In moving Amendment No. 168 I wish to speak also to Amendment No. 210 with which it is grouped and which covers the same point.
We now come to the difficult area of defining religion and belief. It has been suggested to me by the Humanist Association, of which I am a vice-president, that a definition which diverges from that of the European Convention on Human Rights is liable to cause some difficulty. We would prefer wording that ensures that "belief" is interpreted in line with case law under the ECHR, making it clear that the beliefs intended are those that amount to a world view or life stance. The German text of the ECHR refers to Weltanschauung.
"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance".
There is therefore no need for a definition separate from that which "belief" already has in UK law as a result of the Human Rights Act. I beg to move.
I have some sympathy with the noble Baroness over her Amendments Nos. 168 and 210. Like her, we are not happy with the word "belief" as it appears in Clause 45 and Clause 47. However, we prefer our solution, which we mention in a later amendment, because the definition in Schedule 1 of the Human Rights Act is rather vague, and although it says various things, it could not be described as a definition.
I must apologise to the House. I should have pointed out that if this amendment were agreed to, I would be unable to call Amendment No. 169.
I always feel depressed when I say anything in which I disagree with the noble Baroness, Lady Turner of Camden, especially in view of where she is coming from on this issue, but I agree with the Joint Committee on Human Rights. In its report, it said that the definition did not need to be altered in the way suggested. It welcomed the definition of the inclusive terms in the Bill, which reflect the protection afforded to religion and belief under Article 9 of the European Convention, which has been quoted by the noble Baroness. It pointed out that it makes it clear that protection is not dependent on similarity of belief. That was in the sixteenth report for 2004–05, paragraph 38.
I agree, and although this is not in the amendment, I add that any attempt to try to define religion would create appalling problems, since those outside the definition would complain, and one would get into the vexed question of old religions, new religions, cults, and so on. For that reason, and with diffidence, I do not think that this amendment is needed.
First, I am grateful to my noble friend Lady Turner of Camden for putting forward Amendments Nos. 168 and 210. That has enabled us to discuss the definition of religion and belief, which we have introduced in Clause 45 and which, through Clause 77, will amend the definition currently contained in the Employment Equality (Religion or Belief) Regulations 2003. I recognise the expertise that my noble friend brings to this area as a former member of the EOC and as a vice president of the Humanist Association. Like the noble Lord, Lord Lester, I always find it difficult if I am about to disagree with her; but I am.
With regard to Amendments Nos. 168 and 210, the Human Rights Act 1998 does not define religion or belief, so the effect of the amendment would be to leave the definition to human rights case law. The courts already take into account case law when they are called upon to decide whether something is a religion or belief for the purposes of Part 2 of the Bill. They already do that in relation to the employment regulations on religion and belief and in relation to religiously aggravated offences in criminal law. We believe therefore that there would be nothing to be gained from the amendments. Indeed, explicitly referring to the Human Rights Act might exclude the courts from taking into account case law arising from the criminal offences.
It may be worth summarising what some of the key case law has provided. In X v UK in 1977, the main limitation on what constitutes a religion was that it must have a clear structure and belief system. In Campbell and Cosans v UK in 1982, "philosophical belief" was judged to be a belief that attained a certain level of cogency, seriousness, cohesion and importance that was worthy of respect in a democratic society and not incompatible with human dignity. In Baggs v Fudge from 2005—the most recent case—it was shown that a belief in the political views of the BNP should not be considered a belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003.
It may also be worth reminding the Committee that a number of definitions exist in law in relation to religion and belief and that they reflect, to some extent, the different purposes that the laws are intended to have. In criminal law, the definition used is,
"religious beliefs or lack of religious beliefs".
The same definition is used in relation to the Racial and Religious Hatred Bill, which is currently being considered in the other place. In the Charities Bill, the definition is worded in terms of belief in God.
What is, however, common with all those definitions is that none seeks to define what actual faiths or beliefs are covered by the law. That is left to the courts to decide, which is proper. We can see that there might be superficial attractions in seeking to define in the Bill what is or is not a religion or belief. It would help to ease concerns that some of the more outrageous beliefs might receive protection. However, that attraction is fairly superficial in nature.
We believe that we have taken the right approach. The courts are best placed to make decisions on these difficult matters, taking into account all the information that they will have before them. That approach has worked well with existing legislation and we hope that it will have the support of everyone in relation to the Bill. I understand why the noble Baroness, Lady Miller, prefers her own interpretation, but we think there may be difficulties ahead there too.
I thank my noble friend for that comprehensive answer. The briefing that I had from the British Humanist Association cites a number of cases in support of its case, including Campbell and Cosans v UK of 1982, which she cited. However, I note seriously what she said and also thank the noble Lord, Lord Lester, for his intervention. It is useful to have all this on record, and I am grateful to everybody who has participated, including the noble Baroness, Lady Miller. In the circumstances, I beg leave to withdraw the amendment.
I note that both the Minister and the noble Lord, Lord Lester, found it difficult to disagree with the noble Baroness, Lady Turner. However, I have no doubt at all that the Minister and the noble Lord, Lord Lester, will have no difficulty in disagreeing with me. I shall speak to Amendments Nos. 169 and 211 together. They are identical and slightly modify the definition of "belief" where it appears in Clauses 45 and 77. As drafted, the two clauses define "belief" as,
"any religious or philosophical belief".
My amendment proposes to insert "similar" before "philosophical", to make it clear that the type of belief protected is a sort of religious one.
The Oxford English Dictionary defines a philosophy as,
"the study of the fundamental nature of knowledge, reality or existence".
It also defines philosophy as,
"a set of theories of a particular philosopher".
It is, therefore, clear that, while it is true that every religious belief is based on some sort of philosophy, not every philosophy is religious. Marxism is a philosophy, as was national socialism. Those two examples alone should demonstrate the need to ensure that the sort of philosophy we wish to protect is a religious one.
My thesaurus provides a long list of non-religious philosophies—from stoicism to transcendentalism and dialectical materialism. I have many other examples, but I shall not bore the House with them. I have been told that there is a legal rule of interpretation called ejusdem generis, which roughly means that items in a general list should be construed as including only things of the same type. However, it is important that we should make it clear that when we speak of "philosophies" in the same breath as "religion", we mean religious philosophies, not political ones, or the theories, as my dictionary states, of a particular philosopher or, again, according to the dictionary, merely the theoretical basis of a branch of knowledge.
These amendments are not aimed at diminishing the two clauses, but are to tighten them by ensuring that they are not used by a person or group of people whose beliefs this Bill is not even remotely intended to protect.
I hope that the Government—although I do not have much hope after listening to the Minister—will accept these two entirely constructive amendments, entailing the addition of one short word of just seven letters. It simply makes the issue clear to all lay people who do not know the law. I beg to move.
I find it equally difficult ever to say anything in disagreement with the noble Baroness, Lady Miller of Hendon. In support of her amendment, it should be said that the Government thought she was correct regarding the Employment Equality (Religion or Belief) Regulations 2003, which defined "religion or belief", to mean any religion, religious belief or similar philosophical belief. At that time a number of us were a little upset about that. People like me, who might best be classified as a passionate, disbelieving Jewish agnostics, had difficulty with being classified as having a "similar" philosophical belief to that of a religious person.
That seemed strange and it is wrong that such regulations achieve exactly what the noble Baroness, Lady Miller, wants in the Bill. By forbidding discrimination based on religion or belief, it is important to cover those who have no belief and who are discriminated against because they have no belief; for instance, as agnostics, atheists and others. The Government have got it right in this definition, but wrong in the regulations. Somehow, the two need to be ironed out.
I am now in the happy position that I have at last given pleasure to the noble Lord, Lord Lester, and have given dissatisfaction to the noble Baroness, Lady Miller, which she knows most people in this House, on all Benches, have difficulty with.
Let me deal with the difference between the definition that we propose in Part 2 of the Bill and the definition that currently exists in the Employment Equality (Religion or Belief) Regulations. The difference, as Amendments Nos. 169 and 211 highlight, is that we have removed the word "similar", as the noble Baroness correctly identified, from the definition of "belief". It now reads,
"any religious or philosophical belief", rather than, as in the regulations,
"any religious or similar philosophical belief".
I assure the noble Baroness and the noble Lord, Lord Lester, that there is no sinister motive in that. The intention behind the wording in Part 2 is identical to that in the employment regulations. However, in drafting Part 2, it was felt that the word "similar" added nothing and was, therefore, redundant. This is because the term "philosophical belief" will take its meaning from the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief.
Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of Part 2 of the Bill, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not—I hope I do not give any offence to anyone present in the Chamber—would be support of a political party or a belief in the supreme nature of the Jedi Knights. I hope that this provides some assurance on the change of definition of "religion or belief" that we have adopted and I hope that the noble Baroness will therefore feel content to withdraw the amendment.
In moving Amendment No. 169A, I shall speak also to Amendments Nos. 171A, 173B, 212V and 213A. These amendments extend protection from discrimination in the provision of goods, facilities and services on the grounds of age, marital status and transgender status. They are probing amendments to ask the Government to commit themselves to getting rid of the hierarchy of protection that exists. I know that there will have to be some exceptions. I am fully aware of that. This is a very complex issue, but I want to make sure that the commitment is there.
I do not intend to move Amendment No. 173B.
The Equality Bill will protect people from discrimination in these fields on the grounds of religion or belief. There is already protection on the grounds of race, gender or disability. But those who face similar discrimination on the grounds of their age, sexual orientation or transgender status do not receive protection. The Equality and Diversity Forum, with which I agree, urges the Government to harmonise this legislation across all strands so that people, whatever their characteristics or type of discrimination they face in, for example, healthcare, would receive the same protection. In introducing this legislation, it would be very unfair to leave people out because they do not comply with one strand but do with others. The amendment levels up the protection offered to all groups. It is in line with the commission's overall aim of tackling equality and diversity per se. We want to see well-thought-out legislation that will protect legitimate benefits or concessions, as I said at Second Reading.
The forum welcomed the Labour Party manifesto commitment to a single equality Bill, the establishment of the discrimination law review and the Government's acknowledgement that more needs to be done to tackle ageism in financial services. But we do not know what the timetable for change will be and some action is needed urgently. So we hope that the single Equality Act, which presumably is where that legislation might lie, will be brought to Parliament as quickly as possible and, I hope, before the next Queen's Speech.
In the field of age discrimination, which is the area that I am most interested in, current plans for legislation will extend only to discrimination, employment and training. However, evidence gathered by these amendments is intended to create the level playing field that I mentioned. We would like to see the Government use this Bill as an opportunity to outline their intention to introduce protection in the provision of goods, facilities and services. So we need a clear statement of intend from the Government.
Help the Aged and Age Concern, among others, show that older people face discrimination in many areas, including social care, housing and hospital treatment, as well as with many commercial services. The forum believes that that is unacceptable and that older people are not protected from such discrimination. It is worrying that those who have changed their gender seem also not to be protected.
There are no express provisions prohibiting discrimination on the grounds of gender reassignment in the other fields covered by the Sex Discrimination Act. So a member of the transgender community could claim discrimination under the SDA if he is refused a job, or sacked because of his transgender status, but if, for example, he is refused access to a hotel room or a drink in the pub there is currently no protection under the law. I know that amendments being proposed by the noble Lord, Lord Alli, and supported by Stonewall, will be aimed at bringing in legislation around sexual orientation. Those amendments cover the remaining two strands not currently protected by law.
So, we would like to see the Government outlining their intention to introduce protection against discrimination in the provision of goods, facilities and services, with a clear statement of intend to tackle this issue, and with the recognition that there will be exceptions and that a lot of further work needs to be done in those areas. I beg to move.
Will the noble Baroness clarify her concern about the people who are affected by these transgender regulations? So far as I remember, when we passed the transgender legislation it was made clear that there was practically no way that anybody could pass on information that somebody was transgender. His birth certificate was going to be altered and it was going to be an offence to mention the fact to anybody. Is her concern perhaps—I know she mentioned medical treatment—because the medical records will still contain the information about the person being transgender? Is that the weakness?
I thank the noble Duke for that question. To be honest, I am not sure because I come to this from the age point of view. The briefings I have say that there is nothing to prohibit discrimination of the sort I mentioned on the grounds of gender reassignment. I agree with the noble Duke that this could be very difficult to prove. I am not sure whether it is just recognising somebody or what it might be. We know of some very prominent people in many professions who are transgender, who obviously do not come up against that sort of prejudice. Maybe it is just if somebody knows, he knows, and then he is discriminatory. But people in this position need the same protection as everyone else and it would be a better law if it protected everyone.
I know that the noble Baroness seeks commitment from the Government. I understand that very well and I am sure that we have a lot of sympathy with her, but I am slightly puzzled by what she said and by the brief which Age Concern very kindly sent me. It says that one of the problems of age discrimination is what happens in care homes.
I do not understand why that problem would be eased by legislation about age discrimination. I refer, for example, to care homes, where most people are old—they may not all be exactly the same age, but they are old—and where there is mistreatment, which we all know happens and which is very worrying; I entirely agree with Age Concern about that. That is not exactly discrimination; it is a case of a bad care home for looking after old people. How does that fit with the concept of discrimination against old people?
I thank the noble Baroness for asking that question. In answering it, I think that she is referring to the public duty, which is in my later amendments. If it is a public body, such as a local authority, the Act introduces public duty. A later amendment that I shall move proposes to extend the public duty. The noble Baroness may be talking about that. Is her question specifically about care homes?
I am by no means certain that current legislation protects transgender people from discrimination. I recollect cases where people have been discriminated against in the job that they do after an operation to change gender. I received a briefing from the Equal Opportunities Commission, which stated that it did not think that the legislation or proposals before us covered transgender people and thought that the issue should be raised. I thank my noble friend Lady Greengross for raising it, because at least it means that we can discuss it and the Minister will respond.
My view is that all those areas of unfair treatment ought to be covered in a single Equality Bill. I spent four years with Professor Sir Robert Hepple and others seeking to produce such a Bill, which was approved by this House but died in the other place. So I have no doubt that the object of the amendment should be pursued.
In a sense, the Government have made difficulties for themselves by including Part 2. It would have been wiser not to include religious discrimination at all, but there are obvious political reasons why that particular form of unfair discrimination was regarded as pressing. But by including Part 2, there is immediately the powerful argument from everyone else who is not covered in relation to goods, facilities and services: "What about these other strands?". There are no good reasons, other than technical reasons and lack of parliamentary time, why those other strands should not be included.
Some of those strands would be technically easier to include than others. Gender reassignment would not be technically difficult to include; marital status would not be difficult. Age would be more difficult, especially, as we will find later, in the area of employment. There is also a powerful case to include sexual orientation discrimination, which we will consider later.
I entirely liked the way that the noble Baroness, Lady Greengross, moved the amendment—a moderate and probing way. If ways can be found of including in the Bill some of the simpler examples in addition to religion—I am talking not about politics but about technique, drafting and getting it right—for marital status and gender reassignment, so much the better. If that cannot be done—no doubt the Minister will explain to us, now or hereafter, if that is the case—the Committee would need firm assurance that the discrimination law review, to which we all look forward, will lead to a Bill that one way or another covers all the main forms of unfair treatment that we call discrimination, and that that will be introduced during the lifetime of this Government.
I strongly oppose the amendments because they would massively complicate a controversial area of law which was recently rewritten by the Government's Gender Recognition Act 2004. I fear that these amendments, which attempt to extend Part 2 to transsexualism, will reopen debates about forcing religious groups to compromise their doctrinal conviction that a person cannot change sex.
We have already gone round this during the passage of the Gender Recognition Bill, when I quoted extensively from Parry v Vine Christian Centre. I have no intention of going into all that at the moment. But we know that some Churches have been threatened with legal action by transsexuals who are unhappy with the position of that Church. These amendments would create a new legal landscape in which we would see more legal actions of that sort.
I agree with the noble Lord, Lord Lester of Herne Hill, on the courteous and gently probing way in which the noble Baroness, Lady Greengross, spoke to her amendments to find out what the Government think. It was done most graciously.
I hope that the noble Baroness will be careful before going too far down the track of agreement, for the very reasons that my noble friend Lady O'Cathain has given. On the face of it, anything that is discriminatory appears wrong, but here we are dealing with cases of religious conviction, what people think, what Churches think and what is the cause of their doctrine. There are occasions when people have been deeply wounded and hurt by having things forced upon them by Acts of Parliament. We must be careful.
