientation requirements. I hope that he accepts my good faith on that issue.

Photo of Andrew Selous Andrew Selous Shadow Minister (Work and Pensions)

The hon. Gentleman keeps returning to sexual orientation, but does not he understand that the current law has already been used against Christian-based welfare organisations that wanted to employ someone who shared their faith? They were challenged and lost their case. This issue is much wider than sexual orientation, and touches on issues such as freedom of association and the ability of faith-based organisations to pick someone of that faith to carry out work within that organisation.

Photo of Evan Harris Evan Harris Shadow Science Minister

Let us be clear: religious organisations have far more scope to restrict employment to people who share their religion than is covered by this part of the schedule. I accept that the exclusion in respect of discrimination in employment on the grounds of religion is now narrow, but we are talking about sexual orientation. That is separate from religion, and one cannot say that a person is of the wrong religion because of sexual orientation, except where that is involved in the two practices set out in the new clauses.

Photo of David Drew David Drew Labour, Stroud

I am grateful to the hon. Gentleman for giving way, although we disagree about whether sexual orientation is the only issue here. However, does he agree that Mr. Justice Richards did not say in his judgment that the narrowing of the definition by the European Commission was necessarily the right way to go? Clearly it is a complicated judgment, but the High Court is at variance with the Commission, and that is why some of us question why the Commission's opinion is considered to be sacrosanct.

Photo of Evan Harris Evan Harris Shadow Science Minister

If we sign up to a treaty we have to abide by it, and the Commission gets legal advice about infractions on our part. Mr. Justice Richards said that in his opinion a narrow reading of the Government's approach could be in compliance with the treaty, but that was his opinion and he is only one judge. If the Government wanted to resist this proposal, they could take the matter to the European Court of Justice in Brussels and see where they got to. It looks as though they have chosen not to do that, so I shall move on to the final groups of amendments, which deal with schedule 23 and discrimination in the delivery of goods and services on the grounds of religion.

My colleagues and I have tabled amendments 199 and 200, which specifically propose that an organisation with a religious ethos that is delivering public services-and which is therefore in receipt of public funding, or which is part of a structure delivering public services or under a contract to do so-should not discriminate against users on the grounds of their religion. If such an organisation were providing a care home, say, the home may appeal particularly to followers of that religion, but the organisation could not hang a sign on the door excluding people from other religions.

For example, a Jewish care home could not exhibit a sign saying, "No Muslims". A sign like that would not be acceptable in racial terms, and it is not necessary or acceptable in religious terms, because the organisation involved is providing a public service. My amendment 199 would restrict an organisation's freedom to discriminate in that way when delivering a public service.

It is the same with adoption. I disagree with the new clause tabled by the right hon. Member for Maidstone and The Weald: I think that it is wrong for people delivering public services to discriminate on the grounds of sexual orientation, and the same applies to religion. If it is wrong for Catholic adoption agencies to say that no gays need apply, it is also wrong for them to say that no Protestants need apply either. It is not good enough to have a referral system, because such a system does not deal with discrimination where it is unacceptable. The problem with buses in Alabama was not dealt with by allowing companies to say, "We discriminate, but don't worry, the next bus along won't discriminate against you."

An organisation delivering a public service has a relatively captive population, and people should not have to shop around to find a place where their dignity will be respected and they will not suffer discrimination. The real danger is that an unamended clause 145, which deals with public sector duty as it extends to religion, could lead to a balkanisation of public services. By that I mean that more and more such services will be delivered by organisations with a religious ethos because local authorities will feel themselves under a duty to allow every group to have their own service. The result will be that the services provided will be discriminatory.

That is not the way we want to go. We want to build social cohesion and, although some organisations will appeal to the religion of certain of their users, we should not allow them to discriminate in those people's favour. In fact, it would be healthy for a halal meals-on-wheels service to ask anyone, "Would you like to enjoy the halal service that we're providing on behalf of the council?"

Photo of John Mason John Mason Spokesperson (Work and Pensions)

I appreciate the hon. Gentleman giving way again, but will he clarify his proposal? Is he saying that schools, for example, should exhibit the same grey sameness, with all of them exactly the same as all the others? Is it not equally valid for a local authority-such as Glasgow, for example-to provide Catholic, non-denominational, Jewish or Muslim schools for families who want them? Is that not an equally good way to provide public services?