I give the simple example of people who have changed sex and then wish to use ladies' lavatories and go to women's-only meetings. There may be excellent reasons why the individuals concerned should do that but one must also take into account the feelings of others who might find it harder to accept it and would be greatly offended if the law now forced something of that nature upon them. I do not wish to go into what is right or wrong, but I hope that the noble Baroness will bear that in mind before she goes too far down the road of compliance.
I thank the noble Baroness, Lady Greengross, for raising the issue, and all Members of the Committee who have participated in this short debate. It has clearly identified that there are some very difficult and important issues to be explored. But we have been frank in our acceptance that the existing discrimination law is not perfect.
As the noble Baroness, Lady Greengross, has described, there are many areas where the law does not protect people discriminated against on grounds such as age and gender reassignment. For instance, individuals are protected against discrimination, as the noble Duke recalled correctly, on grounds of gender reassignment status in employment and vocational training, but they are not currently protected against discrimination in the provision of goods, facilities and services. Those gaps in protection will be looked at as part of the discrimination law review.
As we recognised those gaps and inconsistencies in the current framework and believe that there is a case for a simpler, fairer framework, taking in all the issues that the noble Baroness, Lady O'Cathain, and the noble Earl have raised on the other part, we launched in February the discrimination law review to look at the scope and effect of that area of law.
An important aim of the review will be to consider how more consistent and effective protection against discrimination can be provided. The issues relating to age discrimination are, as the noble Baroness, Lady Greengross, made plain at Second Reading, quite comprehensive. We all recognise the difficulties. They are particularly complex, and they will require careful consideration. That is why we expect the discrimination law review to undertake the detailed work that I described in close consultation with experts and others who may be particularly and peculiarly interested in it.
In May, the Government were elected on a manifesto commitment to introduce a single equality Act. The recommendations from the discrimination law review will lead to a single equality Bill, which we will introduce in the lifetime of this Parliament. The work of the review is under way, and we are committed to enacting a single equality Act in the lifetime of this Parliament.
The only thing, I think, that stands between the noble Baroness's intentions and those of the Government, is timing. I hope that I have made it plain that we are not in any way resistant to undertaking the work but look forward to completing it.
Would the noble Baroness be kind enough to explain that a little further? She said that there was not very much between her and the noble Baroness. Does that mean that she would like to put into statute all that the noble Baroness said, despite the reservations that some people have?
I return to the Church matter that I referred to. If some people in a Church found it difficult to accept the use by transgender people of, for instance, ladies' lavatories or women-only meetings—that would be understandable—it would be a great pity if the Church were to be drawn into having to defend its beliefs and doctrines in a court of law because of something that may have been put inadequately into an Act of Parliament.
I say plainly that I understand the anxieties and concerns that the noble Earl raises. The purpose of the review is to examine the scope and effect of this area of law. We will have to debate and discuss it. When the review comes out with its conclusions, we will be able to give it full consideration. Indeed, when and if a Bill comes forward, we will have further opportunities for us all to discuss the issues and find a way through that will not be discriminatory against any other group but will be fair and honour the rights of all our people. All those issues will be important for us.
Will the Minister accept that there are anxieties the other way? There are the anxieties of a cautious, prudential kind about extension to matters of private life. Exceptions would have to be fashioned to deal with those objections, so that the law did not go too far.
I take it that it is common ground that, subject to the difficult business of fashioning proper exceptions to balance equality against other values, such as personal privacy and religious freedom—I accept those—the review is predicated on the assumption that age discrimination in the provisions of goods, services and facilities; sexual orientation discrimination in that area; marital status discrimination; and transsexual or transgender discrimination will be covered, subject to appropriate exceptions and limitations. If that is not the position, we will have to come back to the matter rather more strongly at a later stage, without prejudice to all the necessary care and consultation on the exceptions. Is that, roughly, the Government's position?
It is, because we are dealing with improper and unfair discrimination. The Government are absolutely committed to trying to eradicate as far as possible any improper and unfair discrimination. Perhaps I may invite the noble Baroness to withdraw her amendment.
I want to do this in an intelligible way. The grouping is such that it deals with two topics, which I need to unpack so that even I can understand what I am talking about.
"on grounds of religion or belief".
Clause 46(2) has an exception clause, which states that in Clause 46(1),
"the reference to religion or belief is a reference to—
(a) a religion or belief of B or of any other person except A, and
(b) a religion or belief to which B or any other person except A is thought to belong or subscribe".
Amendment No. 170 concerns the following example. Let us suppose that a member of the liberal wing of the Jewish faith eats pork and a member of the orthodox wing of the Jewish faith strongly objects to any Jew or religious Jew eating pork. They are both members of the same religion—this is entirely hypothetical, which I am trying to explain with an example—but perhaps the orthodox Jew is a bigot who decides to discriminate against or to harass the less orthodox or unorthodox Jew for eating pork.
The problem is whether the exception in Clause 46(2)(a) prevents the liberal Jew being protected against discrimination or harassment because the discriminator has the same religion as the alleged victim. This is where the matter gets complicated and I apologise for having to take it slowly so that I follow my argument. The problem is that normally in discrimination law the position of the discriminator vis-à-vis the victim does not matter.
In other words, if I, or a woman, discriminate against a woman, the gender of the discriminator is irrelevant. If a victim is the victim of sex discrimination, the fact that the discriminator is of the same sex does not matter. The same is true of racial discrimination. It does not matter whether the perpetrator of race discrimination is of the same colour or ethnicity as the victim: if a black person discriminates against another black person because of the other person's ethnicity that would be unlawful.
However, the Government have taken a different view on religion. In this provision they say that my example of the liberal and orthodox Jew is covered because the liberal Jew would be discriminated against on the basis of religion or belief as provided for in Clause 46(1). I know that the Government do not mean to do this and I am moving the amendment in order to press them to think harder about how to get it right. But the problem is that in most discrimination cases, the views and beliefs of the alleged discriminator are highly relevant in determining whether the reason for the less favourable treatment is forbidden ground, such as race or gender, or some other reason.
If I am a publican and I refuse to serve a drink to a black person, but I say that I did not do so because he was not wearing a tie, the case is all about whether the true reason is because the person was not wearing a tie or because he was black. If I appear for the alleged victim, I will cross-examine the publican about his views. I would ask, "Is it not right, Mr Snodgrass, that you have expressed strongly racist views and made unpleasant remarks to your guests in the past? Does that not reveal that the true reason why you objected to serving the alleged victim was because of his colour?". So the views and beliefs of the discriminator are highly relevant in deciding whether the difference of treatment being complained of is a forbidden ground or something else.
However, given how this paragraph is worded, unless the courts rewrite it—I am not in favour of asking courts to rewrite words that we can get right ourselves; not only because of the expense and delay, but also because the citizen is entitled to a statute which on its face says what should be said—I am worried that the liberal Jew in my hypothetical example would be met with the defence that he is of the same religion or belief as the alleged discriminator and therefore is taken out of the remit of Clause 46(1). That covers the first part of my concerns.
The other amendments in the group deal with a quite different concern: that of the lack of definition of harassment. Clause 47(1) outlines a different kind of civil wrong, this time addressing not discrimination, but quite rightly turning to harassment. It states that,
"a person . . . harasses another . . . if on the grounds of religion or belief A does anything which has the purpose or effect of . . . violating B's dignity".
I am not worried about paragraph (b), which refers to,
"creating an intimidating, hostile, degrading, humiliating or offensive environment", because we can all understand those. But what is meant by "violating B's dignity"? It worries me because it is such a broad concept that it is capable of covering an enormous range of conduct which few sensible people would think should be covered.
I know that the word "dignity" is rooted in international human rights law, European Union law and so forth, and I know that it is not defined. But in European human rights law, the concept of "dignity" normally relates inhuman or degrading treatment and punishment—that form of violation of one's dignity; or violating one's private life, which is another form of indignity. So my amendment seeks to give some kind of content to the word "dignity" in order to narrow it. Why does that matter? I want to narrow the concept—but not necessarily to my words because they may not be broad enough—to give it some definition and something that one can hang on to, in order that the exceptions to which I will come later are not over-broad.
I hope that I have not bored the Committee stiff by trying to explain this. It is a very complicated subject but it is important that we should unpack these issues at this stage in order that we can all reflect further in the light of the Minister's response. I apologise for having taken so long. I beg to move.
I believe I understand the noble Lord's difficulty. Perhaps I should go through the areas where we agree and try to explain some of the issues at this stage. I should say to the noble Lord immediately that there may be a few areas where we can look again at the wording. This is not because I am convinced that we will find any better wording but because there is something here that we need to consider.
If I understand the intention behind Amendments Nos. 170 and 173 correctly, it is to allow the courts to take into account the religion or belief of the person who has discriminated when deciding on cases involving discrimination and harassment. I now understand that the noble Lord is particularly concerned in relation to Clause 46(2) and how it could be used in cross-examination.
Let me emphasise the areas where we do agree. I agree with the noble Lord that otherwise his Amendments Nos. 170 and 173 would appear to be at odds with the key principle of discrimination law—namely, that the position of the person discriminating is immaterial—which, of course, is what the noble Lord says is stated in Clause 46(1). For example, as the noble Lord has made clear, it does not matter if a woman is discriminated against by a man or a woman; it does not matter whether a Chinese person is discriminated against by a Somali or a Welsh person; it does not matter if discrimination on the grounds of sexual orientation is shown by a person of the same sexual orientation. In all these cases, what matters is that the person has been discriminated against. I believe we are at one on that issue.
The reason for the amendments, therefore, seems to be to ensure that the person's own religious or other beliefs cannot be used as a justification for discrimination or harassment on the grounds of religion and belief. If that is partly what the noble Lord seeks, I understand and sympathise with the intention behind the amendments. I should like to take the opportunity to place on record that it is neither the intention nor the effect of the clauses as currently drafted to allow discrimination or harassment in such cases.
Clauses 46(2)(a) and 47(2)(a) would cover where a person discriminates against or harasses any person contrary to a clause in Part 2 because that individual does not share his beliefs. This would include situations where both people expressed different beliefs within the same religion, as the noble Lord has indicated. So an Orthodox Jew providing a good facility or service could not lawfully discriminate against or harass another more secular Jew on the grounds that he was not religious enough.
I understand the complexity of the matter and I know that the noble Lord wishes to get it right. From everything that he has said I take the view that he wants to do exactly what we want to do, save that he is not sure that the wording will achieve what we both aspire to achieve. We believe it does, but I am very happy to take it away, look at it further and ensure that we are as confident as we can be that the matters that should be covered are covered.
As to Amendment No. 172, the wording we have used in the provision—which reflects the wording of religion and belief regulations and other regulations implementing the employment directive—is taken directly from the employment directive itself. The wording of the race directive is the same. It seemed right to us, particularly in this sensitive area, to rely on the courts to develop the concept in line with EC law and not risk embodying in this legislation constraints which might conflict with that.
The concept of dignity is, as the noble Lord says, wide, but it also has a vital depth. It is recognised widely as significant; it does not refer to trivial slights or minor rudeness but to something much more basic, and we wish to protect that. I hope that I am right in thinking that there is not much distance in the intention between ourselves and the noble Lord in that respect, although we may disagree about the wording and its effect. It is not our intention that harassment could be successfully claimed over trivial matters, and we do not think that our current wording has that effect. As I say, it reproduces existing legislation.
If we have misunderstood the noble Lord's concerns on the matter, we will of course be happy to continue to listen. We think that the amendments are not merited but I will look at this before Report and hope that we will either be able to satisfy ourselves that the wording is fit for purpose or to come up with wording which may better express our joint intention.
Perhaps I may add one point of a general nature. I did my best to follow the noble Lord, Lord Lester of Herne Hill, but I am afraid I got lost after about two minutes. That is due to my own incapacity, not the noble Lord's. I was very excited that his amendment sought to leave out Clause 47(1)(a) which refers to "violating B's dignity". That brings us back to the very beginning; the commissioner will have a fundamental duty to create a society in which,
"there is respect for the dignity and worth of each individual".
I remember saying earlier that I could not see how any court of law could say what a person's dignity is. We all know what is meant by "dignity", but saying that someone has offended against your dignity will be enormously difficult to prove. I was excited when the noble Lord, Lord Lester, put down his amendment because I thought that the provision would be removed, but the effect will remain.
Will the noble Baroness think very carefully about how a court will decide about a person's dignity? It is a nebulous thing—we all know what is meant by it but it is quite another matter for a person to go to a court and a judge to say, "Your dignity has been affronted". I hope that the noble Baroness will think about that carefully.
I can assure the noble Earl that we will give, and have given, this a great deal of thought. That is why we have tried to replicate the current legal position—the jurisprudence that we are comfortable with—because the courts have been able to interpret this in a way that makes sense. So we are not seeking in this provision to make the position either more complex or more opaque.
I wonder whether the Minister could help me. She has just said that we are seeking to give effect to case law. This is a filthy question and I apologise for asking it because I expect that she will need to take further advice, but the noble Baroness has not given us a single example of what would be within the notion of violating dignity and what would not. Nor has she referred to a single case—I do not know of any—in which this concept has been interpreted. I shall comment in my reply, but if she could give us examples either side of the line to hang on to, I would be happier. If she could say of a single case, "This is where the courts have given guidance", I would be even happier. If she needs to write to us about it, that is fine, but before I reply, I would like her to have the opportunity of helping if she can.
I am now desperately scrabbling in my mind to think of a case. I must be absolutely open with the noble Lord and say that not one case springs to mind. I hope that I have not been precipitous. I will certainly scour the records. As I said in my earlier comments, this is a difficult area. It will be complex and that is why we want to take this matter away and make sure that the legislation will be workable and will do that which we seem, jointly, to want to deliver.
The Minister might have been a little precipitous in what she said. She said to the noble Lord, Lord Lester of Herne Hill, that she could not think of one case where this matter had been brought up and proved, yet earlier she said that the courts understood perfectly well how to translate the provision. It would seem that the courts do not know how to translate it because they have not had to. Not only do the courts need to know, but the individual has to know. If someone says, "You are a horrible old Earl", or something, I could say that my dignity had been violated. However, it is difficult to have that proved. I hope that the Minister will give this matter a lot of thought.
I make it plain that I have never at any stage laid claim to omnificence. Therefore, I am absolutely confident that although not one case comes to my mind, there will be a legion of wonderful legal experts who will teach me how clearly obtuse I am on this subject.
I am extremely grateful to everyone who has taken part in this debate, both the Minister and in particular the noble Earl, Lord Ferrers. My first point is purely technical and I am sure that I was unintelligible to any person of reasonable intellect because it is a ghastly, horrible subject. However, if the Minister will go away and think about what I said I will be grateful. On the second point about dignity—
Without question. So far as the dignity of an Earl is concerned, I can tell the noble Earl that he would have a remedy only if the purpose or effect of whatever was on the basis of his religion or belief. I do not think that he would have a remedy otherwise. But I would never dream of violating his dignity any more than he would mine—if I had any, and I am not sure that I do.
I know this measure comes from European law in the employment field. One can just about get away with this vagueness in the employment field because the dignity of a worker is somehow something that one can get used to interpreting. But we are discussing goods, services and facilities—services to the public.
This is the kind of thing that worries me. A member of my Chambers wears a headscarf. We have no problem about her wearing a headscarf in court, but suppose she found herself in the Netherlands. There, decent progressive female judges have told me that they would never dream of allowing a court official to wear a headscarf because it would violate the notion of equality before the law.
What worries me—especially in the sensitive area of religion and belief and especially in the terrible times in which we live—is that this is creating a civil wrong of a very vague kind. If the concept of dignity is so broad that it could include such a sensitive area, just like that, the exceptions in the clause do not tackle that problem. This is why I am unhappy about Part 2 being included in the Bill at all because I wish that there had been much more time for thought on these kinds of issues.
I find myself sympathising with the noble Earl. What I am really concerned about is, apart from anything else, reasonable legal certainty. I see the problem about achieving reasonable legal certainty, but I shall leave the matter at this point by saying that when we come back at Report, we will need something much more concrete to guide us as to what "dignity" does and does not mean. If it was left entirely for the courts to decide, what we are really saying is that the courts could invent a tort for civil wrong and the exceptions to it. As much as I admire our judiciary, that is not a fair thing to do. It is Parliament that ought to get it right—and I suspect that the noble Earl, Lord Ferrers, and I are absolutely at one on that.
I hope that we can think more about the matter, and come back to it on Report with more guidance from the Government. Meanwhile, I beg leave to withdraw the amendment.
moved Amendment No. 171:
Page 25, line 35, leave out "requirement, condition" and insert "provision, criterion"
This is another amendment from a lawyer, I am afraid—in this case about the definition of indirect discrimination. It is my attempt to make the law user-friendly, to simplify it, and not to create work for lawyers or have to pay for judges to deal with inconsistent definitions but to have a single user-friendly definition of what constitutes indirect discrimination—in other words, the equal rule with unequal effect. Here we are dealing with indirect discrimination in relation to religion or belief in access to goods, facilities or services.
Clause 46(3) applies when a "requirement, condition or practice" would put someone at a disadvantage. That is narrower than the Race Relations Act 1976, as amended by the Race Relations Act 1976 (Amendment) Regulations 2003, and the Employment Equality (Religion or Belief) Regulations 2003, which refer to "provision, criterion or practice". That suggests that different standards apply to religious discrimination in employment and in goods, facilities or services.
The Joint Committee on Human Rights said that,
"it appears to us desirable in the interests of clear and effective protection against discrimination that the terms of the Bill should be consistent with existing legislation".
Justice—and I should declare an interest as a member of that body's counsel—is concerned that institutional discrimination on the grounds of religion or belief may arise from unwritten procedures and practice which may be insufficiently fixed to be caught by the definition of a requirement or condition.
There is really no justification that I can think of for using different words in different statutes. That could result in the position of a court seeking to distinguish between indirect discrimination in relation to Jews and Sikhs and those relating to Muslims and Hindus, to which different definitions would apply.
When I had the privilege of working on the Sex Discrimination and Race Relations Bills with the late Lord Jenkins of Hillhead, we saw immediately that the definition that parliamentary counsel had written into those Bills would lead to acres of litigation. We tried unsuccessfully to get a user-friendly definition—and sure enough, the provisions led to acres of pointless litigation. The result is that the law on indirect discrimination is in a real mess, because there are different definitions, and the case law differs according to whether British or European standards are being considered.
Even if I do not persuade the Government to accept this amendment, I beg them, with regard to the discrimination law review and creating a single equality Bill which is fit for human use, to get a consistent definition of discrimination that applies to all strands. I beg to move.
I understand the point that the noble Lord is trying to make in relation to this amendment—to bring the drafting of Clause 46 into line with the wording currently used in the Employment Equality (Religion or Belief) Regulations 2003, with regard to the definition of indirect discrimination.
I wish to explain to the noble Lord why we think that the definition we now have does that and brings clarity. The change in the wording did not seek to narrow the definition of "indirect discrimination" but to clarify it for many of the reasons to which the noble Lord just alluded.
The wording used in the 2003 regulations incorporates the words "provision" and "criterion" because those words come directly from the European directive which the regulations implement. As the noble Lord knows, there are, however, other words used—for instance, "requirement" and "condition"—in discrimination law which has not been affected by the directives; for example, parts of the Race Relations Act 1976.
I understand that the drafting in this Bill is felt by those responsible for that onerous task to be clearer than that in the 2003 regulations and to provide a more satisfactory indication of what is intended by these provisions.
It is a point worth raising and discussing, and may be we shall come to it again as part of the debates on a single equality Bill. For now we resist the amendment, but I say to the noble Lord that the aspiration of the draftsman is that this definition will become the preferred definition because it harmonises what was in the directive and what was in our law in a way that will bring the two together.
I am grateful but I am not persuaded. This definition is narrower than the one that I seek. The Bill speaks of a requirement or a condition. The words "requirement" or "condition" are precisely the problem in Section 1(1)(b) of the Sex Discrimination Act and in Section 1(1)(b) of the Race Relations Act. My words, "provision" or "criterion", which reflect other sources, are broader and more generous and capture what indirect discrimination is really about. The fact that the Government's version refers to the practice has no substantial effect at all. That simply means more than one act; a series of acts. Therefore, I am dismayed to think that those who have advised the Government believe that they have given a more generous definition than mine and that they think it is a model for the single equality Bill. I hope to persuade them to the contrary. However, in the mean time—
Before the noble Lord, Lord Lester, withdraws the amendment, he let slip a very alarming prospect. I believe he said that when he and the late Lord Jenkins of Hillhead discussed the Sex Discrimination Bill and the Equal Opportunities Bill—that is what I think he called it—they discovered that certain words were wrong. However, I understood the noble Lord to say that the parliamentary draftsman insisted on keeping those words. Presumably the late Lord Jenkins was then Home Secretary. I find it rather alarming that the Home Secretary could not overrule the parliamentary draftsman as a result of which the legislation that was put on the statute book was wrong. Does the noble Baroness, Lady Scotland, think that the current parliamentary draftsman—who, presumably, is not the same parliamentary draftsman that we have been discussing—is any less obdurate and any more likely to be right than his predecessor?
The noble Earl leads me into a bit of sinning, and I shall now sin. I am not sure whether I am allowed to say this, but I shall say it as it is more than 30 years after the relevant events and I am self-authorising myself under what was then the Official Secrets Act. The position is quite simple. I had to attend before the then Attorney-General who agreed with me that the drafting was wrong. I said, "That is fine. I shall report back to the Home Secretary". The Attorney-General said, "That is not fine because I have no authority over parliamentary counsel". I asked, "What do I do now?". He replied, "You will have to go to the Prime Minister". At which point, I went back to the Home Secretary and said, "I do not think that you can go to Harold Wilson on a drafting point on Section 1(1)(b) of the Bill. We will have to accept it". It is fair to say that current parliamentary counsel have told me that they do not behave in that way any more, but that is what happened at the time, and we tried really hard.
That is why, having looked at the appalling, avoidable litigation, the words "requirement" and "condition", with case law being an absolute bar on that kind of thing, have been extremely restrictive against black people and women and ought not to be continued.
I beg leave to withdraw the amendment.
I raised on Second Reading my concerns that the Bill, well intentioned though it may be, could be used by those who are hostile to our Christian heritage. I am absolutely sure that is not the Government's intention. This is a probing amendment, giving me the opportunity to press the Minister to explain how we can be sure that this will not be so. We really need a safeguard in the Bill, and this amendment is almost certainly not up to the job. If the Government agree with me, I am sure that they can produce something that is up to the job.
Why am I worried about Clause 47? I am concerned about the way in which it could be interpreted by the courts, local authority legal officers, other public bodies and private companies. Clause 47 makes harassment on the grounds of religion unlawful. That sounds fair enough, but it defines harassment in a very broad way. It covers:
"creating an intimidating, hostile, degrading, humiliating or offensive environment".
That definition is taken from employment law. The legal advice from harassment law specialist Neil Addison suggests that the definition is too wide for use outside the workplace. It certainly seems to create a real risk of vexatious litigation.
We would probably see examples such as the case in Australia, where a witch by the name of Fletcher is suing the prison service and the Salvation Army over the Alpha course, which is a well-known introductory course for those interested in the Christian faith. Mr Fletcher said that the course vilified his pagan beliefs by suggesting that Christians should get rid of any books on witchcraft that they owned. Incidentally, Mr Fletcher is currently in prison for sexually abusing teenage girls in pursuit of his pagan beliefs. A paedophile witch suing under religious vilification law—you really could not make it up.
The harassment provision would be a gift to people such as Mr Fletcher. I fear that those who object to Bibles in hospital wards or in private hotels will attempt to claim that the presence of the Bible created a "hostile", "intimidating" and "offensive" environment for them. Remember that we have already had the cross removed from a crematorium in Torbay. That is local authority officials taking a belt and braces approach—playing it safe. Frankly, who can blame them? Will we see more local authorities banning Christmas and renaming it "Winterval" as was done in Birmingham some seven years ago?
I worry that the all-powerful commission might decide that a proper interpretation of harassment requires the removal of Christian symbols. Will we end up like the US, where there is a constant stream of litigation from anti-religious groups seeking to erase all public reference to the Christian faith? Will it be even worse, since the provisions in the Bill apply to the private as well as the public sector?
The Christian Institute, which has briefed me on this matter, sent out a briefing listing seven examples of precisely the sort of thing that concerns me. They include the case that the noble Earl, Lord Ferrers, mentioned at Second Reading, of Barnabas House in Norfolk, where the local authority said that the presence of Bibles and saying grace offended other faiths. It also cites two universities that tried to ban Bibles or prayers, two hospitals that thought the Christian faith offensive to others, and a local authority that was urged to drop Christian prayers because they were not "equally welcoming" to other religious groups.
To most people, such cases represent a clear attack on our Judeo-Christian heritage. It is not only Christians who are concerned. For example, when it was reported in June that the University Hospitals of Leicester NHS Trust was considering banning Bibles from bedside lockers to avoid offending other faiths, Resham Singh Sandhu, the Sikh chairman of the Leicester Council of Faiths said:
"I don't think many ethnic minority patients would object to the Bible in a locker".
"This is a Christian country and it would be sad to see the tradition end".
My concern is not so much about action under the Bill by other religions, but action by public officials who are so concerned to appear non-discriminatory that they end up upsetting everybody.
I am proud to live in a country where we enjoy religious tolerance, of which many other countries can only dream. I am a Christian and believe that Christ's words that he is the only way, the truth and the life are true, but I respect people holding different religious beliefs. Fundamentally, I believe that we must all be vigilant about preserving their freedom of worship. However, that does not imply that we should ditch our country's Christian heritage, nor that we hide or be ashamed of it. We are proud of it and celebrate it. It is the Christian tradition that has created the society in which people of all kinds of religions from all over the world can worship freely and openly.
As I mentioned at Second Reading, in the most recent census almost three-quarters of the United Kingdom population claimed that they were Christians. I fear that the Bill as it stands could cause more problems than we could ever imagine. I firmly believe that both the harassment offence and the general discrimination provisions should be circumscribed by wording in the Bill that makes it plain that Part 2 should not be interpreted in this way. Our Christian heritage is important. We should treasure it, as I know that many noble Lords throughout the House do. I look forward to hearing what the Minister has to say. I beg to move.
I agree very much with what my noble friend Lady O'Cathain said. She referred obliquely to the fact that many local authorities are nowadays frightened to send out Christmas cards or put up cribs because people will say that they are proselytising one form of faith, and that that may give offence to others. We are being far too squeamish. Anything that the law does to encourage that, now or in future, is not correct.
My noble friend also referred to Barnabas House, which I mentioned. The noble Baroness, Lady Ashton of Upholland, was kind enough to say that she would look into that. There are other cases about Bibles in hotel rooms.
My fear is twofold. The first is that, in the case of Barnabas House, the threat was that a grant would be removed. That gives huge power to officials in local authorities to say that a certain organisation will not henceforth have a grant. That is not because officials are being dictatorial, but because they are carrying out what they think is the law. They have a duty to carry out the law as they see it. My fear is that we may so construct the law that officials will feel that they ought to act in such a way. That is wrong.
It is also wrong that people should have their religions put in the dock for the following reason. A hotel may put Bibles in a room and a person with extreme views may say, "This is proselytising and offending me", and might take the matter to the Equal Opportunities Commission, which then prosecutes that hotel. What is the result? The hotel will say, "We don't want to go through all the business and huge expense of going to court and engaging barristers and so on. So we will take the easy way out. We will remove those 'offending' Bibles from the hotel rooms".
That would be a huge miscarriage of justice, caused by the existence of such a law. It is our duty to ensure that any new Bill that becomes law should not allow such a possibility whereby people who, rightly, exercise their religious views, suddenly find that they are obliged to close up on them and not allow people to know what those views are, due to a fear of prosecution.
I support what my noble friends have said. I hope that the Minister will not say, "Well, this form of words is quite unnecessary", because that is really not the point. There is enough evidence already that local authorities and other bodies over-react to the present law and there is a real fear that unless something is put on the face of the Bill, Bibles in hotel rooms and other places will disappear, simply because people will misinterpret the intention of the legislation.
I would like the noble Baroness so say that no possible harm could be done by adding the words in the amendment and that they may be helpful in making it plain to local authorities and others that something is going seriously wrong when Christians in this country feel that religious objects and books are being removed due to the unreasonable fear that they might cause offence to others.
I certainly think that the amendment tabled by the noble Baroness, Lady O'Cathain, raises profound questions to which I do not have profound answers. One problem is that in our delightful, flexible and unwritten constitution, we have never properly defined the relationship between Church and state and separated them in the absolute way that is done, for example, in the United States. As people have read in newspapers, and as I have done in documents here, the Supreme Court in the United States has to decide whether bringing the Ten Commandments into a court house or on to the highway is or is not a violation of Church and state. Its reasoning is fascinating and some day, some judge may have to do something similar.
My problem is that when the noble Lord, Lord Waddington, referred to the Christian Church—a point which I entirely understand, because we have an established Church that is well represented in this House by people more competent than I to speak about—we are looking at the matter from a Christian or a Judeo-Christian point of view.
All of us feel that there are some contexts where proselytising is wholly inappropriate and should not be permitted. All of us feel that there are some religious contexts where there is nothing remotely offensive or improper in religious objects or instruments of religion being present. But the amendment refers to,
"religious objects, books, practices and observances".
Those words could apply equally to the Koran or to the works of Ron Hubbard—the Scientology books. The Scientologists claim to be a religion—and there is no definition of religion—and we who are not Scientologists or Muslims might find it a little odd, maybe strange or even offensive, if the religious objects that we were talking about out of context were in place, but were in the wrong place at the wrong time.
Trying to find a way of distinguishing between improper and inappropriate proselytising and appropriate deference to religious diversity is a difficult problem. This is another reason why I regret that we are dealing with this in Part 2 of the Bill, rather than looking at it over a much longer period.
I shall finally retreat, and sit down, by reminding myself of the last words of Ludwig Wittgenstein's great work:
"Whereof one cannot speak, thereof one must be silent".
Surely the noble Lord, Lord Lester of Herne Hill, would not be surprised if he were to stay in a hotel owned by the Church of Scientology and found books about scientology in the room. Surely he would not wish that, under this law, those people should not be allowed to put their books in their own hotels, even though he might not like them.
I said nothing of any kind that is intolerant. All I have tried to do is to say that this raises a difficult and important subject. No doubt, the Minister will say that how a line can be drawn between what is and is not inappropriate proselytising is something that the judges can sort out. I do not think that that is a wholly satisfactory answer. I am very glad that the noble Baroness, Lady O'Cathain, has raised this matter and I look forward to the Minister's reply.
I take this opportunity to thank the noble Lord, Lord Lester, particularly for his point about scientologists. I am sure that I am not the only Member of your Lordships' House who gets regular documentation from the Church of Scientology. I always look at it with a great deal of interest and sadness. I think, "Goodness, I don't like that", but it does not offend me. I do not think that I have been proselytised. It is the Church of Scientology's view. That is tolerance and is what I said about being tolerant of all beliefs and religious worship—I do not actually call it religious worship, but that is the way it is. It goes to my point that we live in a country where that is allowed and I want to make sure that we continue in that way.
There is something to be said for not being quick in jumping up but allowing other people to get in before you. It means that practically everything you had intended to say has already been said. I am absolutely positively certain that the Government have no intention to do anything in the Bill that would be harmful to any religion. But there is no doubt that this clause raises problems.
I was of the view that it was just officials doing this, as my noble friend Lady O'Cathain described, but my noble friend Lord Ferrers spoke about local authorities doing it too. I think that people have gone slightly mad with political correctness. The idea that Bibles should be taken away from bedside tables because they might be interpreted as offending somebody and that some sort of defence for that action might be found under the Bill is beyond belief. I suggest that the Minister should consider taking this provision away and looking at the wording as noble Lords on all sides of the Committee have had difficulty with it. It seems to me that something ought to be corrected.
I hope that noble Lords will allow me to express the pleasure I feel at having agreement between the noble Earl, Lord Ferrers, the noble Lords, Lord Waddington and Lord Lester, and the noble Baronesses, Lady O'Cathain and Lady Miller. I think we have a first!
I hope that I shall be able to sort out some of the worries of noble Lords. I think that the noble Baroness, Lady O'Cathain, has a point, but not quite the point that other noble Lords may think.
First, I make it absolutely clear that the harassment provisions in the Bill will apply only to the work of public authorities in the letting and management of their premises. They will not apply in the provision of goods, facilities or services by non-public bodies. The noble Earl needs to be content that private hotels do not fall within this definition. I am talking about what public authorities do and the discharge of their duty.
It is a hotel run not by a public authority. Her Majesty runs a certain type of hotel, at which many offenders enjoy a proper rest, but we are talking about hotels which are generally available to the public to go into and are run as private establishments. They are not included. But the noble Baroness raises an issue for this reason: we are together trying to encourage many different agencies—non-governmental agencies, charities, religious bodies—to engage in the provision of public services. That is an issue at which we will have to look.