Photo of Evan Harris Evan Harris Shadow Science Minister

There are two questions: whether there should be a variety of providers delivering education or other public services, and whether they should discriminate. Plenty of faith schools do not discriminate. So why should one be allowed to discriminate in respect of either employment or the users of services, or pupils, on the grounds of religion? That brings me to amendments 14 and 15, which deal with faith schools.

Photo of Evan Harris Evan Harris Shadow Science Minister

I will do so in a moment; I want to deal with this point, and then make sure that I finish very quickly.

If the Government are right that they need to restrict the provision in schedule 9 to comply with article 4.2 of the European directive, it is clear that the faith school provisions in sections 58 and 60 of the School Standards and Framework Act 1998 have a total exemption from the Bill. Amendments 14 and 15 would deal with that. The Bill says that, regardless of the Bill, schools can do anything under sections 58 and 60 in terms of discriminating against people on the grounds of their religion-or, indeed, their lifestyle-as schools think they can. That is clearly outside the scope of the directive, and I think that the Government know that it is challengeable on those grounds.

It is wrong that that exemption should be specified in the Bill. Why do the Government not remove the exemption in schedule 22 and just ensure that faith schools operate under schedule 9, and have to make that case? That is why we propose amendments 14 and 15. I think that time will show that when a teacher is sacked for being of the wrong religion, or no religion, by the local state school employer that happens to be a faith school, the school will lose and we will be back to square one in needing to amend the legislation.

Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Education), Shadow Spokesperson (Treasury)

The hon. Gentleman has indicated that he has no difficulty with faith schools, but he suggested earlier that faith schools should not be allowed to promote a certain belief that people felt harassed by-and, indeed, that they should be covered by this legislation. He cannot have it both ways, can he?

Photo of Evan Harris Evan Harris Shadow Science Minister

Schools cannot have it both ways. The faith organisations that run schools cannot tell the Public Bill Committee that they would never deliver anything, even their RE, in a way that creates an environment-this is the definition of harassment-that is demeaning, degrading, intimidating, offensive or humiliating. They say that they do not do that. Therefore, the hon. Gentleman cannot have it both ways and say that they need to be able to do that, when the schools are saying that they do not need to. If we get a chance to vote on new clause 7 and the other amendments in this group, I urge the House to support them.

Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

It is a pleasure to speak to amendment 53 and new clause 35, on the Scottish Gypsy Traveller community. There are approximately 25,000 Scottish Gypsy Travellers, and it has been far from clear for a very long time whether they are protected by current legislation-in particular, the Race Relations Act 1976. There is legal precedent in relation both to Irish Travellers and Romany Gypsies. The position has been far less clear in relation to the Scottish Gypsy Traveller community. I have therefore been asked by that community to bring this issue to the House today, to ask for clarification on its position.

I should be interested to hear the Solicitor-General's view on whether that community would be protected by the provisions on race in the Bill and, indeed, whether that amendment is necessary. To date, with the exception of one employment tribunal decision that has not been contested and was only decided by Aberdeen tribunal last year, most of the advice has been that the community could not necessarily rely on the 1976 Act.

The community goes back to at least the 12th century in Scotland. It is a very distinct community, with its own language. I hope that no Division will be required on this matter, but given that the community has suffered historic discrimination, I would be grateful to the Solicitor-General if she responded either now or in her closing remarks.

Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe 5:45 pm, 2nd December 2009

I shall speak to amendment 196 in my name. I draw attention to my entry in the Register of Members' Interests; to the fact, which will be all to obvious to the House, that I am over 50 years old, which is relevant to the remarks that I am about to make; and to my very considerable constituency interest in this matter, in view of the fact that Saga is the biggest employer in my constituency.

I do not want to take up the time of the House unnecessarily. If the Solicitor-General is able to give me now an explicit assurance-I am sure she will have looked at amendment 196-that the provisions in that amendment will be written into the Bill or be covered entirely by secondary legislation, which was what the Government indicated they were minded to do in their consultation paper, I would be happy to sit down now and allow others to use the time that remains.

Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

Alas, the Solicitor-General is not prepared to help the House in that way, so I fear I must continue.