Faith groups delivering public functions may have to be looked at. We seek to encourage faith groups and all others—those of faith and those not of faith—to join in because we think they can make a valuable contribution to providing such services, and they have of course, particularly the religious groups, historically played a major role in the area.
There is, however, as the noble Lord, Lord Lester, said, a line to be drawn here. When delivering public functions to the general public, we do not believe that it would be right for a faith group to discriminate or harass members of the public on the ground of their religion and belief. I know that the noble Baroness, Lady O'Cathain, agrees absolutely with us in that regard.
We do not therefore believe that it is acceptable for prayer to be a prerequisite of receiving a public service or for members of the public to be preached to when receiving a public service. I anticipate that no one in this House would disagree with that either. It would be wrong if faith groups delivering public functions refused to provide services to people of a particular religion, or if they set conditions or requirements for receiving such services that led to indirect discrimination against people of a particular religion or belief. I see the noble Baroness nodding her assent to that statement.
Faith groups should not harass members of the public when undertaking public functions. We would not want them to do that. That does not mean, of course, that Bibles and other religious texts cannot be made available by faith groups when performing public functions, if—I emphasise "if"—someone requests them, or that facilities cannot be provided for worship on a voluntary basis. These should not be part of the offering of the public service and no element of compulsion should be involved.
I accept, however, that there is an issue about religious objects. I can see situations where pubic functions are carried out in church halls or other places associated with worship where objects on display in those premises, such as crucifixes, might conceivably lead to accusations of harassment.
Similarly, there may be cases where a display on Diwalli in the local library or the use of religious objects as part of religious education might be considered harassment. That is absolutely not what we intend. I am willing to give a commitment that we will look at the issue further to see whether there is any way in which we can exempt the display of religious objects from the definition of harassment.
Therefore, I invite the noble Baroness to withdraw her amendment. I understand that it is a probing amendment. I think that she has raised an important point. We will look at this and see what can be done.
Before the noble Baroness sits down, I have listened with enormous interest to what has been said. The noble Baroness has tried to answer the concerns, and she says that she will look at the matter. I would just say to her that if one goes as a Christian to a funeral at a crematorium and finds that there is no cross to look at as one puts one's loved one to the flames, it is very distressing.
It may well be that it is distressing to a person of some other religion—perhaps a Muslim—to find a cross there. Is there is solution to that? The Government, having got into the issue, must confront it. For a number of years I was responsible for the religious policy of the Girl Guides Association. Girls were encouraged to deepen their own faith, whatever it was—faiths from all over the world. Ways had to be found to solve the problem. Often, they had to do with objects—visual aids or whatever.
A great deal of work needs to be done. Having got into this issue, the Government must confront it. Public authorities can cause offence in that way and, in trying to be politically correct and stick to the legislation, they will get it wrong. It is up to the Government to face up to that and try to find ways round. I cannot think how they will do it, but they must. I hope that the noble Baroness, who I know understands these matters deeply and herself minds very much, will be able to find a way.
Before the noble Baroness answers that, I listened carefully to what she said, because it was a very important statement. Unfortunately, I do not think that I gathered it all correctly. I think that she said that you would not expect to be preached to when receiving something supported by public funds. I understand that point of view, but will she address her mind to a certain type of business such as Barnabas House, which I mentioned and mention again simply because it is an organisation of which I have slight knowledge and is a good example? That is a hostel set up by a Church—the Baptist Church—to look after people in distress. There are about 15 or 20 people there. Of course it receives public funds to keep it going. It is doing an immense amount of good to people in the locality and funds are correctly given to it to support it.
When a local authority says, "Yes, but you must not have bibles there. You must not say grace before meals because someone there who is not of that faith might be offended. Therefore"—the argument goes—"you must not do that or you will have your grant removed". That is a tremendously dictatorial thing for any local authority to say or do, but it would say that it is doing it because that is what the law says. It is perfectly right for that Church or any other to run its hostels as it thinks fit and for such hostels to incorporate any kind of religious belief that they may have been set up to have.
I am sure that the noble Baroness would not think that such an arrangement should result in the hostel losing its support from public funds and the people whom it helps no longer being helped.
Perhaps I may deal with the final issue raised by the noble Earl. He knows that my noble friend Lady Ashton said that she would look into the matter. I reiterate that promise. I tried to make it clear that the provision of service should not be dependent on an individual complying. For instance, it would be wholly improper to say, "Unless you pray or do the following, you will not be fed or get a bed". That is what I was talking about. I see several noble Lords nodding their agreement that we should not agree to that; that is not proper. There is another issue of things being available for those who want to participate. We need to consider that.
On the point raised by the noble Baroness, Lady Carnegy, I have said that we will take the matter away to consider, but some local authorities have behaved very practically to meet the needs of their disparate communities. For example, if there is a cross at the crematorium and a Muslim family has come to cremate a loved one, the cross is sometimes taken down or covered for that ceremony and put back up when the family has gone. So there are practical, sensitive things that one can do to encourage and enable people to take advantage of public services in a way that offends no one.
I thank everybody who has taken part in this useful debate. It has gone on for quite a long time, but it has enabled us to air issues and shown where we are all coming from. I am grateful to the Minister for her response; as usual, it was measured, listening and gracious. I appreciate that she wants to reassure me but a word in the statute is worth 1,000 words of measurement in Hansard. The courts do not tend to go to Hansard; they just look at the wording of the Act.
I do not think that this amendment is great but I would like the noble Baroness to see whether she can improve it. We have had certain problems. Her point about removing a cross for a particular circumstance such as a Muslim cremation is perfectly valid—so long as it is put back again. But Torbay Council's decision to rename the chapel of a crematorium a "ceremony hall", seemed a bit over the top. I repeat that we are a Christian country. If Christians were being cremated in a Muslim country, would we want them to change the name of their crematorium hall to suit us? Certainly not. I fear that we will see challenges to our Christian heritage relying on this Bill, and that they might even succeed, unless we place on the Bill some recognition and protection of our heritage. That is the aim of my amendment.
I should like to trade with the noble Lord, Lord Lester, who ended with a very good quotation from Wittgenstein. I do not have a copy of the Bible with me, but the noble Lord should look at chapter 11, verse 1 of the Letter to the Hebrews alongside Wittgenstein. In the mean time, I beg leave to withdraw the amendment.
The amendment would include play in the list of goods, facilities or services where it would be particularly unlawful to discriminate. As the Minister knows, play is of great importance to children, and this amendment would include play firmly in this part of the Bill. By so doing, it gives value to play to help to ensure that young people have equal access to play services.
Play is critically important to all children and is the most natural form of behaviour that any child can indulge in. As I said during the passage of the Children Act 2004:
"One matter is certain—wherever they are and whoever they are with, children will always engage in play. Put them in an empty room and they will play. Give them an empty cardboard box and they will play. Children engage in play as an involuntary instinct, like the blink of an eye, whether they are in the back of their parents' car, on an open beach or even in a classroom".—[Hansard, 30/3/05; col. 1235.]
What I said then is true today. We must protect the opportunities in society for all children to play, as it is so important in their development.
Part 2 deals specifically with religion and belief, and there are particular issues for children of black and minority ethnic communities. In December 2004 the Greater London Authority published The State of London's Children Report, which highlighted play as a key issue for black and minority ethnic children. The report highlighted a significant lack of use of play facilities for those children. It also found that community schemes are the most effective in reaching those children.
I hope that the Minister will agree with me and shares my hope that the Commission for Equality and Human Rights will take up equality issues relating to play. I firmly believe that that can be assured only if play is referred to in this legislation. I beg to move.
I think that the matter has been covered already, but I would be grateful for reassurance.
Clause 48(2) gives a non-exhaustive definition of the matters to which the clause refers. It says that subsection (1) applies in particular—that is, not exhaustively—to, among other things,
"facilities for entertainment, recreation or refreshment".
"Recreation" means play, so there is no need for the amendment.
I strongly believe that access to play facilities and services should be provided to all children without discrimination on grounds of their religion or belief. Play can be an opportunity for children to develop their relationships with other children of any belief, race or colour. We should strive to enable children to benefit from that opportunity. I understand why my noble friend wished to raise the issue so strongly.
I assure my noble friend that the list in Clause 48(2) corresponds to that in Section 20 of the Race Relations Act 1976. It was included for no reason other than to provide consistency with that Act. That is because the Race Relations Act already provides protection to Jews and Sikhs, and addressing that anomaly is one of the major reasons behind Part 2 of the Bill.
We would not want the list in Clause 48 to be seen as anything other than illustrative. Accepting the amendment might suggest that it carried more weight than it does and that, for some reason, it was important that particular facilities or services were mentioned in the list. It might suggest that absence from the list meant that a particular type of service was not covered or was less significant. That is not the case, and we do not wish to give that impression. I am confident that that would not be the desired effect of my noble friend's amendment.
We agree with my noble friend that play is an important area. It is already covered by Clause 48, and, because of that, the amendment is not necessary. However, I thank my noble friend for giving me the opportunity to say, without any fear of contradiction, that it is included and is very important.
The Minister said something that needs to be clarified. She said that one of the main reasons for Part 2 of the Bill was to give Muslims the same protection as is given to Jews and Sikhs. Does she agree that, under the Race Relations Act 1976, Jews, Sikhs and Muslims are equally protected, if any of them are discriminated against because of their ethnicity, not because of their religion?
Part 2 gives new protection to Jews, as well as to Sikhs and Muslims, as it extends the protection of the Race Relations Act beyond ethnicity to religion. If, for example, a Jew or Muslim is discriminated against not because of their ethnicity but because of their religion, they are equally protected. Is that the position?
It is the position, but I made no mention of Muslims. I mentioned only the issues relating to Jews and Sikhs. Those two religions are specifically covered; no other religion was. Therefore, the provisions apply equally to Christians, Hindus, Jains, Buddhists and all the others. I did not specifically mention Muslims.
The noble Baroness has not got my point. She referred to those "religions". Jews and Sikhs are protected not because of their religion but their ethnicity. The same is true of Muslims. That is the only point that I was making.
I say without any fear of contradicting anyone that the noble Lord has accurately referred to the law as it stands and the purpose for which we now seek to address the issues.
I am grateful to the Minister for her very thoughtful response to my amendment and to the noble Lord, Lord Lester, for his intervention. I make no apologies for putting down the amendment. I recognise that many others may wish to join the queue of those who want to be mentioned in the list on this part of the Bill.
I hope that some of those "play" groups will make representations after this debate. Before Report stage, perhaps the Minister will think of a way in which to appease their problems. I certainly recognise the strength of the arguments against the amendment. I beg leave to withdraw the amendment.
moved Amendment No. 175:
Page 28, line 17, leave out "49" and insert "49(1), (2) and (5)"
In moving government Amendment No. 175, I shall speak also to government Amendments Nos. 177 and 178. In doing so, I will resist Amendment No. 176 standing in the names of the noble Lords, Lord Lester of Herne Hill and Lord Dholakia, with which they are grouped. The intention and effect of our amendments and Amendment No. 176 are very similar: essentially, they are that small-scale landlords as defined in Section 50 should not be able lawfully to harass occupiers or those applying to be occupiers of premises.
In bringing forward the amendment, we are responding to the concerns of the Joint Committee on Human Rights. We believe that by making such harassment unlawful, while continuing to protect the right of the small landlord lawfully to discriminate in deciding to whom he will let his property, we are improving the balance of our proposals. No one will be obliged to share his home with or let it to someone whose beliefs are antipathetic to his own, and we continue to believe that that is right. Nor will he lawfully be able to harass an occupier or applicant on those grounds.
That may mean that there is potential difficulty where the beliefs of one party to such an arrangement change, so that they feel harassed by something which formerly they accepted. But we are confident that in those circumstances the definition of harassment, and particularly Clause 47(3)(b) that contains a stipulation that action should only,
"be regarded as having that effect having regard to—
(a) B's perception, and
(b) all the other circumstances", means that our proposals allow for such circumstances to be resolved sensibly.
I look forward to hearing what the noble Lord, Lord Lester, has to say on Amendment No. 176. As I see it, in addition to what we have proposed, it would allow a person managing premises to harass an occupier, which would avoid the potential difficulty that I have just mentioned. Having considered that, as I have said, we have come to the view that our proposals offer adequate protection in that respect. For that reason, subject of course to the discussion that we will have, I ask the noble Lords, Lord Lester and Lord Dholakia, to reconsider Amendment No. 176.
moved Amendments Nos. 177 and 178:
Page 28, line 17, after "disposal" insert "or management"
Page 28, line 37, leave out "49" and insert "49(1) and (5)"
On Question, amendments agreed to.
Clause 50, as amended, agreed to.
Clause 51 agreed to.
Clause 52 [Section 51: exceptions]:
moved Amendment No. 179:
Page 29, line 37, leave out "51" and insert "51(1)"
I know that some people would like to use this Bill as an opportunity to pursue a separate agenda to do with the existence of faith schools and their place in a largely secular society. Others here are deeply engaged in and committed to faith-based education. For that purpose, I should declare my own interest as a practising Catholic whose son attends a faith-based school.
I need to make it clear that the Government are firmly of the view that faith-based schools make an important contribution to the diversity of our education provision. Therefore we do not intend this Bill to affect the status quo in terms of their continued existence and their ability to operate in accordance with their particular ethos. The exemption for faith schools in Clause 52 was intended simply to reflect the fact that faith schools will necessarily and reasonably be involved in acts, such as giving preference in admission to children of their faith and providing pastoral care within the school tailored to the needs of children of that faith, which would otherwise be made unlawful by the Bill.
It has been argued by the Joint Committee on Human Rights and others that the exemption as it appeared in the Bill was too sweeping—it was described as giving these schools a "licence" to harass children. No one is seeking to give a green light to unacceptable behaviour of that kind, although I should stress that we have no evidence that anything like this is happening in schools at the moment.
This amendment is therefore intended to tighten up the exemption and to apply it to faith schools. The blanket exemption from harassment provisions is removed. In its place we propose a much more limited exception which applies only to acts which are necessary, having regard to the purpose of the faith school.
The reason we are retaining this much more limited exemption is that we want it to be clear that the presence in a faith school of evidence and symbols of its religious ethos cannot in itself be regarded as creating an "intimidating" or "offensive" environment for a pupil not of that faith and therefore legitimately be claimed to constitute harassment. "Necessary" is a high test and strikes, we think, an appropriate and proportionate balance between a pupil's right to be treated with respect and consideration and the right of a faith school to function as such—and indeed the rights of the pupils sharing the faith of the school to manifest their faith collectively in this way. I beg to move.
This is neither the time nor the place for a debate about faith schools or the existing pattern that has been established under our education legislation. I personally am not in agreement with the settlement that has now been reached.
There are severe dangers to our secular society in the proliferation of faith schools unless strong measures are taken to ensure that our secular society combines together religious tolerance, freedom, equality, diversity and privacy. I recommend to anyone who thinks that that is easy a case I took in the Privy Council last year. In Tengur v Bishop of St Louis, Mauritius the Catholic schools were held by a unanimous Privy Council to have been acting unconstitutionally in imposing a religious quota in favour of Catholics rather than on the basis of merit in order to preserve the ethos of their schools. I believe that that kind of problem will arise under the Human Rights Act in some future context. But we are not here to debate any of that today. It is, however, very important for obvious reasons.
Coming to the point, I welcome the introduction in the government amendment of the test of necessity—what is necessary having regard to the purpose of the establishment—which is a well-recognised test of proportionality. That is a welcome cutting down of the scope of what would otherwise have been a blanket exception for faith schools.
I am sure that the Joint Committee on Human Rights will also be glad that its views have been taken into account. I hope that when we come later to other exceptions we can carry forward the same concept of proportionality. Meanwhile, I strongly support the Government's amendment, subject to my broader reservations about the educational and faith school background.
moved Amendment No. 180:
Page 30, line 20, leave out subsection (2).
Clause 52(2) creates further exceptions that allow harassment or discrimination in connection with the content of a school curriculum or religious worship. The British Humanist Association has said that this would allow a girl in a Church of England school to be ridiculed by a teacher for not believing in God. The Joint Committee on Human Rights considers that this may engage Articles 9, 8 and 3 of the European convention and be contrary to the Human Rights Act. It states:
"There is a risk that Clause 52(2) would be found by the courts to be incapable of interpretation in accordance with Convention rights".
Our amendment would remove Clause 52(2) as an exemption on the ground that allowing the harassment of school children is repugnant. We welcome the Government's Amendments Nos. 179, 182 and 183, which, as I have said, add the necessity threshold to discrimination and harassment, but they do not go as far as our amendment. Part of my concern is whether the use of the term "religious worship" in Clause 52(2) and Clause 54(4)(h)(iii) is precise enough or whether it might be open to the wrong interpretation.
I hope that the Government's intention is that the exemptions for religious worship should apply to the daily act of collective religious worship. An exemption for collective worship I find easier to understand because, unless it is exempted, a non-Christian child at a Christian assembly could claim that he or she was being discriminated against because there was no equivalent act of a broadly Hindu, Muslim or Jewish character being provided by the school; or even harassed because she or he felt that the daily act created a hostile or offensive environment for her or him as a non-Christian child.
However, on the face of the Bill the wording "religious worship" could be used to defend an act of harassment against a pupil because of his or her religious worship. For example, a devout Muslim boy might be taunted because he persisted in praying in school several times a day. Would the Minister consider amending the Bill to refer specifically to "collective worship" to make that distinction clear?
I could go on but I shall not. I beg to move.
A great many years ago, I was at a boarding school in the United States where at least 10 per cent of the boys were Jewish. We had a short morning assembly, as schools do, at which the Lord's Prayer was said. I do not remember any of the Jewish boys objecting to coming to this assembly.
I also know a Muslim—it must be 20 years since I have seen him—who went to an English public school. His parents are practising Muslims. He went to chapel because his parents thought, "When in Rome, do as the Romans do".
Why are people now so ultra-sensitive as to object to the religion of the host country? It is quite extraordinary. People were easy-going and relaxed then about attending other people's worship provided it was not forced down their throats; why should not this remain the case?
As the noble Lord, Lord Monson, indicated, there is sensitivity in relation to this issue, particularly in the area of education. The right reverend Prelate the Bishop of Newcastle said on behalf of the Church of England that it is important that the Church should not harass those of other religions. We must keep that strongly in mind.
The amendment would remove the exemptions for schools from the provisions on discrimination and harassment on the grounds of religion or belief for anything done in connection with the content of the curriculum or collective religious worship. I am sure the Committee will appreciate that education gives rise to special considerations in the way that we need to balance the important general prohibitions on religious discrimination and harassment in education against specific areas where a measure of discrimination may be acceptable and practical. Clause 52 is an attempt to strike the balance in the right place.
It is important that we ensure that schools are able to deliver education priorities, including a balanced and broad-based curriculum, and the opportunity for pupils to worship collectively at school. I was very much encouraged by the indication of the noble Lord, Lord Lester, that he would feel more comfortable if what we were describing was curriculum and collective religious worship. We believe that the curriculum and collective religious worship need to be exempt from both the discrimination and harassment provisions of the Bill.
Let us consider some situations which might arise without such an exemption. The noble Lord, Lord Lester, has referred to some already. It is a fact that the United Kingdom is a predominantly Christian country. It is therefore perfectly understandable that existing legislation provides that acts of collective religious worship in schools are broadly Christian in character. However, the law already recognises that different arrangements may need to be made in respect of some schools, including faith schools. Consequently, that principle may not be applied if a standing advisory council has determined, under Section 394 of the Education Act, that the requirement for Christian worship is not appropriate in the case of a particular school or in the case of any class or description of pupils at that school.
This can take account of any circumstances relating to the family backgrounds of pupils which are relevant for determining the character of collective religious worship in any particular case. In addition, parents are free to withdraw their children from collective religious worship in school if they so wish, but schools should not be obliged to make equivalent provision for collective worship for children from minority faiths, or risk the accusation that they are discriminating unlawfully against such children. For this and similar reasons we need the discrimination exemption.
I can assure the noble Lord, Lord Monson, that in many, many schools children perfectly happily continue to share these opportunities to be together without it causing difficulty.
We also need the harassment exemption to protect schools which are delivering the broad-based curriculum to which all our children are entitled but where some of what they do may clash with the strongly held religious views of a minority of parents. Such parents are, of course, entitled to their views, but we do not intend to let them use this legislation to impose those views on the majority.
It is important to remember that the definition of "harassment" in the Bill is quite a broad one. At its least extreme, harassment may be claimed by a person who feels that a school has created "a hostile or offensive environment" for them. Such a claim might come in relation to a child whose parents belong to a sect which believes that computers are the work of the devil or who argue that their very presence in the school is offensive. Creationists might make the same claim in relation to the teaching of evolution within the science curriculum. Some religious groups have been known to take exception to many works of literature or of drama, not least the Harry Potter books, with their description of magic and witchcraft.
Some religiously conservative groups or sects within religious groups may object to mixed-sex classes or to sports activities. Some religiously conservative groups also object to sports provision for girls. Some groups may attempt to undermine the very diversity which the curriculum seeks to maintain and which the legislation seeks to protect.
Schools need to be confident that they can follow the curriculum without being challenged. No subject should be squeezed out of the curriculum because schools feel vulnerable under the Bill. They should not be required to justify practices which might constitute indirect discrimination on harassment merely because they are properly abiding by education law and following a reasonable and balanced approach to the curriculum.
Religious education is also an important curriculum subject. However, provision is already made which can protect individual beliefs. Parents can request that their child be withdrawn from religious education lessons. Indeed, parents can take their child out of school to attend alternative religious education as long as it does not interfere with the child's attendance at school other than at the beginning or end of the school day.
We believe, therefore, that the exemptions provided for in this part of the Bill are necessary to ensure that the school curriculum remains broad-based and inclusive. That is consistent with the duties which the Secretary of State for Education and Skills has under Sections 78 and 79 of the Education Act 2002 to ensure that LEAs, governing bodies and head teachers provide a curriculum which is balanced and broad-based, which promotes spiritual, moral, cultural, mental and physical development of pupils at school or of society, and which prepares them for the opportunities, responsibilities and experience of later life.
Options are already available for parents who seek a different form of education for their children. For example, they may look at faith schools which meet their needs or single-sex schools, including those in the independent sector.
For these reasons, we are unable to accept the amendment, but I understand what the noble Lord says about collective worship.
The noble Baroness mentioned the teaching of creationism. I am sure she is aware that there has been considerable anxiety about a case in which a city technology college was said to be thinking of putting creationism in the curriculum. Although that may have been scotched by the widespread public discussion that took place, will the noble Baroness assure us that nothing in this clause would allow the incorporation of the teaching of creationism in the normal curriculum or its insertion by way of religious teaching in some other part of the curriculum?
The Bill does not in any way change our current structure and approach in relation to the teaching of the curriculum. The provision seeks to preserve the nature of the curriculum so that it can be taught properly to all pupils in a way that is currently deemed to be satisfactory. We are not changing anything by virtue of the provision.
Can the noble Baroness make one thing clear? In her very important statement, which I shall read, she helpfully mentioned that she agreed with me about collective worship being the meaning of religious worship. Is it the Government's intention to make that clear in appropriate language at some point during the passage of the Bill?
We believe that we have made this clear but I am happy to look at the wording and see whether it does exactly what we believe it does. I apologise for that rather inelegant way of expressing it. I was grateful to the noble Lord for indicating that he accepted that collective worship was important and for identifying some of the difficulties which I went on to expand if we were not to include the curriculum and if we were not to have expressed it in the way that we have.
I am extremely grateful to the noble Baroness. Her statement is important and will I am sure contribute to a lot of understanding about the relevant issues. It would be desirable to amend the Bill to make it clear that religious worship means collective worship, but that is a minor point. I beg leave to withdraw the amendment.
moved Amendment No. 181:
Page 30, line 20, leave out subsection (2) and insert—
"(2) Subsection (1) does not apply to the filling of unfilled places in schools with a religious character, which shall be filled in accordance with the "Codes of Practice—School Admissions 2003"."
The amendment deals with the issue of unfilled places. It would provide that Clause 52(1) does not apply to the filling of unfilled places in schools with a religious character which should be filled in accordance to the School Admissions Code of Practice issued in 2003. Let me explain what that means.
With the repeal of Section 91 of the School Standards and Framework Act 1998, it is no longer possible for foundation and aided schools with a religious character to agree special arrangements with their local education authority by which they can keep places empty if they do not have enough applications from their particular faith or denomination. The position is regulated by the codes of practice referred to in the amendment.
The code says in paragraph 3.9:
"Schools designated by the Department as having a religious character may give preference in their admission arrangements to members of a particular faith or denomination (as may be required by their Trust Deed), provided this does not conflict with other legislation such as race relations legislation. Where they do, their admission arrangements should make clear whether a statement of religious affiliation or commitment would be sufficient; whether it is to be 'tested' for admission purposes and if so, how; and what, if any, references would be required from the family's priest, Minister or other religious leader and how they will be used to decide on the application".
Paragraph 3.10 contains this important statement:
"Faith schools can contribute to community cohesion by having admission arrangements that are inclusive of other faiths and of all elements of the population of their local area. Some faith schools already achieve inclusiveness by designating a proportion of places for which children of their own faith or denomination will be given priority, and the remainder as community or open places for which local children will be given priority. Note: this is quite different from 'quotas', which would reserve places solely for particular groups, and would mean leaving places empty if not enough members of those groups apply".
Finally, it says:
"With the repeal by the Education Act 2002 of section 91 of the School Standards and Framework Act 1998, it is no longer possible for foundation and aided schools with a religious character"—
I have already mentioned this—
"to agree special arrangements with their LEA by which they can keep places empty".
My amendment seeks to make sure that what is in the code of practice will apply to the unfilled places. It is extremely important that that be so. The blanket exception allowing discrimination in admissions reflects the repeal of Section 91 of the 1998 Act.
I welcome the Government's Amendments Nos. 186 and 188, grouped later, which amend the Bill so that local education authorities cannot harass in respect of the admission procedure. However, I seek a guarantee in the Bill that the code of practice's very sensible multi-faith and no-faith approach to unfilled places will apply, notwithstanding the provisions in the Bill. I beg to move.
I understand the noble Lord's concern about the unfilled places in faith schools and his intent that they do not remain unfilled and are offered to children of other faith. I agree with him—faith schools should not be allowed to keep unfilled places simply because there are not enough applications from children of their particular faith. However, we would respectfully suggest that the amendment to this Bill is unnecessary since the area of unfilled places remains a matter governed by the code of practice to which the noble Lord referred. Moreover, there is no indication that schools are acting inappropriately in this area. On the contrary, many faith schools choose to hold a proportion of their places for children not of the same faith as the school, in order to ensure diversity in the school.
The exceptions to this Bill relate only to the new provisions on discrimination on the grounds of religion or belief made in the Bill. They are not intended to, and will not, affect the way in which schools are already required to follow any other legislation or existing statutory code of practice—such as the code to which the noble Lord referred. That code is revised from time to time and versions will naturally take account of the legal framework in place at that time, as does the current version in relation to existing equality legislation.
I hope that I have given the noble Lord the reassurance that he seeks that this amendment is not necessary. For the reasons that I have given, I cannot accept it and I hope that the noble Lord will feel happy to withdraw it.
I am grateful and reassured. I also remind myself that the Human Rights Act 1998 could apply in certain circumstances because discrimination in access to state-funded education could trigger that Act as well.
I only have to mention Northern Ireland for everyone in the Chamber to be aware of the danger that could arise in totally faith-segregated education, which has unfortunately afflicted that Province with consequences that we all know about. I am reassured that my amendment is not necessary provided that the code of practice continues in the way that it has done—or something like it. That is not a cast iron guarantee because we do not know what might happen to a future code, but if a future code were to go back on the present code, I daresay that there could be a human rights challenge. On that basis, I beg leave to withdraw the amendment.
moved Amendments Nos. 182 and 183:
Page 30, line 23, at end insert—
"(2A) In the application of section 51(2) to an educational establishment falling within subsection (1) above, conduct shall not be unlawful if it is necessary having regard to the purpose of the establishment."
Page 30, line 25, leave out "or (2)" and insert ", (2) or (2A)"
On Question, amendments agreed to.
I rise to speak to Amendment No. 184. Noble Lords will know that this Bill applies to Scotland as well as to England and Wales because equality, as your Lordships know, is a reserved matter. However, education is a devolved matter in Scotland. Any changes made to the education provisions of the Bill under the powers in Clause 52(3) will therefore have particular implications for the devolved authorities. Because of the relationship here between what is reserved and what is devolved, we think that the Scottish Ministers and the Welsh Assembly will inevitably need to be consulted before regulations are made which affect their provisions. This amendment makes that explicit. I beg to move.
In moving Amendment No. 185, I shall speak also to Amendment No. 190, which also stands in my name. I raised this matter at Second Reading and had the impression that the Minister was prepared to look very carefully at what I said. It appeared to me that there had been some unfortunate drafting, which had had the opposite effect to what had originally been intended. The first subsection of Clause 53 states:
"It is unlawful for a local education authority . . . in the exercise of their functions to discriminate against or harass a person".
Of course, that is all right, but subsection (2) then sets out a list of functions when it is perfectly all right for a local authority to discriminate or harass. Discrimination may be necessary in the exercise of certain functions, but surely it can never be all right for anyone to be harassed. My amendments separate discrimination from harassment. The legalising of harassment is repugnant and I am certain that that was not the intention. I am very pleased to see standing in this group government Amendments Nos. 186 and 188, which attempt to deal with that question.
In Amendment No. 190, I have sought to delete paragraph (b) from the list of functions where it is possible for a local authority to discriminate. Why should there be discrimination in the provision of school transport? If any service should be provided on an entirely non-discriminatory basis, surely it should be school transport. Those of us who live in London are not at all happy about the congestion on the roads caused by many parents taking their children to school by car. I am advised that a provision of this kind, as set out in the Bill, could well be contrary to the Human Rights Act.
In its report on the School Transport Bill, the Joint Committee on Human Rights persuaded the DfES to amend the prospectus to make it plain that current widespread discrimination against non-religious parents seeking to send their children to the nearest school not of a religious character was contrary to the Human Rights Act. Therefore, I believe that this paragraph should be deleted from the Bill.
Returning to Amendment No. 185 and similar amendments standing in the group, I look forward to hearing what the Minister has to say in relation to the government amendments standing in the name of my noble and learned friend Lord Falconer on the whole issue of harassment and discrimination. I beg to move.
I thank my noble friend Lady Turner for returning to these issues. I turn, first, to Amendments Nos. 185, 187, 189 and 191, to which my noble friend spoke. She seeks to ensure that education authorities are not given an exemption allowing them to harass in the course of exercising their functions. I agree with her and shall, in due course, wish to move Amendments Nos. 186 and 188, tabled in the name of my noble and learned friend the Lord Chancellor, which will have precisely that effect.
In making this amendment, we are responding to comments made on the Bill by the JCHR, among others. Local education authorities and their Scottish counterparts will need an exemption from the discrimination provisions of the Bill if they are to continue their support for faith schools in its current form. The Government have made it clear that they do not wish to undermine the status quo for faith schools in any way. However, we are happy to accept that nothing that education authorities do in this context requires or should permit them to harass anyone on grounds of religion or belief. The amendment confines the exemption to discrimination only, and therefore I invite my noble friend to withdraw her amendment in due course.
I now turn to Amendment No. 190, which I fear I am not able to accept. I have already made it clear that the Government do not intend this legislation to undermine the status quo in relation to the operation of faith schools within our education system. I fully accept that any exemptions should be drawn as narrowly as possible, but they do need to be wide enough to protect current practices which are reasonable in the context of faith schools. We have therefore put forward our own amendment to make it clear that harassment in relation to school transport is not permissible. We considered carefully the case for the remaining exemption from the discrimination provisions, but without it, we believe that local education authorities and their Scottish counterparts would be vulnerable to challenge in properly carrying out their responsibilities in this area.
LEAs must provide free home-to-school transport for pupils who are attending their nearest suitable school, provided that the school is beyond the statutory walking distances. Over and above that, LEAs have considerable scope to decide when transport is necessary. They are expected to consider each pupil's case on its merits, taking account of all relevant factors including, when appropriate, a parent's wish for their child to attend a school of the religion or denomination to which they adhere.
Subsidised transport will generally be provided only to a school which is the nearest suitable school to a pupil's home, but LEAs have the discretion to provide a subsidy for transport to a faith school which may not necessarily be the pupil's nearest suitable school. I know that the British Humanist Society in particular regards that as unacceptable discrimination in favour of those with a religious faith—but that is an issue to be argued out at another time. It is really not for this Bill. Any suggestion that policy in this area ventures into the area of violation of the human rights of children is frankly misplaced. It is the responsibility of education authorities, in using their discretion, to ensure that their policies are compliant with human rights legislation. Our view is that they should treat parents of strong anti-religious beliefs and views equally and equivalently to those with a strong religious faith. Nothing in this Bill cuts across that.