Very many of my constituents' jobs depend on the continuing success of Saga. That continuing success is called into question by the provisions of the Bill as it stands. Saga has built its highly successful business on niche marketing and exclusively servicing the needs of people aged 50 and over. Last year it provided a range of services to some 2.7 million people. Its robust and highly popular brand is based on trust, quality, dependability and value for older people. It focuses on understanding and then designing bespoke services to meet the changing needs and demands of its target market of people aged over 50 in the UK, a demographic group consisting of about half the electorate, and forecast to grow from 21 million today to 25 million by 2020. It does not design or market products and services to other age groups.

Saga, of course, welcomes the principles behind the Bill, as do I, and supports the measures to combat unfair discrimination that denies people the ability to live life to the full, but as I say, the Bill as it stands risks negatively affecting its customers' ability to buy the holidays that they want and the financial and other services that they need at a competitive price. Although I refer in these remarks to Saga, I have no doubt that other companies will suffer in a similar fashion if the Bill is not amended or secondary legislation is not introduced.

Saga's insurance business, for example, if forced to offer premiums to all age groups, would become less competitive for the over-50s because they would have to bear the extra costs of quotations for the under-50s. Understanding older savers means that Saga can offer better terms. Its holiday business currently serves only the over-50s, and the popularity and enjoyment of its holidays depends in part on their being exclusive to the over-50s, rather than open to all age groups.

Specialist advice services for long-term care funding and other services such as Saga Independent Living, which offers home care services, provide relevant and targeted training for staff that concentrates on the particular needs of elderly clients, such as special dementia training. It could not offer the service to all age groups without impairing the bespoke and tailored service that it has developed.

Research suggests-I will not go into the details of the research, although I have it available-that people are perfectly happy for there to be special offers and products tailored for particular age groups, such as discounted tickets for cinema or leisure facilities, cheap days at DIY stores, concessionary rates for hairdressing and so on. Indeed, the Government themselves seem to follow those principles. The enhanced individual savings account allowances for older people in the 2009 Budget, and public transport travel concessions such as the national free bus pass and the older person's or younger person's railcard bear witness to the fact that the principle is accepted by Government themselves.

In their Green Paper the Government responded to the points put by Saga in the consultation exercise by setting out three tests for any legislation on age discrimination. They said that

"it must be a proportionate response to a real problem and not create unnecessary burdens on the private, public or voluntary sectors; it must not have the unintended consequence of prohibiting positive benefits for either younger or older people, such as youth clubs or clubs for older people, holidays catering for people of particular ages, or concessions and discounts which help younger or older people;" and

"it must pass a 'common sense' test."

The Green Paper sensibly and specifically accepted the desirability of niche marketing. It said:

"There will always be a need for age-specific facilities and services."

Indeed, it said- [ Interruption. ] I am very happy to give way to the Solicitor-General, because she looks as though she is about to rise.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

As I listen to the right hon. and learned Gentleman, I find that he is not saying anything that I disagree with at all. The only issue between us is that none of those provisions will go into the Bill. The way forward is either secondary legislation, following on from the consultation that he talked about and the relevant basic principles, or guidance. I am happy to write to him in more detail if he wishes, but I do not think that any provision for which he advocates inclusion in the Bill will be missing from the guidance. We think that they are not appropriate for the Bill; they need the flexibility of being in a lower order.

Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

I am very grateful to the Solicitor-General for that, but at the outset of my remarks I offered her a choice: put the provision either in the Bill or in secondary legislation. Guidance would not be enough, but secondary legislation certainly would be.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I am sorry-clearly, I was being spoken to by someone else at the same time. I thought the right hon. and learned Gentleman said that if we put the provision in the Bill, that would be sufficient. However, we will not put it in the Bill. We intend, probably, to put it in secondary legislation, but I cannot be absolutely specific and say that it will not be in guidance. None the less, I am sure that we will capture all the benefits to which he refers, because they are exactly the exceptions that we want to make.

Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

I am grateful to the Solicitor-General for that, but she must understand that the continued uncertainty causes very great difficulty for businesses as they try to plan ahead. I am prepared to accept the difficulties that might arise from putting what is necessary in the Bill, but I hope that, on consideration, she will be able to give me an explicit assurance that secondary legislation will cover my point. If she can, I shall not utter another word or take up another moment of the House's time this evening.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The objective is the same, but we will not put it in the Bill. As I said, I cannot tell the right hon. and learned Gentleman at the moment whether the character of the business will be secondary legislation or guidance, so he may feel that he has to talk. However, we have met Saga; we understand the problems; and we will produce in January a document that makes the position absolutely clear. That is as much as I can say, but I hope it is enough.

Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

Then I must, I am afraid, add a sentence or two. The Solicitor-General says that she understands the problem, but the problem will not be met by guidance. The law in this land is not determined by the Government's guidance; it is determined by legislation, either primary or secondary. We hear this time after time from the Government, but it simply will not do for them to say, "We will deal with this problem by guidance." I have made my point; I hope that the Solicitor-General and the Government will reconsider; and I hope that, if not on Third Reading, then when the legislation goes to another place, they will at least be able to provide an explicit assurance that that point will be covered by secondary legislation.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

I associate my remarks with those of Dr. Harris on caste. Caste-based discrimination is wrong, and if we recognise it as such we should legislate; we should not wait for the evidence. The Government say that they wish to wait for the evidence and have commissioned, or are about to, some research into the extent of caste-based discrimination in the United Kingdom. That discrimination should form a 10th strand under the Bill. I should like the Solicitor-General to assure me if she can that, if the research demonstrates a problem of caste-based discrimination in the United Kingdom, the Government will introduce legislation at an early date to deal with that discrimination, which I and many of my colleagues are convinced exists.

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

Thank you very much, Mr. Deputy Speaker. I am almost tempted to say, "Hallelujah!" because I did not think it was going to happen.

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

I will not waste time. I shall speak to amendment 32, standing in my name, and to amendment 31, standing in the name of Jim Dobbin, who apologises for not being able to be here today.

I believe it is fundamental to a democratic society that nobody should be obliged to affirm, participate in, make money out of or promote something that is directly contrary to their conscience or to their religious belief. There is no way that the state should ever compel somebody actively to facilitate something that is against their conscience. Other than in the most extraordinary or deeply extreme circumstances-for example, where there are international hostilities and conscription of the populace-a democratic society recognises the right of people to say, "I will not do that because it is against my conscience."

Similarly, a democratic society recognises the right of organisations and groups of people to get together and to set themselves up for the purposes of carrying out something that is based on a community of their belief, which can mean providing services based on that belief. A Catholic adoption agency is set up to place children-sometimes very hard-to-place children-with families, and it is against Catholic teaching, for example, to recognise homosexual unions as equivalent to marriage. By obliging, or attempting to oblige, a Catholic adoption agency to place children with homosexual couples we are effectively suppressing the free practice of religious belief. I have been contacted by a very small Catholic adoption agency which, despite being small, places 10 very hard-to-place children with families each year. Having been in existence for some 40 years, it has placed hundreds of children with families. That agency now says, and we should all be aware of it:

"The Charity has suspended the recruitment of new prospective adoptive parents to ensure that the Charity is not in breach of the Regulations or in breach of the tenets of the Church. The Charity cannot continue this suspension of service and will be forced to cease to provide Adoption Services."

That charity is not alone. Westminster Children's Society has closed. Catholic Care is going to close. Other societies are trying to fight but are being defeated in the courts. Only in Scotland has one Catholic agency managed to get a ruling from the court that enables it to continue to place children in accordance with the tenets of the Church. The only other survivor at the moment is an evangelical adoption agency in the north-east that is fighting its corner and saying that it will continue to place children in accordance with the principles that it holds. Of course, Catholic adoption agencies may well supply services to local authorities, but local authorities choose to buy those services; they are not compelled to do so. The adoption agency should therefore not be compelled to go against its tenets. It is not saying, "We want to continue to receive public funding." It is saying, "We want to continue to be able to place children according to the principles that our religion teaches." That is what we are preventing it from doing in law, in Britain, in the 21st century.

A free society should accommodate beliefs and respect the right of minorities to hold those beliefs, set up organisations and live their lives according to those beliefs, particularly when they are based not on rejecting a person for being something but on what they actually do. The agency is refusing to place children with homosexual couples who have formed a union that the Church teaches to be wrong. Similarly, for care homes, the problem is obliging the Church to provide double rooms in which unions may take place that are against Catholic teaching. It is not the individual-

Debate interrupted (Programme Order, 11 May 2009).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

Question agreed to.

New clause 41 accordingly read a Second time, and added to the Bill.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).