As far as this Bill is concerned, our policy is to allow existing systems which support the continued existence of faith schools to continue, without LEAs being vulnerable to challenge when carrying out this policy. It is for those reasons that, with the greatest regret, I cannot accept this amendment. I invite my noble friend not to press it.
I thank the Minister for that response and will of course withdraw Amendment No. 185. As for Amendment No. 190, I listened very carefully to what she had to say; of course, I shall not press it this evening. I noted that she emphasised that it was the duty of local authorities to treat parents equally, in complete equality, whether the parents are religious or non-religious. That is important. I shall read her remarks in Hansard and will not press the amendment this evening. I beg leave to withdraw the amendment.
moved Amendment No. 186:
Page 30, line 45, leave out "or harass"
On Question, amendment agreed to.
[Amendment No. 187 not moved.]
moved Amendment No. 188:
Page 30, line 45, at end insert—
"( ) It is unlawful for a local education authority (in England and Wales) or an education authority (in Scotland) in the exercise of their functions to harass a person."
On Question, amendment agreed to.
[Amendments Nos. 189 to 191 not moved.]
Clause 53, as amended, agreed to.
Clause 54 [Public authorities: general]:
moved Amendment No. 191A:
Page 31, line 28, at end insert—
"(1A) For the avoidance of doubt the prohibition in subsection (1) shall include—
(a) requiring a registrar or any other person to arrange, officiate at or otherwise participate in the registration of a civil partnership under the Civil Partnership Act 2004 (c. 33),
(b) requiring a registrar or any other person to arrange, solemnise or otherwise participate in the registration of a marriage involving a person whose gender has become the acquired gender under the Gender Recognition Act 2004 (c. 7),
(c) requiring any person to participate in any placement under section 18 of the Adoption and Children Act 2002 (c. 38) (placement for adoption by agencies), or any application under section 49 of that Act (application for adoption) where the placement is with, or the application is made by, a couple who are not a married couple, or one applicant is part of a couple within the meaning of section 144(4)(b) of the Adoption and Children Act 2002 (general interpretation etc.), where the person concerned has a conscientious objection on the basis of his religion or belief."
The amendment would extend the principle of Clause 54 to create a conscience clause for civil marriage registrars and social work staff when they have a conscientious objection based on their religion or belief. My amendment would prevent them being forced to take part in homosexual civil partnership ceremonies, in weddings involving transsexual people, and in adoptions involving unmarried or homosexual couples.
As Members of the Committee know, this is not the first time these issues have been raised. The late Baroness Blatch, whom we miss so much, called for a conscience clause for adoption staff in the Local Government Bill in 2003. I in turn raised the issue of registrars last year during passage of the Gender Recognition and Civil Partnership Bills. I know that some people get very angry when these issues are raised. Believe me, it would be easier for me not to raise them. But surely in a free society people should be entitled to hold different views, even when they relate to cohabitation, homosexuality or transsexualism.
Many people are motivated in their views by sincere religious conscience. These are extremely controversial issues in our society about which people have genuine and deeply held concerns. Parliament has legislated in recent years to change the law in these areas, but it did so—as we all remember—in the face of considerable opposition from the public. That opposition came from sincere people, often Christians and Church leaders, but also from non-Christians, who conscientiously believed that what Parliament was doing was immoral, counter to the sanctity of marriage and detrimental to the family—which is, as many of us believe, the backbone of our society.
Such people cannot support civil partnerships because they believe that they give marriage-like status to what they consider immoral relationships. They cannot support transsexual marriages, where one person has changed sex in law, because they actually do not believe it is possible to change sex in fact. They cannot support placing children for adoption with unmarried or homosexual couples, because they earnestly believe that it can never be in the best interests of children to do so when there are many married couples willing to adopt.
For most of these people, the issue of freedom of conscience does not arise, as they are not required to be involved in any of these issues. But what if you hold these views and you work in a registry office? What if you work in social services? Sadly, we know what sometimes happens: you are told that you have to take part; pressure is exerted on you to go against your conscience; you can be intimidated because of your religious views; indeed, you might even be threatened with dismissal. This is not merely hypothetical or theoretical—there are examples.
Angela Sartin is a superintendent registrar at Bristol City Council. She has worked for the service for 19 years. When she joined, there was not the remotest prospect that her job would ever involve uniting homosexual couples, but since the passage of the Civil Partnership Act 2004, she has been told that this is what she must do. She has recently been advised that guidelines from the General Registrar's Office indicate that the duty to provide civil partnerships is on the local authority, rather than on each individual registrar. Statutory officers do not have to take part. But this does not extend to Miss Sartin's position. She is therefore applying for a demotion and taking a £10,000 a year pay cut, in order to be able to stay within the service and retain freedom of conscience not to take part in civil partnerships.
Others have left the service. There are many long-serving people around the country who are not happy; but they are leaving the service quietly. They are being accused of homophobia and bigotry and they doubtless feel intimidated.
Clause 54 protects all religious beliefs, not just those that are politically correct. Are people whose religion teaches that homosexual practice is wrong protected by the Bill, or not? It is a natural extension of the principle of the Bill to say that we will seek to protect freedom of religious conscience for people like these.
The issue of transsexual weddings, addressed in paragraph (b) of the amendment, is more complicated. Under the Gender Recognition Act 2004, the registrar will have no right to know whether a person who applies to marry has changed sex. But even if the registrar did know, there would be no right to withdraw from officiating. If a registrar refused to issue the marriage notice, the result would be instant dismissal.
I turn to paragraph (c) of my amendment. The Committee may recall that the late Lady Blatch cited the case of the long-serving adoption workers, Dawn Jackson and Norah Ellis—a case which made the national press at the time. Sadly, this is not the only case. Dawn and Norah worked in the adoption service of a local authority. Between them they had 50 years' experience in adoption and fostering, but because they had a conscientious objection to same-sex couples adopting, they were forced out of their jobs.
Some noble Lords will point to the Employment Equality (Religion or Belief) Regulations 2003. They will say that any employee already has religious non-discrimination rights. However, if they are so effective, why are religious people being forced out of jobs in registrars' offices even as we speak? Clearly, the 2003 regulations are not enough. Unless we do something specifically to protect these posts, Christians, Muslims and others with traditional religious views will increasingly be forced out of these professions in a form of religious apartheid. I beg to move.
I hope that the noble Baroness will—as I am sure she will—give a great deal of thought to my noble friend's amendment. I personally hope that some phraseology such as this will be accepted in the Bill. In the past 10 years or so we have come across the problems of transsexual marriage, marriages between people of the same sex, homosexual marriages and so on. These are new concepts that bring with them their own problems.
We have an Equality Bill saying that all these people should be equal. However, as my noble friend said, people who have religious convictions often find that they are discriminated against if they do not want to take part in these marriage ceremonies. My noble friend gave the example of a person who took a pay cut of £10,000 in order not to have to do that. In an Equality Bill there ought to be equality for those people. Those people ought to be able to continue with their profession but exempt themselves from conducting that part of the ceremony with which their conscience does not agree, in the same way that nurses who have strong views about abortions do not have to carry them out.
As I say, this is an Equality Bill. It is very important that those people who have strong views should not find themselves being made unequal or being threatened with dismissal.
I hope that my noble friend the Minister will not feel disposed to accept this amendment. I am sure that the noble Baroness, Lady O'Cathain, is not surprised that I am not very happy about it. For one thing it seems to me that we are talking not about religious ceremonies here but civil contracts. These are civil contracts entered into on the basis of legislation that has already been passed by this House and the other place.
Moreover, as I am sure we all know, there are religions that disapprove of divorce, but that does not mean to say that registrars who happen to be religious can refuse to remarry divorced people. Yet, as I say, many religions object to divorce. The amendment lists a number of Acts: the Civil Partnership Act, the Gender Recognition Act, the Adoption and Children Act, all of which have been approved by Parliament. Civil arrangements are available for people to carry out what the law allows them to do. In a situation where religious ceremonies are not involved, I do not understand why individuals should be able to say, "I will not do that because I have a religious objection even though it is my job to do it".
Some Members of your Lordships' House do not at all approve of the Civil Partnership Act or of the Gender Recognition Act. Indeed, that was made clear again and again during the passage of those important pieces of legislation. They were designed—as was the change in adoption law—to give effect to basic human rights, equality and personal privacy anchored in the European Convention on Human Rights and the Human Rights Act while at the same time respecting religious freedom. Religious freedom was respected in the Civil Partnership Act by making it quite clear that this was a matter of civil partnership—as the noble Baroness, Lady Turner, has just said—a status secured by statute which did not in any way affect the refusal of any Church to treat the civil partnership as tantamount to marriage. It was made absolutely clear that it was a special status with many of the advantages but also obligations of marriage, but that it was not marriage and did not in any way trespass upon the relationship between Church and state.
I refer to a doctor bound by a professional code of conduct. In relation to carrying out an abortion there is quite rightly a conscience clause because in that context it is vital that a doctor or a nurse should not be obliged to act against their conscience. That is an entirely different context from that of a public officer, a registrar, who is there to carry out the law of the land as enacted by the sovereign Parliament. To take an extreme example, let us imagine a registrar with a conscientious objection to registering a marriage between a black woman and a white man, who believed that miscegenation was against the law of nature as laid down in the Bible. There have been such creatures in the American south and in South Africa who had deeply held but bigoted convictions. In this country one could not possibly contemplate a registrar, however deeply held his or her beliefs, being permitted by a conscience clause not to carry out the law of the land.
Exactly the same applies to civil partnership. We as a Parliament have decided—rightly or wrongly, but it is the law of the land—that homosexual same-sex couples who can never marry should be encouraged and allowed to enter into permanent relationships with all the rights and obligations of those relationships. We cannot have a homophobic registrar with deeply held and sincere religious convictions saying to the two men or the two women who come in front of him or her, "I will not register your relationship because I think you are sinning and I regard what you are doing as evil according to my faith, and here is the Bible to prove it".
The same applies to gender recognition. We passed the Gender Recognition Act because the European Court of Human Rights made it quite clear that we could no longer go on denying recognition to that very small group of people—I believe that there are about 8,000 in the country at large—who go through the horrible experience of a series of painful operations to secure their true gender identity. Let us imagine a woman such as Mrs Bellinger—my client at the moment in Strasbourg—who had gender reassignment 30 years ago arriving with her prospective husband and being told by the registrar, "You were born a man. I have a conscientious objection to recognising your change. Whatever Parliament says, I will not allow you to marry". That would be quite intolerable.
Therefore, I am afraid that I have to say to the noble Baroness, Lady O'Cathain, for whom I have great respect, and whose faith and deeply held convictions I respect, that public officers cannot be permitted to defy the law of the land, albeit in the name of religion or conscience.
If I may say so, the noble Lord, Lord Lester of Herne Hill, has the wrong end of the stick. He says that it would be wrong where, for example, two homosexuals were to be married, that a homophobic registrar—as he put it—could say, "I will not marry you because I do not believe in this. However, here is the Bible; I will marry you according to the Christian tradition". That is not the case. I am glad that the noble Lord signifies dissent but that is what I gathered he said.
Before the noble Earl demolishes me altogether, that is not what I am saying. Homosexuals cannot marry and they cannot rely on the Bible. It is a civil partnership registration, and that is what one is speaking about in the amendment.
I accept the correction, but the fact is that what is being said here is that a registrar who feels that he simply cannot marry two men who are homosexual because he does not believe in it due to his religion may wish to opt out and say, "I am sorry I cannot do it—let someone else do it". The fear is that person will be discriminated against and possibly downgraded or even threatened with the dissolution of his job because he is not going to do that. All he is saying is, "I do not want to do that, even though it may be part of my job. Someone else can do it".
I reiterate in response to the remarks made by the noble Lord, Lord Lester, that a civil partnership is not—I underline not—a marriage. We keep using the word "marriage" in relation to civil partnerships; and they are not marriages. It is a civil contract. Nor should we assume that civil partnerships necessarily have any kind of active sexual component. I know of several couples who are intending to register partnerships, when that is possible, where there is no sexual content whatever in their relationship. It is too easy to assume, first, that we are talking about same-sex marriage—which we are not—and, secondly, that we are talking about active sexual relationships—which we are not.
I want to draw a parallel, if it can be drawn, with those people who have undergone gender reassignment and present themselves for marriage in their new gender identity. As things stand at present, they have the right—and I rejoice that they do—to present themselves at their parish church for marriage, but there is a clause that suggests that the parish priest concerned can decline to officiate at that marriage if he or she finds it difficult to do so. The right to marry in the parish church remains, and the parish priest simply must find another person to officiate. I wonder whether that provides a possible comparison with subsection (b) in the amendment.
I thank the right reverend Prelate the Bishop of Newcastle for his comments, not least for the underlining of the fact that civil partnerships are not marriages. It is important for us to remember that there are those who do not recognise civil marriages between heterosexual couples because they, too, are not marriages in the eyes of God. There are those who do not recognise divorce, because they believe that marriage is a union of one man and one woman for life, which cannot be divided by an Act of state or by any other person. Those are firmly-held religious beliefs that many may have.
The right reverend Prelate is right to give the example of a parish priest who, for good conscience, may decline to officiate at a blessing, or some would say a marriage, of those who have previously been married and who come before the Church for further sanction. There are practical ways in which one can deal with some practical problems.
I have already declared, and I make the declaration again, that I am a practising and firmly committed Roman Catholic. Therefore, I understand absolutely the difference of views, which are shared by a number of committed members of other faiths. The noble Baroness mentioned those of the Muslim faith and of the Jewish faith, and many others who share those views. We are talking about civil recognition of civil partnerships and civil contracts, which the sovereign Parliament has endorsed, as the noble Lord, Lord Lester, said, as being lawful and valid and therefore something to be honoured.
In the end, a public authority has a duty, in our view, to provide a service without discrimination. While an authority may of course take what practical measures it can to respect the private views of its staff, we do not feel that it is right to forbid the authority—which is what we would be doing in the provision—to require those staff to perform their functions if it is necessary.
I shall address the issue of registrars. Civil partnerships, and marriages contracted by transsexual people once their change of gender has been legally recognised, will both be valid events carried out in accordance with the law. In such circumstances, registrars and other officials would have no legal grounds on which to refuse to provide the service, and it would be expected that the service is provided to the same high standards as other services. Many people in their public office must undertake functions that they may not always, in every single respect, agree with. That is part of being a public office-holder and a public employee. We see no reason why a registrar or any other official who did not agree in conscience—although one would respect that—should have the liberty to inquire into and refuse to exercise his function.
There are, of course, often practical solutions to some of those issues, as the right reverend Prelate made plain. It will often be the case that there would be sufficient registration officers or other officials available to avoid either an embarrassing situation for the transsexual person or a registration officer being placed in a position of personal difficulty.
In relation to adoption, Amendment No. 191A is similar to amendments debated and withdrawn both in Committee and on Report during the passage of the Adoption and Children Act in 2002 and the Local Government Act in 2003 respectively. At each stage, we explained why the amendment was inappropriate. I am afraid that we intend to continue to resist the amendment, and I will again set out the reasons why that is so.
Amendment No. 191A seeks to ensure that no person shall be under any duty to participate in adoption placements or processing adoption applications to which they have a conscientious objection. That refers to cases where children are to be placed for adoption with an unmarried couple or with one person who is in fact part of a couple living together as partners in an enduring family relationship. It also covers the processing of those adoption applications.
The Adoption and Children Act 2002 allows, for the first time, unmarried couples, regardless of their sexual orientation, to apply to adopt a child jointly. However, it has long been possible for a person in an unmarried relationship to apply to adopt as a single person. Noble Lords know that there were many cases, and one parent would have the parental rights and the other person who was the de facto parent would not. The Adoption and Children Act does not therefore raise any fundamental new issues, so there is no need to make any special provision in terms of "conscientious objections" as a result of the change to enable unmarried couples to adopt jointly. Arguably, the key benefit for children of the change in the 2002 Act is that it enables a child adopted by an unmarried couple to have the permanence and security of having two legal parents.
The amendment raises employment issues, which are matters more suitably addressed by existing protection in employment legislation and the Employment Equality (Religion or Belief) Regulations 2003. I know that the noble Baroness has mentioned those; she knows that they are there, and they are there to be rigorously enforced if the need arises. The regulations prohibit discrimination on the grounds of religion or belief in employment and vocational training. That answer, I hope, will give some modicum of comfort to the noble Earl, Lord Ferrers, who rightly asks what protection there is for those who have different beliefs. That is why we have the Employment Equality (Religion or Belief) Regulations 2003.
I absolutely understand the noble Baroness's concerns, and the concerns of all those who have strongly held religious beliefs. However, there has to be an understanding that those beliefs are not shared by everyone and, in a situation in which we have to have tolerance, understanding and enforcement of the law, this is the best way forward. With the greatest respect to the noble Baroness, for those reasons we are not able to change our position.
Is the noble Baroness saying that, although we must have tolerance, understanding and everything like that given the fact that other people have views different from ours, a registrar who holds certain beliefs, feels that they cannot carry out that part of their duty and says so will not be threatened with dismissal? As I understand it, they can be, for not doing their work. That is just as intolerable and non-understanding as the other way round.
There are the Employment Equality (Religion or Belief) Regulations, which should preserve the opportunity for those who work to adhere to those religious beliefs. When many public functions are performed, there are a number of people of different beliefs, orientation and structures who can fill the place.
Those who manage such situations sensibly if there is a conscientious genuine belief usually make alternative practical arrangements so that there is not embarrassment for the people who come forward for the service, and so that there is not the struggle of conscience for the person who legitimately wants to carry out a good job. Usually, both can be accommodated. In terms of delivery of a service in accordance with the law, public authorities must be able to make provision to enable the law of this land to be enforced.
I sincerely thank all Members of the Committee who contributed to the debate. I particularly thank the noble Baroness, Lady Turner, because she mentioned the fact that a conscience clause could not be available in civil contracts. However, abortion is not a civil contract—I thank the noble Earl, Lord Ferrers, for mentioning abortion—and people are allowed a conscience clause.
The noble Lord, Lord Lester of Herne Hill, brings up all the issues too. I ask him and the Minister about people who joined an occupation and have been there for many years, and then because of Acts of Parliament there are changes in their terms of employment. Is it valid for them not to have some tolerance given to them, so that they have an ability—a practical solution, to use the same words as the Minister—to make sure that other people are available?
The right reverend Prelate reiterated—we all know—that civil partnerships are not same-sex marriages. Equally, he must know that every time the Act is referred to, they are called same-sex marriages. The people who do not use that term write official documents and are in Parliament. That is just the way it is. No matter what the Act says, people do not think that it means that.
Of course I accept that Parliament has passed the three Acts that I mentioned. They are the law of the land and we all abide by them and accept them. But people for whom, when they were first employed there was no such thing as civil partnerships, adoption by same-sex couples or—I cannot even remember what the third example was. Ten, 15 or 20 years down the line, they now find themselves in positions where they are faced with those issues. Surely there must be some way of showing equality or tolerance to them, as the rest of us who have strong religious convictions show tolerance and a sense of justice to everyone else.
I want to answer the question put to me before the noble Baroness ends her important remarks. When the then Sex Discrimination Bill and Race Relations Bill were coming in, some in the Home Office and police did not approve at all of the legislation that we were enacting. However, it would have been intolerable if those public offices had said, "We want to remain an office but not comply with the duty not to discriminate". It would also be intolerable for those concerned with registrars to have to poll them for their views and conscientious beliefs to see whether they would carry out their public functions in accordance with the law of the land.
It would not be intolerable, however, to do as the right reverend Prelate indicated and have, so far as possible, a flexible system that would do its best to ensure that one could accommodate different views. That is a matter of flexibility, not obligation. The obligation is to obey the law of the land.
I thank the noble Lord. Of course I understand the obligation to obey the law of the land, but there should be some flexibility in terms of a practical solution for people employed beforehand. It is not exactly the same as thousands and thousands of police people. It would involve many fewer people. I would have thought that there could be some flexibility.
I am disappointed but not surprised that the Government are not willing to accept my amendment. I do not intend to divide the Committee. Other issues were raised by each Member of the Committee who spoke, for which I am grateful. I shall take away my amendment, give it due consideration and consider whether I ought to return to the issue on Report. In the mean time, I beg leave to withdraw the amendment.
"'public authority' includes any person who has functions of a public nature", but that excludes the authorities specified under subsection (3). It is an interesting list that mentions,
"the House of Commons . . . the House of Lords . . . the authorities of either House of Parliament . . . the Security Service . . . the Secret Intelligence Service . . . the Government Communications Headquarters, or . . . a part of the armed forces of the Crown which is, in accordance with a requirement of the Secretary of State, assisting the Government Communication Headquarters".
We understand the reason for and do not intend to question the exclusion or prohibition in relation to those authorities.
However, the clause goes further and exempts certain functions under subsection (4). The amendment is in relation to subsection (4)(f). We have difficulty with that paragraph because, under the clause, it is unlawful for public authorities to commit any act that constitutes discrimination or harassment. "Public authority" is defined in similar terms to the definition in the Human Rights Act 1998, but is subject to a number of exceptions, with the result that the protection afforded by Part 2 falls short of protection under the Human Rights Act. This is not the first time that those of us in this part of the House have drawn attention to that aspect of law. My noble friends and I took up our serious reservations about the matter during the passage of the then Race Relations (Amendment) Bill.
The JCHR is particularly concerned about Clause 54(4)(f), which states that any decision of a public authority to refuse entry clearance or leave to remain, or anything done in pursuance of such a decision, is exempt from duties of non-discrimination and harassment under the Bill. Given the obligations under the Human Rights Act of public authorities that perform immigration functions, including obligations not to discriminate on grounds of religion and obligations to respect rights to private life and physical integrity, the committee is concerned that the Bill applies lesser standards to such public authorities on these matters. I simply cannot understand why the Government can justify this exclusion.
The Immigration Act is being implemented by immigration officers and I see no problem with that. But I see problems if the Immigration Act is being implemented in a way that is discriminatory against certain sections of the community. The analogy with stop and search is important here. If, for example, people are stopped and searched on the basis of intelligence reports, I have no difficulty with that. But if they are simply being stopped on the ground of their race, colour, national or ethnic origins, one should be seriously concerned. I cannot understand why the Government need to include those functions.
While the Race Relations Act 1976, as amended, also contains an exception from non-discrimination for certain immigration functions, we favour removing Clause 54(4)(f) altogether. That would be the effect of the amendment. I beg to move.
I wish to add a few words to those of my noble friend, because the amendment raises a serious matter, which cannot be dealt with simply in a few moments. The Race Relations Act 1976, which we amended in 2000, allows racial discrimination in relation to immigration control. Section 19D creates a blanket exception, but with, at least, a pathetic safeguard that Ministers of the Crown, acting personally, must provide relevant authorisation for a particular class of case, stating that they authorise the immigration authorities to discriminate.
For example, there was an authorisation of a most unsightly and, I believe, unlawful and unconstitutional kind that authorised express and direct race discrimination against Roma, Pontic Greeks and one or two other categories of minorities. That relevant authorisation was personally signed by the Minister, who had to take personal responsibility in Parliament for having authorised that invidious form of discrimination against a vulnerable group in relation to immigration control.
I declare an interest, because I argued the Prague airport case before the House of Lords and elsewhere, where it appeared that that authorisation was being relied upon to discriminate racially against Gypsies who were seeking to fly from Prague airport to London to claim asylum. The Law Lords unanimously decided that there was, indeed, unlawful race discrimination in that practice. That was in relation to race discrimination and although it was offensive and odious, ministerial responsibility has, at least, been written into a particular category of case.
This provision does not deal with race discrimination but with religious discrimination and, moreover, with religious harassment. Whereas in the next group of amendments the Government are rightly removing the blanket exception for religious harassment for other provisions, they are not doing that in relation to immigration control. So this House is being asked to approve a blanket exception that allows the immigration authorities to discriminate or to harass on religious grounds persons seeking to enter or remain in this country.
I can perfectly understand that when an extremist cleric of any faith seeks to enter this country and is a bad man, because he preaches violence, extremism or hatred or stirs up anything of that kind, the immigration authorities must have the power—and they do—to refuse entry to or to deport that person or to refuse leave to remain. But that is not on grounds of religion or belief but of the conduct of that person. There must be a power to do that, and there is. Here, a blanket exception allows any religious discrimination and harassment in respect of any of the functions.
If noble Lords look at how that is defined in Clause 54, the language is astonishing, because it goes further even than the allowance of racial discrimination by allowing anything to be done under the exception in relation to religious discrimination or religious harassment, as regards the immigration functions of entry control or leave to remain.
That is deeply obnoxious, completely unnecessary and there are no safeguards against abuse. There are even no safeguards in relation to the Human Rights Act in large measure, because the European Convention on Human Rights does not itself guarantee anything to do with immigration controls in relation to leave to enter or remain under normal circumstances. We on these Benches would require cogent justification for this provision and would not be satisfied with general assurances. Of course, the Joint Committee on Human Rights unanimously expressed its own concerns, as my noble friend said, but this provision is not necessary and should, therefore, be firmly removed from the Bill.
I should say straight away that I am grateful to the noble Lords, Lord Dholakia and Lord Lester, for bringing forward the amendment, which enables us to discuss the concerns raised by the Joint Committee on Human Rights. I understand their concerns. We are willing to consider the principles behind the amendment, even if we cannot accept that the wholesale removal of Clause 54(4)(f) is the right way forward. It is a matter for discussion.
In preparing the exception for immigration decisions, we did not intend that immigration officials would be able to harass anyone on the grounds of religion or belief. We had in mind two particular instances where we wished to protect the ability of the immigration service to take decisions on our behalf. The first of these was the exercise of the discretion to exclude an individual from this country on the grounds that his presence would be prejudicial to good order—something to which the noble Lord, Lord Lester, has referred. I am sure that noble Lords can think for themselves of individuals who they would wish to see so excluded. We would not wish to see that discretion hampered by the fear of an allegation of discrimination on grounds of belief.
The second area with which we were concerned was the need to recognise some individuals as ministers of religion for entry purposes, while refusing to recognise others who might represent different organisations from access to this immigration category. We wish to retain the ability to withhold privileged access to the UK in that way. At the same time, it is important to allow genuine religious groups access to ministers and other workers of their faith, for the support and encouragement of their belief.
So, we accept that the current wording of Clause 54(4)(f) is wide and are considering, in the light of the JCHR report, whether we can improve it. I am not able to accept Amendment No. 192 as it stands this evening, but we will continue to give thought to the matter, and I hope that in the mean time the noble Lord will be persuaded to withdraw his amendment. We will try to come back with something that meets our joint purpose. Having heard the noble Lords, Lord Dholakia and Lord Lester, I think we have the same intent and purpose. It may be that Clause 54(4)(f) does not quite deliver what we jointly seek.
moved Amendment No. 193:
Page 32, line 18, at end insert "(but this exception does not have effect in relation to harassment)"
In speaking to Amendment No. 193, I shall speak also to Amendments Nos. 193, 194, 195 and 196. These are further amendments to do with the extent to which exemption from the harassment provisions of this Bill may be necessary.
We have already considered the question of a general exemption for matters to do with the curriculum and religious worship in schools, and have taken an amendment to remove too wide an exemption from harassment for education authorities. These amendments bring provision for other public authorities into line with these other areas.
Thus, while we propose that the full exemption in relation to matters to do with the curriculum and religious worship should continue to apply to action taken by public authorities for the reasons I set out earlier in this debate, when I explained them in relation to schools, we see no reason why in any other situation they should need to be allowed effectively to harass anyone. Their position in this respect is no different from that of education authorities. We want to make it clear that exemptions allowing harassment within the terms of the Bill are limited to those areas and cases where they are absolutely necessary. These amendments accordingly make it explicit on the face of the Bill that harassment is not protected in relation to the other exemptions in Clause 54(4)(h). I beg to move.
Concerns have been expressed to me about whether these provisions might be used as a weapon by disgruntled parents whose children fail to get to into a religious school because questions about their religious beliefs or practice amount to some sort of harassment. I understand from the people who have brought this matter to my attention that officials at the DfES have not consulted the Church of England or the Roman Catholic Church about these amendments. If that is so, it seems somewhat remarkable that such an important matter has not been discussed with them.
If that is the case—I am assuming that the Government do not wish to withdraw these amendments at this time—can the Minister give us an assurance that consultations will take place with the religious bodies that run schools so that further consideration can be given to this matter before the next stage. I shall be grateful to hear what the Minister has to say on this matter.
We do not believe that these issues will cause difficulty. We have acknowledged that there has not been the opportunity to have extended consultation prior to the passage of this legislation. That is why Clause 52(3) contains certain regulation-making powers in relation to the education provisions that enable the Government to amend or repeal an exception or, if necessary, provide an additional exception. They also enable us to set out in more detail the way in which the definition of indirect discrimination will affect practice in schools.
Before using these powers, the Secretary of State will consult education stakeholders in detail. That will include Church of England, Roman Catholic and other denominational schools. Any regulation that we make will need an affirmative resolution of both Houses, so your Lordships' House and the other place will have an opportunity to debate it and to consider whether it is right and proper.
Our intention is to review the working of the legislation in practice and to consult widely with schools and other stakeholders. These regulation-making powers will enable us to make any necessary changes to the scope and nature of the exceptions and to clarify the working of the legislation in so far as indirect discrimination is concerned, subject to parliamentary agreement. I understand that there may have been perceptions of insufficient consultation, but this is the vehicle that we have to make sure that we get these issues right.
Just to make sure that I understood the Minister correctly, I think that, when she first responded, she said that it was true that there had not been extensive consultation. From the brief that I received yesterday, I understand that up until yesterday morning there had been no consultation. I want to ensure that there will be some consultation with and explanation to the religious authorities. I think the Minister spoke about consultation with the schools. I presume that she was talking about religious schools and that that would be considered consultation with religious authorities.
I said that there has not been an opportunity for extended consultation. I do not know whether the noble Baroness is right that there has been no consultation at all. I do not believe that that is the position, but it may be. I was trying to indicate that we understand that there will have to be further consideration of these matters and that we will consult. The noble Baroness is absolutely right: many faith communities have schools that provide these services and we will want to consult with all those in the sector who may be affected, whether adversely or positively, by these provisions.
moved Amendments Nos. 194 to 196:
Page 32, line 21, at end insert "(but this exception does not have effect in relation to harassment)"
Page 32, line 22, after "institution" insert "(but this exception does not have effect in relation to harassment),"
Page 32, line 24, at end insert "(but this exception does not have effect in relation to harassment)"
On Question, amendments agreed to.
moved Amendment No. 197:
Page 32, line 31, leave out "or" and insert "other than section 48, or by virtue of a provision"
Amendment No. 197 is a minor technical amendment that resolves an infelicity in the drafting of the Bill. It is the intention of the Government that goods, facilities and services provided by public authorities should be subject to the provisions of Clause 54 of the Bill, reflecting the standards that we believe are rightly expected of public authorities. In order to achieve this, Clause 48(4)(a) includes an express exception from that clause for goods, facilities and services provided by a person exercising a public function. The difficulty arises from the exception contained in Clause 54(4)(j)(ii), which excepts from Clause 54 any action which would be unlawful by virtue of another provision of Part 2 or of the Employment Equality (Religion or Belief) Regulations 2003, but for an express exception. Clause 48(4)(a) is such an exception. Our amendment makes it clear that Clause 48 is not covered by the exception at Clause 54. It ensures that the provision of goods, facilities and services by public authorities is covered under Clause 54. The amendment corrects a technical error in the Bill. I suggest that the amendment should be accepted and I beg to move.
moved Amendment No. 198:
Page 33, line 28, leave out paragraph (a).
In moving Amendment No. 198, I shall speak also to Amendments Nos. 199 and 200 in the name of my noble and learned friend Lord Falconer. I hope I can deal with the matter shortly; I have a long and a short note and I shall take the short one.
The amendments would bring the provisions in respect of discriminatory practices in Clause 55 into line with other equality legislation by ensuring that it relates only to practices which may lead to indirect discrimination and not direct discrimination or harassment. It will be unlawful under Clause 55 only for a person to operate a practice, which is likely to lead to unlawful discrimination, if applied to persons of any religion or belief.
The CEHR would not, therefore, have the power to bring a case in a situation where a restaurant said that it would not serve Muslims unless it received a complaint, which would be direct discrimination, although it seems unlikely that the CEHR would be aware of such a case in the absence of a complaint.
These issues are relatively straightforward and I beg to move.
moved Amendments Nos. 199 and 200:
Page 33, line 34, leave out "or harassment".
Page 33, line 35, leave out "or harassment"
On Question, amendments agreed to.
Clause 55, as amended, agreed to.
Clauses 56 to 58 agreed to.
Clause 59 [Organisations relating to religion or belief]:
Clause 59 is a welcome exemption for religious groups from Part 2 of the Bill. However, subsection (2) excludes a religious group if it has a commercial emphasis. My Amendment No. 200A would widen Clause 59. It would ensure that religious organisations with mixed commercial and religious purposes are protected. Only those that are "solely" commercial would be excluded.
I have tabled the amendment because I am concerned that subsection (2) might be too restrictive. The Government have taken great care to draft Clause 59 and the other religious exemptions in Clauses 60 to 64. However, I still see a problem. Clause 59 allows religious groups to focus their ministry on fellow believers and to restrict membership on the basis of religion.
That is the way religious groups have operated, quite properly, for centuries. These are common-sense protections. Without them the work of thousands of Christian and other religious groups around the country would immediately become unlawful.
There is no evidence that religious selection by Christian groups is any kind of social evil. There is ample evidence that these groups have an overwhelmingly positive impact on our culture, including through their many welfare projects. This is why I believe it is right to protect them. Indeed, it would be most regrettable if a religious group were held in breach of Part 2 over some perfectly reasonable practice aimed at protecting the doctrines of furthering its ministry.
I understand the reason behind subsection (2). We do not want commercial organisations getting round the law by pretending to be religious. But what about truly religious organisations that operate in a way which appears to be mainly commercial? For example, there is a company which supplies, on a commercial basis, the organising of Christian ceremonies for weddings, funerals and baby-namings, as they are now called. Would that be regarded as solely or mainly commercial?
There are Christian book distributors, which are very large organisations. They exist primarily for religious reasons, but are they safe under Clause 59? There is an organisation called Autosave, which supplies cheap cars to ministers and missionaries, and one called MasterSun, which organises Christian holidays. They can doubtless prove, under subsection (1)(d), that they exist to,
"enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief".
But, if a court decides that their main purpose is "commercial" their work would be deemed unlawful.
The amendment is intended to probe how the Government believe that the exclusion for commercial organisations will operate and why they have decided to introduce it.
Specifically, I would like the Minister to give judgment on the theoretical scenario from the Christian Institute's briefing. It talks about a Muslim taxi firm that is set up specifically to supply cheap taxis to local mosques on the day of worship to help elderly and infirm Muslims to get to the mosque for daily prayers. The firm also supplies taxis on an ordinary commercial basis to other customers. This side of the business expands, but the original side of the firm business remains unaffected. Would the court take the view that the main business of that taxi firm is commercial? If so, an ordinary customer could successfully allege religious discrimination because the elderly Muslims would get cheaper rates than a normal non-Muslim passenger.
It seems that that would be a harsh and undesirable consequence of the Bill, and I wonder what the Minister thinks about that scenario.
Before I sit down I should make it clear that the Christian businesses that I encounter are very keen to supply services to anyone who wants them. Their very purpose is to give a positive portrayal of the Christian faith to people who are not themselves Christian. But they are not proselytising. I do not say that all such businesses are restrictive about who benefits from their work or that they are restrictive all the time. But if, for sincere religious reasons, some religious businesses do give different treatment to fellow believers, I ask what is wrong with that? I beg to move.
Amendment No. 200A raises again the difficult balancing act between protecting individuals from discrimination and continuing to allow the legitimate activities of faith groups to continue, as the noble Baroness made clear in her remarks. Clause 59 provides exceptions for religion or belief organisations to enable them to limit their membership, participation in activities, the provision of goods, facilities and services and the use of their premises. That is the whole purpose.
The exemptions do not apply to organisations whose sole or main purpose is commercial. Indeed, it is difficult to see how some of these exemptions, for example on restricting membership, might be relevant to commercial organisations because of course they will want to sell as many things to as many people as possible.
The amendment would, however, allow organisations whose main, but not sole, purpose is commercial to benefit from the exemption. The effect of that would be that some commercial organisations, which have a religious or belief element, could claim the benefit of the exception and could therefore lawfully discriminate in the way set out in Clause 59, for example by limiting access to their activities.
Although we are sympathetic to the idea that religious groups, in particular, need to be able to express their faith through a range of activities, we believe that this amendment could alter the balance of our provisions too far and that it could be open to abuse by commercial organisations who might seek to discriminate against certain religions. Our current provisions would not prevent Christian groups, for example, from restricting access requiring payment, such as concerts or church lunches, if they decided to do that. Nor would we wish to interfere with activities in that way. But where an organisation is offering a commercial service open to the general public, that should be done without discrimination, whether that service is offered by a religious or secular service. Under our current proposals, if the main purpose of the organisation is to support a particular religious community and the commercial purpose is ancillary to that, it will be covered by our exception.
Furthermore, where a commercial organisation occasionally undertakes charitable work—for example, where a Christian firm of solicitors provides pro bono work to the local church—we do not believe that its activities would fall within Part 2, because it would not be its main purpose. However, we do not accept that a commercial organisation that, as a by-product, supports a particular community, should benefit from the exemption in Clause 59.
Were we to accept the amendment, any organisation that had a belief or religion element could claim the benefit of the exception for a service that was overwhelmingly commercial. There will be a number of areas where the court ends up having to determine whether that is the main or subsidiary purpose. In the generality of cases, it is relatively easy to say which is the main purpose and which is the subsidiary purpose. We do not claim all wisdom in this area, but we do not believe that the amendment would improve the balance of the Bill. That is why I must resist it.
I hope that the explanation that I have given has enabled the noble Baroness better to understand why we have struck the balance that we have and think that it is about right.
I am very grateful to the noble Baroness. It has been useful to probe the matter to see what Clause 59 might mean in practice. I was also keen to represent the interests of the many Christian businesses who have a rightful place in our society and should not be made scapegoats. I will carefully read the Minister's reply, but, for the moment, I beg leave to withdraw the amendment.
I shall speak also to the other amendments standing in my name in this group. Clause 59(1) defines the purposes of organisations that will be accepted as relating to religion or belief. Clause 59(3) states:
"Nothing in this Part shall make it unlawful . . . to restrict membership of the organisation . . . participation in activities undertaken by the organisation or on its behalf", or,
"to restrict the provision of goods, facilities or services", or,
"to restrict the use or disposal of premises owned or controlled by the organisation".
It is customary for organisations whose main purpose is religious to conduct activity that is not solely related to religion and that may have a wider import. As an example, there are many places where the parish church hall is, in effect, a community hall—a facility available to the whole neighbourhood. As such, it may well receive some public funding. The aim of the amendment and others in the group is to specify that restrictions should apply only in relation to religious purposes and beliefs, as set out in subsection (1). In that case, it is surely quite reasonable to restrict participation in activities who are members or supporters of its religious religion or belief.
However, where a public function for the whole community is being performed, it does not seem reasonable that that restriction should apply. Whatever public facility is available should be available without restriction. Subsection (5) again refers to restrictions, and I do not understand why the word "expedient" has been included. "Necessary" should be quite sufficient. The inclusion of the word "expedient" could give religious organisations wide discretion. They could discriminate because they believed it expedient not to cause offence.
Turning to Amendment No. 204, if a religious organisation is performing a public function, it seems reasonable that the provisions applying to other organisations performing public functions—in other words, the provisions in Clause 54(1)—should also apply in respect of the performance of that function. That subsection makes it,
"unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment".
I turn to the amendments to Clause 60, which deals with charities relating to religion or belief. Again, similar arguments apply. If public duties are carried out, the charity should be bound by Clause 54(1), which intends that no public authority exercising a public function should do any act that constitutes discrimination or harassment.
There are good reasons for the amendments—I have of course spoken to the other amendments in this group—so I beg to move.
My name is added to the amendment and I will speak also to Amendments Nos. 203, 205 and 207 in my name in this group. I shall not repeat anything that the noble Baroness, Lady Turner, has said so clearly. I just want to focus on one point, which is the wretched word, "expedient". This is an addition to the Bill. In the original Bill before the general election and as presented to the other place, the words "or expedient" were not present. In the Bill as re-presented in this House after the election the words, "or expedient" were added. I imagine that that must be because belief organisations lobbied very hard and persuaded the powers that be to include them.
The good thing about the word, "necessary", which has been added by the Government in earlier amendments dealing with education is, as I said at the time, that the concept of necessity imports proportionality. That is a well known concept to our law and means that the means must be proportionate to the aim. The aim must be legitimate, but the means must be reasonably proportionate and necessary to achieve that legitimate aim. The courts interpret that very flexibly. Going by existing case law here and in Strasbourg, courts defer to the specialist expertise or other qualities of the decision-taker—in this case, the faith organisation—and do not seek to substitute their discretion, except where the decision-taker exceeds the discretion allowed by the concept of necessity/proportionality.
So that is an entirely flexible standard in which context is everything. The courts have said so in all the great cases since the Human Rights Act came into force. What about adding the words, "or expedient"? What does that mean? It is what lawyers would call standard-less. There is no standard. "Or expedient" simply means, "It pleases me. I like it. I want to do it." It is beyond the scope of any court to review that. If Parliament says, "Anything goes", and the courts give effect to the will of Parliament, anything will go. That is what "or expedient" means. I defy the Minister to come up with any definition of "or expedient" that gives a standard that the courts could interpret.
In the bad old days, under the old Official Secrets Act, there were exceptions that used the language of "expediency" in the serious areas of national security and official secrecy. But in 1989 the government of the day—they were of a Conservative hue—amended the official secrets legislation and tightened up the test, even in the area of national security and official secrecy, to make it a test of necessity.
It is unacceptable that the words "or expedient" should be left in the Bill as a standardless justification, a cop-out, allowing faith organisations to discriminate at large, when the Government's original intention, before the previous general election, was quite rightly that the test should be that of necessity. For those reasons, I hope that the Government will substitute for the words "or expedient" either nothing at all or something fairly strict that the courts can interpret and apply.
I thank the noble Baroness, Lady Turner, and the noble Lord, Lord Lester, for their comments. I shall try at least to make a case for retaining "expedient". Whether I succeed remains to be seen.
I must confess that I do not like the amendments because they seem excessively regulatory; in other words, they seek to over-regulate. They do not seem to recognise that often it will be unclear whether a religious organisation can say that a restriction is necessary having regard to the purposes of the organisation.
The purposes of local religious groups are often defined in somewhat unspecific terms, and even when they are defined with precision, they may then be defined in general and open terms. For example, the primary function of a parochial church council, which is the legal entity of the Church of England at parish level, is,
"to co-operate with the minister in promoting in the parish" the word "parish" is underlined—
"the whole mission of the church, pastoral, evangelistic, social and ecumenical".
In view of that, it would often be difficult to say in practice that a restriction was necessary in the light of the body's purposes, even though it would be widely recognised to be appropriate and consistent with those purposes.
Secondly, in so far as the purposes of the organisation were clear, it is hard to see how a view could be taken on whether a restriction was necessary without some examination of the tenets of the religion or belief in question as regards the extent to which members of other religions or beliefs should be able to participate in the services in question. I doubt whether, even if they were equipped to do so, courts or tribunals would welcome being called upon to undertake that kind of task.
I am told—although many noble Lords will know far better than I—that courts have a well settled practice of declining jurisdiction in matters that turn on interpretations of religious belief, on the grounds that they are non-justiciable. So it seems that the choice of the word "expedient", even allowing for the comments of the noble Lord, Lord Lester, that it does not mean very much at all, allows for flexibility in interpretation and is therefore to be welcomed.
In a game of chess, if not here, a rook and a bishop are of equal value as pieces on the board, and that is why I have the temerity to ask the right reverend Prelate a couple of questions about what he has just said.
First, he said that the amendment was excessively regulatory, but does he appreciate that what our amendments mean is "a sense of proportion"; that is to say, do not take a sledgehammer to crack a nut? Does he regard a sense of proportion as inconsistent either with the Christian tradition, common sense or fairness, given that this is an exemption from the individual's right to equal treatment without discrimination?
Secondly, the way in which the right reverend Prelate has put his point is very interesting. I think that he agrees with me that the words "or expedient" mean that the courts could not review the fundamental right to equal treatment in this context because the words are standardless. So is the right reverend Prelate saying that there should be a blanket immunity here because judges should be deferring and not reviewing, and therefore the words "or expedient" should be inserted for that purpose? If so, he and I are in fundamental disagreement.
I support these amendments because, perhaps more than ever now, we need to preserve the tolerant and anti-discriminatory nature of our society with regard to religion, as to other matters. Exceptions to that principle should be as narrow as possible, so I agree that they should be narrowed as the amendments provide.
The amendments in this group attempt to restrict in various ways—I understand why—the exceptions that we have made available in Clauses 59, 60 and 61 for faith and belief groups, charities and faith schools. It is an important and sensitive area, and we recognise the need for balance and the difficulty of getting that balance right.
Amendments Nos. 2001—I meant 201, but it feels like the 2001st—and 202 would tighten the restrictions on an organisation relating to religion or belief. Such a change would be unnecessary and would have a potentially damaging effect on the confidence with which religious and belief organisations perform their many valuable functions. It is unnecessary because it is already clear under Clause 59(5) that any such restriction must be necessary or expedient with regard to the purpose of the organisation or to avoid causing offence to members of the religion or faith group. It risks having a harmful effect because, if agreed to, the amendment would cause religious and belief groups to have to ask themselves two questions: not just whether restricting access to the activity concerned was necessary or expedient for its function, but also whether the activity concerned was carried out in direct pursuit of its purpose.
We seek to avoid such a "chilling" effect as it might have. It is right that the right reverend Prelate the Bishop of Newcastle should mention the breadth of activities participated in by religious groups. As noble Lords know, sometimes the groups are very small, comprising no more than a handful of people and quite often they do not have a formal constitution. It seems to have caused huge concern and difficulty.
The list of purposes that we provided in Clause 59(1) is broad but this amendment might cover, for example, purely social activities of such a group. Why should we require that such arrangements be open to all comers? While I recognise the importance of getting the balance right, I am unable to accept the two amendments.
Amendments Nos. 203, 205 and 207 seek to ensure that the exceptions in Clauses 59 to 61 will apply only where the groups concerned can show the necessity of a restriction having regard to the purpose of the organisation or to avoid causing offence to members of the religion or belief group. They would do so by removing the words "or expedient" from the clauses.
It is a particularly difficult area, and we are prepared to consider change. At the same time, however, we feel that the test of necessity is too stiff a test to rely on alone. Again, we have discussed the matter with many stakeholders, and we feel that the test of necessity alone would risk causing great difficulty to religious and belief groups who currently offer valuable services.
I can see from the expression on the face of the noble Lord, Lord Lester of Herne Hill, that he will immediately think, "What about proportionality? Proportionality is the curer of all ills, and surely it would mean that some of the issues could be dealt with de minimis". It will not deal with the chilling effect.
Am I right in thinking that the noble Baroness does not agree with the right reverend Prelate, who said that the words "or expedient" were desirable or necessary to immunise the organisation against judicial scrutiny? Does she agree that there must be a legal test that can be applied in practice, given that one is dealing with a fundamental right and an exception to that right?
I agree that there has to be a legal test. The Government would argue that expediency is a test that could be applied. I see the noble Lord shaking his head, but that is why it was settled on as something that was compliant. As a result of the conversations that we have had in this debate and elsewhere, I also understand that there is anxiety that expediency is too low. So, we have an interesting challenge: "expedient" is too low, but "necessity" is absolutely too high. The challenge for us is to find something that is not "necessary" but is more than "expedient". We will try to rise to that challenge, but it may be that we will find it expedient to come back to where we are.
Could the noble Baroness consider whether the words "reasonable necessity" might meet her needs?
Some would say that that would be tautologous. If it is necessary, it is necessary; if it is reasonable, some would say that it was otiose. You would say that reasonableness was inherent because it was necessary.
There is a lovely semantic argument to be had on that—but not tonight. I notice that everyone is looking at the clock. However, we will put our mind to the issue to see whether we can find some more felicitous word than "expedient". We will see.
I thank my noble friend for that explanation of the Government's position. The intention of the amendment was to ensure that, when a public function was performed, restrictions should not apply. I note that my noble friend feels that the amendment would be too restrictive. I am not certain that I agree with that. Never mind, I do not intend to pursue that this evening.
My noble friend acknowledged that the question of the word "expedient" was a difficult area and said that she was willing to think about what was said. One cannot really expect anything more than that. I am grateful to the Minister for what she has said this evening. In the mean time, I beg leave to withdraw the amendment.